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September 18, 2010

Can dismissed domestic violence complaint justify revoking gun permit?

This local story from Massachusetts provides an interesting spin on both "sentencing" based on dismissed charges and the Second Amendment rights of those accused of violent behavior.  The piece is headlined "Man challenges state gun law: Constitutionality of 2005 permit revocation questioned," and here are the details:

Citing a recent U.S. Supreme Court decision, a Shrewsbury man is challenging the constitutionality of a state law under which his license to carry a firearm was revoked five years ago by Police Chief Gary J. Gemme.  Lawyer Mel L. Greenberg, who represents Raymond J. Holden, filed an amended petition in Central District Court Sept. 10 appealing Chief Gemme’s 2005 revocation of Mr. Holden’s firearms license based on a determination that Mr. Holden was not a “suitable person” to carry a gun.

In a memorandum of law accompanying his amended petition, Mr. Greenberg said the term “suitable person,” as it appears in the law, is unconstitutionally vague given the Supreme Court’s June 28 ruling in the case of McDonald v. Chicago.  The nation’s highest court ruled in a 5-4 decision in that case that the Second Amendment grants citizens a fundamental right to bear arms that cannot be infringed upon by state and local governments.

Mr. Holden, who has a place of business in Worcester, had been granted a license to carry a firearm in 2001, but the license was suspended by Chief Gemme on Sept. 14, 2005, four days after Mr. Holden was arraigned in Westboro District Court for an alleged assault on his wife. The assault and battery complaint was dismissed Oct. 3, 2005, after Mr. Holden’s wife recanted a statement in a Shrewsbury Police Department incident report.

Judge Dennis J. Brennan, since retired, then ordered the reinstatement of Mr. Holden’s license in light of the dismissal of the assault charge. Chief Gemme followed the court’s order, but then revoked the license, saying he could consider underlying evidence that a crime had occurred even if a charge had been dismissed....

“The McDonald ruling adds the Second Amendment right to bear arms to the list of fundamental rights guaranteed to all citizens.  Consequently, any state statute or regulation which restricts or regulates such a right is subject to the strictest judicial scrutiny to insure that it reasonably regulates without infringement of that right and that its application does not result in a denial of due process rights,” Mr. Greenberg wrote.

Vague laws violate due process “because citizens do not receive fair notice of the conduct proscribed by the statute and because they do not limit the exercise of discretion by officials, creating the possibility of arbitrary and discriminatory enforcement,” the lawyer said in his memorandum.

As regular readers know, the Supreme Court and lower courts have repeatedly upheld the constitutionality of enhancing an offender's criminal sentence based on acquitted and dismissed conduct.  But, of course, in those cases the offender has been duly found guilty of some other offense. 

Here, Mr. Holden has not been convicted of anything at all.  But, of course, he also is not being sentenced, just having his gun permit revoked.  And if Police Chief Gary Gemme has a sound basis for concluding that Mr. Holden did in fact beat his wife, his permit revocation decision would seem to accord with Congress's basic view (which finds expression in federal criminal law) that a person who commits even a minor form of domestic violence should never be allowed to possess a firearm under any circumstances.

September 18, 2010 in Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (13) | TrackBack

"Georgia capital cases in US Supreme Court crosshairs"

The title of this post is the headline of this new AP article, which gets started this way:

The U.S. Supreme Court has stepped into four Georgia death penalty cases in the last year or so, and it could yet again intervene — this time over a defendant who said he languished in jail because the state couldn't pay his lawyers.

It's the latest test for Georgia's justice system, which has come under scrutiny in recent years. The state's new public defender program has had funding trouble ever since it spent $3 million in 2008 defending Brian Nichols, the man convicted of killing a judge, court reporter, sheriff's deputy and federal agent during a 2005 rampage at an Atlanta courthouse.  And the Georgia Supreme Court has been criticized for not reviewing death penalty appeals closely enough.

In this case, Jamie Ryan Weis, who is accused of killing a 73-year-old woman, argues there was a "complete breakdown" in the system when he sat in jail without an attorney for more than two years.  The U.S. Supreme Court could decide after a closed-door conference Sept. 27 whether it wants to intervene.

"It's especially surprising because this Supreme Court is not an anti-death penalty court," said Donald E. Wilkes Jr., a University of Georgia Law School professor who specializes in death penalty cases.  "Maybe they think that Georgia is giving the death penalty a bad name, if that's possible."

But Weis' case may not be as simple as he claims.  Prosecutors said Weis was never without legal representation, though they concede his lawyers were limited by a funding shortfall.  "The Georgia Supreme Court properly determined there was not a systemic breakdown in the indigent defense system in Georgia," Beth Burton, a senior Georgia assistant attorney general, said in arguments.

September 18, 2010 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

Massachusetts SJC splits over when GPS tracking can be added to sex offender sentence

As detailed in this local article, which is headlined "GPS tracking limited by SJC: Rules in case of sex offender; Sets conditions for probation use," a split high court in Massachusetts concluded yesterday that state judges "cannot change probation conditions for convicted sex offenders by requiring them to wear GPS monitoring devices unless the former inmates have violated the terms of their release." Here are the particulars:

In a 4-to-3 decision, the Supreme Judicial Court upheld a lower court judge who refused to add GPS monitoring and a ban on visits to playgrounds, schools, and libraries to the probation restrictions of a former Lowell man who spent about 20 years locked up for the abduction and rape of a 7-year-old boy.

Prosecutors and lawyers for the man agreed that he had not violated any conditions of probation when the judge rejected the request by the state Probation Department in August 2009. “Here, the judge correctly found that there had been no material change in the defendant’s circumstances after the terms of probation were initially imposed that would justify the proposed additional probation condition of GPS monitoring and exclusion zones," Justice Ralph D. Gants wrote for the majority.

As the case was winding its way through the courts, the convicted sex offender, Ralph W. Goodwin, violated the terms of his probation on June 30 by failing to attend a day program as part of his mental health treatment plan, according to his appellate lawyer, Jeannine E. Mercure of Lowell. As a result, another judge ordered Goodwin to wear a GPS device, although she did not restrict where he can go.

Nonetheless, yesterday’s ruling sets limits on when judges can require GPS monitoring for freed sex offenders who were convicted years before the devices became a common condition of probation imposed at sentencing. The Probation Department currently monitors 730 freed sex offenders with GPS, according to Coria A. Holland, a department spokeswoman.

Yesterday’s ruling complements a 4-to-3 decision the high court issued in August 2009. In that case, the SJC held that a 2006 state law requiring convicted sex offenders to wear GPS devices while on probation could not automatically be applied retroactively to defendants convicted before the statute went into effect. The majority said the devices create an unconstitutional burden on the individuals’ freedom....

In a one-paragraph dissent yesterday, [Justice] Ireland wrote that he continues to believe that requiring people on probation to wear the device is “remedial rather than punitive" and should be allowed.

The court’s ruling drew criticism from law enforcement officials and victims’ rights advocates but praise from defense lawyers.

The full ruling in Massachusetts v. Goodwin is available at this link.

September 18, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

September 17, 2010

Virginia's Governor denies clemency for female condemned murderer

As detailed in this local article, headlined "Gov. McDonnell refuses to block execution of Teresa Lewis," the Governor of Virginia is not going to grant clemency to a high-profile defendant due to be executed next week. Here are the details:

Gov. Bob McDonnell denied a clemency petition today from Teresa Lewis, scheduled to be the first woman executed by Virginia in nearly a century. Unless the U.S. Supreme Court decides to review the case, Lewis will die by lethal injection at 9 p.m. Sept. 23.

A Pittsylvania County judge sentenced Lewis to death in 2003 for the murder-for-hire killings of her husband, Julian Clifton Lewis, and her stepson, Charles "C.J." Lewis....

Both of the hired killers were sentenced to life in prison — prompting Lewis’ lawyers to argue in a clemency petition that it would be unfair to put her to death. The petition also asserted that Lewis, who is borderline mentally retarded and suffers from a dependent personality disorder, lacked the mental acumen to plan a murder-for-hire.

"Having carefully reviewed the petition for clemency, the judicial opinions in this case, and other relevant materials, I find no compelling reason to set aside the sentence that was imposed by the Circuit Court and affirmed by all reviewing courts," McDonnell said today in a statement.

Governor McDonnell's full statement in support of his decision is available here.

September 17, 2010 in Clemency and Pardons, Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (12) | TrackBack

Quick textual reflections on Constitution Day

USCon Today, September 17, is the 223rd anniversary of the day in 1787 when the Constitutional Convention officially submitted its proposed constitution to the people of the United States.  To honor the day, I thought I might quoting some of the key criminal justice provisions of the original U.S. Constitution (along with the Bill of Rights):

Part of Article I:  "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.  No Bill of Attainder or ex post facto Law shall be passed."

Part of Article II:  "The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Part of Article III:  "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."

Amendment I:  "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Amendment II:  "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Amendment IV:  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Amendment V:  "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...."

Amendment VI:  "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

I would be interested in readers' perspectives on which criminal justice parts or provisions of the US Constitution they believe or fear is being given the least respect or attention in modern times. 

Regular readers should not be surprised that I believe that it is the Reprieves and Pardons Clause that is in the worst shape in modern times.  Especially in the wake of the Supreme Court's recent work in cases like Heller and Blakely and Graham, I am not unduly worried about the state and fate of the even Amendments (which always seem to get less love than the leading odd Amendments).  But modern presidents have largely ignored their clemency powers until late in their presidencies, and political cronyism rather than constitutional respect seems to best explain many of the major clemency actions of the last few Presidents.  And, as noted here and in many prior posts, President Obama, now almost a full two years into his presidency, has not yet used this historically important constitutional authority a single time (except for two turkeys last Thanksgiving). 

Some related posts:

September 17, 2010 in Clemency and Pardons, Criminal justice in the Obama Administration, Who Sentences | Permalink | Comments (19) | TrackBack

"Marijuana law reform is a civil rights issue"

The title of this post is the headline of this commentary appearing in the San Francisco Chronicle and authored by Alice Huffman, the president of the California State NAACP. Here is how it starts and ends:

"Injustice anywhere is a threat to justice everywhere." So said the late Rev. Martin Luther King Jr. on April 4, 1967, when he spoke out against the Vietnam War. At the time, he was roundly criticized for speaking out on an issue considered outside the purview of civil rights leaders. King understood better than most at the time, the true cost of war - in lives lost, in futures squandered, in dreams deferred and in misspent resources. Eventually, a majority of Americans came to agree with him about the war in Vietnam. His moral courage lay in speaking out in the face of no agreement, caring more about his integrity than his popularity.

It is the mission of the California NAACP to eradicate injustice and continue the fight for civil rights and social justice wherever and whenever we can. We are therefore compelled to speak out against another war, the so called "war on drugs."

This is not a war on the drug lords and violent cartels. This is a war that disproportionately impacts young men and women and is the latest tool for imposing Jim Crow justice on poor African Americans.

We reject the oft-repeated but deceptive argument that there are only two choices for dealing with drugs - heavy-handed law enforcement or total permissiveness. Substance abuse and addiction are American problems that impact every socioeconomic group, and meaningful public health and safety strategies are needed to address it. However, law enforcement strategies that target poor blacks and Latinos and cause them to bear the burden and shame of arrest, prosecution and conviction for marijuana offenses must stop....

The California NAACP does not believe maintaining the illusion that we're winning the "war on drugs" is worth sacrificing another generation of our young men and women.

Enough is enough. We want change we can believe in, and that's why we're supporting Prop. 19. Instead of wasting money on marijuana law enforcement, Prop. 19 will generate tax revenues we can use to improve the education and employment outcomes of our youth.  Our youth want and deserve a future. Let's invest in people, not prisons.

Some related posts on pot policy and politics:

September 17, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

"Feds seek to halt inmate's frequent lawsuits"

The title of this post is the headline of this recent amusing AP article. Here is how it starts:

A federal inmate who has filed more than 3,800 lawsuits and targeted the famous, the infamous and even the long-dead is now being sued by federal officials who want him to knock it off.

Federal prosecutors who say they have had enough of the frivolous filings have filed a lawsuit of their own asking a judge to take unusual action to stop Jonathan Lee Riches.  Since 2006, Riches has filed lawsuits in nearly every jurisdiction in the country, court documents show. The inmate who dubbed himself "Lawsuit Zeus" in one of his thousands of court cases has filed up to four of his handwritten petitions a day in Kentucky courts alone.

The 33-year-old inmate at the federal prison in Lexington has sued New England Patriots coach Bill Belichick, former President George W. Bush, then-Atlanta Falcons quarterback Michael Vick and even Somali pirates.  Sometimes, Riches asks for money, other times an injunction to stop alleged, if physically impossible, activity.

Among Riches' targets have been "Adolf Hitler's National Socialist Party," the ancient philosopher Plato, the celestial body formerly known as the planet Pluto and the Guinness Book of World Records.

In the Guinness case, he wanted to prevent himself from being dubbed the most litigious man in America.  "These phrases (i.e. "Patrick Ewing of Suing," "Johnny Sue-nami," etc ...) hurt my feelings and violate my civil rights.  I've filed so many law suits with my pen and right hand that I got arthritis in my fingers, numbness in my wrists, crooked fingers, I got bags under my eyes for sleepless nights suing the world," Riches wrote in Riches v. the Guinness Book of Records.

Guinness spokeswoman Sara Wilcox said the book doesn't monitor litigious people and has no records concerning Riches.  Like many of his other legal claims, the lawsuit was dismissed.

September 17, 2010 in Prisons and prisoners | Permalink | Comments (19) | TrackBack

Symbol and substance in crack sentencing reform

The Oakland Tribune has this lengthy and interesting new article headlined "Though largely symbolic, crack-powder cocaine law change seen as social victory."  Here are excerpts:

On Aug. 3, President Barack Obama addressed that disparity at the federal level when he signed the Fair Sentencing Act, a law that reduced the long-standing, hotly debated sentencing gap that treats powder and crack cocaine differently.  The move excited proponents of racial equality who have long argued that coming down harder on a drug chiefly found in communities of color is essentially a modern-day form of Jim Crow-era segregation and persecution.

Though the new law represents a victory for racial justice advocates, the victory may largely be symbolic. Alameda County assistant district attorney Norbert Chu points out the Fair Sentencing Act will have no impact on prosecutions under state law, which is what most police patrolling Oakland streets are there to enforce....

As for federal prosecution, street-level drug interaction is largely coincidental, U.S. attorney's office spokesman Jack Gillund said.  "While (federal) investigators may encounter street-level dealers while combating gang violence or when they are engaged in a targeted enforcement effort, they don't patrol city streets looking for drug dealers; that mission is best handled by the dedicated men and women who serve daily in local and state law enforcement agencies," Gillund wrote in an e-mail.

However, the U.S. attorney's office does prosecute both large and small cocaine-enforcement cases, and it's "impossible to predict what possible impact this change may have on the Bay Area's problems with drugs," Gillund added.

September 17, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

September 16, 2010

"Should a Judge Consider the Cost of a Sentence?"

The title of this post is the headline of this effective new piece at ABC News discussing Missouri's fascinating new sentencing tool providing "case-by-case invoices" of punishment costs to judges at the time they make sentencing decisions (details here).  Here are excerpts from the ABC News piece:

When judges in Missouri prepare to sentence an offender, they have a new tool unavailable to other judges across the country: an invoice detailing the cost to taxpayers of different sentencing options.

The information is part of an offense summary culled from statistics kept by the state's Bureau of Corrections that is tailored to the offender and also details the risk that he might re-offend....

The program was unveiled last month by the Missouri Sentencing Advisory Commission (MOSAC) as a tool to help judges determine the best chances for reducing recidivism with cost-effective punishments.

A judge or lawyer is able to enter specific information on the MOSAC website, such as an offender's prior criminal history, the crime committed, his education and employment status. The computer then uses statistics from other actual sentences to process the information.

For instance, a judge might plug in data regarding a 20-year-old offender with a high school diploma who was convicted of second-degree robbery and had no prior felonies. The online tool then would generate a report with a recommendation for probation with enhanced supervision that would cost $8,960 for a five-year period. If the offender were to receive such a sentence, his risk of committing a new offense within two years would be 29.7 percent.

However, the report also would contain information for the judge to consider if he believed there was a unique characteristic of the particular crime that would suggest a harsher sentence. That recommendation would be five years in prison for a cost of $54,724. The rate of recidivism for that sentence jumps to 39.6 percent. Missouri Supreme Court Judge Michael Wolff, chairman of the state's sentencing commission, said the new tool considers cost, but focuses on recidivism....

Judge Wolff asked, "Why not ask the question of how much this is going to cost?" But there are critics of the program.

Jennifer Joyce, the prosecuting attorney in the city of St. Louis, said, "It's ultimately cheaper to prosecute no one."  She isn't opposed to the information being available for judges and taxpayers, or to the concept of alternative sentencing, but she is concerned that sentencing decisions will be made on an economic basis.

 "Strictly speaking, economics is irrelevant to the decision that the judge makes, which is about public safety," she said. "If we are going to use economics as a basis to making these decisions, then we have to consider the economics of the victim and the community."

Judge Gary Oxenhandler, who sits on the 13th Judicial Circuit and has used the new tool, disagreed with her conclusion. He said cost is only one of many factors a judge should consider, including the threats to the community and the impact on the victim. "I want as much information as I can get," he said.

"Any place a judge can obtain information, that is an important source.  The prosecution has its goals, the defense has its goals.  Our job is to come up with the right amalgam that is going to best serve all these interests between protection of the public and punishment for the offender."

Helpfully, everyone can see an example of the data reports on recidivism and costs on the last two pages of the latest Smart Sentencing bulletin from the Missouri Sentencing Advisory Commission. I encourage everyone to check out the specifics of what Missouri is doing for its sentencing judges and to think about whether and how sentencing judges (and litigants) in all systems ought be get the benefits of all this helpful data.

Related post:

September 16, 2010 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (7) | TrackBack

What will USSC do given that DOJ and the Judicial Conference oppose retroactivity for new criminal history rules

As detailed here, the US Sentencing Commission has a public meeting scheduled today at which it will possibly vote whether to give retroactive effect to its new amendment to reduce the impact of "recency" as a factor in the calculation of the criminal history score.  This recent analysis from the USSC shows that over 7,500 federal inmates might get, on average, more than a year off their prison sentence if this amendment is made retroactive.

Yesterday, the Sentencing Commission posted here the materials it received in response to its request for public comment on this issue.  Intriguingly, as detailed in letters available here and here, the Justice Department "strongly opposes retroactive application of the amendment" and the Criminal Law Committee of the Judicial Conference has unanimously recommended against retroactivity.  The themes of these letters highlight the administrative burdens that will be placed on courts and other players in the system from having to process all the sentence modification requests that would result from making the amendment retroactive.  (Not surprisingly, defender groups support retroactivity and suggest the burdens will not been too great.)

Among other interesting aspects of this debate, these retroactivity issues present the classic theories of punishment in sharp relief.  A true retributivist likely would say that if future offenders do not deserve to have their punishment enhanced by the guideline provision that the Commission has amended, then past offenders ought not justly be required to sit in prison longer than they deserve and thus the new form of guideline justice ought to apply retroactively.  But a utilitarian likely would share the view of prosecutors and judges that achieving a bit more justice for (thousands of) past offenders is not worth the considerable  administrative burdens that retroactive justice would demand.

Any predictions on how the US Sentencing Commission will resolve this issue?  I suspect the views of prosecutors and judges will end up carrying the day, though perhaps the USSC will find a way to engineer a retroactivity rule that can achieve maximum justice at minimal costs.

UPDATE:  According to the folks at FAMM, my prediction that the the views of prosecutors and judges would carry the day concerning retroactivity appears to have been accurate: the US Sentencing Commission on Thursday voted against making its new recency amendment retroactive.

September 16, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (3) | TrackBack

Government reports that drug use is up ... let the spin begin

As detailed in this new AP story, the "rate of illegal drug use rose last year to the highest level in nearly a decade, fueled by a sharp increase in marijuana use and a surge in ecstasy and methamphetamine abuse, the government reported Wednesday."  Here are the details along with some of the early spin:

Gil Kerlikowske, the director of the Office of National Drug Control Policy, called the 9 percent increase in drug use disappointing but said he was not surprised given "eroding attitudes" about the perception of harm from illegal drugs and the growing number of states approving medicinal marijuana.  "I think all of the attention and the focus of calling marijuana medicine has sent the absolute wrong message to our young people," Kerlikowske said in an interview.

The annual report from the Substance Abuse and Mental Health Services Administration found marijuana use rose by 8 percent and remained the most commonly used drug.

Mike Meno, a spokesman for the pro-legalization Marijuana Policy Project, said the survey is more proof that the government's war on marijuana has failed in spite of decades of enforcement efforts and arrests. "It's time we stop this charade and implement sensible laws that would tax and regulate marijuana the same way we do more harmful — but legal — drugs like alcohol and tobacco," Meno said.

On a positive note, cocaine abuse continues to decline, with use of the drug down 32 percent from its peak in 2006. About 21.8 million Americans, or 8.7 percent of the population age 12 and older, reported using illegal drugs in 2009. That's the highest level since the survey began in 2002. The previous high was just over 20 million in 2006.

The survey, which was being released Thursday, is based on interviews with about 67,500 people. It is considered the most comprehensive annual snapshot of drug use in the United States.

Other results show a 37 percent increase in ecstasy use and a 60 percent jump in the number of methamphetamine users. In the early 2000s, there was a widespread public safety campaign to warn young people about the dangers of ecstasy as a party drug, but that effort declined as use dropped off.  "The last few years, I think we've taken our eye off the ball on ecstasy," Kerlikowske said.

My view and spin on these drug use numbers is significantly impacted by the data released by the FBI earlier this week reporting that violent crimes continue to see a sharp decline (details here).  Is it possible that these days — perhaps because we are mired in a down economic period — increased drug use contribues to a lower violent crime rate?  Might one look at all this data and reasonably suggest (or at least hope) that decriminalizing marijuana could help get the violent crime rate to go even lower?

I will be the first one to concede that legalization of marijuana (or any other drugs) will generally tend to increase the use of marijuana (or any other drugs).  But if increased drug use is not leading to increased crime  — or increased road fatalities, which also hit a record low last year — why should increased drug use be a major cause for concern for modern criminal justice systems?

I have no doubt that increased drug use produces increases in various social harms, and I generally support greater public health expenditures to try to reduce those harms.  Likewise, I support greater public health expenditures to try to reduce the social harms of other "vices" humans seem to enjoy like drinking alcohol, smoking tobacco, eating too many staurated fats, playing violent video games, etc.  But unless and until there is clear evidence that increased drug use results in a lot more serious crime, I continue to be troubled by our use of criminal justice systems to address the tangential social harms of how some people opt to exercise their personal autonomy.

September 16, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

"Criminal Justice & Religion"

The title of this post is the title of a book chapter that is now available in proof form here via SSRN. The named author of the chapter is SpearIt — a nom de plum for Supremecy Clause? — and here is the abstract:

This chapter examines the relationship between criminal justice and religious traditions in the U.S.  It outlines a general framework to illuminate the historical tensions between criminality and religious tradition.  It further argues that even though the notion of “separation of church and state” is held in high esteem, in practice, history shows that Christian ideals can be linked to the very foundations of American law.  The criminal justice system is no exception, and the impacts of Christianity can be seen from the very beginning of its development.  In turn, the criminal justice system has played an influential role in the history and day to day realities of religious practitioners and their communities.  As home to the largest prison population in the world, this chapter reveals the U.S. criminal justice system is a key factor in the religious practice of many.

September 16, 2010 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

Restitution terms debated in another federal child porn downloading sentencing

As detailed in this new article from the Kansas City Star, which is headlined "Long prison sentence, restitution sought in child porn case," federal district court around the country continue to confront the challenging and unsettled issue of whether and how they can and should order restitution as part of a federal sentence for downloading certain child pornography pictures. Here are the particulars:

The nightmare never ends for the young woman known around the world as “Vicky.”  Every day, new letters arrive in her mailbox informing her that another man has been arrested for having on his computer pornographic images of her being raped as a child.

One of those men was in a Kansas City courtroom Wednesday to face sentencing for receiving and possessing thousands of images of child pornography, including a nearly two-hour video of Vicky being abused as a 10-year-old.

William Harold Laursen, a former music teacher at two area schools, last year pleaded guilty to the charges. On Wednesday, federal prosecutors sought not only a lengthy prison sentence but an order for Laursen to pay restitution to Vicky.

U.S. District Judge Howard Sachs took the matter under advisement after a morning of testimony, including how the videos of Vicky’s abuse at the hands of her father are some of the most widely disseminated child pornography images on the Internet.

 “There’s no end to it,” said Randall Green, a psychologist who has examined the now-20-year-old woman in the Vicky series of images.  “She feels she is serving a life sentence.”  Not only must she deal with the trauma of being sexually assaulted by her father, but she must live with the knowledge that thousands of others have seen her being abused, Green said.  She suffers from myriad psychological problems that will require a lifetime of therapy, and she continually is fearful that people she encounters may recognize her from the videos, he said.

Though she lives in another state and did not attend Wednesday’s hearing, prosecutors have provided her written statement to the court.  “Thinking about all those sick perverts viewing my body being ravished and hurt like that makes me feel like I was raped by each and every one of them,” she said.  “It terrifies me that people enjoy viewing things like this.”...

Seeking restitution for child pornography victims from those who download and disseminate their images is relatively new.  To date, various courts have ordered about $44,000 in restitution to Vicky, according to a statement from her attorney.

Vicky is not her real name, but some downloaders of her childhood images have learned her real name and have attempted to contact her, Green said. One even created a video called “Where’s Vicky Now?” and combined current images of her with the pornographic images from her childhood, he said.

Laursen, 57, of Kansas City, formerly taught at Kansas City Academy and at CS-1 School in Prairie Village. He did not testify during Wednesday’s hearing in U.S. District Court in Kansas City. His attorney, Tom Bath, pointed out in his questioning of witnesses that there were no allegations or evidence that Laursen ever touched a child inappropriately.

I am deeply saddened by the fact that "Vicky" still suffers greatly as a result of her sexual abuse and the continued circulation of images of her victimization, and I would readily credit the psychologists assertion that "there’s no end" to the harms that "Vicky" continues to endure. 

But this reality makes the legal debate over restitution in child porn downloading cases even more challenging.  If there is no end to the harms that Vicky is suffering, should there likewise be no end (either temporally or monetarily) to her ability to collect restitution award from any and every defendant who has ever downloaded her pictures?

Some related recent federal child porn restitution posts:

September 16, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

"Implementing (or Nullifying) Atkins?: The Impact of State Procedural Choices on Outcome in Capital Cases Where Intellectual Disability is at Issue"

The title of this post is the title of this notable new article available via SSRN authored by John Blume, Sheri Lynn Johnson and Christopher Seeds. Here is the abstract:

This empirical study assesses the impact of state procedural choices on the implementation of Atkins v. Virginia, which prohibits the execution of prisoners with intellectual disability (“mental retardation”).  Since Atkins, much scholarly attention, including our own, has focused on the manner in which states have applied substantive definitions of intellectual disability that deviate from the clinical norm.  But as the present study shows, matters of procedure -- such as whether a judge or jury determines intellectual disability, whether the determination occurs prior to trial or in conjunction with a capital sentencing trail, and the applicable burden of proof -- may also make a difference on outcome. The study draws from available data on all known post-Atkins determinations of intellectual disability (n = 244).

The study finds that cases in which a jury makes the intellectual disability determination are relatively infrequent (28 jury verdicts versus 216 judicial determinations).  More striking, jury findings of intellectual disability are exceedingly rare -- in fact, nationwide, there have been only three.  We assess these statistics -- and others -- in context with: previous empirical analyses of the substantive deviations, long-standing concerns about the ability of jurors (especially death-qualified jurors) to assess mental health in criminal cases, and the risks of unreliable capital sentencing that Atkins sought to avoid.

September 16, 2010 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

"Partial Settlement Reached in Pa. 'Sexting' Case"

The title of this post is the headline of this new piece in The Legal Intelligencer, which provides an update on the highest-profile "sexting" case to date. Here is how the piece begins:

One of the high school students at the center of the "sexting" controversy in Wyoming County has agreed to a partial settlement of a civil rights suit that said her constitutional rights were violated when a principal confiscated her cell phone, found nude images she had taken of herself and turned it over to prosecutors.

Under the terms of the settlement, the Tunkhannock Area School District in Northeastern Pennsylvania agreed to pay $33,000, but admitted to no wrongdoing.  However, the plaintiff, who is identified in court papers only as N.N., has not settled her claims against the Wyoming County District Attorney's Office.

As a result, the case will continue and still has the potential to break new legal ground, possibly setting a precedent on the issue of whether students have a right of privacy that extends to the contents of their cell phones.

Some related "sexting" posts:

September 16, 2010 in Offender Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

September 15, 2010

Will a "national call-in day" help pass the National Criminal Justice Commission Act?

As detailed here via the folks at Families Against Mandatory Minimums, a number of public policy groups have denominated today as "National Call-In Day" in support of S. 714, which is the National Criminal Justice Commission Act, that passed the House during the summer but now seems stalled in the Senate.  (Here is my July post noting House passage and providing background on the bill.) 

Though in prior posts I have expressed some negative cynicism concerning what a National Criminal Justice Commission could and would be able to achieve, I would still like to see this bill become law.  In other words, my response to the question in the title of this post is "I hope so."

Some related recent and older posts:

September 15, 2010 in Who Sentences | Permalink | Comments (2) | TrackBack

"Crime is down, but for how long?"

The question in the title of this post is the headline of this interesting commentary responding to the latest good news from the FBI concerning crime rates:

Apparently, it is now official -- crime has taken an extended holiday.  Yesterday, the FBI released its annual report, Crime in the United States, confirming what earlier preliminary results had indicated: crime is down across the board, including a 7.3 percent decline in homicide.  Although undeniably good news, there is more to the story that should warn us against complacency.

The FBI’s tally board includes various crime types, population groupings, and geographic divisions.  And, reportedly, the welcome plunge in lawlessness occurred for all offense categories, in cities large and small, and from east coast to west coast.  That said, the FBI statistics do not distinguish crime trends by neighborhood, social class and race.  The crime rate glory days may be good for America, but not for all Americans.  The large drop in violent crime is not exactly consistent with the experience of many citizens who live in certain impoverished sections of Detroit, Baltimore, Newark and elsewhere, and for whom the frightening sound of gunfire is a much too frequent occurrence....

From 2000 to 2009, the number of police officers per 1,000 residents in cities with populations of 250,000 and over has declined by 11% overall.  As a result, many police departments have been forced to scale down certain special programs.  Back to basics for men and women in blue has meant a reduction or elimination of anti-gang units and community policing efforts.

It has been in some of the poorest and most crime-infested neighborhoods where the negative effects of police budget cuts have hit the hardest.  Over the past decade, city police departments have been asked to do more, but with less.  The emphasis on homeland security and the attempt to protect potential targets of terrorism have left many hometowns unsecured against ordinary street violence.

In the short-term, at least, Federal stimulus funds have been used to supplement police department budgets and expenditures for other crime fighting initiatives.  And, according to U.S. Attorney General Eric Holder, this has contributed to lowering crime rates.  "In 2009 the Obama administration provided over $4 billion in support to law enforcement and criminal justice initiatives through the American Recovery and Reinvestment Act, including $1 billion in COPS funding to keep police officers on the street," Holder said.  "Investments in law enforcement play a significant role in reducing violent and property crime."

Unfortunately, the healthy decline in aggregate crime rates can easily be used to justify further budget cutting for law enforcement and other areas of the criminal justice domain. Those who advocate lowering taxes to benefit beleaguered wage earners might want to think twice: A few extra dollars in the pocket is of little value if you’re staring down the wrong end of a gun.

Notwithstanding the FBI report, we can never solve the crime problem; we only control it.  If we grow too complacent and recklessly seek to trim the fat, crime levels can easily rebound. It is wonderful that crime rates are at a relative low point. It will be a significant challenge to keep them that way.

September 15, 2010 in Data on sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2) | TrackBack

North Carolina clergy urging end to state's use of capital punishment

Religion and sentencing are mixing again in North Carolina, as detailed in this local article headlined "Asheville pastors: SBI crime lab woes show need to eliminate death penalty." Here are the basics:

North Carolina's criminal justice system is so fraught with cheating that lawmakers should eliminate the death penalty to keep innocent people from being executed, local pastors and an exonerated death row inmate said Tuesday.

Speaking at a news conference in front of the Buncombe County Courthouse, participants said recent revelations about fraud in the State Bureau of Investigation crime lab only underscore an enduring problem. “Our faith in the criminal justice system is shaken, but our resolve to make it better (is) not,” said the Rev. Jim Abbott of St. Matthias' Episcopal Church. “We are deeply concerned innocent people may have been wrongly convicted.”

Abbott and others cited a report issued last month concluding that the SBI crime lab omitted, overstated or falsely reported blood evidence in dozens of cases, including three that ended in executions....

The Rev. Joe Hoffman, pastor of First Congregational United Church of Christ, called on Gov. Bev Perdue to commute the sentence of death row inmates to life in prison. “This system has exposed itself for what it is,” Hoffman said. “Unfairness and racial injustice have been present in our system for a very long time. We do not end violence by being violent.”

Some older posts on religion and the death penalty:

September 15, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

"NBC's outlandish 'Outlaw' richly deserves death penalty"

In part because the headline mentions the death penalty, and in part because it readily allows me (and perhaps others) to save space on my DVR, I had to link and quote this amusing review in USA Today about one of the notable new law shows premiering on network television this fall.  Here is the start of the review:

Surely NBC's joking.

There's awful, and then there's atrociously, hilariously awful — a line NBC and Jimmy Smits soar across with Outlaw.  A gambling, womanizing, conservative Supreme Court justice who chucks the court to become a crusader for the outcast and oppressed?  That's not a prime-time show, it's a Saturday Night Live sketch.

Preposterous to a painful degree, Outlaw is a vanity-show concept only an actor could love. Who wouldn't want to play a larger-than-life devil on the outside/saint on the inside who's worshiped and adored by the right-thinking and loathed and feared by evildoers?  If only Smits had noticed that his playboy card-shark jurist was a dramatic contradiction in terms: a sanctimonious sinner, an intolerably smug one to boot.

September 15, 2010 in Television | Permalink | Comments (10) | TrackBack

September 14, 2010

"Racial Disparity in the Wake of the Booker/Fanfan Decision: An Alternative Analysis to the USSC’s 2010 Report"

The title of this post is the title of this notable new paper from a set of criminologists that is now available via SSRN. Here is the abstract:

The U.S. Sentencing Commission (USSC) released a report in March 2010 concluding that racial disparity in federal sentencing has increased in the wake of the U.S. Supreme Court decisions in U.S. v. Booker (2005) and U.S. v. Gall (2007).  In light of this USSC report, we provide an alternative set of analyses which we believe provides a more complete and informative picture of racial, ethnic, and gender disparity in federal sentencing outcomes. We first attempt to replicate the USSC’s models.  Then we present alternative models of sentencing outcomes across three time periods spanning FY 2000 to 2009.

We find that post-Booker/Gall race/ethnic/gender disparity in sentence length is generally comparable to pre-2003 levels.  Our findings mainly diverge from the USSC’s because of: 1) the USSC’s decision to include non-incarceration cases in the sentence length analysis (as sentence lengths of 0), since more racial disparity appears to be manifest in the incarceration decision than in sentence lengths, and 2) the inclusion of immigration offenses in the USSC’s analyses, since comparatively greater disparity affecting black males is observed among immigration offenses.  We also extend the USSC report by: 1) presenting analyses that compare post-Booker sentence length disparity with disparity before the 1996 U.S. v. Koon decision, and 2) presenting an analysis of disparity in departures/deviations from the Guidelines.

September 14, 2010 in Booker and Fanfan Commentary, Booker in district courts, Detailed sentencing data | Permalink | Comments (25) | TrackBack

"California marijuana vote draws unlikely foes, allies into ring"

The title of this post is the headline of this new CNN piece.  Here are snippets from a lengthy and effective piece:

California is hardly homogenous, but marijuana legalization makes politics downright confusing in a state where the sides are sometimes flipped. Here, some ex-cops, state assemblymen and billionaire businessmen favor legalization, while there are pot growers and dealers who want to keep it outlawed.

Experts say predicting the ballot's outcome is impossible because special interests for both sides will storm the state ahead of the vote, hoping to pull fence-straddlers into their camps.

On Monday, every head of the Drug Enforcement Administration, past and present, appeared at a news conference to say they were "gravely concerned" by the upcoming vote. They asked the White House to sue California, as it did Arizona over the immigration issue....

Polls over the last year show more Californians favor legalization than oppose it and that California has a substantially higher tolerance for legalization than the rest of the country.

Don't expect that to translate into the referendum's passage, said NORML's St. Pierre. Those for and against the measure will pump millions of dollars into PR campaigns in coming weeks, which could have a substantial effect on public opinion. St. Pierre estimated proponents will need up to $12 million to pass the measure. "This thing's a wobbler," St. Pierre said. "This thing is going to win or lose by 2 percent in November."

September 14, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (4) | TrackBack

Show-Me State now showing sentencing judges information about the costs of punishments

The St. Louis Post-Dispatch has this fascinating new article headlined "Missouri judges get penalty cost before sentencing." Here is how it begins:

Justice in Missouri now comes with a price tag.

It is the first state to provide judges with defendant-specific data on what particular sentences would cost the taxpayers, and on the likelihood that the person in the dock will reoffend.

Not everyone is happy about it. "I don't think it has any purpose in a process of balancing justice," complained Jack Banas, the St. Charles County prosecuting attorney. "Justice doesn't come down to dollars and cents.  You have to look at the system as a whole picture."

But Kristy Ridings, a defense lawyer practicing in St. Louis, said: "I think it's fantastic. It gives us more argument to look at alternative sentences.  There are resources in the community that are not only more effective, but cheaper."

Using information provided online, judges across the state can consider the cost of any sentence — from prison time to probation.  The information may soon be included in formal presentence reports.

Experts say Missouri is the only state to distribute an invoice on a case-by-case basis. "We're seeing a trend where judges are asking for more evidence about best practices," said Greg Hurley, of the National Center for State Courts. "They are looking at an offender's track record and other predictive data that may show which treatments or programs may work best to cut down on recidivism." But no other state is injecting the cost of a particular sentence into the conversation, Hurley said.

Barbara Tombs, of the Washington, D.C., Sentencing Commission, said states commonly require corrections officials to draw up "economic impact statements" whenever they plan to change a penalty or create a new criminal violation. Such reports include added costs of prison beds, corrections officers and probation workers.

However, Tombs said, she has never before seen numbers broken down for an individual case and handed to a judge before sentencing. "I don't know of any state doing this except Missouri," she said. "I don't know enough about it to know whether it's a good idea or not."

The cost and recidivism statistics come from the Missouri Sentence Advisory Commission, an agency created by the Legislature to help judges find appropriate sentences. While some judges may choose to ignore the data, officials expect others to consider the price tags in finding alternative sentences that may cost less and provide better rehabilitation.

The commission began publishing the information in August, after several judges suggested it. Costs are figured by a formula. The state Department of Corrections was already calculating recidivism statistics compiled from hundreds of thousands of cases over the last decade.

Missouri Supreme Court Judge Michael Wolff, who leads the sentencing commission, said, "The court system should consider all data, including cost, when trying to decide the best way to use its resources for sentencing."  He added, "If community-based alternatives show to be more successful and cost less, judges should consider them."  Wolff noted: "Obviously, at the end of the day, it is up to the judge to decide the sentence. They are just more informed with this data."

Though I understand why Barbara Tombs might have reservations about this innovation before knowing all the details, I feel very strongly that Missouri is pioneering an important and valuable revolution in sentencing procedure.   Though I understand the instinct that case-specific sentencing justice should not be assessed only with a financial spreadsheet, I think it is critical (especially in these lean budget times) to do everything possible to ensure that criminal justice decision-makers have reliable data on the likely benefits and costs of various punishment options.

As regular readers know, I think one of the strongest arguments against harsh punishments is an economic one: incarceration is a costly way to try to improve public safety, and there are reasons to fear that, at least for some (many?) non-violent offenders, we may not generally be getting a good public safety bang for our prison bucks.   In all areas of government, decision-makers should have their policy choices informed by sound data about the costs and benefits of various potential expenditures of state resources.  We should want --- indeed, we probably should come to expect and demand as taxpayers --- that sentencing judges have sound economic cost/benefit data when making punishment choices.

Moreover, as long as all the cost data is available to all, advocates for the state and for the defendant will be able to help a sentencing judge consider different was to assess and incorporate available cost/benefit data into punishment decision-making.  Subject to whatever statutory sentencing instructions exist in Missouri, prosecutors and defense attorneys will be able to develop arguments and advocacy the urge judges in individual cases to give lots or little weight to cost issues in light of each case's unique circumstances.  In other words, in the sentencing context, we need not worry about "bean-counters" making consequential policy decisions without transparency or reasoned arguments about just when values and concerns other than just costs ought to be of greater concern than just dollars and cents.

In short, huzzah for Missouri and here is hoping other states follow suit.

September 14, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (5) | TrackBack

"Confessing to Crime, but Innocent"

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

[M]ore than 40 [persons] have given confessions since 1976 that DNA evidence later showed were false, according to records compiled by Brandon L. Garrett, a professor at the University of Virginia School of Law.  Experts have long known that some kinds of people — including the mentally impaired, the mentally ill, the young and the easily led — are the likeliest to be induced to confess.  There are also people like Mr. Lowery, who says he was just pressed beyond endurance by persistent interrogators.

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.  An article by Professor Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation.

To defense lawyers, the new research is eye opening.  “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, a founder of the Innocence Project, an organization based in Manhattan.  “You couldn’t imagine going forward.”...

Of the exonerated defendants in the Garrett study, 26 — more than half — were “mentally disabled,” under 18 at the time or both.  Most were subjected to lengthy, high-pressure interrogations, and none had a lawyer present.  Thirteen of them were taken to the crime scene....

Some defendants’ confessions even include mistakes fed by the police.  Earl Washington Jr., a mentally impaired man who spent 18 years in prison and came within hours of being executed for a murder he did not commit, stated in his confession that the victim had worn a halter top. In fact, she had worn a sundress, but an initial police report had stated that she wore a halter top.

Steven A. Drizin, the director of the Center on Wrongful Convictions at the Northwestern University School of Law, said the significance of contamination could not be understated. While errors might lead to wrongful arrest, “it’s contamination that is the primary factor in wrongful convictions,” he said.  “Juries demand details from the suspect that make the confession appear to be reliable — that’s where these cases go south.”

Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent. “You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said.  The problem with false confessions, he said, is “the wrong person is still out there, and he’s able to reoffend.”

Mr. Trainum has become an advocate of videotaping entire interrogations.  Requirements for recording confessions vary widely across the country.  Ten states require videotaping of at least some interrogations, like those in crimes that carry the death penalty, and seven state supreme courts have required or strongly encouraged recording.

September 14, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7) | TrackBack

September 13, 2010

Violent crime rates continuing to drop, according to latest FBI numbers

More good news this year on crime rates, as detailed in this Reuters report on the latest data from the FBI:

Violent crime in the United States fell in 2009 for the third straight year, with the number of murders dropping to a level not seen in four decades, according to FBI statistics released on Monday.

Violent crime dropped 5.3 percent in 2009, including a 7.3 percent decline in murders, an 8 percent drop in robberies, a 4.2 percent decline in aggravated assaults and 2.6 percent fall in rapes, according to the final 2009 statistics.

There were 15,241 murders in 2009, authorities reported to the FBI, a level not seen since 1969 when there were 14,760, according to the Justice Department. The number of murders came close to that level in 1999 when there were 15,522.

Property crimes in the United States also fell last year, by 4.6 percent, with motor vehicle thefts plummeting 17.1 percent and burglary down 1.3 percent, the FBI said....

"Although there are many reasons behind the decline, one thing is certain: smarter policing practices and investments in law enforcement play a significant role in reducing violent and property crime," U.S. Attorney General Eric Holder said in a statement.

While there were declines in the crime rates across the board, the FBI statistics showed increases in residential burglaries, up 1.8 percent, and a larger spike in reported shoplifting, rising 7.9 percent.

This press releasefrom the FBI provides some more of the detailed statistical specifics.  In addition, Jeralyn at TalkLeft here mines some of the FBI arrest data:

There sure were a lot of arrests: The FBI estimates agencies nationwide made about 13.7 million arrests, excluding traffic violations.

The most arrests were for drug offenses: 1.6 million.... Of the drug arrests, 81% were for possession and 18% for manufacturing/distribution.  Of the possession arrests, 45% were for marijuana.

Though many of the usual policy advocates may try to spin these numbers in differing ways to support their reform agendas, everyone should take a moment to simply celebrate the fact that crime rates keep declining.  And all the folks working in the criminal justice system who are committed to helping enhance public safety should be given a collective pat on the back for their hard work and successful efforts.

September 13, 2010 in Data on sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

"Zapping Inmates To Control Them: Harmless Or Torture?"

The title of this post is the headline of this recent NPR story which discusses the latest hot new technology that hopes to help to keep prisoners in line.  Here are excerpts:

Los Angeles authorities have unveiled a new high-tech device designed to control rowdy inmates: a mechanism that blasts millimeter beams that simulate intense heat. At the Pitchess Detention Center, north of Los Angeles, officials recently showed off their latest tool, which resembles a supersized dental X-ray machine with a flat screen on top. It works like something out of Star Trek.

"You know when they set their phasers to stun, they did that so they didn't kill people? Well, that's exactly what this is. It does stun you," says Mike Booen, a vice president of Raytheon Missile Systems. The company built the device for the Los Angeles County Jail, a scaled-down version of what it designed for the military.

"I don't care if you're the meanest, toughest person in the world," he says, "this will get your attention and make your brain focus on making it stop, rather than doing whatever you were planning on doing."...

Dave Judge, the operation deputy for the sheriff's department, says the machine is more effective than their usual methods of firing rubber bullets and tear gas grenades. "This is tame; this is mild," Judge says. "This is a great way to intervene without causing any harm. The nice thing about this is it allows you to intervene at a distance."...

Raytheon's Booen says the device sends out millimeter waves, creating a harmless, but intense sensation. "It penetrates about a 64th of an inch under your skin," Booen explains. "That's about where your pain receptacles are. So it's what it would feel like if you just opened up the doors of a blast furnace. You feel this wave of heat immediately."...

Three years ago, the Department of Defense demonstrated a bigger version of the device it considered using. During one simulation, it repelled a pretend group of protesters with the "Active Denial System" direct energy weapon mounted on a military vehicle.The U.S. Joint Non-Lethal Weapons Programs reportedly never actually used the device in Afghanistan, but a spokeswoman says they are considering related technology.

Now, Los Angeles has been given a smaller, civilian version of the same device free. But the ACLU says that's a bad idea. "We're going to use people in the jails as guinea pigs for some mega arms builder to test their device," ACLU attorney Peter Eliasberg says.

He sent a letter to L.A. Sheriff Lee Baca asking him to reconsider using what he says has the potential to be a torture device.... Eliasberg says some tests of the millimeter device have badly burned people with repeated zaps. And he notes that Los Angeles deputies have a documented history of abusing inmates. Eliasberg suggests a better solution would be to prevent the overcrowded conditions that trigger jail riots in the first place.

September 13, 2010 in Prisons and prisoners, Technocorrections | Permalink | Comments (3) | TrackBack

Eleventh Circuit extends(?!) Padilla to misadvice about potential civil commitment of sex offender

I happen to be traveling back today from Florida where I had the honor and pleasure to speak to a group of Florida state appellate judges about the work and possible impact of the Supreme Court in recent cases such as Graham v. Florida and Padilla v. Kentucky.  In the course of that discussion, I asserted that the Sixth Amendment ruling in Padilla might readily get extended to cases involving the potential collateral consequences of pleading guilty to a sex offense.  And, perhaps as I was speaking, the Eleventh Circuit demonstrated my wisdom by handing down a notable little per curiam ruling in Bauder v. Department of Corrections State of Florida, No. 10-10657 (11th Cir. Sept. 13, 2010) (available here). Here are key parts of the unanimous panel's work in Bauder:

The State of Florida appeals the district court’s grant of Gary William Bauder’s petition for habeas corpus under § 2254, in which the district court ruled that Bauder’s criminal defense attorney was ineffective by misadvising Bauder regarding the possibility of being civilly committed as a result of pleading to a charge of aggravated stalking of a minor....

The State raises two arguments on appeal. First, the State argues that the district court clearly erred in finding that Bauder’s counsel misadvised Bauder on the collateral consequence of civil commitment stemming from his plea. Based on counsel’s testimony described above, we cannot say that the district court’s factual finding that counsel misadvised Bauder is clearly erroneous.

Second, the State argues that the district court erred in ruling that counsel’s performance was deficient because the issue of whether Bauder would be subject to civil commitment was being litigated at the time of Bauder’s plea.  In support, the State cites a number of cases holding that attorneys cannot be found to have deficient performance when they fail to anticipate changes in law. While it is true that attorneys are not expected to anticipate changes in the law, this case does not involve a change in the law.  Fla. Stat. § 394.910, et seq., was passed in 1999, years before Bauder’s plea.  Even if one could argue that the law was unclear, the Supreme Court has noted that when the law is unclear a criminal defense attorney must advise his client that the “pending criminal charges may carry a risk of adverse [collateral] consequences.” Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010).

Counsel’s deficient performance was not his inability to anticipate a ruling on the interpretation of the Florida civil commitment statute. Rather, his deficient performance was his affirmative representation that Bauder would not be exposing himself to further detention past his sentence were Bauder to plead to the charge of aggravated stalking.  Here, counsel did not tell Bauder that there was a possible risk of civil commitment, or that the law was unclear as to whether it could apply to Bauder, or that he simply did not know.  Rather, counsel told Bauder that pleading to the criminal charge would not subject Bauder to civil commitment, and this constituted affirmative misadvice.  For these reasons, the district court’s grant of Bauder’s petition for habeas corpus is AFFIRMED.

September 13, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6) | TrackBack

Hitler's dog makes sentence procedurally unreasonableness, according to Seventh Circuit

The headline of this post is a bit inaccurate and perhaps unduly inflammatory.  Nevertheless, it is the presence of Hitler's dog that in part makes blog-worthy the Seventh Circuit's work today US v. Figueroa, No. 09-3333 (7th Cir. Sept. 13, 2010) (available here).  Here is an explanatory section from the start of the panel opinion:

The district court sentenced Figueroa to 235 months’ imprisonment. This represented the low end of Figueroa’s advisory guidelines range, and so on its face there is nothing remarkable about his sentence either. But the process the district court used to get there — in particular, its extraneous and inflammatory comments during the sentencing hearing — cast doubt on the validity of the sentence.  During the hearing, the district court digressed to discuss Figueroa’s native Mexico, the immigration status of Figueroa and his sisters, and the conditions and laws in half a dozen other countries — not to mention unnecessary references to Hugo Chávez, Iranian terrorists, and Adolf Hitler’s dog.  We have no way of knowing how, if at all, these irrelevant considerations affected Figueroa’s sentence.  We therefore must remand, to ensure that the district court’s choice of sentence was based only on the criteria that Congress has authorized.  See 18 U.S.C. § 3553.

September 13, 2010 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

"The Concept of Evil in American and German Criminal Punishment"

Img_qsgrLK The title of this post is the title of this very interesting new article by Joshua Kleinfeld appearing on SSRN.  Here is the abstract:

The gap in harshness between American and German criminal punishment represents a moral disagreement between the two societies: American criminal punishment expresses a belief in the concept of human evil, while German criminal punishment denies that belief.  This paper, after giving the concept of evil some philosophical definition, develops that thesis with six lines of argument.

First, contrasting American and German responses to major crime, the paper argues that American criminal law routinely banishes its worst criminal offenders, while German criminal law almost never does.  Second, as to minor crime, American law treats misdemeanors as portents of worse things to come, while German law treats them as errors.  Third, in the context of recidivism, America punishes the person, Germany the act.  Fourth, with regard to community reintegration, American law approaches ex-cons with a concept this paper terms “residual criminality,” while German law adopts norms of full forgiveness.  Fifth, as to capital punishment, America treats the right to life as alienable for wrongdoing; Germany treats that right as inalienable.  And sixth – turning here from interpreting criminal doctrine and practice to analyzing the historical record – the paper shows that various players in the American criminal system have given voice to the belief in criminal evil, while major players in the German system have expressly denied that belief.

The paper concludes by asking which system is more just, arguing that German criminal law is naive for denying the existence of evil where it should be acknowledged, while American criminal law is reckless for rolling genuine evil together with mere error and failure and punishing them all alike.

September 13, 2010 in Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (20) | TrackBack

Interesting judicial perspective on prison overcrowding in Alabama

This local story from Alabama, which is headlined "Overcrowded prisons open Madison County judge's eyes," provides interesting background with how the state's judiciary is looking at the problems of prison overcrowding. Here are excerpts:

With state prisons stuffed beyond capacity and no signs of any slowdown in the volume of drug and theft cases that fill court dockets, Alabama's judges are being asked to rethink the sentences they issue.

The message came last week as all Alabama judges with power to sentence prisoners were invited by Alabama Chief Justice Sue Bell Cobb to a three-day meeting in Montgomery.  Cobb wants to find ways to reduce jail overcrowding and still enforce Alabama's laws in the face of significant state budget problems.

She has said Alabama's prisons are operating at 195 percent of capacity, making it the most crowded state prison system in the U.S. Alabama has the nation's sixth highest incarceration rate; state prison costs quadrupled in 20 years to $577 million a year in 2008, and half of all new inmates in the system in 2009 were imprisoned for drug offenses, according to the chief justice.

Madison County Presiding Circuit Judge Karen Hall, who attended the conference, said the tours she took of Elmore and Tutwiler prisons are causing her to rethink how she sentences young male and female offenders.

Hall said the Alabama Legislature needs to address the lack of prison space and the lack of programs offering rehabilitation or skills training. "I saw 195 men in a dorm that was 96 degrees," she said. "They can go to church; they can play basketball or lift weights in their yard, and that's it. They need to be doing something.

"What it has done for me is made me rethink how I will handle those who are considered low-risk, especially young males, young females, and maybe give one more chance before I send them down there."  Hall favors the addition of work camps and boot camps and halfway houses to bolster the state's alternative sentencing system.

She said Madison County enjoys a good reputation with its approach to alternative sentencing, which includes a drug court, a mental health court and a family drug court.  Hall said there are clearly some counties where judges simply lock everybody up....

Alan Mann, a former prosecutor and longtime defense attorney who is running for the newly created circuit judge position, said the problems of prison overcrowding and how sentencing should work are fueled by sheer volume and a basic misunderstanding.  "The rub is, there's always going to be some disconnect between the public and the reality of the problem," Mann said. "Every politician runs on being tough on crime, cleaning up the streets.  But that's not the reality; (the case volume) never stops.  So the rubber meets the road in the courtroom with the judge, the DA and the defense attorney."...

Mann said even alternative programs can prove to be too expensive or too time-consuming for some of his drug-offense clients, who instead opt for probation.  "I'm told by many clients they simply can't afford it, it costs more than it does to pay a probation officer," he said. "Then again it takes money to run it.  There are no easy answers to these things."

September 13, 2010 in Criminal Sentences Alternatives, Prisons and prisoners, Who Sentences | Permalink | Comments (6) | TrackBack

September 12, 2010

"Obama backs off strict crime policy"

The title of this post is the headline of this extended new piece from Josh Gerstein from Politico.  The piece covers a lot of federal sentencing law and policy ground that should be familiar to readers of this blog, and here are excerpts:

For years, it was one of the GOP’s most potent political epithets – labeling a Democrat “soft on crime.” But the Obama White House has taken the first steps in decades to move away from a strict lock-‘em-up mentality on crime – easing sentences for crack cocaine possession, launching a top-to-bottom review of sentencing policies and even sounding open to reviewing guidelines that call for lengthy prison terms for people convicted of child pornography offenses.

The moves – still tentative, to be sure — suggest that President Barack Obama’s aides are betting that the issue has lost some of its punch with voters more worried about terrorism and recession. In one measure of the new political climate surrounding the issue, the Obama administration actually felt free to boast that the new crack-sentencing bill would go easier on some drug criminals....

Despite the tentative moves in the direction of lessening some sentences, there remain numerous signs that Obama and his aides recognize that the issue could still be politically damaging.

When Obama signed the crack disparity bill, only still photographers were allowed in and the president issued no formal statement. The Justice Department’s sentencing review group has indicated it has no plan to issue a formal report that could become a political football. And, 18 months into his presidency, Obama has yet to issue a single commutation or even a pardon to an elderly ex-con seeking to clear his record.

Some advocates note that the crack sentencing bill was not particularly ambitious: it reduced the crack/powder disparity from 100-to-1 to 18-to-1. And it wasn’t retroactive, so some who were sentenced under mandatory minimum laws may not benefit.

Asked whether Obama might grant requests to commute the sentences of those who would have gotten less punishment if they committed their crimes today, an administration official said the crack-disparity bill “reflected Congress’s judgment that the law should not be retroactive, [and] the President believes that the Fair Sentencing Act will go a long way toward ensuring that our sentencing laws are tough, consistent, and fair.”

The official also downplayed the notion Obama might offer some kind of blanket clemency for earlier crack-cocaine offenders, saying that “as a general matter, the President agrees with the Department of Justice’s long-held view that commutation is an extraordinary remedy that should only be granted in extraordinary circumstances.”

September 12, 2010 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0) | TrackBack

John Grisham finds mysterious Virginia's application of the death penalty

Famed lawyer-author John Grisham has this long commentary in Sunday's Washington Post, which is headlined "Teresa Lewis didn't pull the trigger.  Why is she on death row?".  Here are excerpts:

The Commonwealth of Virginia already has a serious relationship with its death penalty. In the past three decades, only Texas has executed more inmates. But on Sept. 23, the Old Dominion will enter new territory when it executes a female inmate for the first time in nearly a century.

Her name is Teresa Lewis, she is the only woman on death row at the Fluvanna Correctional Center for Women, and her appeals have all but expired. If she is executed, she will become another glaring example of the unfairness of our death

In this case, as in so many capital cases, the imposition of a death sentence had little do with fairness. Like other death sentences, it depended more upon the assignment of judge and prosecutor, the location of the crime, the quality of the defense counsel, the speed with which a co-defendant struck a deal, the quality of each side's experts and other such factors.

In Virginia, the law is hardly consistent. There have been other cases with similar facts -- a wife and her lover scheme to kill her husband for his money or for life insurance proceeds. But there is no precedent for the wife being sentenced to death. Such inconsistencies mock the idea that ours is a system grounded in equality before the law.

September 12, 2010 in Death Penalty Reforms, Who Sentences | Permalink | Comments (15) | TrackBack