« September 12, 2010 - September 18, 2010 | Main | September 26, 2010 - October 2, 2010 »

September 25, 2010

Taking stock of fraud law and cases impacted by the SCOTUS Skilling ruling

Today's Wall Street Journal includes this effective article headlined "Fraud Cases Get Rehashed After Court Ruling." Here are excerpts:

Federal lawmakers and Justice Department officials are weighing new legislation to salvage a fraud statute used to pursue corporate and public corruption, as prosecutors grapple with the fallout of a Supreme Court ruling that weakened the law.

The court's decision in June to limit prosecutions for honest-services fraud has affected cases against high-profile defendants such as former Enron Chief Executive Jeffrey Skilling, whose appeal was the basis for the ruling, and lesser-known ones such as Edward J. Price III, the former mayor of Mandeville, La.

The law, making it a crime to deprive someone of the "intangible right of honest services," has long been used to prosecute officials or executives accused of placing their interests above those of taxpayers or shareholders. Defense lawyers criticized it as unconstitutionally vague.

Mr. Price cut a deal with prosecutors to shave two years off the 64-month prison term he received a week before the Supreme Court ruling invalidated part of his guilty plea. He admitted taking golf trips to Pebble Beach, Calif., paid for by a developer and the city engineer. A judge is to impose a new sentence Wednesday. "It's the first time in 38 or 39 years that I've done this sort of thing in federal court," said Mr. Price's lawyer, Ralph S. Whalen Jr. Louisiana prosecutors declined to comment.

The Supreme Court said the law clearly criminalized bribery and kickbacks, but was too vague to continue to be used against undisclosed conflicts of interest, where the evidence of corruption is more subtle.  Lanny Breuer, head of the Justice Department's criminal division, is expected to testify before the Senate Judiciary Committee Tuesday on the ruling's impact.

Justice Department officials and congressional staff are discussing how to close what they believe is a legal hole left by the high court, people familiar with the matter say.  Sen. Patrick Leahy (D., Vt.), the Judiciary Committee chairman, said Friday, "whole categories of corrupt and fraudulent conduct could go unpunished" because of the ruling. He said he was working with colleagues "to determine how best to clarify and restore this statute."...

[T]he ruling appears to have deterred prosecutors from bringing charges they would have brought before.  An analysis of federal prosecutions across the U.S. shows that pattern began even before the ruling, as the government and defense lawyers likely began to anticipate it.

In 2008 and 2009, the government brought honest-services fraud charges in more than 100 cases a year, the analysis shows.  The pace slowed in the second half of last year, after the Supreme Court agreed to review three cases, including Mr. Skilling's and former media mogul Conrad Black's. This year, new prosecutions using the statute slowed to a trickle....

So far, only a few cases have been totally upended. A New Jersey judge tossed out the conviction of Joseph Ferriero, the former Bergen County Democratic chairman; prosecutors haven't said whether they would seek a new indictment in the case. Prosecutors in Kansas dropped charges against Westar Energy executives.

Among the big-name defendants seeking to revisit cases are former Illinois Gov. George Ryan, ex-Alabama Gov. Don Siegelman, former HealthSouth chief Richard Scrushy, ex-New York Senate leader Joseph Bruno, and plaintiffs' lawyer Zach Scruggs. Mr. Black, released from prison pending a review of his conviction, is scheduled for a hearing in Chicago Wednesday.

September 25, 2010 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

September 24, 2010

Federal ruling seems to push California toward one-drug execution protocol

As detailed in this new article in the San Jose Mercury News, which is headlined "Judge may allow execution to go forward," California is (perhaps?) getting closer to resume executions after a five year hiatus.  Here are the particulars from a new ruling from the federal judge who put the system on hold way back in 2006:

A federal judge today refused to block the scheduled execution next week of a condemned Riverside County killer, but put a wrinkle in his ruling that may mean the inmate can only be put to death with a fatal dose of one anesthetic drug and not the three-drug procedure recently adopted by California prison officials.

U.S. District Judge Jeremy Fogel gave Albert Greenwood Brown, scheduled to be executed next Wednesday, until Saturday evening to request an execution with a single drug, a departure from California's preferred and planned method of administering lethal injection. If he does so and California officials refuse to comply with that restriction, Fogel said he will block the planned execution of Brown, on death row since 1982 for the rape and murder of a 15-year-old girl.

In an 11-page order, Fogel concluded that he does not have the legal authority to block Brown's Sept. 29 execution unless state officials fail to take steps that he believes address concerns that the lethal injection method will not cause a cruel and inhumane death. The judge indicated that a fatal dose of sodium thiopental may avoid the chief worry in lethal injection executions: that the two drug administered later would mask that face that an inmate experiences agonizing pain before being declared dead.

Fogel noted that nine single-drug executions have been carried out in Ohio and Washington without any "apparent difficulty." In what is a high-stakes decision, if Brown does not opt to be executed with the single drug, the judge did find that California can proceed with the execution under its usual three-drug procedure.

UPDATE:  The full 11-page ruling reference above can be accessed at this link thanks to Crime & Consequences.

September 24, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (8) | TrackBack

Lindsay Lohan saga continues, as she is hauled off to jail again

As detailed in this CBS News piece, the latest installment of a (now tiresome?) starlet drama unfolded in a Los Angeles courtroom today:

Actress Lindsay Lohan is back behind bars after failing a court-ordered drug test. A Los Angeles judge has refused to set bail and ordered her to remain in custody.

Immediately following Friday's hearing, which lasted only ten minutes, bailiffs escorted the 24-year-old Lohan from the Beverly Hills courtroom. Her next stop was the Century Regional Detention Center in Lynwood, the same facility she was released from less than two months ago....

[This] will be Lohan's third jail stint in a 3-year-old drug and drunken driving case after a pair of high-profile arrests in 2007. The only difference from her previous jail stints is that this time Lohan will not be released early.

Two weeks ago, Lohan tested positive for cocaine and amphetamines at a random drug screening, and then admitted her failure via Twitter calling it a "setback," reports RadarOnline. After publicly admitting her "setback," a judge issued a warrant for her arrest, which led to today's court appearance.

According to People, "She's being held by court order until her hearing on Oct. 22. She will be held in the same conditions as her last stay, in a keep-away unit." Until that formal probation violation hearing, Lohan will have to sit tight for 28 days in her 8 by 12-foot jail cell to learn her sentence for failing two court-ordered drug tests.

UPDATE:  State judges ultimately allowed Lohan to make bail, leading the Los Angeles Times to explore an enduring question in this piece headlined "Did Lindsay Lohan get special treatment? Some experts say yes, others say no".

September 24, 2010 in Celebrity sentencings | Permalink | Comments (3) | TrackBack

"Why Parents Should Support Legalizing Pot"

The title of this post is the headline of this notable commentary at AlterNet by Hanna Liebman Dershowitz, a lawyer in California who is co-chair of the Proposition 19 legal subcommittee. Here are excerpts:

My son just started kindergarten. So naturally, I have been thinking a lot about the type of world and community in which I want him and our seven-year-old daughter to live.  I am involved in a project to improve school lunches in our district to reinforce the nutrition lessons we teach in our home.  I am a founding board member of a community group trying to improve our city’s parks.  And I am working to help pass Proposition 19, the initiative to control and tax marijuana in California. It is important to me as a mother that my children grow up in a state —- hopefully a country soon —- that rejects the ineffective and damaging policy of marijuana prohibition.  It may be counterintuitive, but legalizing marijuana will be better and safer for our children.

I would like to believe my kids won’t ever choose to use drugs.  But whatever happens, it is certain that prohibition does not stop kids from using marijuana, and that my kids will be exposed to it along with other risky behaviors.  After all, about a third of high school seniors have used marijuana within the last year, a figure that has been relatively stable over decades across the country and has not been affected by variations in laws and enforcement.  Moreover, it has long been easier for kids to get marijuana than it is for them to get alcohol.  The plain fact is drug dealers don’t require ID, and legitimate businesses do.  By taking marijuana out of the black market and placing it within the confines of safe, regulated, and licensed businesses that only sell to those 21 and over, Proposition 19 would actually reduce underage access to marijuana.

While we don’t want our kids to try marijuana, if they do later on it can lead to very harsh consequences if they are caught, even for actions that are not harmful to others.  And this next part is really scary: when a person is convicted of a marijuana offense, he or she is precluded from receiving federal student loans, will forever have a drug record that diminishes job prospects, and is precluded from many other benefits, not to mention being arrested, possibly serving time, and other harsh and harrowing outcomes. We don’t prevent even violent criminals from getting student loans. Or underage drinkers, for that matter....

To truly serve public safety, we should control and tax marijuana, since under present policies, thousands of violent crimes go unsolved, while police spend valuable and scarce resources targeting thousands of non-violent adult marijuana users.  Arrests for simple possession of marijuana have tripled over the last two decades. The $300 million California spends each year on marijuana enforcement would better serve our communities spent on solving and preventing violent crimes. Any new tax revenues would better serve our children if spent on drug education, drug rehabilitation, and of course shoring up our crumbling public education system....

We know our children are going to make decisions for themselves, probably at an age we think is too young.  Laws are not going to be nearly as effective in guiding those choices as the messages we send to them as parents and in our public education efforts. We need to help kids navigate into adulthood with the judgment to moderate their intake of so many substances capable of abuse — from sugar to caffeine, alcohol, prescription drugs, and, yes, marijuana. Not to mention making good decisions about sex, Internet usage, driving, studying, and extracurricular activities.  As a mother, thinking through the list, I am not most terrified by the choices they might make regarding marijuana.... As parents, we know that education is often more effective than punishment, and in some cases punishment is not effective at all.

Women were instrumental in bringing about repeal of Prohibition in 1933, and we can be again when it comes to determining when marijuana prohibition is reversed. In my view, Proposition 19 is the right choice —- not just for true law and order —- but for our kids.

September 24, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (4) | TrackBack

Some notable execution news and notes (outside Virginia)

Virginia has been at the center of debates over executions and the administration the death penalty in recent weeks because of the Teresa Lewis case.  But, with Lewis being executed last night (details here), today the focus turns to a number of notable death penalty cases in other states.  Here are a review (with links) of some of the death penalty stories emerging from various locales:

September 24, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?

The federal GOP leaders who put together the new "Pledge to America" (available here and here) obviously did not give much thought to the drug war and mass incarceration.  In fact, I searched in vain for any significant mention of any crime and punishment issues in the "Pledge to America" (save for a brief mention of fighting against terrorism and illegal immigration).

Nevertheless, in light of the on-going local, state and national debates over marijunana policy and politics, I could not help but see some of these lines from the Pledge to be supportive of efforts by libertarians and others to urge a deescalation of the drug war at the federal level:

America is an idea – an idea that free people can govern themselves, that government’s powers are derived from the consent of the governed, that each of us is endowed by their Creator with the unalienable rights to life, liberty, and the pursuit of happiness....

America is an inspiration to those who yearn to be free and have the ability and the dignity to determine their own destiny....

We pledge to advance policies that promote greater liberty, wider opportunity, a robust defense, and national economic prosperity....

It’s time to do away with the old politics: that much is clear....

Our plan stands on the principles of smaller, more accountable government; economic freedom; lower taxes; fiscal responsibility; protecting life, American values, and the Constitution; and providing for a robust national defense.....

We will launch a sustained effort to stem the relentless growth in government that has occurred over the past decade.

Especially in light of GOP Representative Lamar Smith's recent comments assailing the Obama Adminstration for not getting tougher in the drug war (discussed here), I am certain that the GOP authors of the "Pledge to America" do not mean or want this pledge to be seen as taking any position on marijuana legalization or any other federal drug crime issues.  Still, I find it interesting and useful to think about growth in federal size and spending, as well as the impingement on liberty and on all those who "yearn to be free and have the ability and the dignity to determine their own destiny," that has resulted from the federal government wagging a war on drugs over the last four decades.

Some related posts on pot policy and politics:

September 24, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing | Permalink | Comments (15) | TrackBack

"Misconduct cases taint justice in Iowa"

The title of this post is the headline of this new article in the Des Moines Register, which provides a local follow-up to the blockbuster report on federal prosecutorial misconduct published yesterday in USA Today (discussed here).  Here are excerpts from this new piece:

Prosecutorial misconduct by U.S. attorneys in Iowa has triggered serious consequences in felony cases involving drug distribution, bank robbery and other major crimes, resulting in reduced sentences, costly new trials and an acquittal, court records show.

Judges say it's unusual for the missteps of U.S. attorneys in the state to be serious enough to overshadow the often powerful evidence against defendants in federal cases or to warrant relief for defendants. But it does happen. "I can tell you it's not a frequent occurrence," said U.S. District Judge Robert Pratt, based in Des Moines. "But even if it happens one time, that's too many."...

A sampling of 10 instances of misconduct involving Iowa prosecutors since 1998, collected by USA Today, shows prosecutors in both the state's Northern and Southern districts have withheld exculpatory evidence, made false statements, tainted defendants in front of juries and acted in bad faith after making plea agreements. In each of the cases, judges were compelled to take action on behalf of defendants or reprimand government attorneys.

September 24, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

September 23, 2010

Virginia carries out execution of Teresa Lewis

As detailed in this new Washington Post story, "Teresa Lewis, who plotted with a young lover to kill her husband and stepson for insurance money, became the first woman executed in Virginia in nearly 100 years Thursday night when she was killed by lethal injection." Here are more details of what makes this execution notable:

Lewis is the 12th woman to be executed in the United States since capital punishment was reinstated in 1976. The most recent was in Texas in 2005, when Frances Newton was killed by lethal injection for shooting her husband and two children.

Although the fight for Lewis's life did not draw nearly the attention of that surrounding Karla Faye Tucker, the pickax killer turned born-again Christian executed in 1998, more than 5,500 people signed an electronic petition asking McDonnell to spare her.

The Virginia Catholic Conference, the Virginia Conference of the United Methodist Church and the ARC of Virginia, which advocates for people with mental disabilities, were among the groups that urged that Lewis's sentence be commuted to life in prison....

Her supporters never said that Lewis was innocent or that she shouldn't be punished. But they said she did not deserve to die because she was borderline mentally retarded, with the intellectual ability of about a 13-year-old, and was manipulated by a smarter conspirator. It was wrong for her to be sentenced to death, they said, when the two men who fired the shots received life terms.

This related story in The National Law Journal is headlined "Attorney: Teresa Lewis a 'Poster Child' for Broken Death Penalty System."

September 23, 2010 in Death Penalty Reforms, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (37) | TrackBack

"Jailhouse Stocks Slip as Trends Shift"

The title of this post is the headline of this notable piece from The Street, which provides a market-based perspective on the private prison industry.  Here are excerpts:

Corrections Corp. of America (CXW) and Geo Group (GEO), the largest U.S. prison operators with a combined 86% market share, have long been touted as ironclad investments based on two trends: the rising prison population and government outsourcing of penal services. But those companies' lock on the industry is loosening.

The Federal Bureau of Investigation last week reported that violent crimes fell 6.1% in 2009, the third consecutive year of declines in such crimes, the type that most frequently contribute to lengthy jail sentences. Also in 2009, the state prison population dropped for the first time in 38 years, by 0.3%. While small, that came as a surprise, given the eightfold increase between 1972 and 2008, the Pew Center on the States reported.

Criminologists cite a variety of reasons for the trends: an aging population, the recession and judges' increasing willingness to seek alternatives to prison sentences, such as putting non-violent offenders on probation, releasing well-behaved prisoners earlier than required under sentencing guidelines, or giving some home detention and equipping them with ankle bracelets for monitoring.

Those factors keep a lid on growth in the prison population, which bodes poorly for the private-prison industry. That's already showing up in the numbers....

Still, some analysts give Corrections Corp. of America and Geo high marks, primarily based on the expectation that government entities will increasingly outsource detention services as cost-effective alternatives to making the huge investment it takes to build new prisons and staff them.

Barclays Capital analyst Manav Patnaik, who has "buy" ratings on both firms, said in a recent research report that state prisons still anticipate their inmate populations will grow. And only four states have authorized funding for new prison construction next year, and none acted upon it, suggesting demand for new private-prison housing will continue.

September 23, 2010 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (4) | TrackBack

Ninth Circuit rejects Eighth Amendment challenge to LWOP for second offense of child molestation

The Ninth Circuit has an interesting habeas sentencing opinion today in Norris v. Morgan, No. 08-35645 (9th Cir. Sept. 23, 2010) (available here).  Here is how it gets started:

Brach E. Norris was convicted by a jury of child molestation in the first-degree. Norris had also had been convicted of child molestation ten years earlier. The State of Washington’s “two strikes” law for repeat sex offenders provides for a mandatory sentence of life in prison without the possibility of parole, and Norris was so sentenced.  Invoking the Eighth Amendment’s prohibition against cruel and unusual punishment, Norris challenges his sentence as grossly disproportionate to his offense.

The Washington Court of Appeals denied Norris’s claim, holding his life-without-parole sentence not grossly disproportionate to his crime.  On habeas review, we decide whether the Washington Court of Appeals’s decision denying Norris’s claim “was contrary to, or involved an unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1).  We conclude that the decision was not contrary to clearly established federal law. Additionally, while finding the issue a close one, we conclude that Norris’s Eighth Amendment claim would fail even on de novo review, and thus need not determine whether the state appellate court decision involved an unreasonable application of clearly established federal law.  We affirm.

September 23, 2010 in Assessing Graham and its aftermath, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

USA Today exposes a "pattern of serious, glaring misconduct" among federal prosecutors

A helpful reader alerted me to this potent and disturbing new piece in USA Today headlined "Prosecutors' conduct can tip justice scales." Here are a few excerpts:

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution's promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses.

Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation's most elite and powerful law enforcement officials — themselves violated laws or ethics rules.

In case after case during that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains.

Such abuses, intentional or not, doubtless infect no more than a small fraction of the tens of thousands of criminal cases filed in the nation's federal courts each year. But the transgressions USA TODAY identified were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct.  And each has the potential to tarnish the reputation of the prosecutors who do their jobs honorably....

With help from legal experts and former prosecutors, USA TODAY spent six months examining federal prosecutors' work, reviewing legal databases, department records and tens of thousands of pages of court filings. Although the true extent of misconduct by prosecutors will likely never be known, the assessment is the most complete yet of the scope and impact of those violations.

USA TODAY found a pattern of "serious, glaring misconduct," said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors.  "It's systemic now, and … the system is not able to control this type of behavior. There is no accountability."

He and Alexander Bunin, the chief federal public defender in Albany, N.Y., called the newspaper's findings "the tip of the iceberg" because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges.

However frequently it happens, the consequences go to the heart of the justice system's promise of fairness....

In a justice system that prosecutes more than 60,000 people a year, mistakes are inevitable.  But the violations USA TODAY documented go beyond everyday missteps. In the worst cases, say judges, former prosecutors and others, they happen because prosecutors deliberately cut corners to win.

"There are rogue prosecutors, often motivated by personal ambition or partisan reasons," said Thornburgh, who was attorney general under Presidents Reagan and George H.W. Bush. Such people are uncommon, though, he added: "Most former federal prosecutors, like myself, are resentful of actions that bring discredit on the office."

Judges have seen those abuses, too.  "Sometimes, you get inexperienced and unscrupulous assistant U.S. attorneys who don't care about the rules," said U.W. Clemon, the former chief judge in northern Alabama's federal courts.

Wowsa!  I know of more than a few recent high-profile cases in which accusations of federal prosecutorial misconduct were lodged (and generally rejected by lower courts).  It will be interesting to see if this USA Today report prompts efforts by defense attorneys in all such cases to renew assertions of prosecutorial misconduct.  It will also be interesting to see if and how various folks inside the beltway --- ranging from folks inside Main Justice to members of Congress to even Supreme Court Justices --- might respond to this USA Today report.

September 23, 2010 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (24) | TrackBack

Notable Third Circuit ruling in CVRA case concerning victim's right to counsel involvement

A helpful reader forwarded me a notable little ruling from the Third Circuit earlier this week concerning whether the Crime Victims Rights Act gives victims a right to have their counsel involved in sentencing proceedings.  The short ruling in In re Zackey, No. 10-3772 (3d Cir. Sept. 22, 2010), can be downloaded below, and here a key portion:

Petitioner David Zackey, victim of a fraudulent scheme perpetrated by Defendant Joseph P. Donahue, seeks a writ of mandamus to enforce his right under the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771(d)(3), to be reasonably heard at sentencing. 18 U.S.C. § 3711(a)(4). Under Count Fifteen of the Indictment, Donahue was found guilty of credit card fraud under 18 U.S.C. § 1029(a)(2) for engaging in a course of conduct in which Zackey was victimized. Zackey seeks full restitution as provided by law, including attorneys fees, and an upward departure of the sentencing guidelines.  Zackey contends that the District Court failed to afford him the full scope of his rights available under the CVRA by improperly denying his motion to allow Attorney Jessica Richman to enter an appearance on the record and represent Zackey at sentencing.  Because we find that the District Court did not abuse its discretion, his petition is DENIED.

The CVRA provides that a “crime victim or the crime victim’s lawful representative, and the attorney for the Government” may assert a victim’s rights under the act. 18 U.S.C. § 3771(d)(1). In denying Richman’s motion to enter an appearance, the District Court held that the CVRA “does not require that [a victim] be represented by counsel when being heard, or that victim’s counsel be allowed to speak during the sentencing or any other proceeding in the case,” and it concluded that the assistance of the U.S. Attorney would be “sufficient for determining a proper sentence.”  Significantly, the District Court held that it “recognizes that David Zackey has a right to be heard regarding the defendant’s sentence and any restitution ordered in this case, and nothing in this order precludes the victim from exercising that right.”  Subsequent to the District Court’s order, the government filed Zackey’s motion for restitution and attorneys fees under the name of the United States Attorney’s Office.  Additionally, it has represented that it will seek an upward departure of the sentencing guidelines on account of Donahue’s acts that precipitated the destruction of Zackey’s credit rating and caused him severe emotional trauma. Because the government has not entered into any agreement that would compromise its ability to advocate unequivocally at sentencing for the rights of Donahue’s victims, these measures ensure Zackey’s rights under the CVRA will not be diluted in the absence of individual counsel.

Download Zackey ORDER_3rd_CIr_

The helpful reader who forward this ruling to me refers to Zackey as a "victim Gideon case."  In one sense, this reference seems somewhat apt because it seems like a stretch to expect that victims will always (or even usually) be able to secure all the rights to which they are entitled under the CVRA without the assistance of a lawyer in the courtroom.  But, obviously, the context and legal issues here are distinct: the right to counsel for criminal defendants is set out in the Constitution, and at issue in Gideon was whether the state had to provide counsel to defendants who could not afford them; there is no comparable right to counsel for criminal victims, and at issue in Zackey is not whether the victim could get counsel from the state but whether his retained counsel would be allowed to represent his interests in court.

September 23, 2010 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

September 22, 2010

"Sexting or Self-Produced Child Pornography?"

The title of this post is part of the title of this new piece by Professor Mary Leary that is available via SSRN. The full title of the article is "Sexting or Self-Produced Child Pornography? The Dialogue Continues – Structured Prosecutorial Discretion within a Multidisciplinary Response," and here is part of the piece's abstract:

The issues of “sexting” and “self-produced child pornography” (SPCP) have captured the attention of the media, courts, and state legislatures.  A debate rages among advocates, policy makers, and reporters about how the law should address this activity.  More than sixteen states have considered special legislation to address the problem and litigation has ensued. Lost in the debate are many realities including the complexity of the problem.  This behavior implicates aspects of child development, child sexuality, child exploitation, teen dating violence, education, and parenting.  While any deliberation about children and how the law should protect children is positive, sensationalism and oversimplification of this complex phenomenon undermine rationale debate.

This article builds on the concept that the solution does not lie in the criminal law.  Rather, it seeks to refocus the debate by suggesting that part of the solution depends on the formation of a comprehensive “smart” response. To accomplish this, society and its institutions (educational, social service, religious, law enforcement, legal, and civic) must come together and form a considered strategy that encourages prevention and a smart response when prevention fails.  This article examines the role of prosecution, if any, in that “smart” response. This article argues against the use of blunt instruments that fail to recognize the complexity of SPCP.  These extremes include “zero tolerance” policies, which in most cases do far more harm than good; decriminalization, which prevents a prosecutor from ever abusing his or her discretion, but also precludes juvenile court intervention even where the conduct is particularly egregious or the youth is in particular need of such; or an ad hoc approach by prosecutors which risks inconsistency, unfairness, and bias.

This article proposes an alternative approach which balances the need for fairness with a need for flexibility: Structured Prosecutorial Discretion within a Multidisciplinary Approach.  It is grounded in the recognition this complex problem covers a broad array of behaviors: from naïvely producing inappropriate images, to coercion, to maliciously distributing images of others virally.  The proposed model calls for prosecutors, together with members of other disciplines, to accept a protocol whereby a variety of proposed factors are considered, in a systematic way, in evaluating cases.  Structured Prosecutorial Discretion is characterized by a rejection of mandatory prosecution, exposure to sex offender registration, or adult criminal court, at one extreme, and decriminalization at the other.  Structured Prosecutorial Discretion would allow juvenile court prosecution to remain as part of a multidisciplinary response for only the most egregious cases (such as vindictive distribution of the images, coercion of the victim, etc.) and only after the implementation of offender-based and offense-based protocols.

Some related "sexting" posts:

September 22, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

Justice Elena Kagan's first significant vote is against a stay of Teresa Lewis's execution

As detailed in major stories from the AP and CNN and other major media sources, late yesterday the US Supreme Court refused to stay the scheduled execution of Teresa Lewis, the condemned woman sent to death row for her role in planning the killings of her husband and stepson in 2002. Lewis is now likely to be the first woman executed in the United States in five years, which is one of the reasons her story and likely execution is garnering lots of attention.

Missing in the coverage I have seen, however, is an interesting gender and new Justice angle on the Supreme Court's work late last night as evidenced by text of the SCOTUS order:

The application for stay of execution of sentence of death presented to The Chief Justice and by him referred to the Court is denied.  The petition for a writ of certiorari is denied.  Justice Ginsburg and Justice Sotomayor would grant the application for stay of execution.

I think it quite interesting and noteworthy that the two Justices who voted to stay Teresa Lewis's execution were both women AND that the newest female Justice, Elena Kagan, broke ranks with her more senior judicial colleagues by deciding against a stay for Teresa Lewis.

Though perhaps too much should not be read into this matter, I think there is a lot of "catnip" for SCOTUS watchers and also for would-be fans/foes of Justice Kagan.  Those concerned (or hoping) that Justice Kagan will be a predictable vote for liberal positions should be pleased (or troubled) that she was not willing to vote for a stay here.  But those hoping (or concerned) that Justice Kagan will be a shrewd junior justice who will build bridges/allies among more conservative Justices should be pleased (or troubled) that Justice Kagan seized an early opportunity to show that she will not always vote for death penalty stays.

A few recent related posts:

September 22, 2010 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (18) | TrackBack

Can/should a sentencing judge increase a drug sentence because a defendant is an illegal alien?

The question in the title of this post splits an Eighth Circuit panel today in US v. Loaiza-Sanchez, No. 09-2999 (8th Cir. Sept. 22, 2010) (available here).  Here is how the majority opinion starts:
Hector Loaiza-Sanchez and Jose Luis Juarez-Gonzalez pleaded guilty to conspiring to distribute and possessing with intent to distribute a substantial quantity of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.  After determining an advisory guidelines sentencing range of 168 to 210 months for each defendant, the district court concluded based upon the sentencing factors in 18 U.S.C. § 3553(a) that a sentence within that range was appropriate.  It then imposed a sentence above the bottom of the range because each defendant committed his offenses while in the country illegally.  Loaiza-Sanchez and Juarez-Gonzalez appeal their sentences of 188 and 200 months in prison, respectively, arguing primarily that “alienage” is an improper sentencing factor.  We affirm.
Here are portions of a dissent from Judge Bright:

In my view, increasing the sentence of a defendant because he is in the country illegally makes little sense when the defendant will be deported after serving his term of imprisonment. As I previously wrote in United States v. Chavez, 230 F.3d 1089, 1092 (8th Cir. 2000) (Bright, J., concurring), long sentences for illegal aliens punish not only the defendant but the American taxpayer. “It would be more sensible to give . . . a stiff, but shorter sentence and then to promptly deport him . . . as an example to other would-be drug dealers.” Id.

Current data on our nation’s prison population and its associated costs evidences this point. Nonviolent offenders constitute over 60% of the prison and jail population.  John Schmitt, Kris Warner & Sarika Gupta, The High Budgetary Cost of Incarceration, Ctr. for Econ. & Policy Research, 1 (June 2010), http://www.cepr.net/documents/publications/incarceration-2010-06.pdf.  Nonviolent drug offenders account for 25% of all offenders behind bars.  Id.  Our country currently spends over $75 billion per year on corrections. Id. at 2.  Reducing the number of nonviolent offenders in our prisons and jails by half would save our nation $16.9 billion per year. Id.  It would save the federal government $2.1 billion per year.  Id. at 11 . In this case, there is no record of violent conduct and no need to heavily punish the defendants or to burden the American taxpayer.

The record here contains no evidence that these defendants came to the United States for the purpose of dealing drugs.  And it simply seems unfair to punish these defendants differently than a United States citizen who commits the same crime.

September 22, 2010 in Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (11) | TrackBack

Fascinating split Fourth Circuit ruling on forced medication to make white-collar offender competent for trial

The Fourth Circuit has a fascinating discussion of both forced medication issues and white-collar sentencing realities today in US v. White, No. 09-7933 (4th Cir. Sept. 22, 2010) (available here).  Here are excerpts from the start and end of the controlling opinion:

Kimberly White ("White"), who suffers from Delusional Disorder, Grandiose Type, was indicted in the Eastern District of North Carolina on six counts of conspiracy, credit card fraud and identity theft.  She filed an unopposed motion for determination of her mental competency to stand trial under 18 U.S.C. § 4241. The examining experts unanimously agreed, and it is undisputed, that White is not competent to stand trial.  When White rebuffed all efforts to treat her disorder, on the government’s motion, the district court held an evidentiary hearing pursuant to Sell v. United States, 539 U.S. 166 (2003), to determine whether the government would be permitted to forcibly medicate White for the purpose of rendering her competent to stand trial. Over White’s objection, the district court granted the government’s motion.  White filed this timely interlocutory appeal, as permitted by Sell....

[W]e are satisfied that the circumstances presented in this case are not sufficiently exceptional to warrant forcible medication. See Sell, 539 U.S. at 180.  White is a non-violent detainee who has served more than the entirety of her likely sentence in pre-trial detention, and in onerous conditions at that. The alleged victims of her crimes, which were solely property crimes, would not likely benefit or be made whole in any way by her prosecution.  She is neither a danger to herself nor to the public, nor will she ever be able to purchase a gun.  She has a rare form of delusional disorder, and there is a dearth of data regarding whether antipsychotic medications, which rarely work on individuals with delusional disorder, would work on a patient like her.

If we authorize the government to forcibly medicate White, an all-too-common, non-violent, long-detained defendant, in a case in which several factors strongly militate against forced medication, it would risk making "routine" the kind of drastic resort to forced medication for restoring competency that the Supreme Court gave no hint of approving in Sell....

Judge Davis wrote this majority opinion, in which Judge Keenan joined. But Judge Keenan wrote a separate concurring opinion, and Judge Niemeyer wrote a dissenting opinion that includes this interesting passage:

[T]he majority relies ... heavily on its assertion that White’s crimes were nonviolent, and therefore the public’s safety is not at risk if she is not prosecuted.  As the majority explains, "Not every serious crime is equally serious.  The nature of White’s crimes lessens the government’s interest in prosecuting her because her alleged crimes were nonviolent offenses." Ante at 29.  The majority’s statement inappropriately assumes, without legal support, that crimes against the person are more serious than crimes against property for applying the Sell factors.  A given crime against property, however, can be serious or even more serious than a given crime against the person.  Enormous harm and distress can be caused by fraud and Ponzi schemes, as can be witnessed on a grand scale in the case of Bernard Madoff in New York.  More importantly, Sell itself refused to recognize such a distinction. See Sell, 539 U.S. at 180.  Moreover, the seriousness of a crime for determining the government’s interest is determined not by judges’ intuitive evaluations but by the maximum sentence established by Congress for the crime.

September 22, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Latest California efforts to get back into the execution business

Ba-deathchamber0_SFCG1285122537 As detailed in this front-page article in today's San Francisco Chronicle, the state with the nation's largest death row may be getting ever closer to resuming executions after a nearly five-year hiatus prompted by concerns about the state's lethal injection protocol.  The article is headlined "San Quentin gives glimpse of new injection space," and here are excerpts:

Execution is going to be a much more visible and sterile experience at San Quentin State Prison from now on. Prison officials offered the first glimpse of their new lethal injection center Tuesday -- one week ahead of a planned execution few think will actually be carried out -- and the differences between this stark-white place and the old apple-green gas chamber are marked.

The spacious $853,000 center has three brightly lit witness viewing rooms, and each gives a considerably better view than the cramped gas chamber's lone, poorly illuminated viewing room.  In particular, the main observation room for 12 state officials and 17 media witnesses offers four wide, flat windows looking straight into a roomy, open chamber where the lethal injection gurney sits.  This makes every angle of the execution visible -- unlike the truncated, partially blocked sightlines of the old center.

On the north side of this main witness room is a smaller, seven-seat room for survivors and friends of the condemned inmate's victims.  On the south side is an identical room with seven chairs for relatives and friends of the prisoner.  Each of those rooms has two wide windows providing unimpeded views.

But it is unclear whether there will be any witnesses at 12:01 a.m. next Wednesday to see rapist-murderer Albert Greenwood Brown, 56, put to death as planned.  That's because the execution itself is in doubt.

Capital punishment in California has been blocked since 2006 by two state lawsuits contending improper procedures in planning injections and one federal suit contending that lethal injection is a cruel and unusual punishment.  Though an injunction was lifted in one of the state suits Monday and U.S. District Judge Jeremy Fogel of San Jose said Tuesday he will issue a ruling in the federal suit on Friday, there remain several avenues for appeal before an execution can take place.

When he halted all executions in February 2006, Fogel ruled that the state's procedures were so badly flawed, with poorly trained staff working with unclear instructions and little monitoring in a dimly lit chamber, they posed a risk of leaving the dying inmate conscious and in pain at levels that violated the constitutional ban on cruel and unusual punishment.

In response, state officials revised the procedures and built the new death chamber in 2008.  "I don't know how they could simply dismiss the current legal challenges," said Lance Lindsey, executive director of Death Penalty Focus, which opposes capital punishment.  "There is no reason to rush."

Nonetheless, the state attorney general's office issued a death warrant for Brown's execution last month, and the prison has been making plans ever since for its first execution in four years. Brown raped and strangled a 15-year-old Riverside girl in 1980.  "We are fully prepared to carry out an execution on Sept. 29," acting Warden Vincent Cullen said Tuesday. "This facility is fully operational."...

The new injection chamber's views leave little unseen. The main difference is that unlike in the gas chamber, reporters won't be able to directly watch or hear the reactions of witnesses from the victim and inmate rooms to either side.  One major improvement in the new facility is that it has been wired with speakers.  The condemned prisoner will be able to broadcast his last words by a wireless microphone held to his lips by one of the executioners.

The old gas chamber is still ready for use if needed, the warden said.  But with the official method of execution in California being lethal injection, a prisoner would have to make a special request for gas instead.  Like the new injection room, the old gas chamber was entirely built by inmates.

September 22, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Top House Republican complaining that Obama administration is not fighting drug war hard enough

As detailed in this report from The Hill, which is headlined "Republican: Obama administration fosters use of marijuana," at least one House Republican wants the Obama Administration to keep growing one part of the federal government:

Rep. Lamar Smith (Texas) accused the administration of being too lax in its enforcement of drug laws.  President Obama's drug policies are encouraging increased marijuana use, a top Republican lawmaker charged Tuesday.

Rep. Lamar Smith (Texas), the top Republican member of the House Judiciary Committee who would likely become chairman of the committee under a GOP majority, accused the administration of being too lax in its enforcement of drug laws.  "The administration is clearly sending the message that they don't think it's bad to use marijuana," Smith said on Fox News. "So they're encouraging the use of marijuana.  And that simply is not a good thing to do."

Smith blamed the administration's decision to not enforce federal laws against marijuana dispensaries in states that have legalized the drug for medicinal purposes.  Smith blamed the administration's approach on drug laws for recent statistics showing an increased use of marijuana.

"We ought to be enforcing our drug laws, not backing away from them," said Smith, who also lamented a recent revision of criminal sentencing guidelines that reduced sentencing guidelines for crack-cocaine traffickers.  Proponents of the law in both parties had pushed that reform because sentencing for crack-related drug crimes were much more severe than for similar amounts of cocaine, a disparity which fueled a racial divide in drug sentencing.

As this article highlights, a Republican take-over of the House of Representatives this fall would likely result in Representative Lamar Smith becoming the chair of the House Judiciary Committee.  And Representative Smith has long been a vocal proponent of the war on drugs and an array of other tough-on-crimes measures that have increased the severity and scope of the federal criminal justice system. 

September 22, 2010 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Who Sentences | Permalink | Comments (17) | TrackBack

September 21, 2010

"Risk as a Proxy for Race"

The title of this post is the title of this notable new paper by Professor Bernard Harcourt available via SSRN. Here is the abstract:

Today, an increasing chorus argues that risk-assessment instruments are a politically feasible way to resolve our problem of mass incarceration and reduce prison populations. In this essay, I argue against this progressive argument for prediction: using risk-assessment tools to decrease prison populations would unquestionably aggravate the already intolerable racial imbalance in our prison populations and will not address the real source of mass incarceration, namely the admissions process.

Risk has collapsed into prior criminal history, and prior criminal history has become a proxy for race.  This means that using risk-assessment tools, even for progressive ends, is going to significantly aggravate the already unacceptable racial disparities in our criminal justice system.  Instead of turning to prediction, we need to address prison admissions . Recent evidence suggests that our carceral excess was not so much fueled by the length of sentences, as it was by the front end: new admissions.  The real solution to mass incarceration, then, is not to cut short prison terms though prediction, but to reduce admissions to prison.

September 21, 2010 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (26) | TrackBack

Georgia execution delayed after failed suicide (DIY?) effort by condemned

I am struggling to figure out how best to portray this (sad? telling? ironic?) AP story out of Georgia, which is headlined "Georgia execution delayed after suicide attempt."  Here are the details:

The Georgia Supreme Court is delaying the execution of a condemned man who attempted suicide hours before he was to be put to death by injection.

The court's order postponed the execution of Brandon Joseph Rhode to give the 31-year-old a chance to file a new challenge after his attorneys said he tried to slit his wrists. Corrections officials rescheduled it for Friday.

Rhode's attorneys say executing him would violate the Constitution's ban on cruel and unusual punishment. Rhode was scheduled to die for the killings of a 37-year-old man and two of his children during a burglary.

I know I should not joke about such serious life-and-death matters, but I cannot help but wonder if Rhode was just trying to make a statement about DIY culture on his (no-longer-) last day of life.

September 21, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (11) | TrackBack

Delaware editorial (strangely?) assails providing sentencing judges with punishment cost data

Following up the recent stories on Missouri's new sentencing innovations (background here and here), The News Journal (of Delaware) has this notable new editorial headlined "Judicial trends no place to solve fiscal dilemmas."  Here are excerpts:

An advisory committee established by Missouri state lawmakers has voted to begin telling judges the costs of criminal sentences on the state budgets.

For example, a judge might now learn that a second-degree robbery incarceration could be less than $9,000 for five years of intensive probation, but more than $50,000 for prison sentence and parole, The New York Times reports....

But there are more credible efforts to reduce the cost of imprisonment without factoring in capital budgets as pre-sentencing evidence.  Reducing sentences for nonviolent offenders tops the lists.  Most states are overhauling 25 years of mandatory sentences laws that led to longer jail time for possession of crack, the rock form of the powder cocaine.

In Delaware, which has the nation's 11th-highest incarceration rate, Corrections Commissioner Carl Danberg urges state legislators to consider alternatives for nonviolent criminals. "It's significantly cheaper to supervise the person in the community," Danberg said.

Judicial trends should further the cause of justice and the rule of law, not solve fiscal dilemmas. Unfortunately, Missouri judges are being given the kind of truth-in-sentencing help that stretches the bounds of justice due to victims and defendants.

This editorial seems strange to me on a number of fronts.  First, I am not even sure I understand the reference to "Judicial trends" that appears in the headline and penultimate sentence of this editorial.  Second, it seems that the editorial favors "efforts to reduce the cost of imprisonment" such as reducing prisons sentences and "consider[ing] alternatives for nonviolent criminals."  To the extent I understand the editorial's point, I suppose it is asserting that sentencing cost considerations should ONLY be for legislators' consideration and not for judicial consideration.

But I do not quite understand the suggestion that Missouri's decision to provide judges with cost data, along with other pertinent information at sentencing about (legislatively authorized) sentencing options and recidivism trends, in any way undermines "the cause of justice and the rule of law."  In my view, neither justice nor the rule of law demands that sentencing judges operate blind to the practical costs and benefits of the various sentencing options that legislatures have made available to judges.

Related posts:

September 21, 2010 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2) | TrackBack

Extraordinary symposium on "The Past and Future of Empirical Sentencing Research"

As detailed at this website and in this news release, the University of Albany's School of Criminal Justice has planned for later this week an extraordinary two-day event called "The Symposium on Crime and Justice: The Past and Future of Empirical Sentencing Research." Here is a basic description of the event from the symposium website:

The punishment received by those convicted in the criminal justice system is the outcome of a complex set of interactions between actors starting with the initial charge and ending only when the convicted individual is released from supervision.  There is a consensus among criminological scholars that the empirical study of this sentencing process has stagnated. The National Science Foundation has agreed to partially fund this symposium to help reinvigorate empirical research in this area by reengaging with other disciplines and reconnecting with the ongoing policy debates about sentencing.  We have assembled a top flight group of scholars to review the current state of sentencing research and chart future research directions.

As the event's agenda highlights, there truly are top-flight scholars on event one of the panels looking at these four essential and important key areas:

Wonderfully, for those like me who unfortunately cannot be in attendance at what looks sure to be an amazing event, there are a set of downloadable reference materials posted here that allows those of us stuck in distant lands to keep up with some of what is being discussed later this week in Albany.

September 21, 2010 in Data on sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2) | TrackBack

"Iran claims double standard in death penalty cases"

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

Iranian President Mahmoud Ahmadinejad has criticized Western media for having a double standard in reporting on the case of an American woman facing the death penalty, a news agency reported Tuesday.

Ahmadinejad accused the West of launching a "heavy propaganda" campaign against the case of an Iranian woman who had been sentenced to be stoned to death for adultery but failing to react with outrage over the imminent execution of Teresa Lewis in Virginia, according to state-run IRNA. Iran

Lewis is a Virginia woman due to be put to death by injection on Thursday for using sex and money to persuade two men to kill her husband and her stepson to collect on life insurance policies. She would be the first woman executed in Virginia in nearly a century, and the first U.S. execution of a woman in five years.

Ahmadinejad noted that "millions of Internet pages" have been devoted to Sakineh Mohammadi Ashtiani, whose stoning sentence was suspended in July and her case put under review.

"Meanwhile, nobody objects to the case of an American woman who is going to be executed," he was quoted as saying during a speech Monday to Islamic clerics and other figures in New York, where the Iranian leader is attending the U.N. General Assembly. "Today Western media are propaganda agents who continuously speak about democracy and human rights though their slogans are sheer lies," he added.

Ahmadinejad's remarks were the latest in a series of statements by Iranian officials denouncing the wave of international condemnation of Ashtiani's case, which has cast a harsh light on Iran's version of Islamic justice. Press TV, the government's main English-language broadcast arm, also broadcast reports about the case with a photo of Lewis throughout the day.

In related news, I see from this Washington Post report that lawyers for Teresa Lewis sent this three-page letter dated Monday asking Virginia Gov. Robert F. McDonnellto reconsider his decision Friday not to intervene in the case.

September 21, 2010 in Clemency and Pardons, Death Penalty Reforms, Sentencing around the world, Who Sentences | Permalink | Comments (13) | TrackBack

"State Crime Victim Recoveries"

The title of this post is the title of this interesting-looking new paper available via SSRN on state victim restitution policies and practicalities.  Here is the abstract:

Crime victim recoveries are typically available in American states through three separate, but related, avenues: a criminal proceeding (with or without a formal charge); a related civil claim (including a pre-suit settlement); and, a related administrative or special court proceeding. Multiple avenues can be pursued simultaneously.  These avenues often, but not always, have constitutional as well as statutory foundations.

Unfortunately state crime victims often go without recovery.  Barriers to recovery include intrastate and interstate confusion over terms like restitution and victim. More can be done for victims, especially during criminal case sentencing.  Unlike federal district courts, state criminal courts typically have general jurisdictional authority allowing broader opportunities for crime victim recoveries at the close of criminal cases.  Better crime victim recovery procedures are especially warranted where there are explicit state constitutional law interests.

September 21, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Split Sixth Circuit upholds federal mandatory LWOP sentence based on priors committed when a juve

In a case involving another defendant named Graham, a split panel of the Sixth Circuit has upheld a mandatory minimum LWOP sentence against a challenge that seeks to extend the reach of the Supreme Court's Eighth Amendment work in Graham v. Florida.  Here is how the majority opinion (per Judge Moore) in US v. Graham, No. 08-5993 (6th Cir. Sept. 21, 2010) (available here) gets started:

Donald Graham, convicted of three counts of a seven-count indictment for crack-cocaine offenses under 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2, appeals from the district court’s denial of his Federal Rule of Criminal Procedure 29 motion for a judgment of acquittal, denial of his motion to disregard life sentence, and sentencing decision.  Graham’s main contention on appeal is that his life sentence, imposed for his third qualifying felony under 21 U.S.C. § 841(b)(1)(A), violates the Eighth Amendment to the U.S. Constitution.  Finding no reversible error, we affirm the district court’s rulings on Graham’s motions and his life sentence.

Here is how the dissenting opinion (per Judge Merritt) gets started:

My view in this case of first impression in this Circuit is that the sentencing of this nonviolent, 30-year-old petty drug trafficker to life imprisonment by using a juvenile conviction as a necessary third strike not only violates clear congressional intent revealed by clear rules of statutory construction but also violates sound principles of penological policy based on the Eighth Amendment values recently outlined by the Supreme Court in Graham v. Florida, 130 S. Ct. 2011 (2010).  I would have preferred that my colleagues in the majority acknowledge and address the arguments made here against the use of a juvenile conviction to send this nonviolent drug offender to prison for life.  Instead they have chosen to ignore those arguments.  I leave it to the readers to determine for themselves the usefulness and credibility of this kind of appellate decision making.

September 21, 2010 in Assessing Graham and its aftermath, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (4) | TrackBack

AG Eric Holder stating that DOJ sentencing recommendations will be released "later this year"

Long-time readers may recall that I was pleased when, way back in early 2009, then-new Attorney General Eric Holder announced that the Justice Department was conducting a comprehensive internal review of federal sentencing and corrections issues.  I was pleased in part because AG Holder and others had intimated that DOJ would go public with the results of this review and make reform recommendations to Congress and the US Sentencing Commission.

But then as 2009 turned to 2010 (and early 2010 turned to late 2010) without any formal public report from DOJ on these issues, I came to the unhappy conclusion that the prevailing political winds had led to a determination by DOJ that it should not make public the result of its internal review.  So, I was both surprised and excited to discover this paragraph deep in a public speech delivered by AG this past Friday at the 2010 Bench/Bar Conference in Pennsylvania (with my emphasis added):

Over the past year, we have also been reevaluating federal sentencing and corrections policies to ensure that the proper balance is struck in promoting public safety, punishing criminals, avoiding unwarranted sentencing disparities, and reducing recidivism. Recommendations are currently in development and will be released later this year, but we were — and we all should be — heartened by the recent passage of the Fair Sentencing Act. The crack/powder sentencing disparity was a symbol of unfairness in our system and, though there’s more work to be done, its reduction is an encouraging step forward.

Given these comments by the AG — as well as by the fact that the US Sentencing Commission is going to be releasing new crack sentencing guidelines based on the FSA and a new report on mandatory minimum sentencing provision — I am starting to think that the upcoming lame-duck period for Congress in November and December might be a time for some exciting/interesting criminal justice developments.

September 21, 2010 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack

Another sad example of a needless death because of weak sentences for drunk driving

Regular readers who know of my persistent complaints and concerns about lenient drink driving sentences will not be surprised that I am troubled by this local story, which is headlined "Woman gets 11 years for fatal DUI crash -- her second fatal DUI crash in 20 years."  Here are the details:

For the second time in two decades, a York County woman has been sent to state prison for killing someone during an alcohol-fueled crash.  Julianne D. Fetrow must serve 11 to 30 years in prison for causing a crash on Nov. 28, 2007, that killed her boyfriend, Victor E. Wolf Jr., 52,....

Her blood-alcohol level at the time was 0.256 percent, police said -- more than three times the state's legal limit. In Pennsylvania, an adult is driving drunk at 0.08 percent.

In December, Fetrow, 44, pleaded guilty to third-degree murder, homicide by vehicle while driving under the influence, DUI and driving with a DUI-suspended license.   A plea agreement negotiated by chief deputy prosecutor Tim Barker and defense attorney Rick Robinson came with a maximum possible sentence of 13 to 30 years. But presiding Common Pleas Judge John S. Kennedy was free to impose a shorter sentence.

On Monday, Kennedy imposed the 11- to 30-year sentence, noting Fetrow had asked about alcohol-addiction programs offered in the state prison system. "We hope she will take advantage of those programs," Kennedy said. "There's no doubt in our mind that if Ms. Fetrow was not an alcoholic, the crash would not have occurred." He also ordered her to pay $3,500 in fines, plus court costs.

Northern York County Regional Police said Fetrow pulled out of Wolf's driveway and into the path of a tractor-trailer.  Wolf, a passenger in his Mercury Capri convertible, was pronounced dead at York Hospital, police said.

After the crash, Fetrow told police she and Wolf had been drinking a bottle of vodka at home, then left their home and drove around to do more drinking, police said. "Julianne Fetrow stated she could not recall where she was going or how the accident occurred," court records state.

Barker has said the decision to charge her with murder, in addition to homicide by vehicle while DUI, was based on the fact that she has a long history of DUI charges and had already completed a court-ordered Alcohol Highway Safety program.

In 1991, Fetrow was ordered to serve 1-1/2 to three years in state prison for killing fisherman Morris Stanley, 55, of Camp Hill, on May 22, 1990.  York Dispatcharticles from the time state that Fetrow was driving a car in Warrington Township that went off a bridge on Route 177 in Gifford Pinchot State Park, then hit Stanley, who was fishing with his two sons.  In that case, her blood-alcohol level was 0.226 percent, police said.

Fetrow has been charged with DUI in Pennsylvania five times, according to court records. She had been free on bail for causing the crash that killed Wolf, but her bail was revoked in October 2008 because probation officers monitoring her discovered she had smoked marijuana, the judge noted Monday....

Wolf's daughter-in-law, Nicole Wolf, spoke in court about the pain her family has struggled with, especially husband Victor Wolf and their son, 5-year-old Victor Jr.... She said her son struggles with nightmares and emotional issues since his grandfather died....

Also speaking in court was Bobby L. Bricker, 36, of Dover, who was driving the tractor-trailer that struck the victim's car.  He said he's battled anger, fear and depression in the wake of the crash, but found help from a faith-based addictions program called Reformers Unanimous. He gave Fetrow a brochure about the group.

Of course, I cannot say with any confidence that giving Fetrow a tougher sentence for her prior killing or for her many other DUI charges would have prevent the death of the victim in this case.  Nevertheless, stories like this one confirm my sense that our society ought to worry more about (and get tough quicker on) repeat drunk drivers than first-offense child porn downloaders and other non-contact sex offenders.  As this case highlights, the harms that repeat drunk drivers can do are severe, profound and can have a wide range of long-term victims.

Critically, my call for a tougher criminal-justice approach to drunk is not meant as advocacy for very long prison terms or a lock-em-up-throw-away-the-key approach.  Rather, I think technocorrections such as SCRAM bracelets and breathalizer ignition locks, back up with tough and certain graduated sanctions for any violations, need to be a more regular response to the defendants like Fetrow who cannot seem to control her addictions.  Such a dynamic approach has proved successful in many drug-court settings, and I wish it would become a norm in more DUI sentencing systems.

Some related posts on sentencing drunk drivers and advocacy for ignition locks:

September 21, 2010 in Criminal Sentences Alternatives, Offense Characteristics, Technocorrections | Permalink | Comments (8) | TrackBack

September 20, 2010

Plea deal lets Virginia quadruple-murderer escape death penalty (with approval of victims' relatives)

This local story from Virginia, which is headlined "Quadruple murderer avoids death penalty with plea deal," provides a number of cross-cutting perspectives on the administration of the death penalty. Here are the factual basics:

The suspect in the quadruple homicide that horrified this quiet college town a year ago pleaded guilty to murder charges today and was ordered to spend life in prison.  Richard Samuel Alden McCroskey III, 21, of California, pleaded guilty to two counts of capital murder and two counts of first-degree murder in Prince Edward County Circuit Court for bludgeoning the victims with a wood-splitting maul a year ago in a Longwood University professor's home in Farmville.

McCroskey, who could have faced the death penalty, was sentenced to life in prison.  He opted not to address the courtroom, which was occupied by family members of all four victims, law enforcement investigators and others.

Prince Edward County Commonwealth's Attorney James Ennis said McCroskey's anger about his relationship with his girlfriend, Emma Niederbrock, 16, led to the killings.  McCroskey killed Emma; her mother, Longwood University professor Debra S. Kelley; Kelley's estranged husband, Mark Niederbrock; and Emma's friend, Melanie Wells, who was visiting from West Virginia.

Ennis said members of the victims' families supported his decision to reach the plea agreement instead of going to trial and seeking the death penalty.  "What it really means is death in prison," Ennis said after the hearing.  "It's a guaranteed outcome, and hopefully it will bring some measure of closure to the family."

Defense attorney Cary Bowen said his objective had been to minimize McCroskey's punishment and serve his interest as best as possible.  "He's left families without their loved ones," Bowen said. "There are four people dead here.  He's not proud of that."  He said McCroskey is remorseful and has contemplated the severity of what he did.

A family spokeswoman released a statement from Kelley's parents, Thomas and Margaret Kelley, saying they are thankful that the case is over and that they may now "have some degree of closure."  They also thanked police and everyone who supported them.  "We have endured a tragedy of unspeakable proportion," the statement reads.  "We are relieved that justice has been done.  While we will never forget our loved ones or the circumstances of their deaths, we hope to move forward and begin the healing process."

In light of the apparent horrific nature of the defendant's crime (and the lack of any apparent doubt over guilt), I am a bit troubled by the prosecutor's willingness to take the death penalty off the table in this case.  And yet, since I tend to be a strong support of victim rights in these setting, I am sympathetic to the prosecutor's decision here given that the victims' relatives were apparently eager for the "closure" that the plea deal provided.

The fact that quadruple-murderer McCroskey has now been able to escape the Virginia death penalty through a plea and a statement of remorse will likely become another talking point for those folks urging that Virginia call of the execution of double-murderer Teresa Lewis scheduled for late this week.  Indeed, I find it notable that this McCroskey plea deal was cut the very first working day after Virginia's Governor denied clemency to Lewis late Friday night (as reported here).  Had the timing been reversed, I think there would have been even more pressure on Governor McDonnell to explain why a quadruple-murderer like McCroskey gets a break while a mere double-murderer like Lewis gets the needle.

September 20, 2010 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (17) | TrackBack

Notable dissent from Ninth Circuit denial of en banc review of probation sentence for "big-time thief"

As detailed in this post from back in February, a split Ninth Circuit panel in US v. Edwards, No. 08-30055 (9th Cir. Feb. 16, 2010) (available here), upheld as substantively reasonable a probation sentence given to convicted fraudster Duncan Edwards, whom the dissenting judge described as a "big time thief.”   Today, as detailed in this order, the Ninth Circuit has denied en banc review in Edwards, and that decision prompted a notable dissent by Judge Gould (which was joined by three other judges).  That dissent gets started this way:

In his cogent dissent from the majority decision of our three-judge panel, Judge Bea persuasively catalogs the laundry list of analytical errors committed by the district court at sentencing.  See United States v. Edwards, 595 F.3d 1004, 1018-25 (9th Cir. 2010) (Bea, J., dissenting).  I will not restate all of those errors here. Instead, I write to emphasize a larger and recurrent problem: our court’s practice of uncritically affirming unreasonably lenient sentences for white-collar criminals renders the Sentencing Guidelines a nullity, makes us an outlier among the circuit courts, and impairs our ability effectively to review sentences for substantive reasonableness.  Our “rubber-stamp” approach to reasonableness review permits district courts to abuse their sentencing discretion by paying lip service to appropriate sentencing considerations while paying inadequate heed to the substance of those considerations.  Hence we can end up with people like Edwards who engage in fraud and other criminal activities intended to cause extremely large monetary damages, yet who spend token and inadequate time, or even not one day, in jail.

Although we owe deference in the area of sentencing to a district court’s “superior position to find the relevant facts and judge their import,” Edwards, 595 F.3d at 1016 (internal quotation marks omitted), in the area of white-collar crime we should be circumspect to draw careful boundaries around that deference.  Because of the nature of their crimes, white-collar offenders are uniquely positioned to elicit empathy from a sentencing court. See United States v. Ruff, 535 F.3d 999, 1007 (9th Cir. 2008) (Gould, J., dissenting) (“[D]istrict courts sentencing white collar criminals can more often identify with the criminal . . . . But, socioeconomic comfort with a criminal convict is not a sufficient reason to show such extreme leniency . . . .”); Kenneth Mann et al., Sentencing the White- Collar Offender, 17 Am. Crim. L. Rev. 479, 500 (1980) (concluding from a survey of federal judges that they evinced particular “understanding” and “sympathy” “for the person whose position in society may be very much like their own,” and that “factors intimately related to the defendant’s social status do receive weight in the judges’ thinking” about sentencing).  And while judges take seriously violent crime and are forced by congressional mandatory minimums to take seriously drug crimes, there is latent risk in the case of white-collar sentencing that an “it’s only money” rationale will result in undue leniency for serious offenses.  I have no doubt that Edwards made a persuasive presentation to the district court that he was an unhealthy, aging retiree repentant of past frauds.  Such cases are precisely when we should most rigorously review a sentence’s reasonableness to ensure that the justifications relied on at sentencing are supported by objective evidence in the record. See Michael M. O’Hear, Appellate Review of Sentences: Reconsidering Deference, 51 Wm. & Mary L. Rev. 2123, 2141-49 (2010) (criticizing appellate deference to trial judge assessment of demeanor evidence at sentencing on the basis of the “emerging consensus in the legal and social science literature that people generally do a poor job in evaluating demeanor evidence,” and concluding that a defendant’s demeanor “seems about as likely to lead the trial judge astray as to facilitate good decision making”).  We know that often criminal defendants who commit other types of crimes will serve some hard time.  White-collar offenders like Edwards should not escape the same punishment simply because they are better-positioned to make a sympathetic presentation to the district judge.

I have bolded two phrases in this dissent because these lines appear to make a case for the Ninth Circuit to embrace and apply a more rigorous form of reasonableness review especially in white-collar cases.  Obviously, Judge Gould's advocacy here did not convince a majority of Ninth Circuit judges, and I am curious to hear whether readers like the idea of special approaches to reasonableness review in special kinds of sentencing cases.

September 20, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

"Paris Hilton Gets Year's Probation, No Jail"

The title of this post is the headline of this hard-hitting piece from People magazine, which provides the latest sentencing news on the latest development in the celebrity war on drugs.  Here are the plea and sentencing details (with a little pit of courtroom fashion thrown in):

Appearing before a Las Vegas judge first thing Monday morning regarding her Aug. 27 drug arrest, Paris Hilton pleaded guilty to two misdemeanors – drug possession and obstructing an officer – but avoided jail time.

Just as the District Attorney had confirmed over the weekend, under the terms of the plea, Hilton, 29, was placed on probation for a year. If she is arrested in the next year she will face a year behind bars.

Clark County Detention Center Justice of the Peace Joe Bonaventure, told Hilton, "The purpose here is to change your conduct. [The Clark County Detention Center] is not the Waldorf-Astoria."

Hilton was arrested shortly before midnight on Las Vegas Boulevard after police pulled over a vehicle in which she was a passenger. The male driver of the car was arrested on DUI drug charges. Hilton's purse also contained a bag with .8 grams of cocaine.

Arriving in the courtroom shortly before the judge, and wearing a white blouse and black pencil skirt, Hilton sat in the front row, looking solemn and speaking on briefly to her attorney, David Chesnoff.

After the hearing, the attorney told reporters: "She was treated like anyone else would be treated under the circumstances, and I'm very proud of the way she's dealt with this. I think she's on the road to success and I wish her personally the best."

Hilton must also complete a substance-abuse program, pay a $2,000 fine and complete 200 hours of community service.  According to Chesnoff, "She does a lot of stuff with animal rights, and I understand she's done work with children's hospitals, so I think she'll continue something along those lines."

"Defendant shall stay out of trouble.  Defendant agrees that an arrest for any charge, excluding minor traffic violations for which a citation is issued, shall result in the immediate termination of her probation and the execution of the suspended sentences," reads the deal.

Telling the judge multiple times that she understood and agreed to the plea bargain, Hilton admitted that she lied to Las Vegas police officers when she told them the purse that contained the cocaine wasn't hers.

As to why she misled authorities, a source close to Hilton tells PEOPLE, "At the moment it all came down, she was scared.  But since then, she's had time to think about her actions, and she's taking this really seriously." Asked why the heiress did not fight the charges against her, attorney Chesnoff said, "Miss Hilton accepted responsibility."

In not quite related news, TMZ.com is reporting here about another drug-involved starlet, "Lindsay Lohan Second Failed Test -- Amphetamines."

UPDATE:  Now,as People explains here, an arrest warrant has been issued for Lindsay Lohan.  Rough legal day for divas it seems.

September 20, 2010 in Celebrity sentencings, Drug Offense Sentencing | Permalink | Comments (8) | TrackBack

Sixth Circuit summarily (and wrongly?) decides that sentencing changes in Fair Sentencing Act not applicable to pre-change crime

At the end of a seemingly minor opinion, the Sixth Circuit today in US v. Carradine, No. 08-3220 (6th Cir. Sept. 20, 2010) (available here), addresses a major issue for any and all defendants hoping to get the an immediate benefit from the new crack sentencing provisions passed by Congress in the Fair Sentencing Act.  Here is the panel's entire discussion of the issue:

On August 12, 2010 — well after this case had been fully briefed and submitted for decision — Carradine moved to file a supplemental brief, arguing that he is entitled to the benefit of a recently enacted statute, the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010).  We granted the motion and accepted supplemental briefs from both parties.

This new statute, which amends the existing law, raises the threshold for imposition of a 60-month statutory minimum prison sentence from five (5) grams of crack cocaine to 28 grams. See id. at Sec. 2(a)(2) (amending 21 U.S.C. § 841(b)(1)(B)(iii)). Carradine had 19 grams of crack cocaine, so he would be subject to the statutory minimum under the old version but not under the new. Consequently, Carradine argues that the new version of the statute should apply.

The “general savings statute,” 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed, unless the new enactment expressly provides for its own retroactive application. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660 (1974); United States v. Avila-Anguiano, 609 F.3d 1046, 1050 (9th Cir. 2010); United States v. Smith, 354 F.3d 171, 174 (2d Cir. 2003); Korshin v. Comm’r, 91 F.3d 670, 673-74 (4th Cir. 1996).

The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time Carradine committed the crime in question.  We affirm the district court’s imposition of the 60-month mandatory minimum sentence.

I have provided links to the key statutory provision and Supreme Court ruling that the Sixth Circuit panel relies upon for its important (and first impression?) ruling.  I do so because I am not 100% sure that these controlling authorities must be read in the way the Sixth Circuit contends because both address criminal provisions that have been repealed.  Critically, the Fair Sentencing Act did not repeal anything, it merely amended (by raising) the trigger quantities for the application of a mandatory prison term.

Some may contend that the difference between "repealing" a criminal statute and "amending" when certain sentences apply is just a matter of semantics and that the Sixth Circuit's work in Carradine is sound.  But one need not be a pedantic textualist to appreciate that there also may be a meaningful substantive distinction between a wholesale repeal of a criminal statute and a statutory amendment that merely revise the applicability of a restriction on the discretionary authority of a judge at sentencing.

I do not mean to assert that the Sixth Circuit panel's work here in Carradine is obviously wrong.  I do mean to assert, however, that the issue is not as clear-cut as the Carradine panel opinion suggests and that, at least in my mind, this important issue merits greater discussion and fuller analysis than gets provided by the Sixth Circuit panel here.

September 20, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (15) | TrackBack

Will North Carolina's death penalty get killed by its Racial Justice Act?

NA-BI018_RACE_NS_20100919184416 The question in the title of this post is inspired by this effective new piece in the Wall Street Journal titled "Death Penalty Goes on Trial in North Carolina." Here are excerpts:

Last year, North Carolina enacted what's known as the Racial Justice Act, requiring judges to let any inmate off death row if the judge finds that race was a "significant factor" in the death sentence.

About 95% of the state's death-row population, or 152 inmates ..., filed bias claims by the August deadline, according to the North Carolina attorney general's office. The law also allows future capital-murder defendants to claim racial bias. Convicts whose petitions were successful would instead face life sentences, with no chance of parole.

North Carolina's new law is among the most hotly debated responses to recent criticism of the death penalty. Many states have rethought the sentence amid new genetic evidence that has freed some inmates....

North Carolina has undertaken the most far-reaching effort to date to examine the amorphous question of whether race played an improper role in decisions to seek or impose death sentences. It likely will be several months before any of the claims are considered by the courts, attorneys said.

"There are so many variables that can legitimately affect a prosecutor's decision to seek the death penalty, including the seriousness of an offense," said Christopher Slobogin, a death-penalty expert at Vanderbilt University Law School. "This will be a messy enterprise."

Other states could follow North Carolina's lead. Legislation is pending in Pennsylvania to allow death sentences to be challenged on the grounds of racial bias. A similar bill was introduced this year in California, though it was defeated because of concerns it would cost too much to administer, said a spokeswoman for Democratic California state senator Gilbert Cedillo, who introduced it.

Death-penalty critics and civil-rights advocates in North Carolina had pushed for several years to pass legislation aimed at examining the role of race in death-penalty cases. The Rouse case involves unusually specific evidence of alleged bias, and it was cited by advocates of the Racial Justice Act as an example of how discrimination can affect jurors' decision making, according to lawyers involved in the debate over the law....

No particular case served as catalyst for the final legislation, according to people involved in the process. "We had quite a few people in the state who were concerned about the large number of people on death row who are African-American," said state Democratic senator Floyd McKissick Jr., who sponsored the legislation.

The legislation drew heated debate, narrowly passing the Democratic-controlled legislature. No Republican voted for it. "We are just giving murderers an additional tool to delay justice," Justin Burr, a Republican state legislator said....

Some Republicans in the fall election season have continued to criticize their Democratic opponents for voting in favor of the legislation, although now the debate over bias legislation has been subsumed by a bigger controversy, attorneys said. The North Carolina attorney general's office last month released a report that the state's crime lab had routinely failed to disclose evidence possibly favorable to defendants, including in death-penalty cases.

Prosecutors also resisted the law, saying that it calls for a costly and unnecessary wholesale review of cases. "I feel very confident that race has not played a role in imposing the death penalty," said Peg Dorer, director of the North Carolina Conference of District Attorneys.

Of particular concern to prosecutors and other opponents is that the new law allows murder defendants to try to prove bias through broad statistical evidence, such as data showing that North Carolina prosecutors, on a county-wide or state-wide basis, have sought the death penalty more frequently against black defendants or in cases involving a white victim. "You shouldn't try a case on statistics," said Sarah Stevens, a North Carolina Republican legislator. "Statistics can be manipulated."

September 20, 2010 in Data on sentencing, Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (6) | TrackBack

"America, Land of the Imprisoned"

The title of this post is the headline of this notable commentary from a site called "The Libertarian Solution."  Here is how it starts:

The United States has one of the most the most expansive, punitive and expensive criminal justice systems in the world.  Although Americans account for only five percent of the world’s population, imprisoned U.S. citizens account for 25 percent of the world’s incarcerated population.  The median incarceration rate worldwide is roughly one-sixth of the American incarceration rate.

A full one percent of the American adult population is behind bars. Including those on parole or probation increases this figure to over three percent.  The U.S. incarcerates a far greater number of people than China, whose population is four times the size of ours.  As a percentage of population, we imprison five times more people than Britain and 12 times more than Japan.

The United States’ approach to criminal justice has not always been so punitive. Alexis de Tocqueville remarked in the early 19th century that “[i]n no country is criminal justice administered with more mildness than in the United States.”  But with the tough-on-crime approach and the exploding drug war in the second half of the 20th century, incarceration rates have rapidly escalated.

Two main factors contribute to America’s ballooning prison population: excessive mandatory minimum sentencing laws and paternalistic and overreaching legislation.

September 20, 2010 in Data on sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (13) | TrackBack

Local perspective on the impact of new reduced crack sentences

This local story from Indiana, which is headlined "Crack, powder cocaine nearer equal footing," provides an interesting local view on some of the consequences of the new federal sentencing laws for crack offenses. Here are excerpts:

Two months after Congress voted in favor of lowering federal sentencing guidelines again for people convicted for crack cocaine, local defendants are already seeing changes. More changes could come, though, as local officials continue to advocate for more balance between people convicted of crack cocaine possession versus powder cocaine possession.

"I think the criminal defense community is just grateful this change has occurred," Jerry Flynn, an attorney with the local Federal Community Defenders, said....

The most recent federal legislation calls for [all crack/powder sentences] to be brought down to a ratio of 18:1. Although the U.S. Sentencing Commission has not enacted that part yet, U.S. Attorney David Capp said his office in Hammond is already acting for new defendants as though it's in place.

The changes to minimum sentencing has the bigger effect, though, Flynn said, because several years ago judges were given the authority to sentence defendants outside the guidelines. Minimum sentences, however, are hard and fast.

That doesn't mean he and other public defenders won't continue to fight for more fairness, Flynn said. He wants to see the ratio brought down to 1:1, meaning they would be exactly the same for either form of cocaine. The U.S. House of Representatives had voted in favor of the equal ration, although the U.S. Senate backed the 18:1 ratio. Flynn said he was encouraged support for 1:1 was already there....

Flynn said he hopes the sentencing commission, if it can, will also make the newest changes retroactive. Part of the problem is that the newest legislation isn't clear on the issue, he said. "I know I have already started receiving questions (from defendants)," he said. "It could be extremely significant for several, several people."...

Capp said he doesn't expect the changes to affect local cases too much because so many of the cases deal with larger amounts of drugs and usually include other charges, such as carrying a weapon during a drug transaction. "(We) focus our efforts on the worst offenders, the worst of the worst," Capp said.

His office does charge for smaller amounts of drugs, though, but that could change. Because states might now actually have tougher sentences than the federal government, the U.S. Attorney's office could start partnering with local prosecutors more and let them take over those cases, Capp said.

September 20, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Who Sentences | Permalink | Comments (0) | TrackBack

September 19, 2010

Missouri's new practice of providing judges sentence cost information now fit to print

Today's New York Times includes this effective article, headlined "Missouri Tells Judges Cost of Sentences," which spreads the news on the latest state sentencing innovation.  Here is how the article starts:

When judges here sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri.

For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.

Legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing.

The practice has touched off a sharp debate. It has been lauded nationally by a disparate group of defense lawyers and fiscal conservatives, who consider it an overdue tool that will force judges to ponder alternatives to prison more seriously.

But critics — prosecutors especially — dismiss the idea as unseemly. They say that the cost of punishment is an irrelevant consideration when deciding a criminal’s fate and that there is a risk of overlooking the larger social costs of crime. “Justice isn’t subject to a mathematical formula,” said Robert P. McCulloch, the prosecuting attorney for St. Louis County.

The intent behind the cost estimates, he said, is transparent: to pressure judges, in the face of big bills, into sending fewer people to prison. “There is no average case,” Mr. McCulloch said. “Every case is an individual case, and every victim has the right to have each case viewed individually, and every defendant has that right.”

Supporters, however, say judges would never focus exclusively on the cost of a sentence or turn their responsibilities of judgment into a numerical equation. “This is one of a thousand things we look at — about the tip of a dog’s tail, it’s such a small thing,” said Judge Gary Oxenhandler, presiding judge in the 13th Judicial Circuit Court and a member of the sentencing commission. “But it is almost foolish not to look at it. We live in a what’s-it-going-to-cost? society now.”

The shift here comes at a dire time for criminal justice budgets around the country, as states try to navigate conflicting, politically charged demands: to keep people safe and also cut costs. Michigan has closed prisons. Arizona considered putting its prison system under private control. California has searched for ways to shrink its incarcerated population.

Legal scholars predict that policies similar to the one in Missouri — which, unlike some other measures, might encourage cutting costs before inmates are already in prison — may soon emerge elsewhere.

Related post:

September 19, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (4) | TrackBack