Sentencing Law and Policy

SCOTUS takes up whether longer federal sentence permitted to promote rehabilitation

As detailed in this effective SCOTUSblog report, late yesterday the Supreme Court released an orders list which adds an interesting new federal sentencing case to the Court's docket.  Here are the details as well reported by Lyle Denniston:

The new criminal sentencing case the Court agreed to review is Tapia v. U.S. (10-5400), testing whether a federal judge may give a convicted individual a longer prison sentence to promote rehabilitation. That issue has divided the federal Circuit Courts, the petition argued. The Court already is reviewing an aspect of the rehabilitation question in federal sentencing — in the case of Pepper v. U.S. (09-6822).  The Justices, in fact, heard the Pepper case just last Monday.

The question before the Court in Pepper is whether a convicted individual who makes considerable strides in rehabilitating himself after his initial sentencing should have a chance to have a reduction in the sentence under the federal advisory Sentencing Guidelines, if the first sentence was overturned.  That is different from the situation with Alejandra Tapia in the newly granted case.  The issue there is, when the judge has decided that prison time is an appropriate sentence, whether the term can be lengthened to improve the individual’s chances of rehabilitation.  The petition argued that the Eighth and Ninth Circuits allow the use of that factor, in conflict with the Second, Third, Eleventh and D.C. Circuits, which do not.

The Justice Department, which supports Jason Pepper in the case already under review, told the Court that it agreed with Tapia’s view of what federal law allows, but nevertheless urged the Court not to hear the Tapia petition.  Acting Solicitor General Neal K. Katyal said that the Justice Department had sometimes supported the view that rehabilitation needs could be a factor in giving a longer sentence, but it no longer will take that position.  The Court, Katyal said, should allow the Circuit Courts to weigh the Department’s new views.

The Court, however, went ahead and agreed to hear the Tapia case this Term.  The woman in the case was convicted of bringing illegal aliens into the U.S. and of jumping bail after being charged with immigration crimes.  The judge said one factor in giving her a longer sentence was to make sure she remained confined long enough to take part in a drug rehab program.

After reading the Pepper transcript (which I commented upon here at SCOTUSblog), I had thought that the Court would resolve that case with a fairly limited opinion. But the Court's decision to take up Tapia now leads me to believe that the Justices may be eager to say a lot about the interplay of punishment theory and federal sentencing law in the post-Booker sentencing world.  Slowly but surely, this Term is becoming more interesting for sentencing fans than I had expected back in October.

Notable concurrence from CJ Kozinski as Ninth Circuit reverse white-collar conviction

The Ninth Circuit reverses a corporate CFO's conviction on fraud today in US v. Goyal, No. 08-10436 (9th Cir. Dec. 10, 2010) (available here), because the panel concluded that "[e]ven viewing the evidence in the light most favorable to the prosecution, no reasonable juror could have found Goyal guilty beyond a reasonable doubt of any of the charges against him." And Chief Judge Alex Kozinski added an extra bit of (seemingly deserved) insult to the federal prosecutors' injury with this brief and potent concurrence:

This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant’s personal and professional life. The defendant’s former employer also paid a price, footing a multimillion dollar bill for the defense.  And, in the end, the government couldn’t prove that the defendant engaged in any criminal conduct. This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds. See Arthur Andersen LLP v. United States, 544 U.S. 696, 705-08 (2005); United States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009); United States v. Brown, 459 F.3d 509, 523-25 (5th Cir. 2006); cf. United States v. Moore, 612 F.3d 698, 703 (D.C. Cir. 2010) (Kavanaugh, J., concurring) (breadth of 18 U.S.C. § 1001 creates risk of prosecutorial abuse).

This is not the way criminal law is supposed to work.  Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal.  This is not only because of the dire consequences of a conviction — including disenfranchisement, incarceration and even deportation — but also because criminal law represents the community’s sense of the type of behavior that merits the moral condemnation of society. See United States v. Bass, 404 U.S. 336, 348 (1971) (“[C]riminal punishment usually represents the moral condemnation of the community . . . .”); see also Wade v. United States, 426 F.2d 64, 69 (9th Cir. 1970) (“[T]he declaration that a person is criminally responsible for his actions is a moral judgment of the community . . . .”).  When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted.

Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn’t commit.  But not everyone is so lucky.  The government shouldn’t have brought charges unless it had clear evidence of wrongdoing, and the trial judge should have dismissed the case when the prosecution rested and it was clear the evidence could not support a conviction.  Although we now vindicate Mr. Goyal, much damage has been done.  One can only hope that he and his family will recover from the ordeal.  And, perhaps, that the government will be more cautious in the future.

A chance to support the completion of June Gloom, a film about prisoner reentry

I received this interesting e-mail last night that I feel is worth sharing:

My name is Attila Adam.  I'm a L.A. writer and director currently working on a new drama called June Gloom.  The film is centered around a man's release from prison, into a world that doesn't want him.  It's an example of how difficult restarting your life can be when you walk into that "gloom" without a strong support system.

I've been reading your work on Sentencing Law and Policy online and felt compelled to reach out and share what I'm doing.  I believe that June Gloom has the potential to get a real message across about the importance of reentry and readjustment. I've put together a special intro video to the project that includes a short trailer.  I hope it can give you a better idea of the direction I'm trying to go in.  You can view it here.

I'm doing my best with the resources I have to get this project finished and seen.  I've put together a set of creative rewards that I'm offering supporters in exchange for any size contribution.  If you like what you see, I was wondering if you'd consider mentioning my project on your blog or spreading the word to colleagues.  Thanks in advance for taking the time to read this.

Notably, for the seemingly bargain price of only a $500 supporting pledge, one can get executive producer credit on this film. I wonder if readers and regular commentors like Bill Otis or federalism or Supremacy Claus or others will be interested in having their names on the big screen. Better yet, perhaps readers can pool pledges and we can have this blog's readers listed as a executive producer. Seems a small price to pay for a good cause and for having one's name on a movie, no?

The minimum pledge to support this project is a mere $10, and I will pledge to match (at least) the first $100 that come from SL&P readers for this project (in part because a pledge of $100 gets one goodies that include "a Special Thanks in the film's credits and on IMDB.com [and a] limited edition 11x17 poster of the film [and a] DVD of the film, including original audition footage & a behind-the-scenes slide show").   

"On the Politics of Imprisonments: A Review of Systematic Findings"

The title of this post is the title of this notable new paper by two social scientists at my own Ohio State University. Here is the abstract:

The great expansion in imprisonments in the United States in the past 35 years is puzzling partly because this abrupt growth is completely unprecedented.  Changes in the crime rates alone cannot explain this trend, and ideational accounts that focus on penal styles are problematic.  Political explanations, however, show promise, given that governments must provide domestic order and candidates can use public concerns about race and street crime to win elections.

This review highlights the empirical literature in sociology and also discusses some important findings in political science and economics.  Law-and-order campaign appeals combined with a covert emphasis on the links between race and street crime used to overcome Republican electoral disadvantages seem to provide the most plausible explanations for the rapid increase in U.S. imprisonment rates in this racially divided society.  Dissimilar political arrangements help explain why imprisonment trends in the United States have sharply departed from these trends in the affluent but less direct democracies in Western Europe.

USA Today posts its next set of articles in its series on federal prosecutorial misconduct

As noted here a few months ago, USA Today published this potent and disturbing pieceabout federal prosecutorial misconduct earlier this fall.  Now I see from this webpage that USA Today has now published this additional set of article on this important topic:

• Federal prosecutors keep jobs even after cases collapse
• States can discipline prosecutors, rarely do

Here is one of many notable excerpts from the first of these articles:

The Justice Department consistently conceals its own investigations of misconduct from the public.  Officials say privacy laws prevent them from revealing any details of their investigations.  That secrecy, however, makes it almost impossible to assess the full extent and impact of misconduct by prosecutors or the effectiveness of the department's attempts to deter it....

The Justice Department refuses to discuss its misconduct investigations, though Congress has repeatedly urged more transparency.  In 1978, for example, Congress asked the department to make the results of its investigations public.  That happened for roughly seven years under Attorney General Janet Reno, President Bill Clinton's appointee, when [the Office of Professional Responsibility] released summaries of its investigations that included prosecutors' names.

But — with the exception of a few investigations of high-ranking officials — OPR has not revealed the names of prosecutors it found committed misconduct in almost a decade. Justice officials told USA TODAY that a federal law known as the Privacy Act, enacted in 1974, bars them from releasing any details, even when the problems have been widely publicized.  Instead, it produces anonymous annual reports without any identifying details, even genders, of the prosecutors involved.

"OPR is a black hole.  Stuff goes in, nothing comes out," said Jim Lavine, the president of the National Association of Criminal Defense Lawyers.  "The public, the defense attorneys and the judiciary have lost respect for the government's ability to police themselves."

New issue of American Prospect magazine focused on mass incarceration

I was pleased to learn that this special issue of The American Prospect magazine is focused on “Mass Incarceration in America.” The issue includes an array of essays, and the introductory essay has a fitting title: "Eyes on the Prize: Our moral and ethical duty to end mass incarceration."   And I would add that ending mass incarceration could also be fiscally wise and quite socially useful.

This is the End: Jim Morrison becomes posthumous back door (pardon) man

As detailed in this local story, which is headlined "Crist, clemency board give ‘Lizard King’ redemption," a long-dead famous guy got a pardon in Florida today. Here are the basics:

Whether or not the “Lizard King” unzipped his pants and exposed himself to a crowd of thousands more than 40 years ago remains a mystery.

Jim Morrison’s alleged antics will remain forever a part of the late rocker’s legacy. But the charges against him for indecent exposure and public intoxication won’t.

Gov. Charlie Crist, Agriculture Commissioner Charles Bronson, Chief Financial Officer Alex Sink and Attorney General Bill McCollum, acting as the state Clemency Board, granted Morrison, the lead singer of “The Doors,” a pardon Thursday afternoon as one of their final acts as a panel before leaving office....

Crist, who presented the motion for the pardon himself said that because Morrison died while his appeal was pending, the late rocker did not have a chance to clear his name. “In this case, the guilt or innocence is in God’s hands, not ours. That is why I respectfully ask my colleagues today to pardon Jim Morrison,” Crist said.

Morrison’s pardon was not without drama. Angel Lago, a former Miami cop, showed up to protest the exoneration of Morrison. “My objection is that the gentlemen had showed no remorse for a pardon, didn’t change his lifestyle at all and eventually his drug use killed him in a Paris bar bathroom from a heroin overdose,” Lago said. “I think this is a wrong message to send the youth of this country. I think it’s absolutely wrong.”

But Crist and Sink said that Morrison, who was born in Melbourne, left behind a legacy for which he should be honored. “It’s not about the guilt or innocence of the man and it’s not about retrying the case here today. That’s not what this is about. We have had an opportunity for about 40 years for this son of Florida whose body of work has endured and has this blot on his record, if you will, for something that he may or may not have done when he was essentially a kid,” Crist said.

The vote in favor of Morrison’s pardon was unanimous.

For a host of reasons, I do not love this decision madly and it does not light my fire.  There are lots and lots of live people whose clemency requests fail to get even a fraction of time and energy and attention that this Morrison matter has recently generated.  But even though this decision does not touch me, I suspect I can and will ride out the storm of media this decision is sure to generate.

"Theorizing Mental Health Courts"

The title of this post is the title of this new piece by Professor E. Lea Johnston that is available via SSRN. Here is the abstract:

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states.  This article examines the two utilitarian justifications proposed by mental health court advocates -- therapeutic jurisprudence and therapeutic rehabilitation -- and finds both insufficient.  Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict.  In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system.

Furthermore, the ability of therapeutic rehabilitation to offer sufficient theoretical grounding depends on the validity of the assumed link between mental illness and crime. In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism.  Drawing upon social science research, this article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts. The article concludes by identifying alternative theories that may justify these courts.

"Wesley Snipes suggests race a factor in his sentencing"

The title of this post comes from this report at Monsters and Critics of movie star Wesley Snipes' appearance on Larry King Live last night on the eve of his requirement to report to prison to begin a three-year sentence.  Here is move from the M&C piece:

Wesley Snipes has suggested that race may have played a part in his being sentenced to a three-year jail term for failing to file tax returns.  The Blade star, 48, has appeared with his lawyer on Larry King's CNN talk show, just two days before he is due to surrender himself at a federal prison in Pennsylvania.

He insisted he was innocent of failing to pay around USD$7million in taxes and said he was 'nervous' and 'upset' about the prospect of prison....  Adding he had not spoken out against the conviction before because, 'One thing is my mother told me if you don't have anything good to say about anybody, don't say nothing at all.'

He also implied his race could have been a factor in his conviction. 'There is an agenda set by a particular body that benefits from villainising (sic) a certain people, particularly if they come from a particular community.'

His lawyer Don Meacham said they had made a last-minute appeal against the conviction and had also called for a retrial. He also claimed potential African-America jurors at his trial were given the wrong day to return for service on his trial.

This longer story at CNN about Snipes interview includes more details about sentencing issues and Snipes' concerns:

Snipes suggested he was unfairly singled out by prosecutors. "It does seem to be rather unusual and rather bizarre when you had a prosecutor come into the sentencing and say that this is the biggest tax trial in the history of the IRS," Snipes said. "I think there is a certain amount of selectivity going on here."

Snipes indicated he was disturbed by some public comments that he was receiving "just punishment." "It's been presented as though I'm worthy of this punishment," Snipes said. "I've been a law-abiding citizen ever since I grew up in the Bronx, New York."

One juror, Frank Tuttle, gave Larry King Live a written statement that three other jurors had made up their mind that Snipes was guilty before the trial began. The jury's verdict was a compromise between those jurors who thought Snipes was guilty and those who didn't, Tuttle said in the statement.

"That's when a deal was made to find him guilty on the failure to file taxes and not guilty on the federal tax evasion charges," Tuttle said in the statement. "We did not think he would go to jail."

Snipes' attorney, Daniel R. Meachum, said neither he nor Snipes had any involvement in preparing that juror's statement to Larry King Live, saying the show's producers obtained it on their own. "We on the defense team never suggested that the media reach out to any of the jurors," Meachum said.

Federal sentencing litigation at its absolute finest

The title of this post is a fitting description of what I experienced this morning in the courtroom of U.S. District Judge Kenneth Karas of the Southern District of New York. 

As regular readers know, I have been troubled by the Justice Department's view that any defendant who committed a crack offense before the enactment of the Fair Sentencing Act should get no benefit from the the FSA's statutory provisions. And, with the help of a terrific attorney litigating this issue for a client awaiting with a case pending before Judge Karas, I had the opportunity to submit a couple amicus letters (discussed here and here) setting out my thoughts about why the FSA's provisions should be applied to cases in the pipeline that have not yet been sentenced.

Today was argument day in the White Plains courthouse of the SDNY, and Judge Karas devoted three hours to hearing argument from numerous defense counsel and from me and from the Government.  At every stage of the proceeding today, I was wowed by the effectiveness, insightfulness and kindness of all the litigating and especially Judge Karas.  I feel confident asserting that the level of argument and legal discourse in this district court (as well as the copious briefing that came before the argument) rivaled what one expects before the Courts of Appeals or even the Supreme Court.

I always hope and expect that federal district courts will give as much time and attention to sentencing issues as do appellate courts, but busy dockets and busy litigants do not always make that possible.  In this case, my hopes and expectations were not only met, but exceeded.  And I could gush on at length about many facets of the experience, but at this point I have probably already given the parties involved a justified sense of how impressed I was by their efforts and how grateful I was to be able to participate in this (not so?) little facet of federal criminal justice administration.

Some recent related posts:

• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Seeking ground reports on the FSA's application to not-yet-sentenced cases
• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Does Abbott provide new and added support for applying the FSA to pending cases?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases

"Could Abolishing the Death Penalty Help States Save Money?"

The question in the title of this post is the headline of this new ABC News article.  Here is how the article starts:

In 2003, Seattle resident Robert Kerr was abducted from his apartment and found dead 30 miles from his home, with his bank account emptied and without clothes or identification. At the end of 2010, the state of Washington has yet to arrest or convict anyone for his death.

While Kerr's killers have never been found, the state will spend hundreds of thousands of dollars in the coming year on the death penalty for people already behind bars -- a situation that has reformers, and Kerr's family, clamoring for change.

Kerr's case is one of thousands of unsolved murders, and it's the reason his sister, Judy Kerr, supports her state, California, in abolishing the death penalty and reallocating the millions of dollars it spends on death row inmates each year to solving cold cases.

With so many states facing deficits, legislation on the death penalty has started to address the cost of the policy, while justification for it has traditionally focused on whether it's right or wrong. "I thought the crime would be solved quickly, and there would be justice for me," Kerr, a registered nurse from San Francisco, said. "The state needs to be allocating its money toward different things."

California has a $25 billion deficit and almost 700 inmates on death row. According to a 2008 report issued by the California Commission for the Fair Administration of Justice, maintaining the criminal justice system costs $137 million per year, but the cost would drop to $11.5 million if it weren't for the death penalty. A 2010 study from the Northern California chapter of the American Civil Liberties Union found that California would be forced to spend $1 billion on the death penalty in the next five years if the state does not replace capital punishment with permanent imprisonment.

California is not the only state where cost has become an argument for abolishing the death penalty. Last week a commission report recommended to the New Hampshire legislature that the state not expand its death penalty, citing its higher costs as one of the reasons, and the same week a bill to abolish the death penalty in Illinois passed in the state's House Judiciary Committee.

A Harris test case?: Seventh Circuit affirms extraordinary sentencing factor enhancement

Among the many "quirks" in the modern Apprendi/Blakely Sixth Amendment jurisprudence from the Supreme Court is the Harris mandatory minimum exception to the rule requiring jury findings of important sentence-enhancing facts. This "quirk" in on full display in the Seventh Circuit's fascinating ruling today in US v. Krieger, No. 09-1333 (7th Cir. Dec. 7, 2010) (available here), in which a panel affirms a 20-year mandatory minimum sentence based on judicial fact-finding about the defendant's drug crime resulting in a friend's death.

The panel decision in Krieger has too many interesting and notable facets to summarize in one post.  So I will just quote from one part of the opinion which spotlights why this is a possible test case for the Supreme Court to perhaps reconsider the logic and persistence of Harris:

Krieger’s pre-sentencing report set forth a recommended sentencing range of ten to sixteen months. The government filed objections, arguing that the court should find that Curry’s death resulted from Krieger’s distribution of fentanyl, thus triggering a mandatory minimum sentence of twenty years under 21 U.S.C. § 841(b)(1)(C)....

On January 16, 2009, the district court issued its order, finding, by a preponderance of the evidence, that the fentanyl supplied by Krieger resulted in the death of Curry....  In view of the conflicting evidence as to the cause of Curry’s death, the court concluded that the government would not have been able to prove, beyond a reasonable doubt, that Krieger’s distribution of fentanyl was the cause of Curry’s death, had Krieger been charged with that offense.  The court was persuaded, however, that a preponderance of the evidence established fentanyl as the cause of Curry’s death, and concluded that “the Government has established that it is more probable than not that Ms. Krieger’s distribution of fentanyl to Ms. Curry resulted in Ms. Curry’s death.” (R. at 154, p.8).

Once the court made the finding, by a preponderance of the evidence, that death resulted, it concluded that it was obligated to impose the mandatory statutory minimum under § 841(b)(1)(C) “if death results” — twenty years....

The outcome in this case highlights the critical nature of the distinction between sentencing factors and elements.  In this case, without death resulting, the maximum penalty for distributing small amounts of fentanyl would have been twenty years, with no minimum penalty. 21 U.S.C. § 841 (b)(1)(C) (“In the case of a controlled substance in schedule I or II . . . such person shall be sentenced to a term of imprisonment of not more than 20 years.”).  In cases where death results from the distribution, the sentence increases to a minimum of twenty years and a maximum of life in prison. Id.  Once a court makes a finding that triggers a mandatory minimum sentence, it has no choice but to impose that sentence.

New data set from the US Sentencing Commission on federal sentencing

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

Fourth Quarter FY10 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the fourth quarter of fiscal year 2010. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 2, 2010)

The new data continue to show a very slow and very steady migration away from guideline ranges: over the nearly 80,000 federal cases sentencing in Fiscal Year 2010, just under 55% of all federal sentences fell within the calculated guidelines range. Prosecutors, who requested departures or variances in nearly 26% of all cases, continue to be the primary driving force behind below-range sentences, but judges now go outside the guidelines on their own almost 20% of the time (with 1.8% of all cases having judges imposing above-range sentences and 17.9% of all cases prompting judges to impost below-range sentencing).

Texas Court of Criminal Appeals halts lower court hearing on death penalty's constitutionality

As detailed in this new piece in the Houston Chronicle, the "Texas Court of Criminal Appeals halted an unprecedented death penalty hearing late Tuesday after an emergency appeal from the Harris County District Attorney's Office argued that a Houston judge was overstepping his boundaries." Here are more details on the latest development in a high-profile capital proceeding:

The hearing on the constitutionality of the procedures surrounding the death penalty in Texas will be stopped to allow both sides 15 days to respond and file briefs in the state's highest criminal court. State District Judge Kevin Fine had acknowledged that the appellate court may have been considering whether to order him to halt the proceedings in a preliminary hearing in the death penalty trial of John Edward Green.

Prosecutors and defense lawyers will now argue whether the hearing should take place. The district attorney's office said in its brief that Fine was exceeding his authority by allowing evidence regarding flaws in past death penalty cases to decide issues in Green's case....

Defense lawyers for Green said they were disappointed in Tuesday's decision, but vowed to fight on. "We will never quit on this issue and will defend him all the way to the Supreme Court if necessary," said Casey Keirnan, one of Green's attorneys.

Arguments at the appellate court could end or may just delay what has turned in to a full-fledged accounting of the safeguards of the procedures available used to convict and execute inmates in Texas.

Steven Halpert, a Houston defense lawyer who has been watching the proceedings, said he does not believe the hearing will continue. "It's a shame, because a free debate, a well-rounded debate on these issues is certainly overdue, and we may never get that opportunity," Halpert said.

"Sex-Offending Teacher Asks for Castration"

The title of this post is the headline of this AP article from Connecticut sent my way by a helpful student. Here are the details:

A teacher convicted of sexually assaulting one of his students had an odd request for the judge at his sentencing Thursday.

Adam Friedman, 46, offered to be castrated in an effort to avoid prison time.  Friedman was an instructor at the Arts at the Capitol Theater magnet school in Willimantic when he was arrested in December 2008.

Prosecutors say Friedman had a sexual relationship with a 15-year-old girl between July and November 2008.  The assaults took place at motels in Columbia and Manchester, and at the girl's grandparents' home in Hebron.

He plead guilty to second-degree sexual assault, risk of injury to a minor and possession of child pornography in September.  But it was Thursday at his formal sentencing that Friedman asked Judge Elliot Solomon to allow him to be castrated instead of going to prison.

Solomon didn't take the offer, sentencing Friedman to 13 years.  "My hope is that this sentence finds its was to every school in our state," Judge Solomon said.  "So every teacher knows, if you touch a student, you're going to jail, and you're going for a long, long time."

OK prisons not okay because of crowding and costs

This recent article in The Oklahoman, which is headlined "Oklahoma lawmakers seek to strike budget balance for prisons; this year marks the 12th year in the past 13 that the Oklahoma Department of Corrections has sought emergency funds from the state Legislature," spotlights struggles facing the Sooner system of justice. Here are excerpts from a lengthy and effective piece that helps explain the accompanying picture:

In 1995, long rows of bunk beds replaced game tables, ironing boards and folding chairs in the day rooms where prisoners inside the Eddie Warrior Women's Correctional Center in Taft would sit when someone with a message of hope would come to speak.

“I remember when we put in those bunks and were quoted as saying it would be temporary,” Justin Jones, Oklahoma Department of Corrections director, said. “Here we are in 2010, and they are still there, except now they are stacked two high. In the Department of Corrections, temporary is at least 15 years.”

This year also marks the 12th year in the past 13 that Corrections has sought emergency funds from the state Legislature. Since 1995, the prison population has grown from 17,983 inmates to 26,720 and state appropriations have increased from $188 million to more than $461 million, despite the department having trimmed $76 million from its budget in the past two years. The department estimates it now needs more than $592 million to operate.... With the Legislature's bill-filing deadline for 2011 less than a week away, newly elected Speaker of the House Kris Steele, R-Shawnee, is pushing for a series of short-term steps to reduce the budget strain.... “I think public safety is a top priority in our state and as a result, historically, Oklahoma's answer to that has been incarceration,” Steele said. “It's been kind of a one-size-fits-all approach. Lawmakers have been reluctant to dig in ... nobody wants to be perceived to be soft on crime.”

In addition, supporters of reforms in the criminal justice system that has helped make Oklahoma a state of incarceration — it leads the nation in locking up women on a per-capita basis and is consistently in the top five for incarcerating men — say it has helped reduce Oklahoma's crime rate and improved public safety. “I can tell you from a fiscal standpoint ... (and) from a human resource standpoint we are going to have to do something different,” Steele said.

Steele said three numbers stand out in the research: 68 percent of female offenders aren't a danger to public safety; the state prison system is operating at 99 percent capacity, which means there is little room for more violent offenders; and 70 percent of children with a parent in prison wind up being incarcerated at some point in their lives.

A recent Tulsa World survey also showed strong public support for finding alternatives to incarceration for many nonviolent female offenders and for doing more to help the children they leave behind. Sen. Brian Bingman, the new Senate president pro tem, said he supports “anything that we can do to keep nonviolent criminals out of prisons.”...

Prison officials have maintained for decades the system is overcrowded and underfunded, in large part because offender growth is not funded until after the fact and often is not annualized. The latest unfunded Legislative mandate is the “85 Percent Rule,” which requires persons convicted of certain crimes to serve at least 85 percent of their sentence before they can be considered for parole.

Signed into law in 2000, the list of those crimes has grown from 11 to 24 offenses, which Jones said ensures the average prison stay will steadily increase. The number of “85 Percent” offenders already has risen from 53 in December of 2000 to 5,086 in December of 2009.

NY Gov Paterson grants pardons to immigrants facing deportation

As detailed in this New York Times piece, "Gov. David A. Paterson announced pardons on Monday for six immigrants facing deportation because of old criminal convictions, including a financial administrator at the City University of New York."  Here's more:

The governor said the pardons addressed “shortcomings in our federal immigration laws relating to deportation.”

Mr. Paterson began a special clemency process in the spring with the principal aim of helping permanent legal residents — green card holders — who were at risk of deportation because of long-ago or minor convictions.

“Federal immigration laws,” he said, “are often inflexible, arbitrarily applied and excessively harsh, resulting in the deportation of individuals who have paid the price for their crimes and are now making positive contributions to our society.  These pardons represent an attempt to achieve fairness and justice.”

Mr. Paterson convened a so-called pardon panel last May. In the past several weeks, its five members have been sifting through about 1,100 petitions for clemency, referring promising cases to the governor’s Executive Clemency Committee, which has recommended cases to the governor for final determination.

Officials say the governor may issue another batch of pardons before his term ends this month.

Early report on the death penalty on trial in Texas

As detailed in this new Reuters piece, a "Houston judge on Monday began a hearing on the legality of the death penalty in Texas, which executes more convicts than any other U.S. state."  Here are more early details of what appears to be something of a show trial that is already garnering a lot of media attention:

John Green, 25, is awaiting trial after being charged with murdering a woman during a robbery in Houston in 2008. He says he is innocent.

His lawyers have challenged the constitutionality of Texas' death penalty, claiming that there is a high probability of wrongful convictions and executions under current trial rules. Their effort is predicated on Texas rules that allow defendants to challenge the legality of potential punishments even before trial begins.

The state has executed 464 inmates over the last three decades -- far more than any other U.S. state. But death penalty opponents cite two prominent Texas cases in which significant exculpatory evidence has come to light years after inmates' sentences were carried out.

During roughly two weeks of testimony, state District Judge Kevin Fine will hear arguments from prominent death penalty opponents, who will shine a spotlight on the legal processes and evidentiary support used in Texas' capital punishment trials, which critics say are error-prone....

County prosecutors said they will "stand mute" during the hearing, after citing 19 reasons why it should not proceed. Prosecutor Alan Curry told Judge Fine he would "respectfully refuse to participate" in the hearing. Fine later told Curry, "I expect your participation."

Fine evoked the ire of Texas Governor Rick Perry in March when he granted a request by Green's lawyers to declare the state's death penalty as unconstitutional, a common request in capital murder cases that Texas judges routinely deny. Fine rescinded the ruling after pointing to evidence that "we execute innocent people," and called for the hearing.

Fine is a Democrat who presides in Harris County, which has sentenced more prisoners to death than any other Texas county. Texas is a predominantly Republican state where support for the death penalty runs high.

Will SCOTUS create any new law for resentencing in Pepper?

This morning, the Supreme Court will hear oral argument in Pepper v. United States, which is a procedurally complicated case that raises some very basic issues about modern federal sentencing and federal resentencing (basic background here from SCOTUSblog).  I will be very interested to see what issues in the case become the focus of oral argument (and I will post the transcript when it becomes available later today).

Pepper has not be the focus of too much attention and advocacy in part because it is procedurally complicated and perhaps also because the defendant and the Government are on the same side on the chief substantive question posed by the case: whether post-sentencing rehabilitation is a permissible sentencing factor at a resentencing.  Nevertheless, as I sought to explain in this preview of Pepper that I put together for the ABA, even a narrow ruling in Pepper will not prevent it from becoming the most important modern Supreme Court decision on resentencing proceedings.  Here is a paragraph's from my ABA preview explaining why this is so, and a follow-up paragraph highlighting why Pepper could end up being a sentencing sleeper:

Still, even if the justices seek to confine the scope and reach of their ruling in Pepper, this case will still be important and consequential to the hundreds of federal resentencing proceedings that take place every year. The basic ground rules for resentencings have been largely created by circuit courts; any distinctive aspects of the Supreme Court’s ruling in Peppermight directly alter these resentencing ground rules for district courts and could even indirectly impact how circuit courts conduct and resolve sentencing appeals.

Though the precise legal issues before the Court in Pepper are relatively narrow, the sympathetic facts presented by the defendants and the broader sentencing policy issues raised in the briefs might well prompt some of the justices to use Pepper to opine more broadly on the current state and potential future direction of the federal sentencing system.

Some prior posts on the Pepper case:

• SCOTUS takes up long-running federal sentencing case from Eighth Circuit
• The Pepper cert grant and post-sentencing rehabilitation as a sentencing factor
• Pepper providing a bit of spice to SCOTUS sentencing docket
• "A defendant must be sentenced based on who he is, not just who he was."

UPDATE: The transcript of the oral argument in Pepper v. United States is now available here.

Debating race and the death penalty in the popular press

Thanks to How Appealing, I just came across this notable op-ed by Jeff Jacoby from yesterday's Boston Globe.  The piece is headlined, "A justice's blind eye to the truth: John Paul Stevens's argument that capital punishment is racist is contradicted by facts," and it spotlights a section of Charles Lane's interesting new book on the death penalty.  Here is how this op-ed closes:

It is a passionately held article of faith among death-penalty opponents that capital punishment is racially unjust.  But the facts stubbornly say otherwise.  Ever since the Supreme Court compelled the states to rewrite their death penalty statutes in the 1970s, white murderers have been more likely than black murderers to be sentenced to death, and more likely to actually be executed.  Though blacks commit approximately half of all murders in the United States, they accounted for only 390, or 35 percent, of the 1,136 murderers executed from 1977 through 2008.  (Whites made up 57 percent; the rest were Hispanic, Asian, or American Indian.)

The race-of-the-victim claim that so appalls Stevens collapses under scrutiny.  The Washington Post’s Charles Lane — an admirer of Stevens, as it happens — shows why in a new book of his own.  Because the vast majority of the murderers who kill blacks are black themselves, he writes in "Stay of Execution: Saving the Death Penalty from Itself," the fact that the murder of a black victim is less likely to be punished with death is another way of saying that fewer blacks are put to death by the state.  That reflects not racism, but racial progress.

It isn’t because prosecutors place a lower value on black life that they are more reluctant to seek the death penalty for black-on-black homicide, Lane explains.  It is because prosecutors don’t press for a punishment of death unless they think the jury can be convinced to support it.  And in the largely black communities where most black-on-black crime is committed, "persuading a jury to sentence a defendant to death is relatively difficult." Similarly, "in jurisdictions where elected prosecutors must appeal to black voters, prosecutors are that much less likely to support capital punishment."

In short, says Lane, far from harking back to the awful era when legally powerless black Americans were murdered by lynch mobs, the race-of-the-victim disparity today shows how blacks have been empowered.  Before the Civil Rights revolution, most blacks couldn’t vote or serve on juries.  "Now that they do, they appear to be using this power to limit capital punishment in the cases closest to them."

Reasonable people have disagreed about the death penalty for a long time, but there is nothing reasonable about smearing the modern capital-justice system as inherently racist. Stevens changed his mind on the death penalty, but most Americans continue to regard it as a legitimate tool of justice.  To imply that there is a whiff of the lynch mob in their view may make a good story for the Sunday paper.  It doesn’t make a convincing argument.

NY Times editorial on California's prison overcrowding case

This morning's New York Times has this extended editorial headlined "The Crime of Punishment," which comments on last week's Supreme Court argument in the California prisons case. Here are excerpts:

In 2005, when a federal court took a snapshot of California’s prisons, one inmate was dying each week because the state failed to provide adequate health care.  Adequate does not mean state-of-the-art, or even tolerable.  It means care meeting “the minimal civilized measure of life’s necessities,” in the Supreme Court’s words, so inmates do not die from rampant staph infections or commit suicide at nearly twice the national average.

These and other horrors have been documented in California’s prisons for two decades, and last week they were before the Supreme Court in Schwarzenegger v. Plata.  It is the most important case in years about prison conditions.  The justices should uphold the lower court’s remedy for addressing the horrors....

The case will most likely be resolved by a vote of 5 to 4, with Justice Anthony Kennedy’s vote decisive.  At the oral argument, he said that “at some point,” the court must say “overcrowding is the principal cause, as experts have testified, and it’s now time for a remedy.”  After 20 years of litigation and 70 court orders, that point has come.

At the intense, sometimes testy argument, Justice Samuel Alito revealed the law-and-order thinking behind the California system.  “If 40,000 prisoners are going to be released,” he said overstating the likely number, “you really believe that if you were to come back here two years after that you would be able to say they haven’t contributed to an increase in crime?”  To Justice Alito, apparently, it was out of the realm of possibility that, rather than increasing crime, the state could actually decrease it by reducing the number of prison inmates.

Among experts, as a forthcoming issue of the journal Criminology & Public Policy relates, there is a growing belief that less prison and more and better policing will reduce crime. There is almost unanimous condemnation of California-style mass incarceration, which has led to no reduction in serious crime and has turned many inmates into habitual criminals.

America’s prison system is now studied largely because of its failure — the result of an expensive approach to criminal justice shaped by fear-driven ideology.  California’s prisons embody this overwhelming failure.

Notable new article on the rights of children of the incarcerated

I just came across this new article available via SSRN titled "Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship."  Here is the abstract:

This Article describes the vast population of children with incarcerated parents.  The central argument reframes sentencing law and prison visitation policy through the lens of children’s rights, rather than the traditional frame of prisoners’ rights.  It then suggests as a possible legal basis for children's right to a relationship with their convicted parents the First Amendment freedom of association and a due process liberty interest.  The argument is developed through comparative analysis of current sentencing law and visitation policy in New York State and the federal system, as well as First Amendment doctrinal analysis. International law and practice illustrate that the status quo in the United States need not be the only approach.

The author of this notable article is also notable. The article is authored by Chesa Boudin, a 3L at Yale Law School and the son of the Weather Underground radical Kathy Boudin.  Kathy Boudin served 20 years in New York State prison after she was convicted in 1984 of felony murder for her participation in an armed robbery that resulted in the killing of three people.

"A defendant must be sentenced based on who he is, not just who he was."

The title of this post is a line from the argument in this amicus brief from Families Against Mandatory Minimums filed in Pepper v. United States, the federal resentencing case to be argued before the Supreme Court tomorrow (basic background herefrom SCOTUSblog).   I hope to provide some links to some previews of the Pepper case in a subsequent post, but I wanted to first highlight and encourage discussion about this simple (and arguably controversial?) idea about sentencing.

Pepper is so interesting because it is the first case in a long time that I can remember the Supreme Court addressing proof and procedure issues surrounding a resentencing.  And the line quoted in this post's title assert that it is imperative that all relevant facts surrounding a defendant at sentencing must be considered at such a resentencing.  For anyone with a utilitarian sentencing philosophy (like me), this assertion seems exactly right as an imperative.  But I suspect that not all those who embrace a retributivist sentencing view would agree.  Indeed, I could imagine some retributivist going so far as to assert that a defendant must only be sentenced based on who he was and what he did at the time of the crime, not based on what he does and who he may become thereafter.

In other words, I think Pepper may raise some deep punishment philosophy issues because it seems possible that the adoption of one particular theory of punishment (or belief that Congress adopted one particular punishment theory for these purposes) would be dispositive concerning how the case is to be resolved.  Do others agree and/or see the core issue in Pepper similarly?

Japan also struggling with aging prison population

As detailed in this new AP article, which is headlined "Japanese prisons face swelling elderly population," Japan is dealing with a prison problem that is very common in many US states. Here is how the piece starts:

Handrails run down the middle of the hallway to help prisoners make their way from one end to the other. Adult diapers are neatly stacked in a corner. When an inmate chokes on his rice and coughs, a supervisor rushes over to rub his back.

Welcome to the world of old-age prisons. Japan's population is aging faster than anywhere else, and with that has come an even sharper rise in elderly inmates.

The number of Japanese prisoners aged 60 or older has doubled over the past decade to more than 10,000. That outpaces a 30 percent increase in the general population for that age group. The elderly now represent 16 percent of the nation's inmates.

Though Japan's crime rate remains relatively low, the spike in elderly crime is another sign of the social and economic strains on the once-confident country.

"Death penalty on trial: An examination of the flawed Texas capital punishment system is long overdue"

The title of this post is the headline of this new editorial from the Houston Chronicle.  Here are excerpts from the start and end of thie editorial:

A challenge to the constitutionality of the death penalty as practiced in Texas unfolds in a hearing in state District Judge Kevin Fine's court tomorrow. It's a fitting venue, since Texas has been by far the leading practitioner of capital punishment since its reinstatement in the United States in the '70s, and for years Harris County was the leading source of convictions. Approximately a third of the 316 inmates currently awaiting execution come from here.

The case that prompted the hearing is that of 25-year-old John Edward Green, charged in a 2008 robbery-killing in southwest Houston. Nine months ago Judge Fine, one of a wave of Democratic jurists who broke the all-Republican hold on Harris County district courts two years ago, issued a controversial ruling that the Texas death penalty was unconstitutional because of procedural flaws. After an ensuing furor from county law enforcement officials, Judge Fine backtracked, rescinding his ruling but setting the stage for an in-depth examination of capital punishment practices in the Lone Star state....

According to Green's attorneys, "When the fortuities that lead to the exoneration of every wrongfully convicted and condemned person are taken into account, there is a very strong probability that Texas has executed 12 or more innocent people." Nationally, according to the Death Penalty Information Center, for every nine people executed, one person is exonerated after being sent to death row. The number of wrongly convicted defendants led former Supreme Court Justice Sandra Day O'Connor to conclude that "if statistics are any indication, the system may well be allowing some innocent defendants to be executed."

It's clear that the Texas capital punishment system is horribly flawed and carries an unacceptably high likelihood that innocent people have been and will be executed for crimes they did not commit. We look forward to the proceedings in Judge Fine's courtroom as a vital step in identifying the problems and crafting safeguards to prevent the ultimate miscarriage of justice.