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October 2, 2010

Lots worth reading around the blogosphere...

at some of my favorite Criminal Law blog places:

October 2, 2010 | Permalink | Comments (2) | TrackBack

Noticing the many costs of California's capital craziness

California had quite a death penalty week, with lots of litigation and lots of stops and starts and stops again in its effort to finally execute Albert Brown three decades after he raped and murdered a teenage girl.  These two different follow-up articles highlight just some of the costs imposed by California's capital craziness:

From the California Progress Report, this piece headlined "California's $4 Million Rollercoaster Ride" starts and ends this way:

California’s death penalty has always been a bit of a head-scratcher, but the news over the last two weeks may have the record for furrowed brows and rolled eyes. The legal drama that has unfolded as the state tries to execute Albert Brown has shocked legal experts, but just confused everyone else....

Albert Brown could have been sentenced to die in prison 28 years ago and the people of California could have forgotten all about him. Instead, we’ve spent months in court and over $4 million to end up right back where we started, with Albert Brown in prison.

From the Los Angeles Times, this piece headlined "Execution delay has caused 'profound and unfathomable' distress to victim's family" starts this way:

This week's delay in the execution of Albert G. Brown Jr. has caused the family of the woman he raped and strangled "profound and unfathomable" distress.

In an e-mail Thursday to the Riverside Press-Enterprise, Karen Jordan Brown wrote that "the appeals process in California has proven to be nothing more than a never-ending war of attrition against justice and the rights of victims and their families."

Jordan Brown’s sister, Susan Jordan, 15, was abducted by Albert Brown, who is not related, in 1980 while she walked to Arlington High School in Riverside. Albert Brown then raped and strangled the girl. He has been on death row since his conviction in 1982 and was scheduled to be put to death Thursday in what would have been California’s first execution in five years.

The execution was put on hold Wednesday, after a week of legal wrangling between Albert Brown’s attorney and the state attorney general’s office over whether a lethal injection should be administered.

Some related posts:

October 2, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Effective review of the five new SCOTUS criminal justice cases

As noted in this prior post, this past week the US Supreme Court accepted five new criminal cases for its upcoming Term.  This article in the Wisconsin Law Journal, headlined "High court accepts five criminal cases," reviews the group.  Here is the article's coverage of the two sentencing cases:

[T]he court will decide whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission amended the Sentencing Guidelines for crack cocaine, if the judge had already accepted a plea deal with the defendant, in Freeman v. United States, No. 09-10245.  The U.S. Supreme Court has agreed to answer this question, reviewing a decision from the 6th Circuit which held that case law precluded modification of a sentence imposed pursuant to a plea deal.

In that case, the defendant was charged with one count of crack possession, among other charges. He entered a plea agreement that included a sentence of 106 months.  After his agreement was accepted by the trial judge and his sentence was entered, the U.S. Sentencing Commission amended the Sentencing Guidelines to reduce the disparity in the treatment of crack and powder cocaine, and made the amendment retroactive.  The defendant then sought to reduce his sentence accordingly.

But a U.S. District Court refused to do so, and the 6th Circuit affirmed.  “[T]he district court did not indicate that failing to resentence [the defendant] resulted in a miscarriage of justice. … [The defendant's] original 106-month sentence remained inside the guidelines range for his crime, even after the amendment,” the court said.  His 106-month sentence fell at the bottom of the range before the amendment and at the top of the range after the amendment, it noted....

[In another] case, arising within the Seventh Circuit, the court will decide whether a conviction for resisting arrest counts as a violent felony under the Armed Career Criminal Act, in Sykes v. U.S., No. 09-11311.  The Seventh Circuit concluded it was, finding that eluding a police officer is “purposeful, violent and aggressive.”  U.S. v. Sykes, No. 08-3624 (7th Cir., Mar. 12, 2010).

October 2, 2010 in Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

October 1, 2010

Eleventh Circuit summarily (in dicta?) asserts that FSA sentencing changes cannot impact pre-change crimes

A few weeks ago in this post, I noted that the Sixth Circuit at the end of a seemingly minor opinion in US v. Carradine, No. 08-3220 (6th Cir. Sept. 20, 2010) (available here), addressed 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.  And I complained that the Sixth Circuit's analysis struck me as a bit too cursory.  Today, the Eleventh Circuit at the end of a seemingly minor opinion in US v. Gomes, No. 10-11225 (11th Cir. Oct. 1, 2010) (available here), seems to resolve a complex issue being litigated in district courts to a single sentence (of inaccurate? dicta?).

Specifically, here is the final sentence of a relatively short opinion in Gomes: "Moreover, because the FSA took effect in August 2010, after appellant committed his crimes, 1 U.S.C. § 109 bars the Act from affecting his punishment."   As my post title and mention above suggests, I am not sure if this sentence is part of the holding or just dicta in Gomes, and i am also not sure if it is accurate.  Nevertheless, I suspect all the folks litigating similar issues in district courts around the country will find this sentence important even if though it is opaque.

Related post:

October 1, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

California female juve killer serving LWOP seeks (and deserves?) clemency from Governor Schwarzenegger

As detailed in this local story, which is headlined "Sara Kruzan, Serving Life Without Parole, Petitions CA Governor for Release," a notable new state clemency request has been made by a female killer in California (whom, to me, seems like a much more sympathetic character than the recently executed Teresa Lewis):

Sara Kruzan, who was just two months past her 16th birthday when she shot her 36-year-old pimp in 1994, has filed a clemency petition asking California Gov. Schwarzenegger to commute her life without parole sentence to time served. Now 32, Sara has spent half her life in prison, where she is a model prisoner and working toward a college degree.

The petition, filed yesterday by attorneys from the law firm of Perkins Coie and the National Center for Youth Law, seeks Sara's release. Sara, the petition says, had no criminal record at the time of her crime and, in fact, had been an honor student who once served as student body president.

The man Sara shot, a pimp named "G.G.", sexually assaulted her when she was just 11 years old. He then turned her onto the street as a prostitute at age 13. In addition to the abuse suffered at the hands of her eventual victim, Sara's life was plagued with abuse from others: she was molested as a young child by other men, gang raped by men from her neighborhood at age 13, and endured physical and emotional abuse by her own mother.

In her clemency petition, Sara acknowledges that her past does not excuse what she did, and expresses deep remorse for her crime. "I feel a deep sorrow for taking [his] life. It is daily I experience a level of grief and sadness in my heart and in my thoughts," Sara writes.

At the time of her sentencing, the California Youth Authority evaluated Sara and determined that she could be rehabilitated in the juvenile system, which would have resulted in her release at age 25. Instead, Sara was sentenced to serve the rest of her life in adult prison....

Sara's clemency petition is based on the absence of expert testimony at trial explaining how Sara's actions were affected by the years of abuse she endured, as well as on her youth at the time of the crime and her subsequent rehabilitation in prison. The decision of whether to grant Sara clemency rests solely with the Governor.

A pdf copy of the clemency forms filed in this case can be accessed at this link.

As the headline of this post hints, I have a hard time thinking of a potentially more sympathetic case calling for the exercise of clemency in the context of a juvenile killer.  Sara age and background (not to mention her gender), as well as the nature of her victim, certainly suggests that she is perhaps the most "sympathetic" murderer that one can imagine.  Nevertheless, she is subject to the sentence of life without parole the most extreme sentence that is constitutionally permitted.  (Indeed, Sara seems like an ideal case for advocates to try to extend the reach of Graham (especially the Chief's concurrence in Graham) to cover some homicide crimes by juveniles in some settings.)

Perhaps there are other facts or factors in this case that make it not quite as sympathetic and as deserving of clemency as it initially seems.  Still, this case has me thinking of a lot of related questions concerning juve girls serving LWOP for murder:

1.  Just how many of the roughly 2000 juve murderers serving LWOP sentences in the United States are female?

2.  What is the youngest age at which a female killed and ended up sentenced to LWOP?

3.  Will all (or even most or many) of the the many folks who got all worked up about Virginia's decision to execute Teresa Lewis for her multiple (and less sympathic) murders come to Sara's aid by urging California Governor Arnold Schwarzenegger to simply commute her sentence to life with parole?

October 1, 2010 in Clemency and Pardons, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (7) | TrackBack

Death penalty discussion in Massachusetts AG debate

As Governor of Massachusetts, Mitt Romney tried and failed (some spectacularly) to bring the death penalty back to the Bay State.  Now, as detailed in this news report headlined "AG candidates debate renewing death penalty: Mattapan killings a hot-button topic," a high-profile murder has prompted yet again discussion of capital punishment in the state:

Injecting the Mattapan killings into the state attorney general’s race, Republican candidate James McKenna said yesterday that in light of the gruesome deaths it was time to revisit the death penalty in Massachusetts.

"We don’t know the facts here yet," McKenna said during his first debate yesterday with Martha Coakley, the Democratic incumbent. "But this case may put the death penalty back on the table." Four people were killed in the shootings early Tuesday, including a 2-year old child.

Coakley, who is seeking reelection after her defeat to Scott Brown in January’s special US Senate election, said she opposes capital punishment; in the past, she had supported it in certain instances. "I am against it," she said simply.

Massachusetts lawmakers have repeatedly turned aside efforts to reinstate the death penalty, citing a lack of evidence that it deters crime and the possibility of executing an innocent convict.

Although he raised the death penalty issue, McKenna’s stance on capital punishment appeared to be a work in progress. Last week, he said he favored the death penalty for killers of police officers, but implied in yesterday’s debate that he also supports executing murderers of children.

Asked to clarify his position, spokeswoman Laura Rigas said in a statement, "Jim McKenna does support it in extreme cases, such as those who are convicted of murdering children and public safety officials and those who commit acts of terrorism."

October 1, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Looking back playfully before looking forward to the new SCOTUS term

I have not spent too much time on Supreme Court previews recently (partially because Ryder Cup previews are more timely and somewhat more interesting these days).  But, especially with the new Term about to start, I had extra fun reading this great "revue" of last SCOTUS Term from the pen of Jon Elwood, which is titled "What Were They Thinking -- The Supreme Court in Revue, October Term 2009." Here are a couple of amusing paragraphs from the revue focused on the Court's Eighth Amendment work last Term:

If you noticed that society refilled the tank without being asked the last time it borrowed the car, you’re not alone in marking the progress of a maturing society.  Justice Kennedy has been sufficiently impressed that he’s recently voted (and sometimes written opinions) to render unconstitutional previously lawful sentencing practices under the Eighth Amendment’s Cruel and Unusual Punishments Clause — think Atkins v. Virginia (2002) (holding it unconstitutional to execute mentally retarded offenders); Roper v. Simmons (2005) (holding it unconstitutional to execute defendants who murdered while under age 18), and to a lesser extent (because the Court had already so held regarding rape of an adult), Kennedy v. Louisiana (2008) (holding capital punishment cannot be imposed for rape of a child).  Kennedy reprised his role as a one-man evolving standard of decency in Graham v. Florida, which is one of those opinions that people seem to forget when they’re bemoaning the arch-conservative Roberts Court.  The Court held 6-3 that the Cruel and Unusual Punishments Clause does not permit imposing a sentence of life without parole on a juvenile offender convicted of a nonhomicide offense.  The Court noted that while 37 states permit such sentences, only 11 impose them as a practical matter, and they were mostly states without a first-rate daily paper or bookstore.  Thus, there was a national consensus against imposing sentences of life parole on such offenders.

The sort of numerical analysis that is reserved for Eighth Amendment cases, movie-studio accounting, and the federal budget alone would have been enough to cause TMJ-aggravating tooth-gnashing on the right, but Kennedy was not done yet.  In a selfless effort to promote renewable energy, Kennedy ended his opinion by noting that the Court’s conclusion was supported by the fact that the sentencing practice was “rejected the world over.”  The resulting geysers of steam emanating from conservatives’ ears promises to be a significant source of thermal energy for years to come.

October 1, 2010 in Graham and Sullivan Eighth Amendment cases, Who Sentences | Permalink | Comments (2) | TrackBack

September 30, 2010

Significant IAC ruling from Tenth Circuit based on counsel’s failure to understand guidelines

A split panel of the Tenth Circuit today handed down an interesting and important Sixth Amendment ineffective assistance of counsel ruling today in US v. Washington, No. 08-3313 (10th Cir. Sept. 30, 2010) (available here).  Here is how the majority opinion starts:

Petitioner Patrick E. Washington requests reversal of the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, correct, or set aside his sentence, claiming the district court erred in not holding his counsel’s performance constitutionally deficient.  We conclude that counsel’s failure to understand the basic mechanics of the sentencing guidelines and, in particular, his failure to advise Mr. Washington regarding the impact of relevant conduct on his potential sentence prior to meeting with the probation officer, amounted to constitutionally deficient performance under Strickland v. Washington, 466 U.S. 668 (1984).  We also conclude that Mr. Washington was prejudiced as a result of the above failures because the facts he conceded at his presentence interview disqualified him from obtaining a two-level reduction pursuant to the 2007 Crack Cocaine Amendments, U.S.S.G. § 2D1.1(c), App. C, Amend. 706, 711 (2007) (Amendment 706). We therefore reverse.

The heart of the dissent by Judge Tacha is evident from this paragraph of her opinion:

In Gordon, we joined our sister circuit courts in holding that “the presentence interview is not a critical stage of the [criminal] proceeding within the meaning of the Sixth Amendment.” 4 F.3d at 1572.  We therefore denied the defendant’s claim for relief based on ineffective assistance of counsel. Id.  Although the majority recognizes that Gordon is still good law in this circuit, it attempts to limit Gordon’s holding to the precise moment of the presentence interview. See Maj. Op. at 11–12. I cannot agree with the majority’s position.  Besides standing contrary to our clear language in Gordon, the majority’s limited reading creates an arbitrary distinction under which a defendant has the constitutional right to the advice of and information from his attorney before the presentence interview but does not have the right to such advice and information once the interview has begun.  Gordon, of course, makes no such distinction.

If the feds decide to pursue an en banc appeal or a cert petition, I would not be surprised if a number of addition judges or Justices want to jump in on these important issues.

September 30, 2010 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5) | TrackBack

An effective (and telling) list of the "best blogs" discussing capital punishment

A criminal justice website has this effective and telling compilation of "The 50 Best Blogs Discussing Capital Punishment." I call the list effective because just about every blog I have ever tripped across in my capital punishment surfing gets linked (with a brief description). I call the list telling because only three of the linked blogs are listed as pro-death penalty, eight are listed as neutral (including this one), and 39 are anti-death penalty.

September 30, 2010 in Death Penalty Reforms, Who Sentences | Permalink | Comments (2) | TrackBack

September 29, 2010

"Drugs and conservatives should go together"

The title of this post is the headline of this commentary in the Los Angeles Times by Jeffrey Miron, a senior fellow at the Cato Institute.  Here are excerpts:

For decades, the U.S. debate over drug legalization has pitted conservatives on one side against libertarians and some liberals on the other.  A few conservatives have publicly opposed the drug war (e.g., National Review founder William F. Buckley Jr.), but most conservatives either endorse it or sidestep the issue.

Yet vigorous opposition to the drug war should be a no-brainer for conservatives. Legalization would not only promote specific policy objectives that are near and dear to conservative hearts, it is also consistent with core principles that conservatives endorse in other contexts....

Prohibition is fiscally irresponsible.  Its key goal is reduced drug use, yet repeated studies find minimal impact on drug use.  My just-released Cato Institute study shows that prohibition entails government expenditure of more than $41 billion a year.  At the same time, the government misses out on about $47 billion in tax revenues that could be collected from legalized drugs.  The budgetary windfall from legalization would hardly solve the country's fiscal woes.  Nevertheless, losing $88 billion in a program that fails to attain its stated goal should be anathema to conservatives.

Drug prohibition is hard to reconcile with constitutionally limited government.  The Constitution gives the federal government a few expressly enumerated powers, with all others reserved to the states (or to the people) under the 10th Amendment.  None of the enumerated powers authorizes Congress to outlaw specific products, only to regulate interstate commerce.  Thus, laws regulating interstate trade in drugs might pass constitutional muster, but outright bans cannot.  Indeed, when the United States wanted to outlaw alcohol, it passed the 18th Amendment.  The country has never adopted such constitutional authorization for drug prohibition.

Drug prohibition is hopelessly inconsistent with allegiance to free markets, which should mean that businesses can sell whatever products they wish, even if the products could be dangerous.  Prohibition is similarly inconsistent with individual responsibility, which holds that individuals can consume what they want — even if such behavior seems unwise — so long as these actions do not harm others.

Yes, drugs can harm innocent third parties, but so can — and do — alcohol, cars and many other legal products. Consistency demands treating drugs like these other goods, which means keeping them legal while punishing irresponsible use, such as driving under the influence.

Legalization would take drug control out government's incompetent hands and place it with churches, medical professionals, coaches, friends and families. These are precisely the private institutions whose virtues conservatives extol in other areas.

By supporting the legalization of drugs, conservatives might even help themselves at the ballot box.  Many voters find the conservative combination of policies confusing at best, inconsistent and hypocritical at worst.  Because drug prohibition is utterly out of step with the rest of the conservative agenda, abandoning it is a natural way to win the hearts and minds of these voters.

Some related posts on pot policy and politics:

September 29, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

"Calif execution try collapses after court setbacks"

The title of this post is the headline of this new AP article providing the latest death penalty news from California.  Here are excerpts:

California's first execution attempt in nearly five years collapsed Wednesday amid two adverse court rulings in as many days and an impending shortage of drugs that made the lethal injection of a convicted rapist-murderer impossible.

State officials called off the execution of Albert Greenwood Brown after a state Supreme Court ruling made Friday the earliest possible day that Brown could be given a lethal injection. But by then, the state's entire supply of a drug used during the process would have expired.

It was unclear when the state might try again to execute Brown, since it won't receive a new supply of sodium thiopental until early next year at the soonest. Brown's attorney and death penalty foes had accused the attorney general's office of rushing to execute the inmate before the drug supply expired....

The state high court ruling came a day after U.S. District Jeremy Fogel blocked the execution that had been scheduled for Thursday night. Fogel said he wanted more than a few days to determine whether California's new lethal injection process passes constitutional muster by avoiding cruel and unusual punishment.

The attorney general appealed that decision Wednesday morning to the 9th U.S. Circuit Court of Appeals only to withdraw it in the afternoon. Senior Assistant Attorney General Ronald Matthias told the appeals court that "in light of the order of the Supreme Court of California ... no execution of Albert Greenwood Brown can occur on Sept. 30, 2010, as a matter of state law."

September 29, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (7) | TrackBack

New report from Pew on incarceration's collateral costs

As detailed in this press release, the folks at The Pew Chartiable Trusts have produced a notable new report titled "Collateral Costs: Incarceration’s Effect on Economic Mobility."  The full report is available at this link, and here are highlights from the press release:

Incarceration reduces former inmates’ earnings by 40 percent and limits their future economic mobility, according to a new Pew report, Collateral Costs: Incarceration’s Effect on Economic Mobility. This is a growing challenge now that 1 in every 28 children in America has a parent behind bars, up from 1 in 125 just 25 years ago....

“Pew’s past research shows a variety of factors influence economic mobility both within a person’s lifetime and across generations. This report finds that incarceration is a powerful determinant of mobility for both former inmates and their children,” said Scott Winship, research manager of the Economic Mobility Project of Pew’s Economic Policy Group.

Incarceration’s long-term economic repercussions are felt by increasing numbers of families and communities now that 2.3 million Americans are behind bars, equaling 1 in 100 adults. Up from 500,000 in 1980, this marks more than a 300 percent increase in the United States’ incarcerated population.

Collateral Costs details the concentration of incarceration among men, the young, the uneducated and African Americans. One in 87 working-aged white men is in prison or jail compared with 1 in 36 Hispanic men and 1 in 12 African American men. Today, more African American men aged 20 to 34 without a high school diploma or GED are behind bars (37 percent) than are employed (26 percent).

The report also shows more than 2.7 million minor children now have a parent behind bars, or 1 in every 28.  For African American children the number is 1 in 9, a rate that has more than quadrupled in the past 25 years.

According to the Washington State Institute for Public Policy, improving employment prospects can decrease the chances that ex-offenders will return to prison or jail.  In previous reports, Pew identified policies that research shows can reduce recidivism and minimize the intergenerational impact of incarceration by boosting the chances that ex-offenders will successfully rejoin the community and the labor market.

September 29, 2010 in Collateral consequences, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Seventh Circuit finds that sentencing speed kills procedural reasonableness

The Seventh Circuit has an interesting reasonableness ruling today in US v. Glosser, No. 08-4015 (7th Cir. Sept. 29, 2010) (available here), which gets started this way:

The government appeals from a 121-month sentence a defendant received for attempting to possess more than 500 grams of methamphetamine, arguing that the district court committed procedural error by announcing and promising that it would impose the mandatory minimum sentence during the change of plea hearing, before it knew the advisory guidelines range or had heard either party’s argument regarding the sentence. Although we recognize that the court’s references to the ten-year mandatory minimum stemmed from a desire to ensure the defendant understood the minimum time he faced (he had previously been incorrectly informed that he faced a statutory minimum of five years), we agree with the government that the premature announcement of sentence constitutes procedural error that requires we vacate the sentence and remand for further proceedings.

September 29, 2010 in Booker in the Circuits, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

"Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency"

The title of this post is the title of this notable new note by Joanna Huang in the latest issue of the Duke Law Journal.  Here is the abstract:

P>In 1987, the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the mandatory Federal Sentencing Guidelines.  During this period, many judges were forced to impose sentences they viewed as unjust.  Trust in the judiciary was restored in 2005, when United States v. Booker made the Sentencing Guidelines advisory.  Despite the increase in judicial discretion, however, judges are still unable to correct sentences imposed during the intervening eighteen years because Bookerdoes not apply retroactively. Unfortunately, the executive and legislative branches are similarly unable to provide adequate remedies. Congressional action is insufficient because it is inflexible, time consuming, and generally nonretroactive. Executive clemency appears more promising due to a flexible and broad nature that allows the president and state governors to pardon or commute sentences at will.  But executives have become unwilling to use their clemency power, making it an inadequate remedy.

This Note proposes a solution that overcomes the limitations of the current system: judicial recommendation of executive clemency.  This solution produces three benefits.  First, it provides judges with a discretionary tool to reduce disproportionate mandatory sentences. Second, it revitalizes the exercise of clemency by giving it additional legitimacy.  Finally, it refocuses clemency grants on the defendant and the facts of the case rather than on political influences.  This Note provides eight illustrative criteria for judicial recommendation of executive clemency that, together, combine the characteristics of three modern cases in which the sentencing judges recommended clemency. This Note seeks to explain how and why each criterion might be important, taking into consideration the goals of judicial discretion, executive clemency, and the criminal justice system overall.

September 29, 2010 in Booker and Fanfan Commentary, Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (12) | TrackBack

"The Role of Social Media in Sentencing Advocacy"

The title of this post is the headline of this new article from the New York Law Journal. Here is how it begins:

Embarrassing Facebook photos and regrettable MySpace statements are starting to become commonplace in pre-sentencing reports and disposition hearings. At the same time, defendants and their advocates are acknowledging the power of social media as a tool to generate mitigating evidence.

While there seems to be an unending supply of negative and inculpatory postings in social networking profiles, there is also the potential for uncovering a humanizing portrait for the defense to present at sentencing.

Day-in-the-life videos are a staple of tort practice to support damage claims and in criminal prosecutions to showcase a victim's life and character. The multimedia diaries and correspondence that comprise Facebook and MySpace profiles have similar potential for the defense. Since many of the accused entering the criminal justice system will be accompanied by social media, defense counsel might need to review their social space, along with medical and school records and other background information.

A preliminary audit of a client's online profile serves two purposes: (1) to identify evidence that might show up in a probation department pre-sentence report; and (2) to provide an instrument for marshalling positive information about the client. Still, social media is a two-headed coin and the first toss is usually tails.

September 29, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

A couple of notable crime rate headlines and stories

The newspapers today have headlines that provide a good news/bad news account of some of the latest crime data.  

First the good news, via USA Today: "Technology helps property crime fall to 20-year low."

Now the bad news, via the New York Daily News: "Murder rising at alarming rate, sending waves of fear throughout NYC's most dangerous neighborhoods"

September 29, 2010 in Data on sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

September 28, 2010

"Drug expiration date pushes CA execution to brink"

The title of this post is the headline of this new AP article which seeks to detail the latest execution news from California.  Here are highlights: 

Five years ago, the planned execution of Michael Morales became so chaotic and confused that California prison officials canceled it two hours before he was to die.  Now, the state's first lethal injection attempt since then is running dangerously close to another execution night mess.

The problem with Morales was a failure to find medical professionals to assist with the execution.  This time, Albert Greenwood Brown is scheduled to die at 9 p.m. Thursday — just three hours before the Friday expiration date of the state's entire supply of sodium thiopental, a sedative used to knock out inmates before they are fatally injected with two other drugs.

The issue was spotlighted late Monday, when the 9th U.S. Circuit Court of Appeals ordered U.S. District Court Judge Jeremy Fogel to reconsider his decision refusing to block the execution.  "After a four-year moratorium on executions in California, multiple proceedings in federal court, a state administrative law proceeding, and state court appeals, it is incredible to think that the deliberative process might be driven by the expiration date of the execution drug," the appeals court said....

In an apparent rush to execute Brown, the attorney general's office sought a pre-emptive order Monday from the state Supreme Court that a state appeals court ruling clearing the way for the execution would become final at 5 p.m. Thursday.  Deputy Attorney General Michael Quinn acknowledged he was seeking extraordinary relief in asking the high court to take action. But he said the impending expiration of the sodium thiopental supply left him with no alternatives if Brown is to be executed on schedule....

Even if Brown is put to death, it's unlikely any more executions will be set until next year, when officials hope to receive a new batch of the sedative. Hospira, the company that makes the drug, said it has encountered production problems and can't deliver a fresh supply until early next year....

Judge Fogel, attorneys for Brown and death penalty watchers were caught by surprise when Riverside County prosecutors — assisted by lawyers from the attorney general's office — obtained an execution date during an Aug. 30 hearing.

Riverside County prosecutors had pushed the judge for a Sept. 29 execution date with no mention of the drug expiration issue. Riverside County District Attorney Rod Pacheco said Tuesday his office was first informed this week of the issue.  "How is this possible?  This is ridiculous," said Pacheco, still optimistic the execution would proceed. "I'm a little frustrated. The death penalty in California is becoming surreal." 

Some related posts:

UPDATEAs detailed in this new local story, headlined "San Quentin execution blocked by judge," it appears that Judge Fogel late Tuesday issued a stay that likely will prevent California from conducting any executions until 2011:

A federal judge blocked the execution of condemned murderer Albert Greenwood Brown late Tuesday, saying he needed months, not just a few days, to decide whether California's new lethal injection procedures remove the risk of a prolonged and painful death.

Brown, 56, was scheduled to be executed at 9 p.m. Thursday at San Quentin State Prison for raping and strangling 15-year-old Susan Jordan of Riverside in 1980. It was to be the state's first execution since 2006, when U.S. District Judge Jeremy Fogel of San Jose found numerous flaws in the prison's injection practices.

Gov. Arnold Schwarzenegger will ask a federal appeals court to lift the stay and allow the execution, spokeswoman Rachel Arrezola said....

After hurriedly ordering and reviewing written arguments from both sides, Fogel said Tuesday evening that Brown's lawyers had raised substantial questions about whether the state's execution practices would be better than the ones he had criticized....

Unless it is overruled by a higher court, Fogel's order will halt Brown's execution and prevent any further executions in California until at least early 2011. That is when the state is due to receive a new supply of the sedative Sodium Pentothal, the sedative injected first into condemned inmates. The prisons' current supply has an expiration date of Friday, and the manufacturer says it has no more available now.

September 28, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (9) | TrackBack

Today's notable pot proposition commentary, news and notes

There are so many interesting angle to the still-developing debates and discussions surrounding the marijuana legalization initiative in California.  Here are just a few headlines that caught my eye this afternoon:

September 28, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Lots of crime (and some punishment) in big pile of cert grants from SCOTUS long conference

As detailed in this post at SCOTUSblog, the Supreme Court this morning granted certiorari in fourteen new cases. The full orders list is here, and I think more than a third of the cases involve criminal justice issues:

Freedman and Sykes are the cases that should most interest sentencing fans. Neither is a blockbuster-in-waiting, but both should provide some of the new (and old) Justices to showcase their current thinking on various federal sentencing issues.

September 28, 2010 in Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10) | TrackBack

Effective new Vera report on decade of sentencing policy trends

The Vera Institute of Justice’s Center on Sentencing and Corrections has published this terrific new report titled "Criminal Justice Trends: Key Legislative Changes in Sentencing Policy, 2001-2010."  The report reviews key developments in sentencing legislation over the past decade, and here is how Vera summarizes its coverage:

Since 2001, many state legislatures have changed their criminal sentencing policies, increasingly emphasizing approaches that are “smart on crime.”  The three main areas of legislative reform involve redefining and reclassifying criminal offenses, strengthening alternatives to incarceration, and reducing prison terms.  This report is a reference for legislators, their staff, and other policy makers who may be considering or implementing similar changes in sentencing statutes and policies.

September 28, 2010 in Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (4) | TrackBack

Georgia completes (eventful?) execution of suicidal triple murderer

As detailed in this AP story, after some more delays and difficulties, Georgia was finally able to complete the execution of a triple murderer late last night.  Here are some of the details:

A Georgia prisoner who tried to kill himself last week by slashing his arms and throat with a razor blade was executed Monday night amid heightened security for the 1998 murders of a trucking company owner and his two children.

Brandon Joseph Rhode, 31, was put to death by injection at the state prison in Jackson. He was pronounced dead at 10:16 p.m. Rhode declined to speak any last words or have a final prayer....

Rhode's execution had been set for 7 p.m. but was pushed back several hours as corrections officials waited for the U.S. Supreme Court to decide on his plea for a stay of execution. The court rejected appeals later that night.

Medics then tried for about 30 minutes to find a vein to inject the three-drug concoction. The prisoner's eyes darted around the room before the lethal mixture began coursing through his veins. Within minutes he was staring blankly at the ceiling of the death chamber. Moments before Rhode was pronounced dead he turned his head, exposing a bandage over the part of his neck he slashed....

Rhode had initially been scheduled to be put to death Sept. 21, but the Georgia Supreme Court postponed the execution after Rhode was rushed to the hospital that day following a suicide attempt.

Rhode was stabilized at a local hospital and placed in a restraining chair to prevent him from removing the sutures from his neck or doing any other harm to himself, state attorneys said. Defense attorney Brian Kammer countered that Rhode was put in a "torture chair" and subjected to cruel and unusual punishment.

"He has been subjected to the surreal and incomprehensible: Heroic measures taken to stabilize his life by the prison staff that would then execute him," Kammer said in one court filing.

September 28, 2010 in Death Penalty Reforms | Permalink | Comments (7) | TrackBack

September 27, 2010

Murder convictions for drunk driver with high-profile victim

As detailed in this AP article, which is headlined "Man convicted of murder in Angels pitcher's death," a California jury today returned murder convictions for a repeat drunk driver who cut short three young lives, one of which was high-profile.  Here are the particulars:

A jury convicted a construction worker of murder Monday for a drunken-driving crash that killed promising rookie Los Angeles Angels pitcher Nick Adenhart and two of his friends.  It was the second DUI conviction for Andrew Gallo, 23, who held white rosary beads and occasionally looked up at jurors as they returned their verdicts....

Gallo was convicted on three counts of second-degree murder and single counts of drunken driving, hit-and-run driving, and driving under the influence of alcohol and causing great bodily injury.  He faces 50 years to life in state prison at his scheduled sentencing on Dec. 10.

His attorney Jacqueline Goodman said Gallo would appeal. "I think it's tragic," she told reporters. "I think there's been a miscarriage of justice." She previously said her client did not intend to kill anyone.

Prosecutors said they charged the case as a second-degree murder instead of the lesser charge of manslaughter because Gallo had a previous DUI conviction, had specific knowledge of the dangers of drinking and driving from his own experience, and had signed a court form from the earlier case saying he understood he could be charged with murder if he drove drunk again and killed someone.

To win a murder conviction, prosecutors had to show Gallo acted with implied malice, intentionally drove drunk, acted with a conscious disregard for human life, and knew from his personal experience that he could kill someone....

Orange County District Attorney Tony Rackauckas said it was the 11th DUI-related murder conviction in the county since 2008.  "People are dying here," Rackauckas told reporters. "We want to get the message out there as well as we can that people will be prosecuted for murder when they engage in this type of conduct."...

Prosecutors alleged during the two-week trial that Gallo, whose blood-alcohol level was nearly three times the legal limit, spent hours drinking beers and shots with his stepbrother at three different bars before running a red light and T-boning the car driven by Stewart.   Prosecutor Susan Price told jurors that Gallo had been repeatedly warned by friends, family and court officials about the dangers of drinking and driving, but his arrogance and need to party prevented him from learning the lesson.

Goodman contended the district attorney's office had overstepped by charging Gallo with murder. She said her client believed his stepbrother was his designated driver and only drove after his stepbrother became too intoxicated and asked him to take the wheel.  By that point, she argued, Gallo was too drunk to realize the consequences of driving drunk.

During the trial, prosecutors played a videotaped interview in which Gallo told police he didn't remember driving and apologized to the families of the victims.

September 27, 2010 in Offense Characteristics | Permalink | Comments (8) | TrackBack

Governor Arnold Schwarzenegger pushes back California's execution plans slightly

As detailed in this new AP article, "California's first execution in nearly five years was pushed back almost two days Monday by Gov. Arnold Schwarzenegger to allow courts more time to consider the condemned inmate's appeals." Here are more of the particulars:

Brown is now scheduled to die by lethal injection at 9 p.m. Thursday, said Terry Thornton, spokeswoman for the state Department of Corrections and Rehabilitation. Brown initially was scheduled for execution at 12:01 a.m. Wednesday.

Brown's attorneys have filed simultaneous appeals in federal and state courts, claiming California improperly adopted its new lethal injection procedures. They also allege that execution under the new regulations would amount to cruel and unusual punishment.

The 45-hour reprieve pushes the execution to within hours of the Friday expiration date on the state's supply of sodium thiopental, one of the drugs used in the lethal injection process.

September 27, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (7) | TrackBack

"California's idea of the death penalty is to bore them to death"

The title of this post is a quote from the father of a murder victim in this notable local story, which highlights that not much is likely to change for most California defendants on death row even if the state does manage to resume executions this week.  The effective piece is headlined "Local death row cases years from execution," and here are excerpts:

California's plan this week to carry out its first execution of a death row inmate since 2006 won't mean any local cases are closer to seeing a date set for lethal injection.  Of the 708 people on California's death row, seven men and one woman have been sent there by North County juries over the past two decades.

They probably will remain there a long time.  The process from sentencing to execution is cumbersome — and decades long.  "California's idea of the death penalty is to bore them to death," said Roy Coe, whose daughter was murdered when she interrupted a burglary in her Vista home in 2005.

Derlyn Ray Threats, the man convicted of killing Coe's daughter, Carolyn Neville, was sentenced to death last month and just moved onto death row at San Quentin State Prison.  Threats, 28, still faces "a ridiculous number of appeals," Coe said, adding that he knows it will be years before an execution date is set.  "There are guys in prison (on death row) for 30 years," Coe said. "I don't have that many years left in me."...

Since 1978, when California reinstituted the death penalty, 14 of the state's inmates have been executed — including one actually executed in Missouri for crimes committed in that state.  More than five times that number — 75 condemned inmates — have died of natural causes, suicide or other reasons, according to the state Department of Corrections and Rehabilitation.

The last five executions took place after condemned inmates had each spent more than 20 years on death row.  When Stanley "Tookie" Williams was put to death in December 2005, he had spent 24 years and eight months on death row.  Clarence Ray Allen, executed in January 2006, moved onto death row in 1982....  In the four years since the last execution, 20 death row inmates died of natural causes, and six committed suicide....

All death sentences are automatically appealed to the California Supreme Court.  But the process is greatly delayed because very few appellate attorneys are willing and qualified to handle death penalty cases.  It often takes more than five years to assign an attorney to handle the automatic appeal.  Even after the attorney is appointed, the process is slow and complicated, and it happens whether the inmate wants it or not.

Take the case of drifter Brandon Wilson, who was convicted of the 1998 slaying of 9-year-old Matthew Cecchi in an Oceanside Harbor public restroom.  Wilson, who asked the jury to "execute me," has been on death row since 1999.  Eleven years later, the opening brief of the mandatory appeal still has not been filed; his attorney has won the court's permission to delay the filing 27 times, most recently last week.

Repeated delays have been the story of the case of LaTwon Weaver, on death row since 1993. Weaver, the son of a Baptist minister, was found guilty of murder in the 1992 shooting death of Vista jeweler Michael Broome during a robbery.  Seventeen years after moving to San Quentin, his automatic appeal is not even far enough along that the state's Supreme Court has considered it or set a date for oral arguments.  Not all of the legal briefs necessary for the case have been filed.

California's handling of the death penalty really does give new meaning to the phrase "justice delayed is justice denied."  Consider this numerical spin on these realities: even if California were to resume executions this week and thereafter managed to conduct two executions in October and every single month thereafter, the state would not carry out the prescribed punishment of those currently on death row until roughly the year 2040!

Some related posts:

September 27, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

Senator Jeff Sessions asks circuit nominee if she will "follow the federal sentencing guidelines"

Perhaps this is not news to those following the latest federal judicial confirmation battles closely, but I found notable this new report from the Connecticut Law Tribune concerning the Senate questioning of Second Circuit nominee Susan Carney earlier this month.   Specifically, this report on some back-and-forth with Senator Jeff Sesssion got my attention:

Sessions lectured about the importance of judges following higher courts’ dictates, and those of Congress. He told Carney that if she’d been a trial lawyer or a judge, she would know certain things from experience. “[A] lawyer who’s practiced a lot, or a judge who’s been on the bench for a while, I think understands that they’re not policy-setting officials,” said Sessions.

He then pointedly asked Carney if she would follow the federal sentencing guidelines.

Carney was agreeable, to a point.  She commended the guidelines for bringing “important consistency.”   She also told Sessions that she is familiar with the 2005 U.S. Supreme Court case of U.S. v. Booker, which held the sentencing guidelines interfered with the Sixth Amendment right to a fair trial, and were no longer mandatory.

Sessions, possibly hinting at her confirmation, responded, “I hope that as you wrestle with those issues before you, you realize there is a danger in deferring too readily to the unsupported views of a trial judge who just is not willing to be consistent.”

September 27, 2010 in Booker in the Circuits, Who Sentences | Permalink | Comments (1) | TrackBack

"Should sex offenders get GPS before leaving prison?"

The title of this post is the headline of this local California story.  Here is how it gets started:

At least twice in the past month, sex offenders prompted multi-agency manhunts in the North County when they refused to be monitored by GPS — a responsibility that falls on the offenders when they get out of prison. One man, who is accused of committing a sex crime the day after being paroled, was caught days later, while the second surrendered to authorities three weeks after going offline.

The cases beg the question: Why aren’t sex offenders strapped with GPS devices before leaving prison?

In San Diego County, which has roughly 500 sex offenders who are monitored by GPS, there are outstanding warrants for 10 who have either cut off their GPS bracelets or never obtained them, according to the regional Sexual Assault Felony Enforcement Task Force.

The topic has gotten the attention of local task force members, as well as state Assemblyman Nathan Fletcher, R-San Diego, who authored the recently signed bill that toughened sex offender laws. His office intends to write a letter to the state Department of Corrections and Rehabilitation asking for justification to the current policy, Fletcher said last week.

“It would seem to make sense if they have to wear GPS anyway, why not give it to them immediately? Why wait a day?” Fletcher said. “In some ways it’s indicative of how broken the system is.”

Some related posts on GPS tracking and related technocorrections:

September 27, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Technocorrections | Permalink | Comments (3) | TrackBack

Contrasting congressional hearings concerning federal criminalization

Tomorrow, September 28, 2010, brings two notable hearings in Congress for federal criminal justice fans. But the concerns driving the morning Senate hearing and the afternoon House hearing seem to be in (direct?) tension. 

In the Senate, as detailed here, the Committee on the Judiciary has scheduled a hearing entitled "Restoring Key Tools to Combat Fraud and Corruption After the Supreme Court's Skilling Decision" for at 10am.  But in the House, as detailed here, the Subcommittee on Crime, Terrorism, and Homeland Security will having at 3pm a hearing entitled "Reining in Overcriminalization: Assessing the Problems, Proposing Solutions." 

The folks at the NACDL have put together this big press kitabout the House hearing.  The executive summary of that kit contends that "[m]any of the approximately 4,450 criminal offenses in the U.S. Code are poorly defined, lack criminal-intent requirements that are sufficient to protect the innocent, and are difficult or impossible to connect to notions of moral wrongdoing."   A great example of one such federal offense would seem to be the honest-services fraud statute that SCOTUS read narrowly in Skilling.  But apparently the Senate hearing is intended to devise a way for Congress to "restore" the (still too broad and vague?) law to its pre-Skilling state.

Though it is silly (and perhaps misguided) to expect the two houses of Congress to be on the same page concerning federal criminal law, it still seems telling that these two competing hearing are taking place on the same day.

September 27, 2010 in Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

California lethal injection litigation continues as condemns refuses "unconstitutionally medieval" choice

As highlighted by this AP article and this CNN piece, a whole new round of litigation has been spurred by US District Judge Jeremy Fogel's decision made this past Friday to permit California to move forward with a planned execution (basics here).  Here are the basics from the AP:

A death row inmate on Sunday asked a federal appeals court to halt his execution as he declined to choose a method for the lethal injection.  Lawyers for Albert Greenwood Brown filed court papers to appeal a federal judge's refusal to block the execution, which is set for Wednesday.

Brown also let pass a noon deadline set by the judge to choose between a one-drug lethal injection or execution by a three-drug cocktail. His attorney called such a choice "unconstitutionally medieval."

Brown's refusal to choose means a three-drug cocktail will be used in his execution if the appeals court doesn't block California's first execution in nearly five years.  He was sentenced to die for abducting, raping and killing 15-year-old Susan Jordan, of Riverside County, in 1980.  U.S. District Court Judge Jeremy Fogel denied Brown's two requests Saturday to change his mind about going forward with the execution.

In one court filing, Brown's attorney John Grele said he discussed the injection options with his client Saturday.  Grele said the two had an unproductive meeting because there are too many unknown elements about the injection process to properly advise his client in such a short time. "Mr. Brown has not had time to think about these matters or to weigh his options," Grele wrote....

Brown's latest appeal will be heard by a 9th U.S. Circuit Court of Appeal panel of three judges, all of whom were appointed by former President George W. Bush.

The inmate also planned Monday to ask a Marin County Superior Court judge to block his execution while a recently filed lawsuit challenging the state's lethal injection regulations is pending.

Brown also has petitioned Gov. Schwarzenegger for clemency, which is opposed by the Riverside County District Attorney Rod Pacheco and the victim's family.

September 27, 2010 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (11) | TrackBack

"Make new crack law retroactive"

The title of this post is the headline of this opinion piece appearing in today's National Law Journal authored by Harlan Protass and Mark Harris. Here is how it starts and ends:

Last month, President Obama signed landmark legislation revising broadly condemned laws passed in the late 1980s that punished crack cocaine offenses much more harshly than crimes involving powder cocaine. The new law raises the minimum amount of crack required to trigger a five-year mandatory minimum sentence from 5 to 28 grams, and the amount of crack required to generate a 10-year mandatory minimum from 50 to 280 grams. Although far from perfect — the new law still maintains an excessive distinction between crack and powder cocaine — the changes could, according to the U.S. Sentencing Commission, affect as many as 3,000 defendants each year, reducing the average prison term for crack offenses by more than two years. Attorney General Eric Holder Jr. described the new law as "long in coming."

Now Congress needs to finish the job by making the new scheme retroactive — a move that would permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers' new and enlightened perspectives about punishment for those types of offenses. Basic fairness requires no less....

Opportunities to rethink — and cleanly remedy — social injustices are rare. The new crack sentencing bill signed into law last month presents just such a chance, one that lawmakers should not pass over. To do otherwise is to perpetuate mistakes that have taken a generation to fix.

September 27, 2010 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (43) | TrackBack

September 26, 2010

Making the case for sentencing reform in the form of "Mandatory Minimalism"

I am pleased to see this new article, titled "Mandatory Minimalism," about reforming mandatory minimum sentencing statutes authored by Professors Paul Cassell and Erik Luna.   (Though Cassell was once a federal judge, luna is likely now more famous for once having been cited by Lindsay Lohan).  Here are two paragraphs from the article's introduction:

One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims.  The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system).  If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps sowing the seeds of further reforms.  Whether or not modest congressional action spurs greater feats, however, our proposal is far from death defying.  It is instead a fairly unpretentious yet principled modification.

Part I of this Article begins by briefly describing the background of mandatory minimum sentencing, including arguments for and against mandatory minimums and an analysis of their enactment in the federal system.  Part II considers the resilience of mandatory minimums from a behavioral science perspective and then sketches a potential process of reform in light of the relevant phenomena.  Part III discusses the concept of minimalism in philosophy and legal theory, proposing the idea of “political minimalism” as a justification for reform efforts that seeks consensus on basic principles accompanied by small legislative steps.  Part IV provides specific changes to federal law consistent with a minimalist approach to statutory modification. Finally, Part V offers some suggestions for further reforms, with the hope of inspiring dialogue on the propriety of legislatively compelled, judicially unavoidable punishment.

September 26, 2010 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2) | TrackBack

Effective review of how Florida is dealing with the aftermath of SCOTUS Graham ruling

Today's Miami Herald has this effective and interesting piece discussing how the state is trying to deal with the Supreme Court's Eighth Amendment ruling in Graham concerning juve LWOP sentence for nonhomicide crimes.  The article is headlined "Ruling on young, violent lifers puts Florida justice on the spot," and here are excerpts:

Kyan Bucknor was 15 in 1999 when he shot two patrons and unleashed a volley of bullets into Broward Sheriff's Office deputy Al Hibbert outside a Lauderdale Lakes nightclub. The teen's sentence: life in prison.

But Bucknor, now 26, will get a reprieve thanks to a May U.S. Supreme Court decision banning life-without-parole sentences for juveniles who did not kill anyone.  The ruling left Florida in a quandary: For undeniably violent crimes, what is an appropriate alternative sentence in a state that has no parole system?

Bucknor is one of 23 South Florida men -- among 100-plus statewide, the most in the nation -- who must now be resentenced under the Graham v. Florida ruling.  So far, none have received new prison terms as the judicial system, case by case, county by county, struggles to comply....

Two possible fixes have emerged, from prosecutors and a lawmaker, both requiring mandatory lengthy prison terms followed by the possibility of parole.  A statewide prosecutors association has petitioned Florida's Executive Clemency Board to step in and commute the men's sentences to life with the possibility of parole after 20 years -- a move opposed by Gov. Charlie Crist.

Separately, a Jacksonville state lawmaker says he will introduce a bill next year to create a parole system for violent juvenile offenders, with eligibility after 25 years in prison. In keeping with the Supreme Court ruling, both solutions guarantee only the possibility of parole -- not that the inmates would actually get out early.

That's a key point to House Rep. Mike Weinstein, R-Jacksonville, because he wants to keep the offenders behind bars as long as possible. "They try to kill five people, and we can't seek a life sentence. They rape girls -- and they can't be given life," Weinstein said. "But we want to be able to give them a life sentence, and in my mind, they deserve a life sentence."...

In most states, the Graham ruling means simply amending a life sentence to include the possibility of parole. But Florida is in a particular bind because lawmakers abolished parole in 1983 after too many inmates released early were committing high-profile crimes. The state's Parole Commission now reviews only cases that pre-date 1983.

Statewide, there are more than 100 defendants who must be resentenced under the ruling, according to Barry University's Juvenile Justice Center, which tracks the Graham cases.  That means, for now, the onus falls on trial judges to resentence individual defendants. Judges who impose new but long terms would be violating the spirit of the Graham decision and simply spark more appeals, defense lawyers warn....

 Bill Cervone, president of the Florida Prosecuting Attorneys Association, worries that judges will impose wildly disparate sentences. "We're going to end up with a mish-mash of results all over the state," said Cervone, the Gainesville-based state attorney.

In an effort to streamline the process, last month the prosecutors group filed the petition with the governor's office, asking the clemency board to commute all Graham cases to sentences of life with the possibility of parole.  Then, the parole commission would review each case after the inmate has served 20 years in prison....

Any solution -- whether new legislation, or clemency -- will likely come after the November elections, when politicians will be more willing to tackle the hot-button issue.  Crist, in the midst of a hard-fought race for the U.S. Senate, said in a statement that he opposes the prosecutors' proposal....

Prosecutor Cervone believes the state attorneys' proposal, by eliminating the need for resentencing hearings, would be a kinder solution for victims who have struggled to cope with their experiences.

September 26, 2010 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (12) | TrackBack

Latest poll suggests positive buzz surrounding California's marijuana legalization proposition

The local story, which is headlined "Marijuana legalization measure gets big lift,"  reports on the latest polling on California's various ballot initiatives this election season. Here is how it begins:

In a dramatic shift of sentiment, nearly half of California's likely voters now want to legalize marijuana use in the state, according to a new Field Poll. "The numbers have flipped (on Proposition 19) since our July poll," said Mark DiCamillo, the poll's director. "That's a major change in the direction of public feelings on legalizing marijuana."

The survey results being released today are especially meaningful since the first ballots for the Nov. 2 election will be cast in a little more than a week from now, starting Oct. 4.

The poll also found that voters remain strongly opposed to Proposition 23, which would suspend AB32, the state law limiting greenhouse gas emissions. Proposition 25, which would end the two-thirds requirement to pass a state budget, holds a solid lead, but the race appears to be rapidly tightening.

But it's California's effort to become the first state in the nation to legalize the sale and use of recreational marijuana for adults 21 and older that's being watched across the country.

Forty-nine percent of those likely voters now support Prop. 19, with 42 percent opposed. In a July poll, 48 percent of those surveyed planned to vote against the ballot initiative, with 44 percent backing legalization.

The reversal came despite a total absence of paid advertising for either side. Neither supporters nor opponents of the measure have raised much money for the Prop. 19 campaign, so far relying on word-of-mouth and media coverage to get their stories out.

That hasn't kept California voters from paying attention to the race, however. The poll found that 84 percent had seen or heard about the effort to legalize marijuana. By contrast, fewer than 40 percent of the voters had heard anything about the other two ballot measures in the survey.

This strikes me a big news not only because it suggests that Proposition 19 has a real chance of passage, but also because these kinds of poll numbers ought to allow (and perhaps even force) a greater number of politicians to begin discussing the possibility of marijuana decriminalization more seriously.  Moreover, these demographics makes me wonder which politicians may be the quickest to jump on the pot decriminalization bandwagon:

Men and women have very different views of Prop. 19, as do the young and the old.  While 54 percent of men back legalization, only 44 percent of women support Prop. 19.  Nearly 60 percent of the youngest voters, those under 40, want to see marijuana made legal.  Fifty-three percent of those 65 and older oppose it....

Support for Prop. 19 also breaks along geographic and political lines, with the heavily Democrat coastal counties 54 percent in favor while the more Republican inland areas are 52 percent opposed.  Not surprisingly, the measure's strongest support comes from the Bay Area and Los Angeles County, where just under 60 percent favor legalization.

September 26, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0) | TrackBack