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October 8, 2010

"Would Legalizing Marijuana Cut Law Enforcement Costs?"

The question in the title of this post is the headline of this effective California piece taking a hard look at one aspect of the debate over the state's marijuana initiative on the ballot next month.  Here are excerpts:

Supporters of Proposition 19 say legalizing and regulating marijuana would save debt-plagued California hundreds of millions of dollars in public safety costs. But, could it?...

If you ask local law enforcement officials, they say they are focusing on real criminals. It just so happens that some of those real criminals happen to have marijuana on them, they said.

San Diego Sheriff Bill Gore says there isn’t a focus in his department on finding and arresting small-time marijuana users. “There could have been 20 or 30 years ago," Gore said. "But those days are long gong. You’re not going to see people arrested for smoking a joint walking down the street. They will be cited in most cases. What our department focuses on, as does almost every other law enforcement agency, I’m sure, in the county, focuses on organizations that are selling drugs and distributing drugs.”...

Yeson19.com tells visitors that the state stands to save hundreds of millions of law enforcement dollars if the proposition is approved.  The site points to California’s 61,000 marijuana arrests and 60,000 unsolved violent crimes in 2008 as proof of misplaced priorities.

But, prison stats seem to back the sheriff.  In the state’s prisons people incarcerated for marijuana charges alone –- and that’s all marijuana charges: possession, transport and sale –- make up less than 1 percent of the population.  They also make up a small portion of the county jails populations in the state's three largest counties....

According to a paper published by the RAND Corporation earlier this year, some pro-legalization groups overestimate potential law enforcement cost savings from the legalization of marijuana.  The paper's author, Jonathan P. Caulkins,found one reason for that overestimation was that researchers assumed equal costs for every arrest.

“Most of the marijuana possession arrests come about because of other activities," said Caulkins, a professor of public policy at Carnegie Mellon University.  "It could be something like a traffic stop, but it’s not that there are lots of police working eight hours a day trying to hunt down marijuana users the way that there really are narcotics detectives who do work all day long trying to arrest cocaine and heroine dealers.”

Right now people caught with small amounts of pot don't get taken to jail if they can produce a valid ID and have no outstanding warrants.  They get ticketed and have to appear in court. These marijuana misdemeanor cases accounted for just 1,700 of the more than 25,000 cases the San Diego City Attorney's office has processed this year, according to Andrew Jones, assistant city attorney in the criminal division.

That process will change in January even if Prop. 19 doesn’t pass.  Possessing less than an ounce of marijuana will become an infraction under a new law the governor signed last week. People caught with less than an ounce of pot will be fined $100.  If they want to contest the fine they’ll do it in a civil court, just like a traffic ticket.

October 8, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (11) | TrackBack

Notable speech by AG Eric Holder about reentry at a notable EOEF event

Speaking today at the European Offenders Employment Forum event taking place in DC (details here, EOEF website here), US Attorney General Eric Holder gave this lengthy (and important?) speech which has a lot of notable talk about US punishment, corrections and especially reentry.  Here are a few excerpts:

Every person in this room –- whether you work as an attorney or law enforcement officer, conduct research or develop policy -– can agree that prisoner reentry is one of the most complex criminal-justice challenges of the 21st century. 

Today, corrections systems, worldwide, are under extraordinary stress.  Capacity limitations and budget constraints have resulted in an acceleration of early release and have put prisoner education and employment training programs at risk.  On both sides of the Atlantic Ocean, people transitioning out of prison now confront labor market conditions that we haven’t seen since the Great Depression....

Here in the United States, more than 2 million people are behind bars -– that’s more than 1 in 100 American adults and, according to the World Prison Brief, more inmates than the top 35 European countries combined.  At some point, 95 percent of those prisoners will be released.  Each year, nearly three-quarters of a million people transition out of state and federal prisons.  Millions more cycle through local jails.

Once those who commit crimes pay their societal debt, we have many expectations: that they will reenter our communities, ready to assume a productive role; that they will remain crime-free and sober; that they will get jobs.  But, as all of you have seen, these expectations are not always met.  And while we know that stable employment is one of the keys to successful reintegration, we also know that it is one of the greatest challenges of reentry....

There’s a theme here: maintaining family connections and developing job skills during incarceration can improve public safety, reduce recidivism, and have lasting positive effects.  It is time we started to think about reentry in this context.  And it is critical that we turn to sound science and evidence-supported strategies to guide our work.

Today’s Department of Justice is dedicated to being smart, not only tough, on crime -– and our reentry efforts are no exception.  For me, for President Obama, and for leaders across the administration, effective reentry is a top priority....

Last year, through the Justice Department’s Office of Justice Programs, we awarded close to 70 grants to support reentry activities under the banner of the Second Chance Act. Today, our commitment continues.  This morning, I’m pleased to announce that $100 million in Second Chance Act funding will be awarded to support 178 reentry grants nationwide.  The grants will be distributed to government agencies and nonprofit organizations to provide a wide range of services –- employment assistance, substance abuse treatment, housing, family programming, mentoring, and others -– that can help reduce recidivism.

Before administering this year's grants, the Justice Department received and reviewed 975 applications.  That’s right, 975 –- a number that reflects a transformation in our national attitude toward reentry.  A decade ago, few programs focused on prisoner reintegration. Today, coalitions of government organizations and community groups in every corner of our country are working together to improve reentry outcomes.... To put it simply, reentry has moved from the margins to the mainstream.

I have no doubt that this year’s Second Chance Act grants will build on these trends and advance the progress we’re seeing. While most of these new investments will go to states, localities, and nonprofit organizations, we are also awarding funds to support the National Reentry Resource Center –- a “one stop shop” for state-of-the-art information and assistance.  Soon, the Center will include a “what works” library with searchable, up-to-date information about the most effective programs, policies, and practices for reducing recidivism, increasing employment, decreasing substance abuse, and producing other positive outcomes.

But there is still much to learn.  That’s why $10 million dollars will be invested in new and more rigorous research on the effectiveness and impact of reentry programs.  In addition to these new grants, I’m pleased to tell you all that the Justice Department is moving forward with a new initiative –- known as Project Reentry -– to strengthen our recidivism and reentry work.  Project Reentry will focus on implementing recommendations that have been developed by the Sentencing and Corrections Policy Working Group that I convened last April....

Here in the United States, the cost of housing state prisoners has quadrupled over the last two decades.  In fact, state spending on corrections has grown at a faster rate than nearly any other state budget item.  Last year, the price tag on state prisons topped $50 billion. The current pace of prison growth is –- quite frankly –- no longer economically sustainable. And from a cost-benefits perspective, it’s simply indefensible....

Of course, some violent offenders deserve lengthy prison terms –- and society is better off having them behind bars.  But –- as we’re seeing in states like Texas and Kansas –- public safety can improve, and taxpayers can see significant savings, when people who commit crimes are served by high-quality community supervision and programs where services and sanctions work in unison.  In an effort to advance and replicate successful Justice Reinvestment strategies, the Department of Justice is awarding $10 million to expand these activities in states, counties, and tribal communities.  We’re also considering the implications of Justice Reinvestment strategies at the federal level.

October 8, 2010 in Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (5) | TrackBack

Connecticut lawyers considering cost "defense" to hold off death sentence for multiple murderer

A high-profile capital case in Connecticut, in which Steven Hayes has now been convicting in the murders of Jennifer Hawke-Petit and her two daughters, has much of the northeast discussing and debating the death penalty.  And, as detailed in this local article, defense attorneys are adding another notable dimension to the debate:

In their fight to persuade jurors to spare the life of Steven Hayes, his lawyers are considering an unusual strategy: citing economic reasons for keeping the convicted triple murderer off death row.

Court papers outlining the defense plan and a possible motion by prosecutors requesting the use of unsworn victim-impact testimony — allowed in sentencing proceedings in murder cases in Connecticut, but not during the penalty phases in capital cases — would have to be made by 1 p.m. today....

Before his trial, Hayes offered to plead guilty to the killings of the Petit family in exchange for a sentence of life in prison without the possibility of release. His attorneys have said the offers were rejected. Prosecutors have declined to comment....

As part of the defense evidence, Blue said during Tuesday's hearing, Hayes' lawyers will ask him to consider allowing an expert to testify about whether the price of sending Hayes to the death chamber will be more costly than locking Hayes up for the rest of his life.

New Haven Public Defender Thomas J. Ullmann, one of Hayes' attorneys, tried unsuccessfully to use a similar strategy in another capital case six years ago. In that case, Ullmann filed a motion asking a judge to force the state to accept a plea bargain that would guarantee life in prison instead of a seat on death row for Jonathan Mills. Mills was convicted in 2004 of fatally stabbing Kitty Kleinkauf more than 40 times and stabbing her children Rachael Crum, 6, and Kyle Redway, 4, about 10 times inside their Guilford home before stealing Kleinkauf's credit card to buy cocaine.

To bolster his argument, Ullmann claimed that it would be more expensive to sentence Mills to death because a guilty plea would cut 10 to 15 years of legal wrangling and appeals that a sentence of death would probably yield. Blue, who was then presiding over Mills' case, denied Ullmann's motion. The jury voted against executing Mills and sent him to prison for the rest of his life.

During Tuesday's hearing, Blue said that a prosecution motion seeking the use of victim-impact testimony during the penalty phase could also be filed today.

October 8, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Feds urging LWOP sentence for doctor and wife involved in (extreme!?!) health care fraud

This AP article, headlined "Feds seek life sentences for doctor, wife convicted in overdose deaths case," details that the feds are seeking the harshest possible federal sentence in for notable (white-collar?) offenses.  Here are the interesting particulars:

Prosecutors have asked a federal judge to put a Kansas doctor and his wife behind bars for life for operating a clinic linked to dozens of patient overdose deaths.

In a court document filed Thursday in U.S. District Court in Wichita, prosecutors asked Judge Monti Belot to impose life prison sentences on Dr. Stephen Schneider and his wife, Linda Schneider.  Four of the most serious counts the Schneiders were convicted of carry minimum sentences of 20 years behind bars, and prosecutors asked Belot to impose those sentences consecutively.  Their sentencing is Oct. 19.

A federal jury in June found the Haysville couple guilty of unlawfully prescribing drugs, health care fraud and money laundering following a nearly eight-week trial.  A federal jury convicted them of a moneymaking conspiracy that prosecutors linked to 68 overdose deaths.  The government noted in its filing that jurors found the Schneiders' conduct resulted in serious bodily injury to 14 individuals, and the deaths of 10 patients.

"If this were a serial murder case, instead of a drug dispensing and health care fraud case, there would be no question that life sentences should be imposed," Assistant U.S. Attorney Tanya Treadway wrote. "The Court should consider the dire consequences of the defendants' crimes, regardless of the type of crimes they committed."

Attorney Lawrence Williamson, who represents the doctor, said the defense does not believe the couple should be sentenced to life in prison and plans to ask the judge for the minimum sentence he can give them.  He noted the 57-year-old doctor had never been in trouble with the law before this case.  "There is undisputed evidence that he was trying to help people and I think that is an important factor that we hope the court takes into consideration," Williamson said.

In addition to conspiracy, the Schneiders also were found guilty on five counts of unlawfully writing prescriptions and 11 health care fraud counts.  They also faced 17 money laundering counts.  Stephen Schneider was found guilty on two of those counts; Linda Schneider was found guilty of 15 money laundering charges.  The government contends losses for clinic services and prescriptions was more than $20 million, with some 93 insurance programs and more than 500 patients defrauded....

Linda Schneider, 52, is in a tougher position than her husband at sentencing because not only was she convicted of more money laundering counts, but she also has a previous felony conviction for fraud. Prosecutors also recorded threats she made against her former defense attorney and Treadway while imprisoned before trial....

To support a life sentence, prosecutors argued in their filing that the Schneiders victimized a large number of vulnerable patients.  The government also contended the couple organized an extensive criminal activity, noting there were other "criminally responsible coconspirators."

There are so many punishment theory and practice issues packed into this case, I may need to turn it into an issue-spotter for a future exam. I find especially interesting and notable that at trial the "jurors found the Schneiders' conduct resulted in serious bodily injury to 14 individuals, and the deaths of 10 patients," which in turn has emboldened the prosecutor at sentencing to suggest the defendants are essentially serial killers.

UPDATE:  I just noticed this interesting report from The BLT, headlined "Prison Term Vacated, Doctor in South Carolina to be Freed," about a significant new development in an older, but similar sounding, federal case.  Here are excerpts:

Ronald McIver had spent more than five years in prison, serving a 30-year term for his alleged role in man's drug overdose. McIver's lawyers at DLA Piper, including Peter Zeidenberg, serving pro bono, successfully convinced a federal district judge in South Carolina to vacate the prison term earlier this year.

In post-conviction litigation, McIver’s defense attorneys presented new information about the case, compelling the presiding judge set a new sentencing hearing....  Judge Henry Floyd of the U.S. District Court for the District of South Carolina sentenced McIver, who is 66 and suffering from advanced prostrate cancer, to time-served.  McIver, who has a life expectancy of less than a year, is expected to be released soon, Zeidenberg said....

In the post-conviction litigation, lawyers for McIver argued the death of the man, Larry Shealy, was not a result of a drug McIver prescribed.  Zeidenberg said Shealy likely died of heart disease.  Floyd vacated two counts against McIver that made up the 30-year prison term.

Prosecutors, who had been seeking a 10-year prison term, could decide to challenge Floyd’s ruling on appeal in the U.S. Court of Appeals for the 4th Circuit. An assistant U.S. attorney, William Watkins Jr., was not immediately reached for comment.

October 8, 2010 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (11) | TrackBack

October 7, 2010

At FSU for "The Constitution in 2020: The Future of Criminal Justice"

I have the great pleasure and honor of being in Tallahassee being hosted by the terrific folks at the Florida State University College of Law to participate in this event with an amazing group of people considering "The Constitution in 2020: The Future of Criminal Justice."  Here are the schedule basics:

October 7:

Keynote Address by Steve Bright, Southern Center for Human Rights

Friday, October 8:

Opening Remarks

Panel One: National Security and Liberty

Panel Two: Crime Control and Equality

Lunch: Remarks and Q & A with Judge Lynn Adelman, E.D. Wisconsin

Panel Three: Citizenship and Community

Panel Four: Punishment and the Constitution

Excitingly, even if you can't be at FSU in person, bookmark this link, and then you can watch the video of the conference when it happens or at least shortly after next week.  In addition, conference co-organizer Jack Balkin has posted a lot of the ideas being developed by participants on his blog Balkinization.

October 7, 2010 | Permalink | Comments (4) | TrackBack

Major Seventh Circuit ruling permitting judges to vary from guidelines based on fast-track disparity

The Seventh Circuit has a major post-Kimbrough ruling today in US v. Reyes-Hernandez, No. 09-1249 (7th Cir. Oct. 7, 2010) (available here), which gets started this way:

The Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85 (2007), taken together with other recent cases, has rekindled debate about whether sentencing disparities created by fasttrack programs can be considered by district court judges in non-fast-track districts when crafting individual sentences. We address that issue today. Because both cases present the same issue on appeal, we consolidate them for the purpose of our review.

In the first case, Jaime Reyes-Hernandez pled guilty for illegally re-entering the United States after he had been removed twice following a conviction for the aggravated felony of robbery. The district court sentenced him to forty-one months’ imprisonment, the most lenient sentence available under the applicable guideline range for his offense level and criminal history category. In the second case, Pedro Sanchez-Gonzalez pled guilty to illegally re-entering the United States after being removed following a conviction for the aggravated felony of domestic battery. The district court sentenced him to seventy-seven months’ imprisonment, which was at the lowest end of the guidelines range for his offense level and criminal history category.

In both cases, the district court refused to even consider imposing below-guidelines sentences, thereby refuting defendants’ claims that they should receive lesser sentences based on comparisons to sentences imposed on similarly situated individuals prosecuted in “fast-track” districts. Both defendants ask us on appeal to abandon our precedent and provide district courts with the latitude to consider fast-track-type sentences as part of their 18 U.S.C. § 3553(a) analyses. For reasons stated below, we grant their requests. We therefore vacate both sentences and remand to the district court for resentencing.

October 7, 2010 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

"Mom taken for abortion at gunpoint"

The title of this post is the headline of this remarkable local article that reads like an evil criminal law (or constitutional law?) professor's exam hypo.  Here are the details:

A Near East Side man pointed a gun at a pregnant woman and forced her to go to a clinic yesterday morning after she refused to go through with a scheduled abortion there, Columbus police say.

Dominic L. Holt-Reid, 27, of 579 Kelton Ave., was arrested and charged with kidnapping and carrying a concealed weapon.

Police found him about 9:45 a.m. in a parking lot behind Founder's Women's Health Center, 1243 E. Broad St., said Sgt. Rich Weiner, a Columbus police spokesman. Holt-Reid and Yolanda M. Burgess, the woman he forced to the clinic, have a child together, Weiner said. But they do not appear to share a home address, he said. State birth records show that child is a 4-year-old boy.

Burgess was in a vehicle with Holt-Reid yesterday morning after dropping their child off at school, according to a police statement. Holt-Reid became angry after Burgess refused to go through with an abortion that had been scheduled for 9 a.m. at the clinic.

Holt-Reid pulled a handgun from the glove compartment, pointed it at her and forced her to drive to the health clinic, according to police. The woman passed a note to a clinic employee, who called police. Burgess wasn't harmed.

So, dear readers, do you think prosecutors should be considering a charge of attempted murder for Holt-Reid? Do you think the motive for his kidnapping should be the basis for a severe sentencing enhancement? Or is this sad case to be viewed as merely an example of a misguided man trying to exercise his own procreative choice rights?

October 7, 2010 in Offender Characteristics, Offense Characteristics | Permalink | Comments (4) | TrackBack

Big Brother technocorrections to help Ohio keep track of sex offenders

Somewhere George Orwell must be smiling as he reads about the latest technocorrections development in this Ohio editorial headlined "Tracking sex offenders."  Here are the details:

Ohio is moving proactively to keep better track of registered sex offenders. With the help of a federal grant, the state is launching an automated system that should save time and money for local sheriff's departments.

The system, called Active Contact, automatically calls offenders to remind them to renew contact with Ohio's electronic Sex Offender Registration and Notification program. The system regularly updates the registry and verifies the accuracy of its data.

Discrepancies or a disconnected phone number would alert authorities that an offender may have tried to relocate secretly. That information would allow sheriffs to use resources more efficiently when they assign deputies to investigate offenders' registration in person.

The new system will reimburse sheriffs for pursuing high-level offenders who flee Ohio. Some offenders have avoided prosecution because their home counties can't afford the overtime and travel expenses needed to find and extradite them.

The system is scheduled to take effect in all 88 Ohio counties by next month. Keeping current on the whereabouts of the more than 20,000 registered sex offenders in Ohio, and going after those who don't register with the state's reporting program as the law requires, are essential to public safety.

The name Active Contact for this program seems like an impressive 2010 example of Newspeak.

October 7, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections | Permalink | Comments (2) | TrackBack

"Real death-penalty crime: Not using it"

The title of this post is the headline of this notable commentary by Michael Smerconish appearing in the Philadelphia Daily News. Here are excerpts:

Poor Kim Pawlowski. First, she lost her police officer husband in February 2009, allegedly at the hands of Rasheed Scrugs - a man Police Commissioner Charles Ramsey described last year as "not salvageable." Now she will endure an unavoidable murder trial. And then, assuming a conviction, she'll sit through a penalty phase that's an outright sham.

We have the death penalty in this state in name only. And we owe it to Kim Pawlowski and scores of other grieving families to either use it or lose it. If we were being honest with them, we'd explain that convicted cop-killers have a better chance of dying from bedbugs than lethal injection. Just ask Maureen Faulkner or any number of a growing list of Philadelphia police widows and family members....

There are 50 death row inmates in the state whose sentences were set in the 1980s. Since becoming governor, Ed Rendell has signed at least 113 death warrants - none of which have actually been implemented.

In fact, since capital punishment was reinstated in the commonwealth in 1978, just three people have been put to death (the last was Gary Heidnik in 1999) - and only after each gave up his appeal. In other words, they asked for it!

The state's last contested execution was carried out in 1962. In the intervening five decades, the justice system has been gradually manipulated into a process that coddles its worst offenders at the expense of the real victims.

And, unfortunately, the reality is that with every minuscule appeal and scurrilous campaign of misinformation, the ultimate deterrent value of the death penalty is eroded.

There's a reason Richard Poplawski, accused of executing three officers in Pittsburgh last year, expressed a desire to "possibly write a book one day" from jail. And why Abu-Jamal has been nicknamed "Pops" by fellow death row inmates. It's because no matter what the law says, too many cogs in the state's criminal-justice system don't take the death penalty seriously.

Today, no cop-killer, no matter how heinous the murder, could have any well-founded fear of actually being executed. Which leaves little justification for parading the victims' families through a decades-long slog of hearings, appeals and news cycles. In the end, those responsible for the death of their loved ones never get the punishment to which they're sentenced.

In Pennsylvania, the wheels of justice are not just grinding slowly. They have dropped off the train all together. Meanwhile, the charade continues as family and loved ones of police officers continue to die of natural causes.

Kim Pawlowski will raise her son without a father. That's just not fair. And it certainly isn't justice.

October 7, 2010 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Learning from the French approach to white-collar crime and sentencing

Forbes blogger Walter Pavl has this amusing new post titled "What Jerome Kerviel’s Sentence Could Teach Us In America."  Here is how it begins:

Jerome Kerviel, formerly of Societe Generale SA, was convicted this week in France of fraud and sentenced to 3 years in prison and ordered to pay nearly $7 billion. Had Kerviel been sentenced under the U.S. Federal Sentencing Guidelines he would have received about 100 years, but the fine would have been roughly about the same. The only job that he could get to pay back that kind of money would be, well, a trader on Wall Street. So I don’t see him paying this back anytime soon.

What was interesting about this case was that Societe Generale was the victim here and had no hand in its own undoing. The sentence and the restitution fell solely on Kerviel and did not implicate the bank in any way. I pondered this and thought, “Now there’s another good idea that the French have that we need to bring here to the States…A villain.”

What we’re missing here in the U.S. is a good villain. A Jerome Kerviel for our own banking collapse. Bank of America, AIG, GMAC, Lehman Brothers, Country Wide, et al, failed because of placing poor investment trades, similar to those placed by Societe Generale, or should I say Jerome Kerviel. Each of these U.S. financial institutions needs to give up one of their young for the sake of solving the mystery of “Who done it?” None of the CEO’s of major investment banks seem to know who was responsible within their own organizations for the bad trades, they just happened. Congress could not even drag a single name of a villain out of these guys when they were being grilled on Capitol Hill.

October 7, 2010 in Sentencing around the world, White-collar sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

October 6, 2010

Young killer in Michigan making Graham-inspired constitutional argument against LWOP sentence

This local story from Michigan, which is headlined "Life in prison for Eliason: ‘cruel and unusual?’," has me thinking a lot of (deep?) thoughts about the interplay between federal constitutional jurisprudence and state punishment practices.  Lets begin with the basics:

In an unexpected turn of events, sentencing planned for Monday morning for 15-year-old Dakotah Eliason — found guilty of first degree murder in August — was postponed until the end of the month. An adjournment came after the defense argued the sentence of life without parole could be considered cruel and unusual punishment under the Eighth Amendment of the Constitution.

“The court is imparted to impose a mandatory sentence in this case of life without parole,” defense attorney Lanny Fisher told the court. “It is my duty as Mr. Eliason’s advocate to present a constitutional argument, particularly the Eighth Amendment of cruel and unusual punishment.”

Eliason was convicted in August of the killing his grandfather, Jesse Miles in March. Fisher is expected to file his brief with the court within the next week.  Following, Berrien County Chief Prosecutor Art Cotter would file a response.

Cotter said he could not address the court on the issue, as he had not seen Fisher’s argument. Schofield said he was “disappointed this argument is being made on the day of sentencing. But this is a serious case.” He added he felt there was a need for research on behalf of both the prosecution and the defense on the argument being presented by Fisher.

“I”m glad that the judge is giving it a second chance for Lanny to argue the cruel and unusual punishment side of it,” Eliason’s mother, Mary Apfel, said Monday. “I do agree with the judge’s decision today. I’m very happy with it.”

Eliason recently celebrated his 15th birthday while in incarceration....

Schofield reiterated his disappointment in being unable to move forward with sentencing, “but under the circumstances I feel I have no alternative.” He rescheduled Eliason’s next appearance for Oct. 25.  Following the adjournment, Cotter told reporters he was disappointed.

“I think this has been very, very difficult for this family and I had hoped, at least with respect to the legal part of it, this would put an end to it. Obviously, it’s going to go on for another three weeks,” Cotter said.

Fisher said it was imperative he introduce the issue of cruel and unusual punishment for his client, as he plans to appeal the ruling handed over by the jury in this case. He is unable to do so until the official sentencing.

“I believe it is cruel and unusual punishment giving a youth life without parole,” Fisher said. “In May of 2010 the Supreme Court of the United States said the Eighth Amendment does not permit a youth to be sentenced to life without parole in a non-homicidal crime,” he said. Though his client has been convicted of homicide, he said, “it’s starting to trend” toward looking at the amendment’s clause and its application to youth offenders’ crimes as violent as murder.

He also referenced Article 37 of the Office of the United Nations High Commissioner for Human Rights Convention on the Rights of the Child, which he said has been signed by 180 countries — but not the U.S.

Eliason’s father Steven said the fact that the sentence has been deemed unconstitutional for juveniles committed of non-homicidal offenses sets a precedent. “It should be the same,” Steven said. “It should be abolished by our country.” He added he is happy that the judge allowed Fisher’s argument to be made.

Introducing the brief, Fisher said, allows him to “preserve the issue” and it “opens the door to go up to our Supreme Court of Appeals and the Supreme Court. “It’s my job as his advocate to preserve the issue,” Fisher said.

Under Michigan law, Schofield is mandated to sentence Eliason to life without parole.

Here is a brief account of some of the (deep?) thoughts/questions being triggered by this case:

1.  The Michigan Constitution states: "Excessive bail shall not be required; excessive fines shall not be imposed; cruel ORunusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained." Article Six, Section 31 (empahsis added).  Whatever the reach of the US Constitution (which only prohibits cruel AND unusual punishments) in the wake of Graham v. Florida and Roper v. Missouri, might not Eliason have a viable state constitutional claim that a mandatory LWOP sentence is problematic for a 14-year-old killer?

2. Given that Michigan law does not include capital punishment for any kind of murder by any kind of defendant, might Eliason's claim based on the US Constitution (as interpreted in Roper and Graham) be a bit stronger than if he was subject to an LWOP sentence in, say, Missouri where adult killers can be subject to the harsher sentence of death?   After all, were Eliason prosecuted for murder in Missouri, the US Constitution would take the harshest possible state sentence off the table because of his status as a juvenile at the time of the crime.  But in Michigan, the harshest possible state sentence (LWOP) is on the table for Eliason (and apparently is still mandatory) despite his status as a juvenile at the time of the crime.

3.  Is it constitutionally significant that Michigan law allows Eliason to be subject to an LWOP sentence for a crime committed at the "tender" age of 14?  Is it constitutionally significant that Michigan law (unlike the law under which Terrance Graham got an LWOP sentence) mandatorily requires the sentencing judge to impose an LWOP sentence based on the nature of his crime?

October 6, 2010 in Assessing Graham and its aftermath, Sentences Reconsidered, Who Sentences | Permalink | Comments (4) | TrackBack

Ohio completes "record" eighth (uneventful?) single-drug execution of 2010

As detailed in this local article, which is headlined "Ohio executes record eighth man this year," the Buckeye State continues to demonstrate its willingness and ability to keep the machinery of death humming.  Here are some of the personal details about this record-setting execution:

The execution of Michael Benge will make headlines because he was Ohio's eighth lethal injection this year, a new record. But otherwise the storyline was similar to 40 others preceding it since 1999: drugs were to blame.

Benge, 49, of Hamilton, Ohio, died today at 10:34 a.m. at the Southern Ohio Correctional Facility near Lucasville. While the drug that took his life, sodium thiopental, is in short supply nationally, the Department of Rehabilitation and Correction had an ample quantity on hand today to complete the grim task.

His last words, as family members of his victim looked on: "I can never apologize enough. ... I hope my death gives you closure.  That's all I can ask. Praise God and thanks."

After the execution Kathy Johnson, sister of the victim, said, "It makes us feel there was justice for my sister. That's what this was all about." When asked about Benge's last words, she said, "I don't feel like Mike Binge was remorseful. He has blamed everyone else but himself."

Binge was convicted and sentenced to death for beating his girlfriend, Judith Gabbard, 38, with a tire iron, then weighting down her body with concrete and dumping it in the Miami River.  The murder happened Jan. 31, 1993....

Benge's family said he wasn't a violent man, but drugs changed that.  According to records of his clemency hearing, the relationship between Benge and Gabbard soured when he began smoking crack cocaine.  He stole Gabbard's jewelry and other things to pawn to get money to feed his drug habit.

He became violent, with the aftermath of the beatings so obvious that she skipped family gatherings at the holidays in 1992 to avoid embarrassment.  They fought the night of the murder after drinking in a bar for several hours; Benge smoked crack.  Eventually, he stole her ATM card and beat her to death.  After disposing of the body, he swam across the river and hooked up with friends.  They used the card to drain $400 from Gabbard's bank account, records show.

Benge's attorneys said he began drinking alcohol when he was 11, and later moved on to marijuana and cocaine.  For his last meal, Benge ordered a large chef salad with ham, turkey and bacon bits, bleu cheese and ranch dressing, barbecue baby back ribs, two cans of cashews and two bottles of iced tea.

The last two sentences of this story lead me to wonder whether condemned inmates in Ohio or elsewhere are allowed to drink alcohol as part of their last meal. Gosh knows I would want to get plastered the night before I was due to be executed, and I would be inclined to let convicted murderers have some of the devil's juice in order to help ease their sleep during their last night alive. But, I suspect that most prison regulations prevent the condemned from having even legal intoxicants during their last meal, asn I suppose I can understand the logic (if not the legalities) of such a policy.

October 6, 2010 in Death Penalty Reforms, Who Sentences | Permalink | Comments (5) | TrackBack

"Mercy, Crime Control & Moral Credibility"

The title of this post is the title of this new piece by the always interesting Professor Paul Robinson. Here is the abstract:

If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not.  Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense.  Desert is a nuanced and rich concept that takes account of a wide variety of factors.  The more a writer misperceives desert as wooden and objective, the more likely the writer is to mistake judgments of blamelessness for exercises of mercy.

Should a criminal justice system exercise mercy in its real sense (of giving an offender less punishment than he deserves, using a fully nuanced and rich account of desert)?

One can imagine enormous benefits to the exercise of mercy by individuals in their personal dealings with others.  A tendency toward mercy seems an admirable personal trait.  However, it does not follow that mercy would be a desirable practice for a criminal justice system.  Our strong interest in equality of treatment of like offenders and offenses suggests that mercy, if used, would need to be regularized in its application; punishment ought not depend upon the tendency toward mercy, or lack thereof, of the particular decisionmaker in the case at hand. But to institutionalize mercy is to create an expectation and right to it that may be inconsistent with its fundamental character of giving a relief or mitigation from punishment to which an offender is not entitled.

Further, one can imagine serious effects detrimental to the effective operation of the criminal justice system were mercy to be institutionalized.  Classic arguments against it would cite its effect in undermining deterrence and the incapacitation of dangerous offenders.  While some of us might find these arguments unpersuasive, even the desert advocate would have reason to be concerned.  A "mercy program" would seem to similarly undermine both deotological and empirical desert, failing to do justice both as moral philosophers and as the community's shared intuitions of justice would assess it.

On the other hand, what if it were determined –- as recent research suggests -– that community intuitions tend to support some exercise of what might be seen as mercy?  If one sought to distribute criminal liability and punishment in a way to maximized the criminal law's moral credibility, might such evidence of principles of mercy shared by the community suggest that such principles ought to be instantiated in law?

October 6, 2010 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (6) | TrackBack

Contrasting perspectives on the death penalty in California

In the wake of last week's capital craziness in California, the death penalty in the Golden State is being broadly discussed and debated.  For example, the Huffington Post has this new commentary by Byron Williams, an Oakland pastor and columnist, titled "California must Eliminate the Death Penalty." Meanwhile, as detailed in this local piece, the candidates for Attorney General in California are were discussing death penalty issues in a debate last night:

The two leading candidates to become Califonria's next attorney general mixed-it up in a debate Tuesday. There were no major gaffes between San Francisco District Attorney Kamala Harris and her counterpart in Los Angeles, Steve Cooley, but there is one major difference....

Cooley, a Republican, is quick to hammer the point that the two candidates are polar opposites on capital punishment. "My opponent absolutely, ideologically opposes the death penalty, which is the law in California; I support it," Cooley said.

Harris, a Democrat, says she will be able to set aside her own personal feelings, like many attorneys general before her. "The reality of it is I am personally opposed to the death penalty, I will follow the law; my position is the same as four of the last nine attorneys general," Harris said.

Cooley highlighted a San Francisco case where a known gang banger killed San Francisco Police Officer Issac Espinoza. Espinoza's widow, sister and mother sat in the audience to support Cooley. "Absolutely, since our son was killed in the line of duty with an AK-47 by a gang member," Espinoza's mother Carol Espinoza said.

As San Francisco D.A., Harris had to play to the city's liberal base. But statewide, voters are more moderate; 70 percent support the death penalty. Harris points out this race cannot center on just one issue. The attorney general's office handles very few death penalty cases....

In recent years, the death penalty has not been much of an issue, but with a new death chamber at San Quentin and a death row inmate who was days away from execution before the courts stepped in, this race is now getting a lot more attention.

October 6, 2010 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2) | TrackBack

SCOTUS examining potential liability for prosecutorial misconduct again

Two very interesting cases come before the Supreme Court for oral argument today, and here are the basics via SCOTUSblog:

Snyder v. Phelps: "Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased? " 

Connick v. Thompson: "Can a prosecutor’s office be held liable for the illegal conduct of one of its prosecutors, on the theory that the office failed to adequately train its employees, when there has been only one violation resulting from that deficient training?"

Though the funeral protest case may get a bit more general attention, criminal justice fans should be sure to keep an eye on Connick v. Thompson.  The Supreme Court in recent Terms has seem willing (perhaps even eager) to extend absolute immunity to nearly all prosecutorial work.  But perhaps because of notable facts and a few new Justices, maybe this case will lead the Court to start moving in a different direction.

For a lot more background on the case, everyone should check out this piece by John Hollway at Slate, which is headlined "Innocent on Death Row -- This week at the Supreme Court: Can a man exonerated of capital murder sue the prosecutor who convicted him?".

October 6, 2010 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

October 5, 2010

Potent new report about prosecutorial misconduct in California

The National Law Journal has this new article, headlined "Prosecutorial Misconduct Is Rarely Punished, Says New Study," which spotlight a potent new report about how prosecutorial misconduct is handled (or not handled) in California.  Here are the basics:

Only a tiny percentage of prosecutors who engaged in misconduct were disciplined by the State Bar of California during a 12-year period, according to a report released Monday.

The report, issued by the Northern California Innocence Project at Santa Clara University School of Law, found 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct. It examined more than 4,000 cases.

Among the 707 cases, only six prosecutors -- 0.8% -- were disciplined by the State Bar of California. Only 10 of the 4,741 disciplinary actions by the state bar during the same period involved prosecutors....

The project found that judges often failed to report misconduct to the state bar despite having a legal obligation to do so. Sixty-seven prosecutors committed misconduct more than once and some as many as five times. The majority of those prosecutors were never publicly disciplined, the project said....

The report included recommendations for reform. It called for district attorneys to adopt internal policies that do not tolerate misconduct. It also called for the state bar to increase disciplinary transparency.

The State Bar of California issued a written statement in response to a request for comment. "[P]rosecutorial misconduct as indicated in the Innocence Project report does not always equate with attorney misconduct for disciplinary purposes," the association said. "The State Bar believes that it is disciplining criminal prosecutors where appropriate and where the misconduct was willful and can be establish by clear and convincing evidence." It added that misconduct is a "serious issue" and that the bar association is looking into the assertions made by the Innocence Project.

The report also found that in 282 of the cases, the courts did not decide whether a prosecutor's actions were improper. Instead, they concluded that regardless of the alleged misconduct, the defendant received a fair trial. The Innocence Project reviewed only appellate court rulings and a few other cases.

The full report is available at this link.

October 5, 2010 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (13) | TrackBack

"Tea Party = Pot Party?"

The title of this post is the headline of this interesting and effective report at Mother Jones.  Here are snippets:

Last month in the nation's capital, Gary Johnson, a former governor of New Mexico and outspoken critic of big government, took the podium at Glenn Beck's 9/12 rally to talk up economic issues. He warmed up the crowd of tea partiers with tales of how he'd fended off unnecessary state spending through liberal use of the veto stamp, and how he'd boosted educational competition through charter schools. Then Johnson dropped a bomb. "Half of what we spend on law enforcement, the courts, and the prisons is drug related," he proclaimed. "I suggest that legalizing marijuana will make this country a better place."

The crowd erupted in a clash of boos and applause — evidence, Johnson told me later, that the tea party is ripe for debate on the issue.  "What the tea party talks about is wise spending," he said, adding that the war on drugs was certainly no better a deal than Social Security or Medicare.  The tea party's libertarian elements, he noted, have already led to the unthinkable: "You find more Republican candidates right now espousing legalization of marijuana than you do Democrats."

He's probably right, says Allen St. Pierre, head of the pro-legalization National Organization for the Reform of Marijuana Laws (NORML), which funnels 80 percent of its political donations to Democrats. "Republicans are definitely more on the record in terms of support for ending prohibition," he says.  While pot-friendly pols from either side of the aisle are still rare species, the GOP variety tends to voice unequivocal support for outright legalization.  Republican exemplars include ex-Colorado GOP congressman Tom Tancredo (now running for governor on the American Constitution Party ticket) and the GOP challengers to Reps. Barney Frank and Nancy Pelosi.  Nobody, of course, is more outspoken on the issue than Rep. Ron Paul (R-Texas), the 2008 presidential hopeful and tea party patron saint, who recently wrote that "decriminalizing marijuana at the federal level would be a start" to ending "the insanity of the War on Drugs."

GOP voters might prove receptive to such a message.  According to the Pew Research Center, a whopping 61 percent of Republicans support legalizing the drug for medical patients (as 14 states already have).  In a recent Gallup poll, nearly one-third favored legalizing pot outright. In California, pollsters have shown similar levels of Republican support for Proposition 19, the ballot initiative that would legalize, regulate, and tax recreational marijuana for adults.

While Democrats favor Prop 19 at twice the rate of Republicans, pot activists insist that the tea party world is helping to narrow the gap.  Yes on 19 field director James Rigdon, who sends canvassers to most of the state's tea party rallies, believes that "individual tea party members are absolutely on board."...

Hemp legalization, in fact, has been an obsession for Take Back Kentucky, a tea party umbrella group that was an important early backer of Paul's son, Rand Paul—now the state's GOP nominee for US Senate.  At a meeting I attended in August, the group's founder, Norman Davis, pointed out that hemp was used to make the first American flags, World War II-era military supplies, and modern auto parts....

Even Sarah Palin came out sounding like a moderate.  "If somebody's gonna smoke a joint in their house and not do anybody else any harm," she said in June on Fox's Freedom Watch, "then perhaps there are other things our cops should be looking at to engage in, and try to clean up some of the other problems that we have in society."...

Ultimately, though, support from Prop 19 may have less to do with ideology than frustration over the sluggish economy. Legalizing and taxing pot, according to the California State Board of Equalization, could create up to $1.4 billion in new tax revenues — no chump change for a state facing draconian cuts to education and government services.

As it stands, the statewide explosion of semi-legal medical marijuana businesses has spawned terms like "cannabusiness" and "ganjapreneurs."  Rigdon, the Prop 19 field organizer, makes his pitch to tea partiers this way: "We have a chance to grow it in America, sell it in America, and help Americans with American jobs."  Just don't say the words "green economy." 

Some related posts on pot policy and politics:

October 5, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates | Permalink | Comments (3) | TrackBack

"Killer's death could be historic: State would hit new toll in era of lethal injections"

The new story in my local Columbus Dispatch details the "historic" nature of Ohio's planned execution tomorrow of a defendant who murdered his girlfriend nearly two decades ago.  Here are the basic modern details, with a little Ohio execution history to boot:

If Michael Benge is lethally injected as scheduled on Wednesday, Ohio will have executed the most prisoners in one year since 1949. Sixty-one years ago, 15 men were put to death in the state's electric chair, which is no longer used.

In the modern era - since the state resumed capital punishment in 1999 -- the most executions in one year, until this year, was seven in 2004.

The pace of executions has picked up in the past two years in Ohio. Another is scheduled for Nov. 16 (Sidney Cornwell of Mahoning County).  Gov. Ted Strickland granted clemency in two other death-penalty cases.

More executions are scheduled early next year. In addition, the Ohio public defender's office says an additional 20 or so death-penalty cases are close to exhausting all appeals, meaning that execution dates could be set in the near future.

Benge, 49, of Butler County, was convicted and sentenced to death for murdering his girlfriend, Judith Gabbard, on Jan. 31, 1993.  He beat Gabbard with a tire iron and threw her body into a river. Then he drained her modest bank account....

Unlike Kevin Keith, the Bucyrus man convicted of a triple slaying who was granted clemency by Strickland last month, Benge has attracted no groundswell of legal or popular support.

He would become the 41st person executed since 1999 and the 356th since the state began executions by electrocution in 1897.  Killers were hanged before that.  Ohio executions peaked between 1920 and 1949, when 218 people were put to death.

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

Times Square bomber shows no remorse as he gets a LWOP sentence

As detailed in this Wall Street Journal report, Faisal Shahzad's comments today as he was sentenced to a life prison term did not show any remorse for his efforts to detonate a bomb in Times Square. Here are the basics from today's sentencing proceedings:

A Connecticut man was sentenced to life in prison Tuesday after he admitted to trying to detonate a crudely made car bomb in Times Square in May.

Faisal Shahzad, a U.S. citizen originally from Pakistan, pleaded guilty to a 10-count indictment in June, including charges of conspiracy to use a weapon of mass destruction and attempting an act of terrorism. "Brace yourselves, the war with Muslims has just begun," Mr. Shahzad said before sentencing. He then said the defeat of the U.S. is "imminent."...

Prosecutors from the U.S. attorney's office in Manhattan have alleged Mr. Shahzad, 31 years old, received explosives training in Pakistan in December from people affiliated with Tehrik-e-Taliban, a militant extremist group based there. He allegedly received about $12,000 in cash to help fund the attack, prosecutors said.

In a sentencing letter last week, prosecutors said Mr. Shahzad accessed websites that provided real-time video of the crowds in Times Square in the weeks before the attack "as part of his effort to maximize the deadly effect of his bomb." Mr. Shahzad wanted to select a time with the most pedestrian traffic "because pedestrians walking on the streets would be easier to kill and to injure than people driving in cars," according to prosecutors.

"The defendant has repeatedly expressed his total lack of remorse, his desire if given the opportunity to repeat the crime; so there is really no basis here for me to believe that somebody who falsely swore allegiance to this country, who swore to defend this country, who took an oath a year ago to defend this country and to be loyal to it, has now announced and by his conduct has evidenced his desire is not to defend the United States or Americans, but to kill them," the judge said.  "Those are all matters — serious matters — I must take into consideration in setting sentence."

After he was sentenced, Mr. Shahzad said his sentence "will only be for the limit God has for me in this world."

"I'm happy with the deal that God has given me," he said. The judge urged Mr. Shahzad to consider whether the Koran wants him to kill people. His response: "The Koran gives you the right to defend.  That's all I'm doing."

As part of their sentencing submission, prosecutors submitted a video of a controlled explosion conducted by the Joint Terrorism Task Force of a bomb similar to Mr. Shahzad's in order to measure its explosive effects.

In the video, a Nissan Pathfinder is parked in a field, surrounded by four automobiles, two mailboxes, several newspaper boxes and figures representing people.  The fiery explosion violently flips over two automobiles and leaves a wake of destruction in the area. Mr. Shahzad believed the explosion would have killed at least 40 people, prosecutors said.

October 5, 2010 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

"Federal judge charged with buying drugs from stripper"

The title of this post is the headline of this Atlanta Journal-Constitution article reporting on a remarkable new federal criminal case.  Here are some of the stunning details:

A longtime federal judge was freed on a $50,000 bond Monday after his arrest on federal charges that he bought cocaine and other illegal drugs while involved in a sexual relationship with an exotic dancer for the past several months.

Senior U.S. District Judge Jack T. Camp Jr. was arrested late Friday night near Sandy Springs. Camp, 67, is accused of purchasing cocaine and marijuana, along with prescription painkillers that which he shared with an exotic dancer he met last spring at the Goldrush Showbar in Atlanta, according to an FBI agent’s affidavit for his arrest.

Camp met the dancer, identified in the affidavit as CI-1, when he purchased a private dance from her, according to the affidavit by Special Agent Mary Jo Mangrum, a member of a task force investigating public corruption. He returned the next night and purchased another dance and sex from her, the affidavit said. The two then began a relationship which revolved around drug use and sex.

In some cases he bought drugs from the dancer, while in others the pair purchased them from other parties, according to the affidavit. Camp sometimes took loaded guns to the deals. Camp’s arrest came after a buy from an undercover agent, authorities said....

U.S. Attorney’s office spokesman Patrick Crosby referred questions to the Justice Department in Washington, saying the Atlanta office has been recused. Washington federal prosecutors Deborah Mayer and Tracee Plowell declined to comment after the brief bond hearing.

Camp, a Vietnam veteran appointed to the bench by President Reagan, presided over cases in U.S. District Court in Atlanta for more than 20 years and was the chief judge before retiring last year and taking senior status, which essentially is a former of semi-retirement in which he still handles cases.

Atlanta defense attorney Jack Martin said Camp was a well-read man who sometimes quoted Shakespeare from the bench. “It’s almost like a Shakespearean tragedy,” Martin said of Camp’s arrest....

As a judge, Camp had a reputation as a tough sentencer. In 2009, he sentenced former doctor Phil Astin to 10 years in prison. Astin had prescribed drugs to Chris Benoit, the professional wrestler who killed his wife, son and then himself in 2007. Camp said that the good works performed by the doctor were outweighed by his indiscriminate prescribing of drugs that caused at least two other people to die from overdoses.

Last year, Camp rejected a plea deal of an indicted pharmaceutical executive, saying the proposed 37-month prison sentence did not “accurately reflects the seriousness of the conduct.” Jared Wheat had earlier pleaded guilty to charges in connection with illegal importation of knockoff prescription drugs from Central America. Wheat later was given a 50-month sentence.

Camp’s relationship with the stripper, who had a federal conviction related to a drug trafficking case, began last spring, according to the affidavit. The two would meet when Camp paid her for sex, and they would smoke marijuana and snort cocaine and take the painkiller Roxicodone together. Camp usually gave the stripper money to buy the drugs although sometimes she provided them on her own, the affidavit said. She secretly recorded Camp discussing the drug transactions.

October 5, 2010 in Offender Characteristics, Offense Characteristics | Permalink | Comments (21) | TrackBack

October 4, 2010

Notable Third Circuit ruling on process requirements for prisoner sex offender classification

The Third Circuit has a notable prisoner rights ruling today in Renchenski v. Williams, No. 07-3530 (3d Cir. Oct. 4, 2010) (available here), which gets started this way:

Plaintiff Charles Renchenski is serving a life sentence without the possibility for parole for murder in the first degree. Although he was never charged with, nor convicted of, a sexual offense, in 2005 Defendants classified Renchenski as a sex offender and recommended his enrollment in Pennsylvania’s Sex Offender Treatment Program (“SOTP”).  Renchenski filed this 42 U.S.C. § 1983 action alleging that his forced participation in sex offender treatment therapy violates several constitutional rights, including his: Fourteenth Amendment right to due process before being labeled a sex offender; Fifth Amendment right against self-incrimination; and Sixth Amendment right to have a jury adjudicate his guilt.  He also challenges the District Court’s conversion of Defendants’ motion to dismiss into a summary judgment motion without granting him leave to take discovery.  Because we hold that an inmate who has never been charged with, nor convicted of, a sex offense is entitled to due process before Pennsylvania classifies him as a sex offender, we reverse the District Court’s Order entering summary judgment as to his procedural due process claim.  We affirm the District Court in all other respects.

October 4, 2010 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

"Erie and Federal Criminal Courts"

The title of this post is the title of this fascinating-looking new paper from Wayne Logan available via SSRN.  Here is the abstract:

Today, low-level state and local criminal laws figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms).  While police resort to such laws as pretexts to stop and arrest individuals has been frequently addresed, this article provides the first analysis of how federal courts actually interpret and apply the laws.  In doing so, the article reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Erie v. Tompkins to resolve criminal cases.

As the article establishes, Erie analysis indeed plays a key role in federal criminal cases and it does so in the unusual context of malum prohibitum laws, otherwise customarily addressed by low-level state or local trial courts.  Federal courts must determine whether police seizures are reasonable for Fourth Amendment purposes, based on their assessment of whether the behavior in question could constitute a violation of state or local law.  If not, the exclusionary rule is triggered, likely resulting in dismissal of the federal prosecution. In such circumstances, state and local criminal laws retain their non-federal status while being applied by federal courts, much as occurs in civil diversity cases.

As the article explains, however, as Erie has migrated so too have its analytic difficulties, complicated by a variety of issues unique to criminal prosecutions.  Federal outcomes result not in civil liability but rather deprivations of physical liberty without the possibility of parole, and have significant implications for federalism and separation of powers, undercutting the historic police power authority of state and local governments.

The article, in short, marks the first effort to examine the impact of the “Erie megadoctrine” in federal criminal courts, which given the increasing cooperative efforts of state and federal law enforcement promises to have ever-greater significance in the years to come.

October 4, 2010 in Who Sentences | Permalink | Comments (0) | TrackBack

SCOTUS kicks off new Term considering application of gun mandatory minimums

Though the new Supreme Court term does not have many obvious sentencing blockbusters in the works, the term kicks off today with a pair of sentencing cases.  As detailed in this SCOTUSblog post, the two cases address the same basic issue: "in Abbott v. United States and Gould v. United States, the Court will consider whether two defendants were improperly sentenced to consecutive five-year prison terms under 18 U.S.C. § 924(c) when they were subject to a greater minimum sentence on a different count of conviction."  This ABA Preview authored by Professor Brooks Holland provides more background:

Petitioners Kevin Abbott and Carlos Rashad Gould were convicted of narcotics and firearms offenses, including one count each of possessing a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c).  Section 924(c)(1)(A) mandates a five-year consecutive sentence for this offense, but exempts defendants “to the extent that a greater minimum sentence is otherwise provided by this subsection or any other law.”  Petitioners argued that this exception precluded a consecutive sentence because petitioners were subject to a greater minimum sentence on a different count of conviction.  The district court disagreed in each case and sentenced petitioners to a prison term of five years on the § 924(c) offense, consecutive to their other mandatory minimum sentences.  Petitioners’ consecutive sentences were affirmed on appeal.  The Supreme Court now must determine whether § 924(c)(1)(A)’s “except” clause applies to petitioners.

SCOTUSblog has all the filed briefs in Abbott and Gould linked on this case page.

UPDATE: The transcript of the oral argument in Abbott and Gould is available here.

October 4, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (1) | TrackBack

"California's bloated prison system threatens public safety"

The title of this post is the headline of this commentary in the Sacramento Bee authored by Jeanne Woodford, former director of the California Department of Corrections and Rehabilitation and former warden at San Quentin. Here is how it begins:

Public safety is a bipartisan concern. The corrections budget must be, too.

California's spending on corrections has risen unchecked for too long and with too little to show for it. As every other area of the state budget absorbs significant cuts, corrections remains the exception even as recidivism rates exceed 70 percent. Despite some attempts to cut back, prison costs have actually increased during this severe economic downturn. The state Legislature must not let one more year go by without righting this wrong.

Public safety is threatened –- not enhanced –- by a massive, inefficient prison system haphazardly constructed through piecemeal legislation and ill-conceived ballot initiatives. The 160,000-plus state prison population is far from static, with 120,000 people returning to communities each year and just as many taking their places behind bars.  Two-thirds of people released from prison are sent back within three years.

Californians aren't getting their money's worth.

October 4, 2010 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (12) | TrackBack

Helping a district judge send a sentencing message to unscrupulous landlords

A helpful reader sent me a copy of a recent notable white-collar sentencing decision by US District Judge Mark Bennett in US v. Miell, No. CR 07-101-MWB (D. Iowa Sept. 27, 2010) (available for download below). There are many notable passages in this 105-page(!) opinion, and I have spotlighted the first paragraph and a notable footnote here:

In Little Dorritt (1855-57), Charles Dickens portrayed a greedy landlord as repeatedly urging his rent collector to “squeeze” the inhabitants of his most squalid property, even though the rent collector believed that he had already “squeezed” them dry.  Although this defendant’s properties were not squalid, there is nevertheless a disturbingly Dickensian quality to this case: The defendant, who owned hundreds of rental properties in Cedar Rapids and Linn County, Iowa, and, consequently, was himself worth many millions of dollars, engaged in a fraud scheme involving renters’ damage deposits over many years to “squeeze” an extra few hundred dollars each from people that he thought were too economically vulnerable or unsophisticated to contest his claims.  His damage deposit fraud scheme involved creation of fake and inflated invoices for repairs to and cleaning of his rental properties to justify claims and judgments against renters’ damage deposits. He also engaged in another fraud scheme to obtain insurance payments for repair of hail damage to the roofs of more than a hundred of his rental properties based on fake or inflated invoices, whether or not the roofs in question had actually been repaired.  The defendant pleaded guilty to eighteen counts of mail fraud arising from these schemes. He also pleaded guilty to two of three counts of perjury and was convicted by a jury of two counts of filing false tax returns. I write this sentencing decision to explain why I find that the defendant’s conduct warrants an upward departure or variance in his sentence for these offenses, from an advisory guidelines sentencing range of 168 to 210 months to 240 months, the statutory maximum sentence for the mail fraud offenses....

I am not sure that I have ever imposed a sentence to send a “message” to others or, in the parlance of sentencing lingo, as a “general deterrent.”  Certainly, in the daily ritual of sentencing drug defendants in our court to lengthy mandatory minimums, there is no anecdotal or empirical evidence that sentencing to “send a message to others” actually “works.”  In my view, it not only does not work as a general deterrent, but federal sentences in drug offenses — especially for the vast majority of addict defendants who are the daily grist of federal drug sentencing — are so harsh that these sentences themselves promote fairly widespread disrespect and undermine our citizens’ confidence in the fairness of federal sentencing.  That would probably be a risk worth taking if these sentences actual worked, but they don’t.

In this case, however, while “sending a message” is not my motivation or intent to any major degree, I hope that this sentence sends a seismic shockwave to every unscrupulous landlord who has repeatedly, unfairly, and unlawfully withheld renters’ damage deposits. You know who you are.   As this topnotch federal prosecution shows, the long arm of the United States Department of Justice, backed by endless resources, is here to seize you whether you are an inner-city slumlord, a college town landlord with a history of ripping off college students, a rural property owner, or an unscrupulous landlord working your scam anywhere in between.

Download Miell.MemopReSentencing 

October 4, 2010 in Booker in district courts, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

October 3, 2010

"Bullying, Suicide, Punishment"

The title of this post is the headline of this interesting and very effective piece in today's New York Times discussing the sad cybercrime case that emerged from Rutgers University this week.  Here are snippets:

Tyler Clementi may have died from exposure in cyberspace.  His roommate and another student, according to police, viewed Mr. Clementi’s intimate encounter with another man on a Webcam and streamed it onto the Internet.  Mr. Clementi, an 18-year-old violinist in his freshman year at Rutgers University, jumped off of the George Washington Bridge, and now the two face serious criminal charges, including invasion of privacy.

The prosecutor in the case has also said that he will investigate bringing bias charges, based on Mr. Clementi’s sexual orientation, which could raise the punishment to 10 years in prison from 5.

But the case has stirred passionate anger, and many have called for tougher charges, like manslaughter — just as outrage led to similar calls against the six students accused of bullying Phoebe Prince, a student in South Hadley, Mass., who also committed suicide earlier this year.

What should the punishment be for acts like cyberbullying and online humiliation?  That question is as difficult to answer as how to integrate our values with all the things in our lives made of bits, balancing a right to privacy with the urge to text, tweet, stream and post.

And the outcry over proper punishment is also part of the continuing debate about how to handle personal responsibility and freedom.  Just how culpable is an online bully in someone’s decision to end a life?...

In the Rutgers case, New Jersey prosecutors initially charged the two students, Dharum Ravi and Molly W. Wei, with two counts each of invasion of privacy for using the camera on Sept. 19. Mr. Ravi faces two additional counts for a second, unsuccessful attempt to view and transmit another image of Mr. Clementi two days later.

If Mr. Ravi’s actions constituted a bias crime, that could raise the charges from third-degree invasion of privacy to second degree, and double the possible punishment to 10 years. Still, for all the talk of cyberbullying, the state statute regarding that particular crime seems ill suited to Mr. Clementi’s suicide.

Like most states with a cyberbullying statute, New Jersey’s focuses on primary and high school education, found in the part of the legal code devoted to education, not criminal acts.  The privacy law in this case is used more often in high-tech peeping Tom cases involving hidden cameras in dressing rooms and bathrooms.  State Senator Barbara Buono sponsored both pieces of legislation, and said the law had to adapt to new technologies. “No law is perfect,” she said.  “No law can deter every and any instance of this kind of behavior.  We’re going to try to do a better job.”

Still, the punishment must fit the crime, not the sense of outrage over it.  While some have called for manslaughter charges in the Rutgers case, those are difficult to make stick.  Reaching a guilty verdict would require that the suicide be viewed by a jury as foreseeable — a high hurdle in an age when most children report some degree of bullying.

Besides, finding the toughest possible charges isn’t the way the law is supposed to work, said Orin S. Kerr, a law professor at George Washington University who specializes in cybercrime. “There’s an understandable wish by prosecutors to respond to the moral outrage of society,” he said, “but the important thing is for the prosecution to follow the law.”

The fact that a case of bullying ends in suicide should not bend the judgment of prosecutors, he said. Society should be concerned, he said, when it appears that the government is “prosecuting people not for what they did, but for what the victim did in response.”  Finding the right level of prosecution, then, can be a challenge. On the one hand, he said, “it’s college — everybody is playing pranks on everybody else.” On the other, “invading somebody’s privacy can inflict such great distress that invasions of privacy should be punished, and punished significantly.”...

That is why Daniel J. Solove, author of “The Future of Reputation: Gossip, Rumor and Privacy on the Internet,” said society needed to work on education.  “We teach people a lot of the consequences” of things like unsafe driving, he said, “but not that what we do online could have serious consequences.”

That sounds good, of course, but adults still drive recklessly after all that time in driver’s ed.  And it is easy and cheap to say that “kids can be so cruel at that age,” but failures of judgment can be found almost anywhere you look.

After all, what are we to make of Andrew Shirvell, an assistant attorney general in Michigan who devoted his off hours to a blog denouncing the openly gay student body president at his alma mater, the University of Michigan? His posts include accusations that the student, Chris Armstrong, is a “radical homosexual activist” and a photo of Mr. Armstrong doctored with a rainbow flag and swastika. He told Anderson Cooper that he is “a Christian American exercising my First Amendment rights.” On Friday, the attorney general’s office announced that Mr. Shirvell was taking personal leave pending a disciplinary hearing.

And for anyone eager to add an extra bit of sentencing law spin to this case, I think the bias charges being considered in the Clementi case are based on the statute that was subject to constitutional attack in Apprendi (and thus now requires a jury ruling, rather than just a judge finding, to double the potential punishment.

October 3, 2010 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (19) | TrackBack

Reviewing the administration of the death penalty in Virginia

The Richmond Times Dispatch has this new legnthy article, headlined "Many factors figure in death-penalty cases," concerning the administration of the death penalty in Virgina.  Especially because Virginia reasonably can and likely would claim to have the most sound and sensible capital punishment system in the United States, the piece is an interesting read including some interesting (somewhat dated) Virginia statistics.  Here are some excerpts:

A smiling Sam McCroskey was led from Prince Edward County Circuit Court last month after a plea deal won for him a life sentence instead of execution for bludgeoning four people to death -- three while they slept.  Three days later, Teresa Lewis, a Pittsylvania County grandmother, was executed by injection for a double murder-for-hire in which she did not pull the trigger.

The different outcomes were the latest to confound and upset Virginians who support or oppose the death penalty.  Experts say many factors, not all of them apparent, figure in death cases, including the sentiments of jurors in the 120 jurisdictions that elect commonwealth's attorneys, the wishes of the victims' families, the strength of evidence, and the abilities of the prosecutor and defense lawyers.

From the initial decision by a prosecutor to seek the ultimate sanction to the 11th-hour call by a governor on whether to intervene, discretion plays a huge role. "As long as there's a human factor in the decision-making, there's going to be disparity," said Craig S. Cooley, an area criminal defense lawyer who has worked on 68 capital-murder cases.

The way Warren Von Schuch, a special prosecutor in Chesterfield County, sees it, "you have to start with a prosecutor acting in good faith and from there, there are just a myriad of variables that affect the ultimate outcome."...

Local commonwealth's attorneys decide whether to seek the death penalty. Some do so more often than others. In addition to the seriousness of the crime, prosecutors, who are elected officials, can take into account their availability of resources, their own philosophy, and what they view as the moral sense of their constituents.

To win a death sentence, the state must do more than prove guilt.  Prosecutors must show that killers are future dangers because they had committed other violent acts, or that the capital crime was so vile that the defendant deserves execution, or both....

Further complicating capital cases is the plea-bargaining process, often used when there is more than one defendant, and possible appeals in state and federal courts that could result in the death penalty being thrown out. "Small wonder, when you think about all those different turns in the road, that there's no appearance of symmetry. . . . You're going to get differences of outcomes that may turn on the jury, on the judge or on the prosecutor," said A.E. Dick Howard, a University of Virginia law professor and constitutional scholar....

Even geography is a factor. A capital murder on one side of a county or city line can result in a death sentence and, on the other, life in prison.

In 2001, the General Assembly's Joint Legislative Audit and Review Commission studied 215 capital punishment-eligible cases in Virginia from 1995 to 1999. In that study, suburban prosecutors sought the death penalty in 45 percent of the cases, while city prosecutors sought execution in 16 percent. In rural areas, the death penalty was sought in 34 percent of the cases.

Howard said it is not surprising that in a federal system of government, some states have the death penalty and some do not. "But it comes as a little more of a jolt when you find that statistically, the prosecuting decision to ask for the death penalty varies quite substantially from one county or one city from another within a state," he said....

Richard J. Bonnie, director of the Institute of Law, Psychiatry and Public Policy at U.Va., said the differences in outcomes in capital-murder cases poses a larger question for death-penalty states.  In Virginia, for example, there are roughly 300 to 400 murders a year.  No figures are available on how many are potential death-penalty cases.

But Bonnie said if it's presumed for discussion purposes that roughly one-third would be eligible for the death penalty, in recent years "out of that hundred cases there have only been one or two death sentences." Because there are so few, he said, "there is no reasonable confidence that you can have that the people who receive death sentences and who are executed are in any sort of rational way, different from the many people that did not."

October 3, 2010 in Death Penalty Reforms, Who Sentences | Permalink | Comments (3) | TrackBack

"It's time for Oregon to get smart on crime"

The title of this post is the headline on this lengthy and effective commentary authored by John Tapogna, who is president of an Oregon-based economic consulting firm and a former analyst for the U.S. Congressional Budget Office. Here are excerpts:

As the ballots hit our mailboxes this month, we'll discover a tempting offer. For $30 million a year when fully implemented, Measure 73 promises to lock up repeat sex offenders and repeat drunken drivers longer.  Two groups who don't elicit, or deserve, any sympathy.  Conventional wisdom suggests the measure will pass.  Easily.

And if it does, we will have reaffirmed our conflicting preferences for low taxes and long prison sentences.  Through voter-approved property tax limitations and kicker laws, Oregon's tax revenues as a share of the economy have declined.  And they'll remain below levels of the late 1980s despite last year's income tax hikes.  Meanwhile, we've approved mandatory minimum prison sentences for an expanding list of crimes.  Measure 73 would add a few more.

Back in the 1990s when Oregon's economy was hot, we pulled off the trick of cutting taxes while also building prisons.  But we're in different times.  As federal stimulus fades and the economy sputters, the next governor will inherit a multibillion-dollar state budget shortfall that seemingly deepens with every revenue forecast.  Successfully navigate that immediate challenge, and the rest of the decade delivers a projected 46 percent increase in elderly baby boomers who will drive up public spending on health care and pensions.  And those well-educated boomers will take their degrees into retirement and leave a less-prepared work force in their wake.

This one-two punch -- a weak economic recovery followed by a demographic tsunami -- demands that government re-engineer every service it offers. The corrections system is no exception. We spent two decades getting tough on crime. Now it's time to get smart.

In recent years, numerous states have jumped ahead of Oregon, modernized their sentencing guidelines and dialed back prison spending.  By doing so, they made space in their collapsing budgets for investments with stronger economic returns -- especially education.  So will Oregon follow the lead of these innovative states?... 

In 1989, the Legislature worked with judges, developed sentencing guidelines for convicted felons and agreed to increase corrections spending. The inmate population edged up in the early 1990s.

But the prison-building boom didn't really take off until voters approved Measure 11 in 1994.  The citizens' initiative created mandatory minimum sentences for 16 crimes and, during the subsequent decade, the inmate population doubled from 6,000 to 12,000. Today it's at 14,000 and headed to 16,000 by 2020....

Incarceration will always be a critical tool in crime prevention, but it's an expensive one. And with the average cost per inmate at $82 daily, prisons have hit the law of diminishing returns.  When voters passed Measure 11 in 1994, each $1 of prison spending yielded an average $2.78 in benefits -- prevented pain, suffering and losses associated with crime. But as we have cast prison's net wider, and caught less serious offenders in it, the benefits have declined to 91 cents for every dollar spent.

Long ago, we may have been so flush with cash that we could overlook negative returns on our public investments.  But we're not flush anymore, and we won't be anytime soon. So now's the time to ask: How do we stay tough on crime in an era of scarcity?

And the answer is: Be more like Texas.  Never accused of being softies, the 2007 Texas Legislature halted a half-billion-dollar prison construction effort and boosted investments in a cost-effective network of residential and community-based treatment and supervision programs.  Rather than grow by a projected 17,000 inmates over the next five years, Texas' prison population has started to decline.

Texas is not the lone reformer. California and Illinois have designed performance rewards for counties that keep probationers out of prison. Mississippi and Nevada rolled back sentences for nonviolent offenders who successfully complete drug treatment and vocational training programs. And Hawaii has coupled random drug tests with short jail stays to reduce parole violations and prison sentences.

Innovation is spreading and -- for the first time in 38 years -- the inmate population in America's prisons fell in 2009.  Twenty-six states registered declines.  Oregon was not among them.

But there is hope.... With a goal of getting smarter on crime, Gov. Ted Kulongoski's recently convened Reset Cabinet investigated best practices across the United States, surveyed hundreds of judges and public safety experts, and developed a list of sentencing reforms. The report's recommendations were built on a philosophy that costly prison beds should be reserved for violent offenders and those convicted of person-to-person crimes. The report also suggested that Measure 11's mandatory minimum sentences should be targeted more narrowly to crimes involving death, serious physical injury or sexual contact with the victim. Implemented competently, the Reset blueprint would save hundreds of millions of dollars over the decade with no appreciable change in crime....

We're in the middle of a long, slow march out of tough economic times, and we can't afford missteps. If we can't muster the smarts and courage to slow spending on public investments that yield negative returns, this decade's outlook for education -- and our economy -- is bleak.

October 3, 2010 in Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (6) | TrackBack