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September 11, 2010

Would and should the feds sue California if it legalizes marijuana through Prop 19?

As detailed in this CBS News piece, which is headlined "Ex-DEA Administrators Call on Obama to Sue if CA Voters Legalize Pot," the prospect of California's voters legalizing marijuana this fall already has fans of big government talking about a federal lawsuit. Here are the details:

As California voters gear up for a November 2 vote on Proposition 19, a ballot measure that would legalize the growth, possession and distribution of marijuana, nine former administrators of the Drug Enforcement Administration have issued a preemptive call to the White House: If Prop 19 passes, they say, President Obama should sue.

The Associated Press reports that in an August 24 letter to Attorney General Eric Holder, the former DEA officials wrote that the potential legalization of marijuana would challenge federal authority and merit a lawsuit against the state --- much like the one Mr. Obama has filed in protest of Arizona's controversial immigration law, which the administration say contradicts national policy. "We would expect the Department of Justice to act just as swiftly and for the same reason," the DEA administrators said of the potential passage of Proposition 19.

The upcoming vote has incited heated national debate on the issue of cannabis legalization, and Californians once again find themselves in a position to set national precedent with a controversial ballot measure. If passed, Californians 21 and older would be the first Americans with the legal right to use marijuana recreationally....

[W]hether or not the Obama administration would be willing to intervene in the matter is unclear.  The Justice Department has not issued a statement in response to the letter, and unlike with the case of immigration, the president has not made the legalization of marijuana a central focus of his political agenda.

Some related posts on pot policy and politics:

September 11, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (14) | TrackBack

Should we embrace and even enhance the prospect of "Jury 2.0"?

The question in the title of this post is inspired by a new article, which is titled simply "Jury 2.0" and available here, authored by Professor Caren Myers Morrison.  Here is the abstract:

When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or Googling the defendant’s name during trial.  But in the past few years, such cases have increasingly been making headlines.  The impact of the Internet on the functioning of the jury has generated a lot of press, but has not yet attracted scholarly attention.  This article seeks to focus legal discourse on this under-examined phenomenon.

While the media have characterized this issue as little more than a new variety of juror misconduct, that description may be unnecessarily reductive.  This article argues that juror attempts to gain information about the defendant and about the law may not reflect misconduct so much as a misplaced sense of responsibility to render the “right” decision. These efforts might also be a signal from jurors that they are chafing under the restrictions of their role.

The modern conception of the jury as passive and uninformed replaced a more active body envisaged at common law and by the Framers.  To earlier legal thinkers, impartiality meant a lack of familial or financial interest in the outcome of the case, not ignorance of the facts. This article argues that we need to rethink the jury’s role for the 21st century and restore some of the jury’s active engagement in the process of fact-finding.  The jury that may ultimately emerge – Jury 2.0 – may share some characteristics with its more active forbears.

On a somewhat related front, I found of great interest this new article from the New Jersey Law Journal, which is headlined "N.J. Court OKs Googling Jurors During Voir Dire."  Here is how it begins:

Now that New Jersey courtrooms have Wi-Fi capability, trial lawyers with wireless laptops have a distinct edge: the ability to Google prospective jurors at the counsel table.  And an appeals court has given its blessing to the practice, reversing a trial judge who told a lawyer to disconnect lest he gain an unfair advantage.

"That [plaintiff's counsel] had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining 'a level playing field,'" the court said on Aug. 30 in Carino v. Muenzen, M.D., A-5491-08.  "The playing field was, in fact, already 'level' because Internet access was open to both counsel, even if only one of them chose to utilize it."

September 11, 2010 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

September 10, 2010

Washington becomes second state to find success with one-drug lethal injection protocol

As detailed in this AP article, the state of Washington carried out an execution early this morning.  As the article details, this was the state's first execution in nearly a decade and it was completed using the same one-drug lethal injection protocol that has been used in Ohio over the last year.  In addition, the executed defendant had some notable final comments:

Convicted killer Cal Coburn Brown was executed early Friday by lethal injection for the rape, torture and murder of a Seattle-area woman, after delivering a statement complaining he was treated unfairly by the legal system.

Brown, 52, died at 12:56 a.m. PDT, after a four-member team injected a lethal one-drug cocktail in the execution chamber of the Washington State Penitentiary. The father, brother and two sisters of his victim, Holly Washa, 21, witnessed the execution, as did King County prosecutor Dan Satterberg.

Brown protested sentencing disparities, saying that criminals who had killed many more people, such as Green River killer Gary Ridgway, were serving life sentences while he received a death sentence. "I only killed one victim," he said. "I cannot really see that there is true justice. Hopefully, sometime in the future that gets straightened out."

Brown did not apologize to the family of the victim, but said he understood their emnity for him. He said he forgave that hatred, held no emnity toward them and hoped the execution would give them closure. He also said the prison staff had been most professional and that he had no complaints about his treatment there in 17 years.

After his comments, Brown, who was lying on his back strapped to a gurney, looked up at the tubes sticking out of the wall and connected to his body. When the drug was administered, his chest heaved three times and his lips shuddered, then there was no movement....It was Washington's first execution since 2001, and Brown had been on death row for 16 years.

September 10, 2010 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (21) | TrackBack

"Budget Woes Hit Defense Lawyers for the Indigent"

The title of this post is the headline of this article in today's New York Times.  Here are a few excerpts:

Some public defenders in Missouri say the stressed state budget is interfering with their ability to provide poor defendants with their constitutional right to a lawyer. They say they are so overworked and underfinanced that they have begun trying to reject new cases assigned to them late in the month, when, they say, their workloads are already beyond capacity.

Concerns about a deteriorating, overwhelmed public defender system in this country have been around for decades, but they have ballooned recently as state budgets shrink and more defendants qualify for free legal counsel.

“This has been a problem in good economic times, and now it’s only worse,” said Jo-Ann Wallace, president and chief executive of the National Legal Aid and Defender Association. “What you have is a situation where the eligible pool of clients is increasing, crime rates are potentially increasing, while the resources often for public defenders are going down.”

Missouri’s per capita spending on public defense ranks 49th in the nation (only Mississippi spends less), Ms. Wallace’s group says.  State officials say the defenders system, with its 570 employees, is expected to receive more than $34 million this year. 

The state public defender’s office says a true solution would require 125 more lawyers, 90 more secretaries, 109 more investigators, 130 more legal assistants and more space — all of which would cost about $21 million a year — a seemingly impossible suggestion, given the fiscal climate.

In the meantime, they say, fiscal constraints are colliding with the requirement set forth in a 1963 Supreme Court decision, Gideon v. Wainwright, that poor people accused of serious crimes be provided with lawyers paid for by the government....

To some, the signs of stress on the public defender system here have become overwhelming, even frightening: almost all the public defenders’ 35 trial division offices lately carried caseloads that would require more than the total number of staff hours available in a month — in some cases, more than two times the hours available, said Cat Kelly, deputy director for the Missouri State Public Defender System. “Missouri’s public defender system has reached a point where what it provides is often nothing more than the illusion of a lawyer,” an outside report asked for by the Missouri Bar concluded last year.

Yet some county prosecutors here are deeply skeptical of the defenders’ complaints. With the state facing $550 million less in general fund revenues than a year ago, they say, defenders are no more burdened than the next department.

“They say this every year,” said Ron Cleek, the prosecuting attorney in Christian County, which includes Ozark, adding that he wondered whether some at the defenders offices might “want to think about what time they come in and when they go home.” “We all work hard,” Mr. Cleek said. “They just need to suck it up and get out there and get it done.”...

Around the country, the indigent are defended by a hodgepodge of systems and financing sources. In some places, private lawyers are appointed by judges; elsewhere, statewide public defender networks (like Missouri’s) have been created. Other jurisdictions use some combination of methods.

The public defenders in Missouri and elsewhere all ultimately pose a larger question: How far can defenders be stretched before they no longer provide poor people with the legal help ensured by Gideon?

Especially with so many recent legal graduates looking for work these days, I have long thought that the federal government might usefully step in to situations like this one in Missouri in order to provide a kind of "Peace Corps for New Lawyers" or a "Lawyer for America" program that matches new law school graduates with short-term jobs in those criminal justice systems nationwide that are struggling most to meet the constitutional requirements of Gideon.

September 10, 2010 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14) | TrackBack

New York Times editorial urges "tough as possible" prison rape policies

This morning's New York Times includes this editorial headlined "Make Prisons Safer," which gets started this way:

Attorney General Eric Holder Jr. has spent nearly 15 months weighing new mandatory rape prevention policies for federal prisons and state correctional institutions that receive federal money. The policies, which are due this fall, need to be as tough as possible.

A recent report from the Justice Department’s Bureau of Justice Statistics makes that clear, suggesting yet again that sexual violence is frighteningly commonplace in the nation’s prisons and jails.

September 10, 2010 in Prisons and prisoners, Who Sentences | Permalink | Comments (9) | TrackBack

September 9, 2010

The potential echoes of California's pot proposition in Mexico

This new report, headlined "Weary of drug war, Mexico debates legalization," provides yet another interesting perspective on the debate over possible marijuana legalization in California. Here is how the piece starts:

A debate about legalizing marijuana and possibly other drugs — once a taboo suggestion — is percolating in Mexico, a nation exhausted by runaway violence and a deadly drug war.

The debate is only likely to grow more animated if Californians approve an initiative on Nov. 2 to legalize marijuana for recreational use in their state.

Mexicans are keeping a close eye on the vote, seeing it as a bellwether. "If they vote 'yes' to approve the full legalization of marijuana, I think it will have a radical impact in Mexico," said Jorge Hernandez Tinajero, a political scientist at the National Autonomous University.

September 9, 2010 in Drug Offense Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (1) | TrackBack

Sex offenders fleeing to Puerto Rico ... and feds bringing them back

This new AP story, which is headlined "US sex offenders see sanctuary in Caribbean sun," suggests that Puerto Rico may be starting to become something of a penal colony for sex offenders trying to avoid onerous restrictions in other jurisdictions. Here are the interesting details from an article that should prompt us to question and reflect upon just what our society hopes to achieve from strict post-release restrictions on sex offenders:

Jeffrey Allen Weathers moved from Alaska to an oceanfront apartment in the Caribbean, but his new neighbors soon suspected the heavyset American hadn’t come for the sun.  The FBI now says they were right.

Weathers, with convictions for sexual assault and possession of child pornography in his past, had moved to a small Puerto Rican town in the belief he could avoid registering as a sex offender and live without that stigma, an FBI agent wrote in an affidavit.

Weathers was arrested — thanks in part to his landlord — but law enforcement officials say other sex offenders share the perception that tropical Puerto Rico, where restrictions are less strict than in many U.S. jurisdictions, is an ideal place to hide.

Federal agents have arrested at least five other sex offenders over the last year for failure to register in Puerto Rico and sent them back to the U.S. to face prosecution on other charges, said Deputy U.S. Marshal Rafael Escobar.  He said the marshals are investigating 10 cases of unregistered offenders suspected to be on the island....

Each month, about half a dozen sex offenders come to the island from the U.S. mainland and do register with local authorities, according to Puerto Rico police Capt. Margarita George, who oversees the island’s sex offender registry.  Nobody knows how many others fail to report in.

She said some are drawn by the lack of laws barring them from living near parks or schools — the sort of rules that have forced sex offenders to camp under bridges or in woods in parts of the United States.  And failing to register is a misdemeanor in Puerto Rico — not a felony as it is in most parts of the U.S.  Some, like Weathers, find themselves colliding with federal rather than local authorities.

Offenders have told police they can do things in Puerto Rico that are nearly impossible elsewhere, such as buy property, George said.  “It is a fact that the guys who come down here know they’re not that strict,” Escobar said, though he said he did not know of any offenders from the mainland who committed new sexual offenses in Puerto Rico....

American sex offenders have sometimes been drawn to other nations in the Caribbean and Central America, but U.S. citizens need no passport to come to U.S. territories such as Puerto Rico or the U.S. Virgin Islands.  In densely populated Puerto Rico, an island of 4 million people, police are distracted by violent crime....

Weathers, a balding, 53-year-old Oregon native came to Puerto Rico in March, moving into $300-a-month room in Quebradillas on the island’s northwest coast, where he collected Social Security benefits, according to the FBI.

William Young, his landlord, said Weathers struck him as strange, often getting into disputes with other neighbors. Young began checking into the background of his new tenant and learned that Weathers had been convicted in Alaska of sexual abuse of a minor in 1999 and possession of child pornography in 2006.  Young said Weathers didn’t deny his history and told him repeatedly that he picked Puerto Rico because its laws are more relaxed toward sex offenders....

Prosecutors say there is no evidence that Weathers abused anybody in Puerto Rico.  He was arrested after he moved out of the apartment and made a brief stay at a psychiatric hospital. The FBI affidavit said he is a paranoid schizophrenic.

Defense attorneys say federal law is overly harsh on those who fail to register.  They say some offenders are too poor, sick or simply disorganized to keep up with the requirements.

I find this story both telling and annoying.  It is telling because it reports that the local police in Puerto Rico are, in the words of this article, too "distracted by violent crime" to focus on the registration status of sex offenders.  In other words, local authorities in Puerto Rico have made the seemingly sensible decision to devote their finite time and energy and resources to trying to stop and prosecute those persons committing current violent crimes rather than worry about keeping a constant eye on ex-offenders like Weathers (who apparently has not committed a contact sex offense in over a decade).

The story is annoying because it suggests that federal tax dollars are being used to track unregistered sex offenders, fly them back from Puerto Rico to the US, and then prosecute and punish them (with taxpayers paying for the lawyers on both sides) essentially for the crime of trying to live without the stigma and severe restrictions that other jurisdictions have placed on them.  Especially given that there is apparently no evidence that Weathers or any offenders from the mainland have committed new sexual offenses in Puerto Rico, wouldn't federal tax dollar just be better spent making sure the offenders who head to Puerto Rico are getting registered and are otherwise behaving themselves?

Perhaps others disagree, but I suspect that the average American would not especially mind if the average sex offender decided to move from down the block to the Caribbean as long as their tax dollars were not used to help this transition. Moreover, as I suggest above, I am not too keen that my federal tax dollars are now instead being used to bring these folks back to the mainland just to have them prosecuted for failing to register.

September 9, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (36) | TrackBack

"At 90, what does 17 years in prison mean?"

The question in the title of this post is the headline of this article from The Buffalo News about a (stiff?) sentence given to an elderly murderer.   The piece also discusses the prison realities for very old criminals, and here are excerpts:

A feeble-looking John H. Bunz had to be held up by two court officers after the 90-year-old stumbled getting from his wheelchair into his seat at the defense table Wednesday in a downtown courtroom.

It's hard to comprehend, but this is the same man who bludgeoned his 89-year-old wife to death with a hammer in a bloody attack during March in their Amherst apartment. Bunz showed little emotion as he apologized for his crime shortly before receiving what some deemed a "death sentence" -- 17 1/2 years in prison -- in State Supreme Court....

Bunz pleaded guilty in July to first-degree manslaughter in the killing of Virginia H. Bunz, his wife of nearly 68 years, in the couple's apartment in the Amberleigh Retirement Community.  In interviews Wednesday, authorities offered new details about the attack, which occurred early on March 21. 

Sometime after getting up that morning, Virginia and John Bunz got into a quarrel over "her health care issues," said Amherst Police Detective Lt. Richard S. Walter....  John Bunz hit his wife about 30 times with the hammer, police and prosecutors said, first in the hands as she tried to defend herself and then repeatedly in the head. "It was an extremely violent crime scene," Walter said.

Virginia Bunz died from blunt-force trauma from the beating, but John Bunz still grabbed a pillow afterward and held it over her face "to make sure the job was done," Walter said.  He then grabbed a kitchen knife and cut himself above his eyes, on his neck and on his wrists in an apparent suicide attempt.

Their daughter found the couple at about 10 a.m. Bunz admitted his role in the slaying to Detective Sgt. John J. Piracci and Detective James D. Jackson at Erie County Medical Center, where he was taken for treatment. "I would say he was remorseful but matter-of-fact," Walter said....

The district attorney said that he recognizes that this is likely a "death sentence" for Bunz but that he deserved lengthy incarceration because of the savageness of the crime.  "This was not a mercy killing.  This was not a gentle killing.  This was not, as far as we know, part of any [murder-suicide] pact," Sedita said.  "This was an extraordinarily violent act."

What happens to a 90-year-old who is sentenced to prison?  Based solely on his crime and the length of his sentence, Bunz would be classified as a maximum-security inmate, said Linda M. Foglia, a spokeswoman for the state Department of Correctional Services. And elderly inmates aren't unilaterally segregated from the general prison population....

If it is apparent that Bunz has special needs, such as a wheelchair, she said, the state has several prison facilities that can accommodate him.  And the state takes into account a prisoner's physical abilities when assigning housing and work responsibilities, she said. "We'll pay attention to the environment that a 90-year-old needs," Foglia said.

When Bunz begins his sentence, he will be the second-oldest inmate in a New York State prison, after Theodore A. Sypnier, according to department records. Sypnier, a 101-year-old convicted pedophile from this area, was sent back to prison on a parole violation and is serving two years at Groveland Correctional Facility in Livingston County.

A Niagara Falls man, Otes G. Rodriguez, is third on the current list at 86 years old. He was sentenced to 25 years in prison for pouring gasoline on a woman and trying to light her on fire by using a flare gun.  Rodriguez was 80 at the time of the 2004 attack and previously served prison sentences for the 1959 murder of his wife and the 1973 murder of his girlfriend.

September 9, 2010 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

September 8, 2010

State judge expressing concerns about Kentucky's capital procedures

As detailed in this AP article, a state judge "expressing concerns about how Kentucky's execution procedures handle issues of mental retardation and insanity."  Here are more details:

Franklin Circuit Judge Phillip Shepherd said during a hearing that Kentucky's execution regulations appear to be silent on how the state Department of Corrections is supposed to handle those issues when it comes to a condemned inmate. "It seems to me that this regulation could be followed to the letter and someone who is mentally retarded could still be executed," Shepherd said.

Shepherd's comments came during a hearing in a lawsuit brought by 53-year-old Gregory L. Wilson and two other death row inmates challenging how Kentucky adopted its administrative procedure of carrying out an execution.

Wilson was condemned to death for kidnapping, raping and murdering 36-year-old Deborah Pooley in Kenton County in northern Kentucky.  His execution is set for Sept. 16 at the Kentucky State Penitentiary in Eddyville....

Kentucky's protocol covers a variety of issues, including what to do about a condemned, pregnant inmate, but doesn't address if or how the state Department of Corrections should determine whether an inmate is mentally retarded or insane. "What safeguards are in place to do that?" Shepherd asked.

Brenn Combs, an attorney representing the Department of Corrections, said the department's job is to carry out legally imposed sentences, not to determine their validity. "Everything comes from an order," Combs said. "When an execution is set, it comes from an order from the governor."

Public defender David Barron, who represents the other two inmates in the suit, said not giving an inmate an IQ test before execution is "absolutely absurd," particularly given that a pregnancy test can be administered. "The question is, should the Department of Corrections be allowed to potentially violate the law by not looking into something?" Barron said. "The answer is obviously no."...

Assistant Attorney General Heather Fryman noted that Wilson's case has been in the courts for more than two decades and he never raised mental competency before now. "We've had 22 years of judicial review," Fryman said. "Twenty-two years of litigation is sufficient protection."

September 8, 2010 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (11) | TrackBack

"When freeing criminal defendants is conservative"

The title of this post is the headline of this terrific commentary by Marie Gryphon in the "Supreme Court Insider" section of The National Law Journal. here is how it starts:

Criminal defendants can't get a break from conservative judges, according to conventional wisdom.  Former Chief Justice William Rehnquist reinforced the stereotype with his famously inartful remark that a "judge who is a 'strict constructionist' in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs — the latter two groups having been the principal beneficiaries of the Supreme Court's 'broad constructionist' reading of the Constitution."  But Rehnquist was speaking specifically of constitutional claims at a time when expansive, policy-driven readings of the Fourth, Fifth and Sixth amendments were, for better or worse, revolutionizing police and courtroom procedures.

Not all criminal cases involve constitutional issues.  When a case involves a disagreement about how to interpret a criminal law, a judge who takes a "strict constructionist" or textualist approach to interpreting the law is very likely to side with a criminal defendant.  There is nothing inherently unconservative about reversing the conviction of a defendant who has not clearly violated the law.  On the contrary, one of the oldest mandates of the common law is to protect the public from arbitrary prosecutions under vague statutes.

The Court's decisions during this past year undermine the common claim that its Republican appointees decide criminal cases based on the identity of the parties rather than the content of the law. In the nine criminal cases the Court decided last term that raised questions of statutory rather than constitutional interpretation, Justice Antonin Scalia, Chief Justice John Roberts Jr. and Justice Anthony Kennedy were among the most "liberal" on the Court: They sided with the criminal defendants in these cases eight out of nine times.  The only justice with a more pro-defendant record on these cases last term was John Paul Stevens.

The opinions in these cases demonstrate why Scalia and Roberts, both "textualist" judges, so often side with criminal defendants.  Scalia and Roberts take the same literal approach to interpreting federal statutes that they take to interpreting constitutional provisions.  In neither case are they inclined to expand the meaning of a provision beyond its clear terms in order to effectuate some overarching policy goal.  Although Kennedy is less wedded to a textualist interpretive approach in general, he also prefers to read criminal statutes narrowly.

September 8, 2010 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8) | TrackBack

Latest supplement for Sentencing Law and Policy casebook now available

As a new school year gets underway, I am happy to be able to share an updated electronic supplement providing additional materials to accompany the second edition of the Sentencing Law and Policy casebook.  Anyone can download this 2010-2011 supplement below.

This updated supplement includes edited versions of the 2010 SCOTUS cases of Graham v. Florida and Padilla v. Kentucky (while also retaining versions of the big prior Term SCOTUS cases of KennedyKimbrough and Gall).  There are also a bunch of new notes covering various major sentencing developments from the past few years, including the passage of the Fair Sentencing Act of 2010 and the litigation surrounding the capital punishment administration in North Carolina in the wake of the state's adoption of its racial Justice Act. 

My co-authors and I hope that adopters of our text (and others) find this new, updated supplement useful, and we welcome comments and suggestions.

Download 2010 Supp DBMW 2d ed

September 8, 2010 in Recommended reading | Permalink | Comments (1) | TrackBack

"Federal Judges Go Easy On Tax Cheats, Pornographers And Prostitutes"

The title of this post is the provocative heading give to this post at a Forbes blog called "Taxing Matters" and authored by Janet Novack.  Here is an excerpt of the analysis of the latest US Sentencing Commission data (previously discussed here) that follows under this heading:

The latest numbers from the U.S. Sentencing Commission provide new evidence that at least some Federal judges don’t like handing out stiff jail sentences to tax cheats. Since the Supreme Court ruled in U.S. v. Booker in 2005 that the Commission’s tough-on-white-collar-crimes sentencing guidelines weren’t binding, the Commission has tracked the frequency with which judges hand out lighter penalties than the guidelines call for.

In the first nine months of fiscal 2010, federal judges cited Booker to sentence 13.4% of all federal convicts to below guideline terms.  Tax cheats?  Thanks to Booker, they got below guideline sentences 29% of the time.  One of the few things that seemed to offend the jurists more than putting tax cheats away: the very, very long guideline sentences for pornography and prostitution. There, judges used Booker to sentence below range 34% of the time.

But there’s a big difference. In the tax cases where they used Booker to go low, judges handed out a median sentence of just five months — a year less than minimum.  That amount of time can be served in home confinement.  By contrast, the judges who sentenced below the minimum in pornography and prostitution cases still meted out a median prison term of five years — 37 months below the guideline minimum.

Before you decide to cheat on your taxes, however, be forewarned: Two Midwestern tax lawyers told me Wednesday that they haven’t seen such leniency in their cases and believe sentencing varies greatly by region.  Indeed, while below guideline figures aren’t published by type of offense for each district, they are for all offenses. In the Southern District of New York (Manhattan) judges used Booker to sentence below range in 41% of all cases, whereas in Arizona, Nevada and the Eastern District of Texas, judges cut defendants a Booker break only 5% of the time.

Some (very and somewhat) related posts:

September 8, 2010 in Booker in district courts, Data on sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Eighth Circuit (gleefully?) rejects Second Amendment challenge to § 922(g)(3)

The Eighth Circuit today in US v. Seay, No. 09-2778 (8th Cir. Sept. 8, 2010) (available here), rejects yet again a federal defendant's effort extend the reach of the Supreme Court's Second Amendment work in Heller.  That fact alone is not especially notable, but I could not help but notice that the panel seems almost gleeful to reject a Second Amendment claim.  The Seay opinion works hard to dodge an appeal waiver in order to address the Second Amendment merits, and then it has this to say (with lots and lots of cites omitted):

Following Heller, many defendants have argued that 18 U.S.C. § 922(g), or some subsection thereof, violates the Second Amendment. To date, none have succeeded.  For example, we have upheld the constitutionality of § 922(g)(1) (felon in possession).  Our sister circuits have upheld the constitutionality of § 922(g)(1), as well as § 922(g)(4) (persons committed to mental institutions or adjudicated as a mental defective) and § 922(g)(9) (persons convicted of a domestic-violence misdemeanor)....

Turning to the subsection at issue here, § 922(g)(3) makes it unlawful for anyone “who is an unlawful user of or addicted to any controlled substance” to possess a firearm....  Following Heller, one circuit and several district courts have upheld § 922(g)(3) against Second Amendment attack....

Nothing in Seay’s argument convinces us that we should depart company from every other court to examine § 922(g)(3) following Heller.  Further, § 922(g)(3) has the same historical pedigree as other portions of § 922(g) which are repeatedly upheld by numerous courts since Heller.  See Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213.  Moreover, in passing § 922(g)(3), Congress expressed its intention to “keep firearms out of the possession of drug abusers, a dangerous class of individuals.”  United States v. Cheeseman, 600 F.3d 270, 280 (3d Cir. 2010), pet. for cert. filed, 78 U.S.L.W. 3731 (U.S. June 1, 2010) (No. 09-1470).  As such, we find that § 922(g)(3) is the type of “longstanding prohibition[] on the possession of firearms” that Heller declared presumptively lawful.  See128 S. Ct. at 2816-17.  Accordingly, we reject Seay’s facial challenge to § 922(g)(1).

September 8, 2010 in Second Amendment issues | Permalink | Comments (11) | TrackBack

The story of prisons becoming nursing homes in Virginia

This new piece in the Washington Post, headlined "Virginia's prison system struggles to handle the surge in elderly inmate," provides a look into some of the consequences of an aging prison population in Virgina. Here are excerpts:

Since the General Assembly abolished parole for the newly convicted in 1995, the number of elderly inmates in custody has soared. In 1990, there were 900 inmates over the age of 50. Now there are more than 5,000. Deerfield Correctional, which once housed 400 inmates, has become a 1,000-bed facility with a long waiting list. "We're left trying to be both a nursing home and a prison," said Keith Davis, the warden.

Scrambling to handle the surge, the state has built a 57-bed assisted living facility at Deerfield, with rows of hospital beds filling a room the size of a high school gymnasium. They've added a special meal for the facility's legion of diabetics, and they've hired nurses to keep round-the-clock watch on the infirmary's 16 inmates.

It's an expensive endeavor: It costs $28,800 annually to house an inmate at Deerfield, compared with the $19,000 it costs at most of the state's medium-security prisons....

Under the 1995 Truth in Sentencing law, two types of inmates can still be paroled: prisoners over 60 and those convicted before the law took effect. That makes Francis eligible for parole. But since George Allen (R) was elected governor in 1993 with a promise to abolish parole, offenders have spent significantly more time behind bars. Fewer than 5 percent of inmates charged before 1995 have won reprieves since Allen's initiative passed, compared with 42 percent of eligible inmates who were granted parole in the years preceding the change in law.

Those over 60 face even slimmer odds. Only 15 of 1,000 eligible elderly inmates have won release. That record has led to a class-action lawsuit against the state. "The law says these inmates are eligible for parole, but the Parole Board is acting as if they're not," said Bill Richardson, an Arlington attorney representing 11 inmates.

State officials say the low parole rate reflects the fact that most nonviolent criminals have been released over the past 14 years, leaving mainly harder-core criminals behind bars. "These inmates might be old, and they might no longer pose a threat, but this is the price of committing a heinous crime," said Rick Kern, director of the Virginia Sentencing Commission, which oversees state sentencing guidelines.

The trend in Virginia foreshadowed a national trend. Between 1999 and 2007, the number of inmates 55 or older in state and federal prisons grew 76.9 percent, from 43,300 to 76,600, according to the U.S. Bureau of Justice Statistics.

Some related posts:

September 8, 2010 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

September 7, 2010

"Death penalty remains big issue in California"

The title of this post is the headline of this lengthy new piece at Stateline.org, which is focused on how the issue of the death could impact the election for attorney general in California.  Here is how the piece begins:

California’s next attorney general will have a full plate.  He or she will have to deal with a federal court challenge on prison overcrowding, a continuing battle over gay marriage, how to proceed if a marijuana-legalization ballot measure passes, and whether to follow other states in cracking down on illegal immigration and implementing, or challenging, the newly passed health care bill. And all of this is in addition to the ordinary workload of judicial appeals, general litigation, and environmental and consumer protection cases.

Despite the breadth of this portfolio, California voters have historically focused on one issue above all others when voting for attorney general — namely, how tough the candidate is on crime, even though it’s local DAs, rather than the AG, who are actually responsible for criminal prosecutions.

And despite California’s reputation as a liberal state, its voters, all other things equal, like their AGs to be as hard-line on crime as possible, particularly in how they feel about the death penalty.  In a July 2010 Field Poll, 70 percent of Californians said they support the legality of the death penalty.  So any candidate seen as soft on the issue starts in a hole.

That’s why in this historically Democratic state, the Democratic candidate for AG, a twice-elected San Francisco district attorney, Kamala Harris, is widely thought to face an uphill battle in November against Los Angeles DA Steve Cooley.  In contrast to Cooley, who is an unambiguous supporter of the death penalty, Harris personally opposes capital punishment, typically favoring life without parole.

Harris has pledged to carry out capital punishment whenever her office handles a death row appeal, the same stance as current Democratic AG (and gubernatorial nominee) Jerry Brown, who also personally opposes the death penalty.  But Harris’ reputation for hesitancy in seeking capital punishment could be one of the biggest challenges she’ll face on the campaign trail.

September 7, 2010 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3) | TrackBack

American democracy getting a contact high from pot prohibition debate

As detailed in this effective new ABC News story, which is headlined "Politics of Pot: Marijuana on Four Ballots Energizes Political Debate," it appears that the institutions of American democracy are getting a buzz from recent debates over pot policy and politics. Here are excerpts from the piece:

Marijuana is on the ballot in four states this November, including the first effort of its kind in California to fully legalize pot, but don't expect politicians to get high on the idea any time soon.

In what could become another hot button political issue this November, Democrats in California are divided over Proposition 19, which would legalize marijuana use and allow government to make money off of it by imposing new regulations and taxes....

While polls show increasing support over the years among Americans for full legalization of marijuana, the majority still prefers the status quo.  An Associated Press-CNBC poll released in April found that 33 percent of Americans favored legalization of pot, while an overwhelming 55 percent opposed it.  An earlier ABC News/Washington Post poll released in January found 46 percent support for legalizing small amounts of marijuana for personal use....

Gary Johnson, former two-term Republican governor of New Mexico, supports legalization of marijuana and argues that it will lead to a more effective fight against drugs. He blames the stalemate on the federal government and on both Republicans and Democrats.

"For the most part, politics is about following the herd as opposed to providing leadership," Johnson, who is speculated to be considering a run for the White House in 2012, told ABC News. "For me, it was a cost-benefit analysis, period. It's the fact that half of what we spend in law enforcement and the courts and the prisons is drug related, to what end?"

Johnson disagrees with the idea that dabbling in the politics of drugs would be harmful -- he cites his own approval rating as governor, saying it was steady even after he made his position known. "It's a really good political issue because it's the truth. It's the emperor wears no clothes," he said.

Initiatives opening up the passage of medical marijuana use will be up for a vote in three states -- Oregon, Arizona and South Dakota. If the measures pass, these three states would join 14 other states and Washington, D.C., where medical marijuana use is legal.

Support for medicinal use, unlike full legalization, is still strong. An ABC News/Washington Post poll in January found that 81 percent of Americans supported medical marijuana laws....

Regardless, supporters say the fact that such a measure is on the ballot is still a step forward. California is the second state to dabble in such a measure. Earlier this year a marijuana-legalization bill in Washington state was struck down by the legislature.

Proposition 19 is the "opening stage of the modern era of modern reform," said Ethan Nadelmann, founder and executive director of the Drug Policy Alliance, which advocates for legalization of marijuana. "Whether Proposition 19 wins or loses, it's already a winner," Nadelmann told ABC News. "What it's done is legitimized and elevated a discussion about marijuana policy in a way that has never happened before. It's generated a level and seriousness and sophistication of dialogue and debate unlike what we've had before. This is the first time you have members of Congress saying they will vote for it."

Nadelmann and other proponents of the ballot initiative equate it to gay rights, in that "people are coming out of the closet and defeating the notion that they need to be punished for engaging in this 'deviant activity.'"...

While support for decriminalizing marijuana has gained momentum, especially in Washington and California, at the federal level the subject remains a sensitive one. Rand Paul, the GOP libertarian-leaning Senate candidate in Kentucky whose father supports legalization, illustrated that when he famously reversed his position -- initially supporting medical marijuana usage but then shifting his stance, telling the Associated Press this month he opposes legalization of marijuana, even for medicinal purposes.

Members of Congress say discussions on the issue have been brewing but have yet to surface. Rep. Ron Paul, R-Texas, is an outspoken advocate of states' rights when it comes to legalizing marijuana and Rep. Barney Frank, D-Mass., has also spoken widely in favor of legalizing it. But there has been mostly silence from the Senate on this issue.

Some related posts on pot policy and politics:

September 7, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

The local impact of a little Second Chance Act funding

I just noticed that this weekend's Cincinnati Enquirer had this notable story, headlined "Grant to help ex-inmates get jobs," reporting on the biggest local funding winner to date from the federal Second Chance Act.  Here are the details:

Hamilton County officials this month won a $750,000 federal grant they'll use to create an "office of re-entry" to help convicts get the counseling and job training they need to ensure they're not arrested again.

That cash from the Justice Department will be matched by $880,000 from 20 local service agencies, infusing the new office with $1.6 million dollars, enough to help an estimated 200 convicts.

"This revolving door of less serious offenders takes up a huge amount of jail space and a huge amount of money," said Hamilton County Commissioner David Pepper, whose staff made the grant pitch.  "We need to take a longer-term look and solve it...  This grant will help us do that."...

Of the six Second Chance Act grants worth a total of $2.3 million already awarded, Hamilton County got the most cash.  Jail officials have long said the county's recidivism rate is about 70 percent, but no recent studies have been done.

The Hamilton County Reentry Office will staffed by one person at a $40,000 salary who will coordinate local agencies to provide the counseling and job training.

The Talbert House, Easter Seals Work Resource Center and the Urban League will take the lead in targeting 200 people most in need of assistance.  Each person will get an individualized service plan -- counseling and job training -- tailored to their needs, some even before they're released.

These people won't be violent felons and they're not even necessarily the most arrested people, officials said.  Pepper is careful to say this program isn't a "get- out-of-jail free" card. They'll serve their sentences, he said.

Your federal tax dollars at work.  Actually, maybe it is more accurate to say a small slice of a federal tax penny at work.  Based on the total federal budget of roughly $3.5 trillion, I calculate that this $750,000 federal Second Chance Act grant amounts to a bit less than 0.0002% of the federal budget bill.  

Does everyone share my initial instinct that this Second Chance Act grant to Hamilton County is an example of (a very small bit of) our federal tax moneis reasonably well-spent?

September 7, 2010 in Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (4) | TrackBack

Mining (and spinning?) the latest, greatest sentencing data from the US Sentencing Commission

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

Third 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 third quarter of fiscal year 2010.  The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 3, 2010)

The new data continue to show a very slow and very steady migration away from guideline ranges: over the nearly 60,000 federal cases sentencing in this period, just under 55% of all federal sentences fell within the calculated guidelines range.  Prosecutors, who requested departures or variances in nearly 26% of all cases, continue to be the primary driving force behind below-range sentences, but judges now go outside the guidelines on their own almost 20% of the time (with 2% of all cases having judges imposing above-range sentences and 17.6% of all cases prompting judges to impost below-range sentencing).

My simplistic take on the latest, greatest data is to note simply the remarkable stability in the operation and application of the advisory federal guideline sentencing system as we see this slow and steady, but still relatively slight, migration away from the guidelines.  Moreover, as the title of this post suggests, I think these data could be mined and spun in all sorts of ways. 

If I wanted to tell a story of the demise of the guidelines, I could focus on some outlier guidelines or some outlier districts.  It appears from this latest data run that significantly less that half of all child porn sentences and white-collar sentences for crimes like tax fraud and money laundering are imposed within the calculated guidelines range.  Similarly, in districts as varied as the Eastern and Southern Districts of New York to the Districts of Delaware and Minnesota and Utah to the Middle District of Tennessee to the Western District of Virginia, significantly less than half of all sentences are imposed within the guideline ranges.

But if I wanted to tell a story of the persistence and enduring importance of the guidelines, I could focus on other guidelines and other districts.  It appears that in more than four out of every five drug and immigration sentences are sentenced within the guidelines or below the guidelines based on prosecutors' substantial assistance or fast-track departure recommendations.  Similarly, in districts as varied as the Eastern and District of Virginia and Texas to the Districts of South Dakota and New Mexico to the Middle District Georgia, nearly three-quarters of all sentences are imposed within the guideline ranges.

In sum: "The federal sentencing guidelines are dead!  Long live the federal sentencing guidelines!"

September 7, 2010 in Booker in district courts, Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (10) | TrackBack

Reviewing some of the rare women who end up on death row

This local story from Virginia, which is headlined "Two women's death row cases share similarities," highlights the kinds of murders that get a few female defendants condemned to die. Here is how the piece begins:

Marilyn Kay Plantz, executed in 2001 by the state of Oklahoma, persuaded her younger lover and his pal to kill her husband for insurance money and stood by as they brutally did so.  Two years later, Teresa Lewis of Pittsylvania County wound up on Virginia's death row for a strikingly similar crime.

More than 1,200 men have been executed in the U.S. since the death penalty resumed in 1977.  If she is put to death as scheduled Sept. 23, Lewis will be just the 12th woman and the first in Virginia in almost a century.

It is a gender gap that largely, if not entirely, can be explained by the relatively few capital crimes committed by women.  The accompanying acts that frequently qualify murders as death-eligible crimes -- such as rape and armed robbery -- overwhelmingly are committed by men.

Mary Atwell, a professor of criminal justice at Radford University and author of "Wretched Sisters: Gender and Capital Punishment," says it is no accident that Lewis, Plantz and their crimes have much in common.  Like many of their male counterparts, females sentenced to death often have histories of substance abuse and mental-health issues.

Unlike men, women usually kill intimates, not strangers.  So, too, did Plantz and Lewis. "There are so many similarities it's almost uncanny," Atwell said.  Among other things, she said, "both of these women had borderline mental retardation and yet they were accused of being the mastermind in the case."

September 7, 2010 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (6) | TrackBack

Two notable new policy papers on the failings of indigent defense systems

This past week saw the release of two interesting and important new policy papers addressing indigent defense systems in the United States. One piece is this Issue Brief from the folks at the American Constitution Society authored by Erica Hashimoto and titled "Assessing the Indigent Defense System." This piece stresses "the importance of collecting data on representation rates in misdemeanor and felony cases" and discusses how to "use data to measure the quality of representation being provided to indigent defendants so that we can improve upon that representation."

Another piece comes from the folks at the Cato Institute.  This policy paper is authored by Stephen Schulhofer and David Friedman, and it is titled "Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System."  This portion of the piece's executive summary spotlights its chief themes:

Proposals for improvement commonly stress the need for more resources and, somewhat less often, the importance of giving indigent defense providers legal independence from the government that funds them.  Yet virtually every suggestion for reform takes for granted the feature of the current American system that is most problematic and least defensible — the fact that the indigent defendant is never permitted to select the attorney who will represent him.

The uniform refusal of American jurisdictions to allow freedom of choice in indigent defense creates the conditions for a double disaster.  In violation of free-market principles that are honored almost everywhere else, the person who has the most at stake is allowed no say in choosing the professional who will provide him one of the most important services he will ever need.  The situation is comparable to what would occur if senior citizens suffering from serious illness could receive treatment under Medicare only if they accepted a particular doctor designated by a government bureaucrat.  In fact, the situation of the indigent defendant is far worse, because the government’s refusal to honor the defendant’s own preferences is compounded by an acute conflict of interest: the official who selects his defense attorney is tied, directly or indirectly, to the same authority that is seeking to convict the defendant....

[W]e propose a free market for defense services, one that would, so far as possible, function in the same way that the existing market functions for affluent defendants who are able to retain their own counsel.  Though we do not doubt the importance of resource levels, we see budgetary vulnerability and implicit conflicts of interest as inherent in any system where the defendant’s attorney is chosen for him by the state.  We seek to show that at any level of resources, freedom of choice for the indigent defendant can produce gains for both himself and for the public at large.

September 7, 2010 in Who Sentences | Permalink | Comments (17) | TrackBack

September 6, 2010

"Anchors Away: Why the Anchoring Effect Suggests that Judges Should Be Able to Participate in Plea Discussions"

The title of this post is the title of this new article available via SSRN from Professor Colin Miller.  Here is the abstract:

The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor.  Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates.  More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers.  Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias.

This article thus proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions.  Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecutor and defense counsel laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence.  This article contends that this type of judicial participation would reduce the anchoring effect because the expected post-plea sentence would replace the prosecutor’s opening offer as the anchor and produce fairer final plea bargains.  This article also argues that such judicial participation would ameliorate many of the problems associated with the current plea bargaining system.

September 6, 2010 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (16) | TrackBack

Could and should vehicle crash deaths and costs be deterred by tougher punishments?

Crash costsRegular readers know that, ever the utilitarian punishment fan, I have long thought that the many significant harms that result from drunk driving could and should justify a tougher criminal justice approach to this seemingly deterrable and very costly crime (see some of the posts linked below).  Now, this notable new article in my local Columbus Dispatch, which is headlined "CDC: Beef up traffic laws," has me wondering if we should get tougher on all driving crimes, not just drunk driving. Here is the factual background concerning some of the (very preventable?) costs that may result from our unwillingness to be tough enough with out driving rules and regulations:

Traffic deaths and injuries are a preventable scourge that cost the nation about $99 billion a year in medical bills and lost productivity, according to the U.S. Centers for Disease Control and Prevention.

That's about $500 for each licensed driver in America, according to a study by the CDC's National Center for Injury Prevention and Control.  Researchers tallied the costs nationally using hospital, insurance and other data from 2005, when there were 3.7 million deaths and injuries from crashes.

They hope the cost information will persuade states and communities to take action to prevent traffic crashes, said Rebecca Naumann, a CDC epidemiologist and lead researcher on the study. Action would include requiring motorcycle riders to wear helmets, allowing police to pull drivers over simply if they're not wearing a seat belt and checking for drunken driving at checkpoints....

Ohio has put in place several strategies to reduce traffic deaths and injuries that the CDC mentioned in its study, including graduated driver's licensing for teens.  Deaths and injuries from crashes among 15- to 19-year-olds cost $11.2 billion, the CDC study found.... 

There's also political resistance to motorcycle helmet laws, red-light cameras and primary seat-belt laws, which allow an officer to stop a driver just for not buckling up. "People clamor for drugs that will treat serious diseases, but with motor vehicle crashes, there's often resistance," [Russ] Rader [of the Insurance Institute of Highway Safety] said. "There is reluctance on the part of politicians to tackle some of these things because of the vocal opponents they would have to cross to get it accomplished."

One thing that's not mentioned in the CDC study is bans on texting or cell-phone use.  The insurance institute's studies of states with and without bans shows no evidence that they cut crashes, Rader said.  "We want to know whether the laws being passed are reducing crashes, and the cell-phone laws are not doing that," he said.

Critically, I do not want or mean to suggest that imprisonment is the ideal or even a sound way to toughen punishment for risky driving behaviors.  Supersized fines (perhaps in the day-fine model used in much of Europe) or shaming sanctions or community service obligations could well be much more effective in encouraging the average driver to stay sober, slow down, buckle up and save all of us $99 billion that crashes cost all of us each year.

As my 1L students discover each year, I think driving laws and punishments provide an effective window into whether one is drawn to more utilitarian or more retributivist approaches to sentencing law and policy.  The costs stressed by the CBC suggest that we could improve society greatly by being (creatively) tougher on those who engage in what we know to be risky driving behaviors.  But to achieve such a utilitarian bang for our buck, we will surely risk punishing some (many?) drivers more than some (many?) persons might think these drivers deserve. 

Personally, in this particular (and I think particularly important) context, I would generally rather run the risk of over-punishment of some risky drivers (including myself) than run the risk of more risky drivers on the roads threatening my friends and family.  But, as suggested above, if/when the form of "over -punishment" in this setting were to be significant jail/prison time (which is itself economically and socially costly), the utilitarian (and my normative) calculus could come out differently.

Some related posts on sentencing drunk drivers:

UPDATE on 9/7:  Though the discussion in the comments to this post have been going hot and heavy, I figured this amusing local news story from Ohio could give it some additional juice: "Police: Driver distracted by sex toy."  Here are the essentials:

An Elmwood Place police officer who stopped a car because it had illegally tinted windows received a bit of a shock when he looked inside.

Officer Ross Gilbert said the driver, Colondra Hamilton, a 36-year-old Downtown resident, was sitting with her pants unzipped and a sex toy in her lap.  He said Hamilton told him she was using the toy while watching a sex video on a laptop computer that a passenger in the front seat held up so she could see it.

Gilbert charged her with "driving with inappropriate alertness" and having illegal tinted windows, according to the traffic ticket.

September 6, 2010 in Criminal Sentences Alternatives, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (17) | TrackBack

Is blogging now officially a "mainstream medium"?

The question in the title of this post is inspired by this new piece in The National Law Journal, which is headlined "Law School Report: A look at professors who have made blogging a mainstream medium." I am flattered and honored to be included among the impressive list of lawprof bloggers profiled by Leigh Jones in the article, which starts this way:

Somewhere between fusty law treatises and Twitter lie law blogs, many of them written by the top legal scholars in the country.  Just five years ago, the notion of law professors delivering quick and cogent commentary to the masses — with the opportunity for instant feedback, no less — was a novel concept.  Today, it is rare for law schools not to have at least two or three professors on faculty who regularly tap away at their blogs, often with their morning cup of coffee or after they've put the kids to bed at night.

The National Law Journalhas profiled some of the pioneers in law blogging. Their online endeavors keep readers current on topics ranging from Sixth Amendment rights to tax law, from faculty appointments to securities fraud.  Their work has given legal scholars a greater voice in the public forum and brought recognition to the schools they represent.

I ask the question in the title of this post because I am wondering if I now need to consider myself part of the MSM.  To quote a great Seinfeld episode, "Not that there is anything wrong with that."

September 6, 2010 in On blogging, Weblogs | Permalink | Comments (2) | TrackBack

September 5, 2010

"What Might Retributive Justice Be?"

The title of this post is a question I often enjoy asking my students.  It is also the title of this new piece from Professor Dan Markel available via SSRN.  Here is the abstract:

There are many conceptions of retributive justice. This paper is designed to articulate and defend a particular kind of retributive justice, one that I call the “Confrontational Conception of Retributivism,” or the CCR. This particular conception is political, not comprehensive, and thus is interested in defending the claim that *state* punishment is, as a general matter, warranted as a response to legal wrongdoing. Accordingly, the focus is on the legal manifestations of punishment, particularly within a liberal democracy; it is not concerned with justifying punishment in other spheres such as parent-child relations. Related to this account of state punishment is that its contours should be devised principally ex ante and that such punishment should be distributed through actors upon whom there are checks with respect to their remaining discretion.

The paper here is a chapter in a volume forthcoming from Oxford including essays on the theory and practice of retributive justice. My paper in particular is an effort at restating, clarifying and correcting some of my prior work in retributive justice theory. It is, relatively speaking, reasonably short and might serve as a useful introduction for students and scholars wading into contemporary retributive justice theory.

September 5, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6) | TrackBack

Tough questions about what's next after the Keith capital commutation in Ohio

Andrew Cohen has an interesting follow-up commentary to this past week's commutation by the Governor of Ohio of the death sentence that had been facing Kevin Keith despite his claims of innocence (basics here). The commentary is titled "Death Row Reprieve: Does Ohio Also Owe Kevin Keith a New Trial?", and here is one of many interesting excerpts:

Convicted murderer Kevin Keith could look at the week's dramatic developments in his life in one of two ways. He could consider himself very lucky that Ohio Gov. Ted Strickland commuted his capital sentence to life in prison without parole. Or he could consider himself still accursed that he'll likely remain in prison anyway for the rest of his natural days despite his claim that he did not murder two adults and a four-year-old child -- family members of an alleged police drug informant -- in 1994.

How do you see the glass, Mr. Keith, now that the very government that incarcerates you has expressed doubt about the evidence which put you away? Is it half-full or half-empty?...

There have been 249 capital commutations in the United States since 1976, the year the Supreme Court gave the death penalty back to the states as a sentencing option. There have been 1224 executions across the country during that time.  As of Jan. 1, 2010, there were 3,268 men and women on death row in the 35 states (and federal jurisdictions) which have capital punishment.  Since 1973, according to the Death Penalty Information Center, "130 people have been released from death row with evidence of their innocence."  Many of these releases are the result of DNA mismatches -- an issue not present in Keith's case....

The reasons Keith's sentence was reduced relate directly to the strength of the prosecution's trial evidence against him -- and are material enough for any reasonable person to doubt whether he would have been convicted had these facts come before the original judge and jury.  It is now beyond contention that the rot here is in the core of the apple and not its skin. Just because the government can't go back and re-do every bad conviction doesn't mean it shouldn't go back and re-do the ones it can.

With the first days of the rest of his life, Keith now will have time to explore all of these topics as his lawyers continue to push for a substantive hearing or new trial.  He'll have time to read how poorly it could have gone for him had he been a prisoner seeking clemency in Texas under then-Gov. George W. Bush and his counsel, Alberto Gonzales.  He'll have time to read about how capital punishment may be on the wane in North Carolina after revelations there about the state crime lab's dishonorable work.  Or perhaps about how the capital punishment system in Pennsylvania is a mess.

Alas, there is no shortage of literature out there describing all sorts of problems in and with capital cases. Makes you wonder why commutations like the one Keith was gracefully given this past week are more rare than executions, doesn't it?

September 5, 2010 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (4) | TrackBack