Sentencing Law and Policy

"Innocence Unmodified"

The title of this post is the title of this new scholarship from Emily Hughes available via SSRN. Here is the abstract:

The Innocence Movement has unwittingly participated in the construction of a binary between “actual” and “legal” innocence.  Because the Innocence Movement has focused on defendants who did not commit the actions underlying their convictions, courts, lawyers, and the larger society have come to believe that a person is wrongly convicted of a crime only if the person is “actually” innocent.  This perception overlooks the fact that a person can be wrongly convicted if their constitutional rights were violated in the process of obtaining the conviction.  As such, the Innocence Movement devalues “legal” innocence and the constitutional values that underlie a broader conception of innocence.

In order to affirm the importance of those constitutional values, this Article argues for the need to reclaim an understanding of innocence unmodified by qualifiers such as “actual” or “legal.”  Part I explains how the concept of “actual” innocence has played a pivotal role in the development of the Innocence Movement.  Part II examines innocence unmodified in the context of trials.  It explains that one reason to protect innocence unmodified is because the Supreme Court has not yet held that “actual” innocence alone is enough to reverse a wrongful conviction; constitutional claims underlying an “actual” innocence claim, working together, are necessary to achieve justice.  Part III explores innocence unmodified in the context of guilty pleas.  It reveals the degree to which the Court has itself reduced innocence to a binary — prioritizing “actual” innocence over fundamental constitutional protections for all people, including people who might be wrongly convicted if the courts do not safeguard their constitutional rights.  The Article concludes that a modified conception of innocence dilutes the constitutional core that protects us all — innocent or guilty alike.

"The Worst of the Worst: Supermax Torture in America"

The title of this post is the headline of this new piece from the Boston Review authored by investigative journalist Lance Tapley. The piece provides an important and disturbing view of supermax confinement in the United States.  Here are excerpts from a must-read:

James’s story [of being beaten during cell 'extractions' he’d endured at the hands of the supermax-unit guards at the Maine State Prison] illustrates an irony in the negative reaction of many Americans to the mistreatment of “war on terrorism” prisoners at Guantánamo.  To little public outcry, tens of thousands of American citizens are being held in equivalent or worse conditions in this country’s super-harsh, super-maximum security, solitary-confinement prisons, or in comparable units of traditional prisons. The Obama administration — somewhat unsteadily — plans to shut down the Guantánamo detention center and ship its inmates to one or more supermaxes in the United States, as though this would mark a substantive change.  In the supermaxes inmates suffer weeks, months, years, or even decades of mind-destroying isolation, usually without meaningful recourse to challenge the conditions of their captivity.  Prisoners may be regularly beaten in cell extractions, and they receive meager health services.  The isolation frequently leads to insane behavior including self-injury and suicide attempts.

In 2004, state-run supermaxes in 44 states held about 25,000 people, according to Daniel Mears, a Florida State University criminologist who has done the most careful count. Mears told me his number was conservative.  In addition the federal system has a big supermax in Colorado, ADX Florence, and a total of about 11,000 inmates in solitary in all its lockups, according to the Bureau of Prisons.  Some researchers peg the state and federal supermax total as high as a hundred thousand; their studies sometimes include more broadly defined “control units” — for example, those in which men spend all day in a cell with another prisoner.  (Nationally, 91 percent of prison and jail inmates are men, so overwhelmingly men fill the supermaxes.  Women also are kept in supermax conditions, but apparently no one has estimated how many.)  Then there are the county and city jails, the most sizable of which have large solitary-confinement sections.  Although the roughness in what prisoners call “the hole” varies from prison to prison and jail to jail, isolation is the overwhelming, defining punishment in this vast network of what critics have begun to call mass torture.

Some related older and newer posts:

• Why isn't there more constitutional litigation over the "hellhole" that is extended solitary confinement?
• Great NPR series on solitary confinement
• More on Supermax, human dignity, and public safety
• Seventh Circuit ruling spotlighting Supermax realities 
Effective NPR coverage of supermax prisons and solitary confinement
Inaugural rhetoric about freedom and liberty in prison nation
My latest (academic?) musings about progressive punishment perspectives

Kentucky judge rejects death sentence for child killer claiming life term will be a "hell more suited to you"

A helpful reader alerted me to this remarkable new sentencing story from Kentucky in which a sentence judge rejected the prosecutor's death sentence request for a child killer claiming that such a sentence would be too easy for the defendant.  Here are the details:

Saying the death penalty was not a harsh enough punishment, a judge ordered for Cecil New II to serve the rest of his life in prison, surrounded by “bigger, meaner men who have nothing to lose.”

“He will fear for his life every day,” Judge Judith McDonald-Burkman told the family of 4-year-old Ivan Aguilar-Cano, who disappeared while playing outside his home near Churchill Downs in 2007 and was murdered by New.  “He will wish this court had put him on death row.”

Since a November hearing in which prosecutors asked that New be sentenced to death, McDonald-Burkman said she had investigated the differences between the life of a death-row inmate and one serving a life sentence.  On death row, she said, inmates are segregated from other prisoners and can have meals sent to their cell without ever having to be around anyone else, and typically an execution is not scheduled for at least 20 years. With the life sentence, New must congregate with other prisoners and “is never truly isolated.”

“Death is undoubtedly justified for you,” the judge told New. “There’s not one cell in your body, Cecil New, that can be rehabilitated, not one. But is a death sentence justice?”  The unusually frank language from McDonald-Burkman included scenarios on how New’s life would play out in the general population.  “Death is easy,” she said.  “Living outside of death row, in general population in fear of prison justice every day is a hell more suited to you, Mr. New, than living under the protective guise of death row.”

McDonald-Burkman reiterated that this was not a “sentence of mercy, not an act of mercy, not an anti-death penalty stance” but the harshest punishment she could hand down.... The judge also addressed Ivan’s family directly, saying she hoped they would find comfort knowing that the only contact New would have would be with bigger, meaner inmates and that “he will be the smaller, weaker, more defenseless.”

Ivan’s family left through a back hallway, away from the media, but activist Christopher 2X, spoke for the family, saying they understood the judge’s decision but felt that “a life for a life should be the appropriate penalty.”...

On Oct. 14, the day before his trial, New surprised many by pleading guilty to charges of murder, kidnapping, tampering with physical evidence and unlawful transaction with a minor.  However, New did not negotiate a plea bargain and entered what is known as an open plea, which made him eligible to receive the death penalty and waiving his right to an appeal.

Assistant Commonwealth's Attorney Jon Heck had asked McDonald-Burkman on Nov. 16 to give New the death penalty, saying he deserved to die for his actions. But Jay Lambert, New's attorney, argued that New's life should be spared because of a horrific childhood that, at least in part, helped make him into who he is.

After the sentencing, Heck said he agreed with the judge’s reasoning that the life sentence was the greatest penalty.  “He will serve out his life a tormented man,” Heck said. “And I think he deserves that.”

It is not uncommon to hear death penalty abolitionists claim that a life sentence is in fact worse than a sentence of death, but I cannot recall a case in which a jurist has expressly relied on such a claim in order to reject a prosecutorial request for a death sentence.  Intriguingly, though the victim's family seems displeased with this result, this press report suggests that the prosecution agrees with the sentencing judge here and thus likely will not seek an appeal (and I am not even sure if applicable state law would permit an appeal in any event).

"Festivus for the rest of us, O.C. Jail style"

The title of this post is the headline of this awesome holiday-season article from the Orange County Register about how a inmate managed to talk his way into a healthier meal for his jail stay.  Here are the details:

Festivus may only come around only come around once a year — more often if you watch "Seinfeld" reruns — but longtime county inmate Malcolm Alarmo King was able to celebrate it three times a day while locked up at the Theo Lacy jail in Orange.

King’s quest for a healthier eating option while behind bars ended with a county lawyer forced to research the origin of Festivus and its traditions and a Superior Court judge recognizing the holiday — which lodged its place in pop culture on an episode of "Seinfeld" — as a legitimate religion.

The menu selection at Theo Lacy apparently didn’t please King, 38, when he was booked into the jail on drug charges in April.  They serve salami there.  And that didn’t quite fit in with the fitness buff/gym clothes model’s lifestyle.  So King, who is also suspected of being in the country illegally from Liberia, asked for kosher meals.... 

Judge Derek G. Johnson signed off on the high-protein double-portion kosher meals for King.  That didn't sit well with the Sheriff's Department — which pays for the food.  Kosher meals are more expensive than the regular jail fare — and are reserved for those with a religious need.... 

When sentencing day came, King pleaded guilty to the sale or transport of a controlled substance — a felony.  Two other felonies were thrown out.  But King still wanted his non-salami meals.

Judge Johnson pulled King's lawyer and the prosecutor aside and said he needed a religion to put down on the order to make it stick, explained [King's lawyer Fred] Thiagarajah.  “I said Festivus,” said Thiagarajah.  The order was granted — three non-salami meals a day.

County Counsel researched Festivus, arguing the holiday was the creation of writer Dan O’Keefe to celebrate his first date with his wife in 1966.  The holiday was introduced to the world by his son Daniel, a screenwriter for "Seinfeld," who wrote it into the show.  Seinfeld celebrated Festivus with an aluminum “Festivus pole” instead of a tree and traditions such as the “Airing of Grievances” and “Feats of Strength.”  Easily explainable events were “Festivus miracles.”...

King was released from county jail Oct. 5 and turned over to Immigration and Customs Enforcement.  He is awaiting deportation, according to ICE spokeswoman Lori Haley.  No word if Festivus celebrations are allowed in ICE detention.

Iowa Supreme Court deals with Graham's prohibition of juve LWOP for nonhomicide

A helpful reader altered me to a decision today by the Iowa Supreme Court dealing with a juvenile LWOP sentence that is now clearly unconstitutional in the wake of the Supreme Court's Eighth Amendment ruling in Graham v. Florida.  The ruling in Bonilla v. Iowa can be downloaded below, and here is how it starts:

Julio Bonilla was convicted of kidnapping in the first degree in adult court for an offense committed at the age of sixteen.  He was sentenced to mandatory life in prison without the possibility of parole pursuant to the Iowa Code. Under the recent United States Supreme Court decision Graham v. Florida, ___ U.S. ___, ____, 130 S. Ct. 2011, 2033–34, 176 L. Ed. 2d 825, 848–50 (2010), this sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment of the Federal Constitution. The clauses of Iowa Code sections 902.1 and 906.5 (2003) that make Bonilla ineligible for parole are unconstitutional as applied to Bonilla.  These clauses are also severable.  Therefore, Bonilla‟s sentence must be adjusted to life in prison with the possibility of parole.

 Download Bonilla_Iowa_S_Ct_12-17-10

A mere six-month jail sentence for 19th drunk driving conviction?!?!?

As detailed in this local article, which is headlined "19th DUI gets Santa Rosa man 6-month sentence," an inclination to treat drunk drivers leniently can continue even well after a defendant has more than a dozen convictions for this dangerous behavior.  Here are the notable details (which actually highlight for me why technology rather than longer prison terms should be the focal point of reducing the dangers and harms of drunk driving):

A Santa Rosa man with 19 drunken driving convictions was spared a prison term Thursday for his latest offense, prompting an outcry from prosecutors.

William Rylan Beall, 65, whose record of drunken driving stretches back 44 years, was sentenced to six months in jail by visiting Alameda County Judge Julie Conger. But he could end up serving it in an alcohol treatment facility if bed space becomes available.

That he will be free until Jan. 21 and was not given a prison sentence provoked an angry reaction from Sonoma County Chief Deputy Prosecutor Bill Brockley. “It’s putting our community at risk. He’s proven he’s a danger and can’t conform his behavior to societal norms,” Brockley said. “He can’t stop drinking and when he drinks, he drives. He puts your family, my family, and all families at risk.”

Prosecutors had sought a two-year prison term as recommended by the county probation department.... In recommending the mid-term prison sentence, the probation department took into account Beall’s clean record for the past eight years.

Until his latest drunken driving offense in July, Beall, a real estate agent who lives in Oakmont, had stayed out of trouble since 2002. But his finances and health began to deteriorate and he relapsed, said his attorney, Steve Weiss. “He has been a strong participant in AA the last eight years,” said Weiss. “Unfortunately, he reverted to very old habits.”

“The judge focused on a number of things — the eight years he had been sober, his health and the best way to protect the community, which she felt was to keep him on probation for five years — keep him under close supervision and give him a six-month residential treatment program to sharpen his sobriety skills.”...

Beall’s record of alcohol-related driving convictions began in 1966, according to a pre-sentencing report. He was convicted of drunken driving seven times in the 1970s, five times in the 1980s, four times in the 1990s and again in 2002, prior to his most recent conviction.

Three of the convictions involved traffic collisions. In one case, he was seen running a red light at approximately 50 to 60 miles per hour. “It is extraordinarily fortunate the defendant has never seriously injured anyone or taken a life, given his disregard for the law and the well-being of others,” Deputy Probation Officer Sierra Grohl wrote in her report.

Beall was given probation six times, required to attend frequent AA meetings and comply with Antabuse drug therapy, but he continued to drink and drive. He was sent to prison for two years in 1998.

In addition to his 19 prior drunken driving convictions, there were six additional arrests that did not lead to convictions, according to the pre-sentencing report. His blood alcohol in 2002 registered .22, almost three times the level at which a person is presumed too drunk to drive.... The probation officer noted “it is plausible he truly was sober the past eight years or he would have likely appeared before the court much sooner.”

Weiss noted that early on the district attorney’s office had offered his client a 16-month jail term and with good behavior, he could have been out in half that time.  But Brockley said Beall rejected the offer and another judge refused to consider a non-prison sentence. “A person with this type of alcohol history and arrest record should be going back to state prison,” Brockley said.

Though I generally agree with the prosecutor's view here that such an extended criminal history justifies another trip to state prison, I also think this case spotlights the need to use ignition-locks and other forms of technology to try to prevent chronic offenders from ever being able to start a car with any alcohol in their system.

Lots worth reading at Pardon Power during this clemency season

P.S. Ruckman's blog Pardon Power is always worth regular reading, and this week he has a series of new posts that should not be missed as we kick into the final weeks of what has become a traditional clemency season:

• The Conservative Case for the Pardon Power
• Arkansas: 15 Pardons!
• New: The Justice of Mercy

Oklahoma poised to complete last execution of 2010 with new drug in three-drug protocol

As reported in this new piece on CNN, it appears that Oklahoma is about to close out the year in execution by ringing in a new drug for its lethal injection protocol.  Here are the basics:

An Oklahoma death row inmate will receive a drug commonly used to euthanize animals Thursday because of a nationwide shortage of sodium thiopental, the drug usually used as the sedative in its three-drug execution cocktail.

John David Duty's execution will be the last in the United States in 2010 and is believed to be the first in the country to use pentobarbital in a lethal injection.  Duty was convicted and sentenced to die for strangling his 22-year-old cellmate, Curtis Wise, with shoe laces while serving three life sentences for rape, robbery and shooting with intent to kill from a 1978 conviction....

Sodium thiopental is a rapid-onset, short-acting barbiturate that causes unconsciousness. Duty's attorneys argued that pentobarbital was risky and unsafe.  But an Oklahoma judge disagreed and last month approved its use in place of sodium thiopental....

Duty's execution is scheduled for 6 p.m. at the Oklahoma State Penitentiary in McAlester, Oklahoma.  For his last meal, Duty has requested a double cheeseburger with mayonnaise, a foot-long cheese Coney dog with mustard and extra onions, cherry limeade and a banana shake from Sonic.

I excerpted the details concerning this defendant's last meal because I always find it interesting when a the request includes a particular item from a particular restaurant.  And I have always wondered if officials place cost constraints on such requests, or if a condemned man might be able to order for his last meal a serving of every item from the menu of the most expensive restaurant in the state.

UPDATE:  As detailed in this Reuters piece, the Oklahoma execution using pentobarbital went off without a hitch.  In addition, as this AP article notes, this "sedative Oklahoma used to execute an inmate that is commonly used to euthanize animals could become more popular ... because of a nationwide shortage of a key ingredient in several states' lethal injection formulas."

New ACS issue brief urges " diverting and reclassifying misdemeanors" to save big bucks

As detailed in this ACS blog post, there is a new paper from the American Constitution Society's series on the indigent defense system.  This new "issue brief" is authored by Robert Boruchowitz and it is titled "Diverting and Reclassifying Misdemeanors Could Save $1 Billion per Year: Reducing the Need For and Cost of Appointed Counsel."  Here are excerpts from the paper's introduction:

There are approximately ten million misdemeanor cases filed each year in state and municipal courts in the United States. In some courts, the combination of driving with a suspended license, possession of marijuana, and minor in possession of alcohol cases can total between 40% and 50% of the caseload. Many of those courts are overwhelmed with cases and the defenders in those courts, if they are present at all, are often overwhelmed and unprepared. The financial impact on both the defendants and the local governments is significant....

Right now, taxpayers expend on average $80 per inmate per day to lock up people accused of things like turnstile jumping, fish and game violations, minor in possession of alcohol, dog leash violations, driving with a suspended license, and feeding the homeless.

By diverting or reclassifying these offenses as non-criminal violations, local and state governments could save hundreds of millions, perhaps more than $1 billion per year....

This Issue Brief will discuss successful diversion programs from Washington State to Florida that have saved money by removing misdemeanor cases from the court system and have helped people to get their licenses back and to avoid the direct and collateral consequences of criminal convictions. It will review reclassification changes such as the Massachusetts law making possession of small amounts of marijuana a violation and not a crime. It also will address how the U.S. Department of Justice could support education of criminal justice practitioners about the benefits of diversion and reclassification efforts.

Notable Montana Supreme Court ruling on sentencing rights and procedure

As reporting in this effective local article, earlier this week the Montana Supreme Court "affirmed a one-year jail sentence for former Great Falls Mayor Gayle Morris for his role in the prostitution investigators said occurred at a bar and strip club west of Great Falls."  Though the nature of the crime first caught my attention, the issues addressed by the Montana Supreme Court in this opinion provides an effective primer on various sentencing rights (and their limits). 

Here is a brief accounting of the case and the ruling from the press article:

In June, Morris, who is a proprietor of the club, was sentenced to a year in jail after pleading no contest to accountability to prostitution and obstructing a peace officer.  He is serving his sentence at the Cascade County jail.  Morris was expecting a suspended sentence as part of a plea agreement he reached with prosecutors in which he agreed to plead no contest to misdemeanors in exchange for dropping a felony count of promoting prostitution.

However, District Judge Thomas McKittrick sentenced Morris to the maximum sentence of a year in jail.  Morris appealed to the Supreme Court, claiming the sentence amounted to cruel and unusual punishment, and violated state sentencing policy.

As part of his appeal, Morris argued McKittrick illegally considered his status as a former mayor and county commissioner in the sentence.  Morris also contended that he was punished for an alleged lack of remorse.

The state Supreme Court disagreed, saying the lower court provided eight valid reasons for the sentence. "Notably, the district court was influenced by the fact that Morris' previous public service indicated he should have known better," the court's ruling states. "Furthermore, when Morris signed the plea agreement, he was more than well aware of the potential maximum penalty.  We conclude that the district court's sentences were not arbitrary and did not exceed the bounds of reason."

Why the orphaned sentencing argument in Tapia needs a good guardian

Adam Liptak's Sidebar column this week in the New York Times, which is headlined "Court Chooses Guardians for Orphaned Arguments," is all about the SCOTUS practice of appointing counsel to represent arguments/opinions that have been abandoned by the parties. The piece is focused on the Pepper resentencing case argued earlier this month, and the piece is especially timely because it seems the Justices will now need to appoint another party to argue another sentencing position in the newly granted Tapia case from the Ninth Circuit (previously discussed here and here).

As explained in prior posts, the Tapia case concerns whether rehabilitation needs can be used as a factor by a district judge to give a longer prison sentence.  At one time, the US Justice Department had supported district judge to consideration of this factor, but in the Tapia cert briefing the SG expressed the current view of the Government that "the plain language of [18 U.S.C. § 3582(a)] prohibits considering a defendant’s rehabilitative needs as a factor in setting the duration of her prison sentence."   Thus, it seems the Justices will need (and likely will appoint) special counsel to defend the view that rehabilitative needs can be a proper factor when imposing a prison sentence.

Though there is considerable force to the parties view that Congress in the Sentencing Reform Act sought to prohibit consideration of rehabilitative needs as a factor in determining the lengthy of a prison sentence, I believe there are lots and lots of importance nuances to a proper modern interpretation of § 3582(a) in light of both the Supreme Court's Booker jurisprudence and also a number of post-SRA enactments by Congress.  In addition, the sentencing setting and record in Tapia also implicates a number of related issues concerning how speculative a sentencing judge can be when concluding that rehabilitative needs justify a sentencing adjustment.

Put slightly differently, the place of rehabilitative goals and needs in the modern federal sentencing system justifies careful and considerable attention, and I think it is especially important that the Justices hear from engaged advocates in Tapia about all the big theory and practice issues that the case implicates.  Based on the recent record of appointed counsel in similar cases, I am confident that all the issues in Tapia will be well presented.  But, given that SCOTUS rarely takes up these kind of big picture sentencing issues that can prove to be so consequential, I hope counsel and amici in Tapia take extra time to work through all the implicated issues extra thoroughly and thoughtfully.

"Hyper-Incarceration and Strategies of Disruption: Is There a Way Out?"

The title of this post is the headline of this new article by Louis Michael Seidman now available via SSRN. Here is the abstract:

This paper explores exit strategies from our policy of hyper-incarceration.  On the theory that the underlying causes of the policy are firmly entrenched, it focuses instead on disrupting the political micro-processes that make the policy seem acceptable.  Part One describes these micro-processes.  Parts Two through Four outline three forms of politics that might disrupt them: a politics of amelioration, a politics of transformation, and a politics of accommodation.  Part V assesses the available choices for what is to be done.

"GAO: Registered sex offenders finding jobs in schools"

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

Registered sex offenders are getting jobs in schools as teachers, administrators, volunteers and contractors, despite state laws that prohibit them from contact with children, a government watchdog report says.

And school officials in some states enable misconduct to continue by ignoring red flags during hiring or by covering up the firing of sexual offenders, according to the report by the U.S. Government Accountability Office, the investigative arm of Congress.

The report, obtained by USA TODAY, is based on a review of 15 cases in 11 states over the last decade involving people with histories of sexual misconduct working in public or private schools. Of those, 11 offenders had previously targeted children, and six abused more children in their new positions.

About 35 states have laws restricting offenders from schools, and most states require criminal history checks, though specifics vary widely, the report found. Rep. George Miller, D-Calif., who requested the investigation, urged states to strengthen laws or pass a law if they don't have them.

"These children were put in this unsafe position because adults in charge of their well-being failed to do their job," says Miller, outgoing chair of the House education committee. "Parents have a right to believe that their children are safe" in schools.

An Education Department study estimates that millions of kids in kindergarten through 12th grade are victims of sexual misconduct by a school employee at some point. The GAO report also notes most sexual abuse of children goes unreported. In one study it cites, 232 child molesters admitted to molesting a total of 17,000 victims, often without ever being caught.

Top UK official calling for total drug legalization

As detailed in this article from across the pond, which is headlined, "Legalise all drugs, says former Labour Home Office minister," there is a former UK official once deeply involved in the war on drugs now urging a complete surrender.  Here are the details:

Bob Ainsworth MP, who ran the Home Office's drugs policy between 2001 and 2003, will say that drug trade should be taken away from criminals and handed to doctors and pharmacists. The sale of drugs would regulated, under Mr Ainsworth's plan, with the most dangerous being proscribed by doctors.

He told The Daily Telegraph last night: "I am not a libertarian. I don't believe that you should buy heroin on street corners and get yourself zonked out. But we have to treat this as a medical problem."

In speech to MPs today he will give vent to his “long held view” that “the war on drugs has been nothing short of a disaster”. In a Westminster Hall debate in the Houses of Parliament today, Mr Ainsworth, who was in charge of drugs policy between June 2001 and June 2003, will say: “Prohibition has failed to protect us."...

Mr Ainsworth, who has represented Coventry North since 1992, will say that his time as defence secretary from June 2009 to May 2010 “showed to me that the war on drugs creates the very conditions that perpetuate the illegal trade". “My departure from the front benches gives me the freedom to express my long held view that, whilst it was put in place with the best of intentions, the war on drugs has been nothing short of a disaster.”...

He will add: “The re-legalisation of alcohol in the US after thirteen years of Prohibition was not surrender. It was a pragmatic move based on the Government’s need to retake control of the illegal trade from violent gangsters.”

Notable Cato review of modern Bill of Rights on their day

Tim Lynch has a this notable post (with losts and lots of links) at the Cato@Liberty blog under the simple heading "Bill of Rights Day."  The whole post is worth checking out, and here are parts that highlight some criminal justice stories:

Since today is Bill of Rights Day, it seems like an appropriate time to pause and consider the condition of the safeguards set forth in our fundamental legal charter.   Let’s consider each amendment in turn....

The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, insist that they can make it a crime to keep and bear arms....

The Fourth Amendment says the people have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.  Government officials, however, insist that they can treat airline travelers like prison inmates by conducting virtual strip searches and crotch inspections....

The Sixth Amendment says that in criminal prosecutions, the person accused shall enjoy a speedy trial, a public trial, and an impartial jury trial. Government officials, however, insist that they can punish people who want to have a trial.  That is why 95% of the criminal cases never go to trial....

The Eighth Amendment prohibits cruel and unusual punishments.  Government officials, however, insist that jailing people who try in ingest a life-saving drug is not cruel....

It’s a depressing snapshot, to be sure, but I submit that the Framers of the Constitution would not have been surprised by the relentless attempts by government to expand its sphere of control.  The Framers themselves would often refer to written constitutions as mere “parchment barriers” or what we would describe as “paper tigers.” They nevertheless concluded that putting safeguards down on paper was better than having nothing at all. And lest we forget, that’s what millions of people around the world have — nothing at all.

Indiana Governor gives blessing to state sentencing reform proposals

As detailed in this local article, which is headlined "Daniels creating plan to limit prison population," it now seems even more likely that "changes are coming to Indiana's criminal justice system." Here is why:

Gov. Mitch Daniels announced this morning that he's endorsing a plan that would control the state's increasing prison population by ensuring prisons house only the most violent offenders.

Though details won't be released until Thursday, it seems the plan will restructure sentencing guidelines for non-violent offenses and improve programming and oversight for less dangerous offenders at the county level. The changes, which are outlined in legislation that will be presented Thursday, are projected to save the state about $1 billion in prison-related expenses.

The legislation stems from a report drafted by the Pew Center on the States and Council of State Governments Justice Center. The study found that the state's prison population grew by about 41 percent from 2000 to 2008 while the crime rate decreased slightly. The increase in Indiana's prison population is much higher than neighboring states, which all recorded increases of 13 percent or less.

About 55 percent of Indiana's increase from 2005 to 2009 came from inmates who had committed non-violent property and drug crimes, according to the study. People who committed less serious offenses also served a higher percentage of their jail sentence....

Daniels said he thinks the state can combat the problem with "smarter incarceration" and "smarter punishment."

Rep. Matt Pierce, D-Bloomington, said this morning that if Indiana doesn't find a way to stop the prison population growth, the state might reach a "crisis point" where it has to release violent offenders. Pierce chairs the Criminal Code Evaluation Commission, which will review the legislation Thursday morning, and he expects his group will support the changes.

I cannot help but wonder if it is merely a coincidence that this news breaks on the same day that Right on Crime launched a new "conservative" criminal justice reform effort (as detailed here).

"Right on Crime: The Conservative Case for Reform" officially launches

I am pleased to be able to blog about an amazing and very important new group put together by movement conservatives to work on criminal justice issues, Right On Crime.  The group appears to be the brainchild of folks like Newt Gingrich, Grover Norquist, and Edwin Meese, who are the first three names listed on this Statement of Principles from the ROC group.

Though lots can and should be said about the what is driving this group, I view its development as a direct result of the recent election of lots of new Republican governors facing lots of overcrowded prisons and budget deficits.  (I speculated on this development in a post titled When and how will state GOP leaders start cutting expensive criminal justice programming? a few days after November's election results.)  Tellingly, a top item on the ROC website right now is this posttitled "Reading Material For [Ohio] Governor-Elect Kasich."

Here is the start of ROC's Statement of Principles (which are signed by more than a dozen notable and politically powerful conservatives):

As members of the nation’s conservative movement, we strongly support constitutionally limited government, transparency, individual liberty, personal responsibility, and free enterprise.  We believe public safety is a core responsibility of government because the establishment of a well-functioning criminal justice system enforces order and respect for every person’s right to property and life, and ensures that liberty does not lead to license.

Conservatives correctly insist that government services be evaluated on whether they produce the best possible results at the lowest possible cost, but too often this lens of accountability has not focused as much on public safety policies as other areas of government.  As such, corrections spending has expanded to become the second fastest growing area of state budgets — trailing only Medicaid.

Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending.  That means demanding more cost-effective approaches that enhance public safety.  A clear example is our reliance on prisons, which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender.  And in some instances, they have the unintended consequence of hardening nonviolent, low-risk offenders — making them a greater risk to the public than when they entered.

Applying the following conservative principles to criminal justice policy is vital to achieving a cost-effective system that protects citizens, restores victims, and reforms wrongdoers.

Regular readers know that I have long been wondering and complaining about the fact that many conservatives, while often complaining about the inefficacies of government programs, have "too often" failed to focus "as much on public safety policies as other areas of government." Thus, I am extraordinarily pleased that this potent new group is going to start playing a role in breaking down the polarizing politics that often derail what strike me as very sensible (and "conservative") modern sentencing and correction reform efforts.

Everyone should spend some time at RightOnCrime.com, which is claiming now to be "the one-stop source for conservative ideas on criminal justice."  The site already has lots of useful content that can and should be utilized ASAP by criminal justice litigants as well as by policy-makers.  (I am hopeful, though not confident, that ROC might start filing amicus briefs in important sentencing/corrections cases in addition to doing policy work and advocacy.)  I know I now will be making the ROC blog a daily visit.

Some recent and older related posts on the modern politics of sentencing issues:

• When and how will state GOP leaders start cutting expensive criminal justice programming?
• New poll reports that large majority of Americans consider "War on Drugs" a failure
• Examining the politics of crime and punishment in modern gubernatorial settings
• Do "mama grizzlies" have a particular approach to crime and punishment issues?
• "Pot and the GOP: Is the party of ‘Just Say No’ morphing into the party of ‘Just Say Grow’?"
• Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?
• Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
• Why doesn't the new Liberty Central website say anything about mass incarceration or the drug war or any criminal justice issues?
• What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
• Will we invest in classrooms or cells in these tough times?

SCOTUS reflections in Harvard Law Review covers Graham and Padilla effectively

I just got around to noticing that the traditional November Harvard Law Review issue reviewing the work of the prior Term of the Supreme Court is now fully available on-line here.  Not surprisingly, this issue gives its greatest attention to the Citizens United ruling.  But the big cases from last Term that criminal justice fans now know by first names — e.g., Skilling and McDonald — also seem to get effective case-note treatment.  And, based on a quick skim, it seems that the two most significant rulings from last SCOTUS Term for sentencing law and policy are especially well examined in these short pieces:

• HLR assessment of Graham v. Floridaon the Eighth Amendment and LWOP sentences for juvenile offenders
• HLR assessment of Padilla v. Kentucky on the Sixth Amendment and advising defendants about collateral consequences of a conviction

"Top prosecutors oppose sentencing 'reform' proposals"

The title of this post is the headline of this local Arizona article, which highlights the all-too-common efforts of some prosecutors (and their lobbyists) to advocate against reform efforts that would give sentencing judges great discretion.  Here are some details:

Top prosecutors from the state's two largest counties are moving to kill some sentencing "reform" proposals before they have a chance to sprout.  Kathleen Mayer, the lobbyist for Pima County Attorney Barbara LaWall, took a specific shot at a proposal by Rep. Cecil Ash, R-Mesa, to make it harder to label something a "crime spree" which requires judges to impose minimum prison terms....  Maricopa County Attorney Bill Montgomery had his own objections to that element of the plan....

Montgomery also chastised Ash, who chairs a special legislative committee reviewing sentencing laws, for proposing to give judges more leeway in sentencing those found guilty of possessing child pornography.  Right now, state law requires judges to impose consecutive prison terms for each item of pornography.  That resulted in one recent case to a man being sent to prison for 200 years -- 10 years for each of 20 items.  "Child pornography is not a victimless crime," Montgomery said.

Ash, an attorney and former public defender, said he is not making such a claim.  But he pointed out that someone who actually molests a child can get out of prison after 35 years. And murderers are eligible for probation after 25 years.  "Unless people want to say possession of child pornography is more serious, more harmful than murder, I think we need to look at our sentencing laws to make appropriate adjustments," Ash said....

The overall theme behind what Ash is proposing would give judges more discretion in sentencing.  That would reverse a trend beginning in 1978 when lawmakers voted to impose mandatory prison terms for certain crimes.  And in 1993 legislators approved a "truth in sentencing" law which says criminals must serve at least 85 percent of their term before being eligible for release.  The result, said Ash, is there are more than 40,000 people in state prisons, a figure he computed out to one out of every 170 residents. "The problem with that is that the state is paying for that," he said. "The taxpayers are paying for that."

Mayer, however, said the proposal which Ash intends to introduce when the Legislature convenes next month goes too far.  "Rep. Ash wants a lot more judicial discretion on a general basis than prosecutors are comfortable with," she said.  And Montgomery said the laws on mandatory sentencing and minimum prison terms are necessary.  "These drastic changes represent a movement away from sentencing laws that have both lowered crime rates and honored the rights of crime victims," Montgomery wrote.   "Changes such as the ones proposed in the legislation undermine public safety and could have very serious consequences for the state."  Ash, however, said other states have managed to alter their sentencing laws and also see a drop in crime.

Another target for Ash is an existing law that imposes mandatory prison terms on those who are convicted of possessing anywhere from two to four pounds of marijuana.  He said that might be appropriate for a member of a drug cartel.  But Ash said it's just as likely that the courier is just some drug user willing to do the job for a "fix," someone who a judge should be able to place on probation.

Mayer said that ignores evidence her office has that these "casual" couriers are not harmless. "The cartels are not doing our home invasions," she said. "It's our local traffickers who are engaging in smaller amounts -- just under 4 pound range -- where we're getting a lot of violence."

Mayer said there already are options for dealing with special situations like this, albeit not for the judges.  She said her office has the ability to put someone who is determined solely to be a drug user and not involved with other crimes into a diversionary program.  There, the person would get counseling and help rather than being incarcerated.

I think it is appropriate and important for prosecutors (and their lobbyists) to comment upon any proposed legislative criminal justice reforms.  But I am always irked when prosecutors work extra hard to deny judges sentencing discretion because they fear that giving judges more authority to impose a fitting sentence risks diminishing prosecutors' always greater authority to assess, structure and frame the sentencing consequences facing a defendant.

Tenth Circuit refuses to block Oklahoma's planned use of new drug in execution protocol

As detailed in this local article a federal circuit court has now "allowed Oklahoma to proceed with executions, including one on Thursday, using a new lethal injection drug." Here's more:

The 10th U.S. Circuit Court of Appeals rejected a death-row inmate’s claim that the drug, pentobarbital, could cause cruel and unusual punishment, in violation of the U.S. Constitution. The Denver-based court concluded 3-0 that the amount of pentobarbital prison authorities plan to inject as the first of three execution drugs would by itself “likely be lethal in most, if not all, instances.”

The 10-page decision clears the way for the execution of John David Duty at 6 p.m. Thursday in the Oklahoma State Penitentiary in McAlester, and of Jeffrey Matthews on Jan. 11....

Prison authorities said a few months ago they would be using pentobarbital for the first time because there is a nationwide shortage of sodium thiopental, which previously was the first of three drugs used for executions.

The Tenth Circuit's ruling is available at this link, and this matter will surely get appealed to the Supreme Court.  In the wake of Baze, I would be very suprised if the Justices get in the way of Oklahoma's execution plans.  (At the same time, I think it possible that the two newest Justices, who joined the Court after the Baze ruling, might see this case as presenting a useful opportunity to express some views on lethal injection litigation.)

The interesting issues raised by Tapia, the new SCOTUS federal sentencing case

A helpful reader this afternoon reminded me that I have not yet given enough attention to the really interesting federal sentencing case that the Supreme Court took up late last friday (as first mentioned here).  The case is Tapia v. United States, and the SCOTUSblog folks right now have this bare-bones SCOTUS case-page which provides a link to the bare-bones Ninth Circuit summary disposition and also to the effective cert petition filed by the defendant. 

In addition, the lawyer who filed the cert petition for the defendant sent me by e-mail the Government's brief in opposition, which can be downloaded below.  Of special interest, the final paragraph of the SG's Tapia BIO effectively highlights the precise issue raised by Tapia and how it relates to the seemingly similar issue raised in the recently argued Pepper case (emphasis in original):

Pepper presents two questions: first, whether a district court resentencing a defendant following a successful government appeal must apply the same percentage departure from the Guidelines range for substantial assistance as was applied in the initial sentencing; and second, whether a district court at such a resentencing may consider the defendant’s post-sentencing rehabilitation in deciding whether to vary downward from the advisory Guidelines range.  Gov’t Br. i, Pepper, supra.  Neither issue is presented in this case.  This was an initial sentencing, not a resentencing.  And the issue here was not, as in Pepper, whether a defendant’s actual past rehabilitation could be a factor in reducing a prison term (because, for example, the defendant no longer presents as much danger to the community), but instead whether the possibility of future rehabilitation could be a factor in lengthening a prison term. However the Court resolves the issue in Pepperconcerning consideration of post-sentencing rehabilitation at resentencing, the decision in Pepper will have no bearing on petitioner.

Download 10-5400 Tapia BIO

In a forthcoming post, I will make a pitch for why I should be appointed to represent the decision below before SCOTUS.  For now, I encourage commentary on whether any other folks think, as I do, that Tapia could be the sentencing sleeper of the current SCOTUS Term. 

UPDATE:  I just came across this newspaper story about the Tapia cert grant, which is headlined "Inmate wins long-shot appeal to U.S. Supreme Court" and gets started this way:

Alejandra Tapia smuggled aliens, abused drugs and jumped bail.  Now she's beaten the legal odds.

In an extreme long shot, the one-time California resident and her public defenders convinced the Supreme Court to hear a challenge to her prison sentence.  The decision, announced Friday, could resolve a big difference of judicial opinion and help shape sentencing nationwide.

Tapia argues that a judge erred when he increased her federal prison sentence so that she might be eligible for a rehabilitation program.  "Rehabilitation is not an appropriate consideration for deciding whether imprisonment should be imposed, or for deciding the length of the defendant's prison sentence," one of Tapia's former attorneys, Doug Keller, said in his brief.

The oral argument and a final decision in Tapia v. United States are months away.  Simply securing Supreme Court review, though, gives Tapia a rare thumbs-up in an otherwise exceedingly bleak life.

New issue of Pace Law Review on need for prison oversight in US

I received via e-mail a press release spotlighting this new issue of the Pace Law Review that all sentencing law and policy fans will want to check out.  Here is how the press release begins:

Latest issue of Pace Law Review offers blueprint for critically-needed U.S. prison oversight: Contains views from academics, human rights lawyers, national and international corrections experts

The United States has, by far, the highest incarceration rate of any developed country on the planet, yet its prisons remain largely hidden worlds.  Unlike many Western countries, which have systems for inspecting and reporting on prison conditions, the U.S. lacks formal and comprehensive external oversight mechanisms to regularly monitor prisons and jails.

Now, a newly released issue of the Pace Law Review, “Opening up a Closed World: A Sourcebook on Prison Oversight,” offers a comprehensive look at prison oversight, including articles from leading academics, national and international corrections experts, and prisoners’ rights and human rights lawyers.  Together, this diverse group calls for a national conversation on this important subject, and offers insights and practical ideas for how oversight could be accomplished in the American context.

One guess how this Seventh Circuit habeas state sentencing appeal gets resolved

The Seventh Circuit handed down a notable decision today in Promotor v. Pollard, No. 09-2292 (7th Cir. Dec. 14, 2010) (available here), a case in which a defendant claimed his due process rights were violated during his state sentencing.  The first three paragraphs of the opinion (and perhaps even the first two sentences) should make it pretty easy for readers to figure how the defendant's claims get resolved: 

On April 8, 2003, Rogelio Promotor got drunk, drove at speeds up to 86 miles per hour, tore through two red lights, and crashed into a passing car. He killed four people and severely injured two others. He pleaded no contest in Wisconsin state court to four counts of homicide by intoxicated use of a motor vehicle and two counts of causing injury by intoxicated use of a motor vehicle.

Before sentencing, Promotor cooperated in the creation of a defense pre-sentence investigation report which stated that Promotor consumed up to 23 beers in the hours preceding the crash.  The court mentioned the “23 beers” figure twice when it sentenced Promotor to 66 years of imprisonment and 28 years of supervised release.

Promotor filed post-conviction requests for relief with the Wisconsin state courts, which were denied.  He then filed a petition for a writ of habeas corpus in federal court. He asserted that his due process rights were violated because he was sentenced based on inaccurate information — the 23 beers figure from the defense presentence report.  He also argued that he received ineffective assistance of counsel.  The district court denied the petition, finding that Promotor procedurally defaulted his due process claim by not objecting to the information in his pre-sentence report.  Promotor requested, and the district court granted, a Certificate of Appealability on this question, and on whether the Wisconsin state courts violated Promotor’s due process rights by sentencing him based on inaccurate information.

The Promotor ruling usefully noted that a defendant's due process rights are violated if a presentencing report includes "materially incorrect and the sentencing court relied on it in sentencing." But this important legal principle does not end up helping Rogelio Promotor.

Another star going to NY prison for years for gun possession... and prompting more Second Amendment wondering

As detailed in this news report, "Ja Rule became the latest US rapper to face jail on a gun charge, after pleading guilty Monday in New York to attempted possession of a weapon, prosecutors said." Here are the basics:

Ja Rule, whose real name is Jeffrey Atkins, is expected to be sentenced to two years behind bars and 18 months of supervised release after pleading guilty to attempted criminal possession of a .40 caliber handgun.

Sentencing is on February 9, a spokeswoman for the Manhattan District Attorney's office said. A more severe punishment could have been expected had Ja Rule gone to trial and been convicted.

Manhattan District Attorney Cyrus Vance said that the city, which has some of the strongest anti-gun laws in the nation, is still working to stem gun violence. "Gun crimes are serious offenses and today's guilty plea should send a serious message to anyone thinking of illegally bringing a gun into New York City," he said.

The rapper was caught with the pistol in his sports car after a 2007 concert in Manhattan. He had been performing alongside rapper Lil Wayne who was also charged with gun possession in a separate arrest and spent much of 2010 in prison.

Though I do not know all the details surrounding Ja Rule's gun possession and the plea deal his attorney's worked out here, I do know that I continue to be disappointed and somewhat surprised that high-profile celebrity defendants facing serious prison time for mere gun possession are not trying to actively litigate a Second Amendment defense to their prosecution.  Assuming all that the Ja Rule did wrong was to possess a handgun and that he could reasonably claim that he possessed this handgun for personal self-defense, I do not fully understand why Ja Rule and his lawyers (and his agents) would not want to try to litigate a Second Amendment claim based on Heller and McDonald through the New York state courts.

For low-profile and not-wealthy defendants, I can understand how the notoriety and economic costs of a Second Amendment challenge may make such a defense to gun possession charges not worth pursuing.  But for a rapper like Ja Rule, the notoriety could be a benefit to his career and the economic costs should not be a show-stopper.  (Indeed, I suspect some public interest lawyers might even take on a high-profile constitutional case like this at a discount.)   Moreover, Ja Rule would likely be able to stay out on bail while this kind of claim was litigated, and the prospects for a good plea deal would not seem to get much worse from the decision to litigate a constitutional challenge to the very law with which the defendant is charged.

If Ja Rule has a long criminal history of other offenses or if there are other factors preventing him from being a sympathetic Second Amendment litigator, then I guess I understand why he might accept two-years in prison for simple gun possession.  But lots of defendants get much less prison time for crimes that seem much worse and do not have even the patina of the exercise of a fundamental constitutional right.  Thus, I never quite understand why defendants like Ja Rule and Plaxico Burress and Lil Wayne accept deals that mean long stretches in prison for doing something that a majority of the Supreme Court might well say is constitutionally protected to do. 

Nebraska lawmaker seeking to end LWOP for juveniles in state

As detailed in this local article, which is headlined "Seeking an end to teens doing life," at least one Nebraska state legislator is eager to get rid of LWOP for all juvenile offenders. Here are the details:

For State Sen. Brenda Council, it's common sense: Criminals under the age of 18 should not be sentenced to life in prison without a chance at parole. Her reasoning: While their crimes as teenagers were horrendous, people mature, changing dramatically from their teen years to mid-30s, 40s or 50s.

Studies have shown that a teen's brain is not fully developed. Youths face pressures from gangs and peers. Imprisoning a person for decades is costly.

The sentence amounts to “death by incarceration,” she said. Still, Council acknowledges, her view is unpopular in Nebraska, one of the states that allow young people to be sentenced to life without a chance for parole.

Even so, Council plans to submit a bill during the next legislative session that would change sentencing guidelines. Those convicted as teens — or younger — should at least get a parole hearing some years down the road, she said. Her proposed bill would not guarantee parole.

About 25 people joined the Omaha legislator Monday evening at a panel discusion on how to help the underdog proposal make it into state law. Those in attendance included another state senator, Bob Krist; Family members of some of the 27 people in Nebraska sentenced as juveniles to life; and even a mother who has become an advocate for the man who helped kill her son when both were teens....

The U.S. Supreme Court ruled last spring that a life sentence without parole for juveniles who have committed crimes other than murder violates the U.S. Constitution's prohibition on cruel and unusual punishment.

Readers who know American political science realize that Nebraska has a unicameral legislature with 49 members, so State Senator Brenda Council will only need to convince 29 of her colleagues to get her bill passed.  This is important not only in Nebraska, but if there is a continuing movements in many states to ban all LWOP sentences for all juvenile offenders, the Supreme Court's Eighth Amendment doctrine could evolve to make such sentences ultimately unconstitutional. 

Data and debate over a drop in death sentencing in Texas

As detailed in this new Houston Chronicle article, which is headlined "Death sentences plunge in Texas: Foes cite new law, DNA testing; backers blame judges, delays in executions," in the year 2010 Texas juries "sentenced only eight killers to die this year, the lowest number since 1976 when the U.S. Supreme Court ended its ban on capital punishment."  Here is more about this interesting capital accounting:

The figures were released Monday in an end-of-year review of capital punishment by the Austin-based Texas Coalition to Abolish the Death Penalty...."It shows that Texas and the rest of the country are moving away from the death penalty, even in Harris County. It's an astonishing development," said coalition executive director Kristin Houlé.

Houlé attributed the drop to Texas' 2005 life without parole statute and to the high cost to counties of seeking the death sentence. Also eroding support for capital punishment is DNA testing, which has led to the exoneration of scores of inmates convicted of serious crimes...

Death penalty supporters, however, countered that fewer death sentences may reflect fewer killers and fewer killers who are eligible for execution. The Supreme Court shrank the pool of death-eligible killers by prohibiting the execution of mentally retarded offenders and those who were younger than 18 when they committed their crimes.

Dudley Sharp, an outspoken Houston death penalty advocate, argued that drops in rape, robbery and murder have reduced the number of death-eligible criminals going to trial. "Texas murder rates have dropped about 67 percent, murders about 50 percent in Texas between 1991 and 2009," he said.  "Nationally, I think that part of the reduction is due to state prosecutors knowing that judges in their state will not allow an execution to take place."

Prosecutors also cite long-term incarceration of violent criminals and programs to lower recidivism among released prisoners.  Just as important, they claim, is a high degree of frustration over death sentences that never are carried out.

"Twenty-five years later, mothers and sons and daughters of victims are still waiting," said Scott Burns, executive director of the National Association of District Attorneys. "It's the old cliche about justice delayed is denied. ... For a number of states, the death penalty means we'll talk to you in 25 years and see where we are."

Nationally during the last 20 years, death sentences have ranged from a high of 328 in 1994, to a low last year of little more than 100. Texas recorded an all-time high — 48 — in 1999. That total fluctuated in the ensuing decade....

Since Texas' resumption of executions in 1982, 464 killers — 115 of them from Harris County — have been put to death. Currently, 105 Harris County killers await execution. Three of 17 killers executed this year were from Harris County. The next execution is scheduled for Jan. 11.

The year-end report of the Texas Coalition to Abolish the Death Penalty is available at this link; lots of data and links to additional information about Texas capital justice can be found in this webpage on the TCADP site.   The full report spotlights three Texas capital cases in which Texas juries returned sentences of life, which seems to suggest that Texas prosecutors only sought the death penalty in 11 cases through 2010.

Though Texas justice has long be criticized by many, this latest data suggests the state is becoming far more measured in its application of the death penalty.  When one considers this reality in conjunction with the state's recent prohibition of LWOP for all juve offenders (even juve murderers) and also its effective and efficient sentencing reform and prison population reduction programs over the last decade, Texas is perhaps evolving into a model sentencing reform state instead of being the cruel tough-justice outlier that historically garnered so much criticism.

"Releasing elderly non-violent prisoners would reduce Ohio deficit"

The title of this post is the headline of this potent and effective letter to the editor in a local Ohio paper. Here are excerpts:

How do you eat an elephant? . . . One bite at a time

Ohio is $8 billion in the red.  A budget crisis the size of an elephant.  A recent report by the Kasich camp suggesting ways to balance the budget, asked Ohio agencies to look at operating at a 90 percent of their current budgets.  As expected, all said such a plan would reduce services, raise education costs and create havoc.  The scenario communicated by the Department of Corrections is particularly startling.  If the Ohio Department of Rehabilitation and Correction takes a 10 percent hit to their current $3.1 Billion budget, staff would be reduced by 20 percent and several prisons would have to close. Overcrowding would rise from 135% overcapacity to a startling 174 percent creating a dangerous and inhumane situation....

In September, Director Ernie Moore announced that the big WIG or “Wildly Important Goal” of the ODRC is to “reduce the prison population to 48,000 by July 1, 2013.”  This trickle of proposed reductions over 2½ years is uninspired. We need a fiscally and morally arguable plan to reduce the absurd amount of resources wasted to warehouse humans in the name of public safety now.  Don’t be fooled by the fear mongering by those who benefit by the ever-growing prison industrial complex.  The ODRC employs nearly 14,000. Make no mistake there are vested interests in keeping prisons open, full and growing. When the rhetoric of releasing prisoners is used to create fear, panic and more irresponsible spending, remember over 95% of those incarcerated are eventually released regardless of pedantic tactics used to manipulate the public....

It is said that character of a society can be measured by how it treats its most vulnerable and marginalized.  There is no group of citizens more vulnerable or more marginalized, forgotten and forlorn than the elderly incarcerated.  According to the US Department of Justice, elderly inmates represent the most vulnerable of the entire population.  They are subject to systemic abuse and neglect, violated in ways that would make you sick.  They suffer exponentially and in degrading and disgusting circumstances that were never intended, even by the most ardent supporters of tough on crime legislation.... Yet, they are unquestionably proven to be the least risk to society and of recidivism.

Ohio has nearly 7,000 inmates over the age of 50, the age, generally accepted as elderly by the National Institute of Corrections and the State of Ohio.  Based on documented “accelerated aging” studies showing the actual age of an older inmate to be 10 years older than their biological age.

To incarcerate the most vulnerable, lowest risk and most expensive inmates, is costing Ohio $500,000,000 a year; a half billion dollars, money that could go to schools, job training and positive, productive uses.  Resources that should be an investment in the future of Ohio not spent on satisfying the public and political appetite for the last morsel of vengeance.

If Ohio and the ODRC was to release just 3,000 of the eldest, non violent offenders that alone would save over $225 million, stave off the dangerous overcrowding and put Ohio on the cutting edge and moral high ground of the travesty of geriatric incarceration.  The immediate, early release of the elderly non-violent prisoners is both pragmatic and humane.  Simply, it is just the right thing to do.  This is one big bite of the elephant that should be palatable to all.

Some recent related posts:

• ACLU of Ohio produces major report on prison growth and problems
• "Ohio lawmakers mull sweeping reform to cut prison populations"
• Incoming Ohio Governor Kasich having to face over-crowded prisons and tight budgets

Supreme Court Justices are now doing reading on iPads and Kindles, when will law students?

The question in the title of this post is prompted by this new video from a portion of a C-SPAN interview with new Justice Elena Kagan. The video is titled "Justice Kagan on Using a Kindle to Read Briefs," and in the segment Justice Kagan reports on how she uses the Kindle to read all the SCOTUS briefs, and also discusses that Justice Scalia has his briefs on an iPad. (Hat tip: How Appealing.)

In a series of posts about technology and legal education over at the blog Law School Innovation (where I am cross-posting this post), I have suggested that the advancement of new reading technologies will at some point transform legal education. I articulated the point this way in this post after first seeing the iPad in action earlier this year:

[A] casebook-friendly e-tablet is only the tip of the new media iceberg that could be facilitated by an iPad or some other tablet that becomes to casebooks what the iPod became to vinyl records.  Of course, just as record companies (and some artists) resisted music being packaged and distributed via new media, casebook publishers (and some authors) may resist legal materials being packaged distributed via new media.  But, as the iPod and the DVR and other digital innovations have demonstrated, a better means to distribute content digitally will eventually prevail over analog precursors.  The iPad may not prove to be the casebook tipping-point technology, but it seems to me to be only a question of when, not whether, the traditional casebook will go the way of vinyl records and VCR tapes.

When traveling to speak at various conferences, I have noticed more and more lawyers with iPads and other e-readers. I expect that buzz about the Justices reading briefs on e-readers might add even more juice to the on-going digital revolution in the collection and distribution of legal materials. And if law schools do not get with the program soon, I fear we will be doing even worse than usual in training the next generation of lawyers.

Though this post fits better at my Law School Innovation blog, I have cross-posted it here because I am eager to hear from practitioners about their use of technology (and whether there are any particular technologies that a criminal law professor ought to make the focus of more student instruction). In addition, I have to assume that it is only a matter of time before we have a federal sentencing guidelines app.

New issue of The Nation magazine say “Dare to End the War on Drugs”

I just learned that the new December 27, 2010 issue of The Nation is focused on the modern realities and dynamics of the drug war. The introduction from the editors to the issue, which is available now at this link, is headlined "Rebalancing Drug Policy," while the cover uses the D.A.R.E logo to urge our nation to "Dare to End the War on Drugs."   Here is how the editors' introduction sets up what follows in a single paragraph:

Nearly forty years after President Nixon declared a "war on drugs," it is painfully clear that the nation's approach to drug policy is counterproductive and cruel.  Shifting our priorities toward a more sensible approach — one that offers treatment rather than punishment for addicts, and that recognizes the deep injustice of mass incarceration — seems like a daunting task.  But as the writers in this forum suggest, we have all the answers and resources we need.  If ever there was a time to say enough is enough, it's now.   — The Editors

There appears to be a whole lot that sentencing fans should find worth checking out in this special issue of The Nation, including these pieces:

• "Obama's Drug War" by Michelle Alexander
• "Beyond the Fair Sentencing Act" by Marc Mauer
• "The Verdict on Drug Courts" by Tracy Velázquez
• "Breaking the Taboo" by Ethan Nadelmann
• "Decriminalizing Poverty" by Bruce Western
• "Budding Prospects: Youth Activists Push Marijuana Reform" by Aaron Houston
• "Altered State: California's Pot Economy" by Sasha Abramsky  
• "Questions for the Drug Czar" by Sasha Abramsky
• "Restoring Lost Liberties" by David Cole
• "A New Model for Mexico" by Laura Carlsen

I have not provided a link to the last two articles because they are listed as for "Subscribers Only" and because you can find them via the links to all the free pieces if you are a subscriber.

I am looking forward to consuming all aspects of this special issue of The Nation, which I will likely make a special effort to purchase in hard copy when I see it on the newsstands. I have, however, already printed out the pieces on marijuana politics and practices because they provide an important window into some of the most important recent dynamics in the long-running drug war debate.

Justice Scalia (joined by two other Justices) dissents for cert denial in capital habeas case

The only opinion of note coming from the Supreme Court this dissent from denial of certiorari in Allen v. Lawhorn.  Here is how the seven-page opinion authored by Justice Scalia, which was joined by Justices Thomas and Alito, starts and ends:

Respondent James Lawhorn was sentenced to death by an Alabama court in 1989.  Nearly two decades later, the United States Court of Appealsfor the Eleventh Circuit granted him habeas relief on the ground that his counsel had rendered ineffective assistance at the sentencing hearing by failing to make a closing argument.  In my view that decision was patently wrong: The court had no basis in law for setting aside the state courts’ judgment that respondent had failed to establish a probable effect of that failure upon the outcome.  I dissent from the Court’s decision not to grant certiorari and summarily reverse the Eleventh Circuit’s judgment....

It has been over 21 years since Lawhorn was sentenced to death.  Alabama should be not barred from carrying out its judgment based on a federal court’s lawless speculation.  I would not dissent from denial of certiorari if what happened here were an isolated judicial error.  It is not.  With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress’s command that state criminal judgments must not be revised by federal courts unless they are “contrary to, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U. S. C. §2254(d)(1) (emphasis added).  We invite continued lawlessness when we permit a patently improper interference with state justice such as that which occurred in this case to stand.  We should grant Alabama’s petition for certiorari and summarily reverse the Eleventh Circuit’s judgment.

"Don't return Jason Pepper to prison"

The title of this post is the headline of this effective new editorial in today's Des Moines Register in response to the Supreme Court oral argument last week in Pepper v. US (previously discussed here and here).  Here are excerpts:

Jason Pepper's life changed dramatically when he was arrested in 2003 for possession and sale of methamphetamine.  The change might have been for the better, except that he has been entangled in the federal judicial bureaucracy for the past seven years.  His best hope now is that the U.S. Supreme Court will end his legal nightmare.

Pepper, 31, formerly of Akron, Ia., served a two-year sentence in federal prison, where he successfully completed drug treatment, and upon release went back to school, married his high school sweetheart, got a job and today is living a productive life in St. Joseph, Ill.  His debt to the government may not be not over, however: He faces the prospect of returning to federal prison where he could serve an additional sentence.

The U.S. Supreme Court, which heard arguments in Pepper's appeal Monday, has the opportunity to limit that sentence to time served.  That is what it should do....

Pepper's life is on hold because federal judges disagree on whether his original sentence was too short.  He completed that sentence, but appeals judges later ruled it was too lenient, and he was subsequently resentenced to another 40 months in prison.  The question before the Supreme Court: Should he get credit for straightening out his life since his release from prison while his case was on appeal?

The answer would be obvious to those who believe the purpose of prison is not just retribution but reform, and it appears to have worked in this case.  What possible interest would be served by sending him back for more time in federal prison now?

Also troubling is why a federal case was made of a small-time drug offender such as Pepper in the first place.  Had his case been prosecuted in Iowa state court, he would not be facing the federal sentencing equivalent of double jeopardy.  Instead, based on his successful rehabilitation, he would have been eligible for early release from prison on parole and allowed to rebuild his life.

There is no equivalent parole system in the federal courts, and prison sentences measured in decades for minor drug offenders are common.  Meanwhile, defendants can be caught up for years in battles between trial courts and appeals courts over the proper length of sentences.  Congress tried to eliminate disparity in criminal sentencing, but in the process it created a rule-laden bureaucracy that does not fully acknowledge real life stories of individuals like Jason Pepper.

The Supreme Court should help change that by giving federal judges the discretion to weigh evidence of actual life experience in criminal sentences.

Supremacy Claus puts money where his comments are to support reentry film

In this post from a few days ago, I reprinted an e-mail I received from Attila Adam, a writer and director working on a new drama called June Gloom. In his words, 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 linked to this special intro video to the project, which is on a webpage seeking pledges to help the project get completed, and I noted that $500 pledge would result in executive producer credit on this film. And I (half-jokingly) suggested that some of the frequent commentors on this blog consider supporting this effort

Ever the interesting fellow, (in)famous regular commentor Supremacy Claus wrote to me to report that he was going to make a $500 pledge and was going to do so in my name so that I would get executive producer credit.  For this kind gesture (which is now reflected on this June Gloom blog), I am awed and grateful.  And I have now added another $100 pledge (and provided that the goodies that come with this pledge go to SC).

Though I know not everyone is a huge fan of how Supremacy Claus sometimes seeks to take over the comment threads, I think everyone should be a huge fan of his efforts in this context. And if merely 1/10 of all the readers who dislike SC's comments would simply make a pledge of 1/10 of what SC put up on my behalf, the June Gloom film would have extra resources for final production and promotion. (As I noted before, the minimum pledge to support this project is a mere $10, and I hope a lot of readers might consider themselves able to pledge at least 2% of what Supremacy Claus put up.)

Final execution of 2010 scheduled for this week in Oklahoma

As detailed in this local news piece, "Oklahoma State Penitentiary death row inmate John David Duty, 58, is scheduled to be executed on Dec. 16."  This pending execution is notable not only because it appears to be the last one slated for 2010, but also because "the Oklahoma Department of Corrections ran out of sodium thiopental, a key component in the three-drug cocktail that causes unconsciousness ... [and so it has] decided to use pentobarbital instead, a similar drug and powerful sedative that is commonly used to euthanize animals."  As the story further explains, it appears that this defendant is eager to be executed:

Duty was sentenced to death for the Dec. 19, 2001 murder of Curtis Wise, Duty’s 22-year-old OSP cellmate. At the time of the murder, Duty was serving three life sentences for his 1978 convictions of rape, robbery and shooting with intent to kill.

In a 2002 letter submitted into court records, Duty wrote: “I talked my cellpartner Curtis Wise into letting me tie him up as a hostage so I could be moved from Disciplinary Unit to Administrative Segregation. I then strangled him to death. When I convinced Curtis Wise to let me tie him up it was with the intention of killing him. If it hadn’t been him it would have been somebody else.”

District Attorney Jim Bob Miller, in a report filed with the Pittsburg County Court in August 2002, stated that the murder of Curtis Wise was “especially heinous” because Duty talked his cellmate into acting like he was the defendant’s hostage ... [and later wrote] a letter to the mother of Curtis Wise bragging about how Curtis Wise struggled for his life throughout the conscious torture...

Duty also, subsequent to the murder of Curtis Wise, “threatened to kill prison staff at the Department of Corrections both in writing and orally,” Miller reported.  In a letter to Pittsburg County Assistant District Attorney, Richard Hall, Duty wrote: “You can’t say I don’t deserve the death penalty.  I’ve killed another inmate, taken hostages 3 times, and assaulted a guard. Plus other various things to numerous to mention.”

During the 2002 court proceedings, Duty pleaded guilty to the murder, waived the presentation of mitigating evidence during his sentencing and said he wanted the death sentence.

Meanwhile, in this new New York Times editorial headlined "Justice Stevens and the Death Penalty," the Gray Lady reiterates points recently made by former SCOTUS Justice John Paul Stevens against capital punishment and concludes that "Justice Stevens is right that [political and cultural forces provide] "woefully inadequate justifications" for a penalty that is a brutal anachronism.

Prisoners in Georgia coordinate (unprecedented?) strike

Though it may not be unprecedented, this news via the New York Times about a prisoner strike in Georgia is certainly remarkable.  Here are the basics:

In a protest apparently assembled largely through a network of banned cellphones, inmates across at least six prisons in Georgia have been on strike since Thursday, calling for better conditions and compensation, several inmates and an outside advocate said.

Inmates have refused to leave their cells or perform their jobs, in a demonstration that seems to transcend racial and gang factions that do not often cooperate.  “Their general rage found a home among them — common ground — and they set aside their differences to make an incredible statement,” said Elaine Brown, a former Black Panther leader who has taken up the inmates’ cause.  She said that different factions’ leaders recruited members to participate, but the movement lacks a definitive torchbearer.

Ms. Brown said thousands of inmates were participating in the strike. The Georgia Department of Corrections could not be reached for comment Saturday night.

“We’re not coming out until something is done.  We’re not going to work until something is done,” said one inmate at Rogers State Prison in Reidsville.  He refused to give his name because he was speaking on a banned cellphone.  Several inmates, who used cellphones to call The Times from their cells, said they found out about the protest from text messages and did not know whether specific individuals were behind it....

Ms. Brown, who lives in Oakland, Calif., said she planned to gather legal and advocacy groups on Monday to help coordinate a strategy for the inmates.

Chief among the prisoners’ demands is that they be compensated for jailhouse labor. They are also demanding better educational opportunities, nutrition, and access to their families.

Local California judge and former prosecutor supporting three-strike offender's appeal

As detailed in this interesting new AP article, which is headlined "Stanford law students appeal three-strike cases," a defendant appealing his three-strikes sentence in California is getting some notable help from some notable folks.  Here are the specifics:

Nearly 15 years after sentencing, an inmate is getting an unexpected chance at freedom — and the judge a shot at redemption.  Students at Stanford Law School's novel Three Strikes Project, which has successfully overturned 14 life prison terms handed down for non-violent crimes under California's unforgiving sentencing law, are joined by an unusual coalition in their latest bid.  The county judge and prosecutor who sent Shane Taylor behind bars for 25-years-to-life in 1996 now want to help set him free....

Taylor's offenses: two burglary convictions when he was 19, and a third conviction for possessing about $10 worth of methamphetamine.   Under California's three-strikes law, any third felony can earn a repeat offender a minimum sentence of 25 years in prison.  It's a law 26 states and the federal government have some variation of, but none is more punitive than California's.

In response to the law, renowned defense attorney Michael Romano co-founded the Three Strikes clinic at Stanford in 2006.  He said he believes that too often the law fails to distinguish the violent career criminal from bumbling, drug addicted defendants who are sent away for at least 25 years for a nonviolent felony conviction....

On Nov. 15, the Stanford clinic asked the California Court of Appeal in Fresno to toss out Taylor's sentence.  Taylor was drinking beer, listening to music with two friends at a vista point above a Tulare County lake in the wee hours when the police rolled up and found about $10 worth of methamphetamine in his wallet.  That would become strike three.

The judge, Howard Broadman, became haunted by memories of the case, believing he had rendered a bad decision in invoking the harsh law. He regretted that in calculating the prison sentence he hadn't ignored one or both of Taylor's previous felony convictions: Attempted burglary and burglary that netted a homeless and methamphetamine-addicted Taylor a pizza paid for with a forged check.

Broadman called the law school last year after reading about the Three Strikes Project's remarkable success in freeing convicts like Taylor who "struck out" and received identical sentences for nonviolent crimes....

Rather than argue innocence, the Stanford crew contends its clients' prison sentences are illegally harsh and wrongly calculated.  "They have the innocence projects," said third-year law student Susannah Karlsson, who is helping present Taylor. "We have the guilty project."...

The prosecutor is joining Boardman, who is now a mediator in Visalia, in supporting a reduced prison sentence.  The appeal contends that Taylor's public defender at trial failed to tell Broadman about Taylor's horrific upbringing that included sexual abuse, a prostitute mother and early drug use. And Broadman says that, had he known of Taylor's past, he would have doled out a more lenient sentence.

Taylor's trial lawyer has filed a declaration saying he failed to properly represent his client, especially at sentencing when he filed legal papers mistakenly labeling Taylor's last offense as a burglary rather than drug possession.

Incoming Ohio Governor Kasich having to face over-crowded prisons and tight budgets

The Columbus Dispatch this morning has an above-the-fold, front-page article on Ohio's prison problems.  Here are lengthy excerpts from this effective article, which is headlined "Prison reform awaits Kasich; Changing overcrowded system won't be easy":

[Ohio] prison administrators have been pushing for years to stem the tide of incoming inmates to save money and reduce crowding.  Ohio prisons house 50,976 offenders (33 percent over capacity), have a staff of more than 13,300 employees and a two-year, $3.54 billion budget.

That makes prisons one of the largest single categories in the state budget, accounting for roughly 7 percent of general fund spending, and a top target for cutbacks as state officials struggle to deal with an impending $8 billion shortfall.

Gov.-elect John Kasich has made it clear that changes in prisons, including privatization and sentencing reform, will be in his sights when he takes office Jan. 10.  "Everything is on the table. Is it possible to have private companies run prisons, build prisons?  Of course it is; we're looking at it," Kasich told The Dispatch last week.  "But corrections reform is critical.  It's one of the big cost sinks that we have.  We've got some states that are releasing people because they can't control their costs. We have to think intelligently about how we're going to do this."

Kasich, who beat incumbent Democrat Gov. Ted Strickland last month, said locking up offenders who have committed "relatively minor crimes" in costly state prisons "doesn't make sense to me.  "You want to put your prisoners in an environment where the public is safe, but where it's the least costly," he said.

One of the complaints Kasich has voiced frequently since the Nov. 2 election is that Ohio locks up "check-kiters and people who don't pay child support" when they could be punished at lower cost outside prison.  However, the state prison census shows there were 51 offenders behind bars for writing bad checks and 372 for failure to pay child support. Those categories, combined, account for less than 1 percent of the total prison population.

Cutting costs sounds reasonable but isn't easy in an overcrowded system with high security needs and court-ordered mandates for medical and mental-health care of inmates.

New Department of Rehabilitation and Correction budget estimates reveal the consequences of even a 10 percent cut, including the closing of prisons and the layoff of more than 2,500 employees.  It also could mean eliminating funding for 972 halfway-house beds, 1,547 community-diversion offenders and 2,200 offenders in city and county jail programs funded by the state.

As for privatizing, the state already contracts for the operation of two private prisons: North Coast Correctional Treatment Facility, a 552-bed, minimum-security facility for alcohol and drug offenders in Grafton in Lorain County, and the Lake Erie Correctional Institution, a 1,380-bed, minimum- and medium-security prison in Conneaut in Ashtabula County.  Both are operated by Management & Training Corp. of Centerville, Utah....

State lawmakers vigorously resisted a sentencing-reform proposal that had bipartisan support from the Strickland administration and state Sen. Bill Seitz, R-Cincinnati.

Included in Strickland's proposed two-year budget in 2009 -- but stripped out by fellow Democrats -- was a proposal to reduce the prison population by more than 6,400 inmates, saving $29.1 million annually. It would have granted "earned credit" to release 2,644 prisoners, diverted 2,644 nonviolent offenders to community programs, sentenced 527 child-support violators to community sanctions and reduced re-sentences for parole violations by 591.

Seitz introduced a version of the proposal, but it also died under withering criticism from prosecutors and conservative Republican legislators.  More recently, prisons chief Ernie Moore said he wants to reduce the prison population to 48,000 by 2013.  He plans to divert more inmates to transitional control, work with judges to reduce the number of offenders returned to prison for technical violations and boost community programs for higher-risk offenders.

I am very pleased to hear my new Governor say that "everything is on the table" for dealing with these prison crowding and expense issues in Ohio.  I wonder if that really include drug offense and structured sentencing reform as well as back-end sentencing policy changes like more earned-time credit. 

Among many interesting aspects of the Ohio sentencing and corrections story is the fact that, as detailed in this recent report, prison terms have gone up since the Ohio Supreme Court responded to the Blakely SCOTUS decision by giving Ohio sentencing judges greater sentencing discretion.  Unlike in the federal system, where the guidelines tend to drive up prison terms, in Ohio structured sentencing reforms tended to keep prison sentences down.  But since that structure became just advisory in Ohio, sentence lengths have crept up.

Is it fair (or of any use) to describe Mark Madoff's suicide as part of his dad Bernie's "punishment"?

As detailed in this ABC News piece, which is headlined "Madoff Son Found Dead On 2nd Anniversary of Dad's Arrest," one of the sons of Bernie Madoff took his own life last night.  Here are the basic details:

Two years to the day, and almost the precise hour and minute, of his father's arrest by the FBI, Mark Madoff, son of the disgraced Ponzi schemer Bernard Madoff, was found hanged inside his Manhattan apartment, an apparent suicide according to police.

Madoff had reportedly learned in the last week that he faced possible criminal charges in both London and New York.

Madoff left behind several emails, including one to his wife, Stephanie, telling her that he loved her, but no explanation of why he chose to take his life.  "I love you," the email said. "... send someone to take care of Nick."

In a separate email to his lawyer Martin Flumenbaum, Mark Madoff wrote, "No one wants to hear the truth take care of my family," according to law enforcement sources.  He also sent one to his wife and to his father-in-law asking that someone come to get the couple's two-year-old child.

Upon receiving the emails, which were written in the early morning hours after 4 a.m., Stephanie, who reportedly was in Florida with at least one of the couple's other children, contacted her father.  He came to the apartment and found his son-in-law hanged in the living room around 7:30 a.m. Saturday, police said.  The two-year-old was sleeping peacefully in a bedroom nearby, police sources said.

Madoff had used a black dog leash to hang himself, police said.  His labradoodle, Grouper, was found nearby unharmed. 

"At about 7:30 this morning police responded to 158 Mercer Street," said New York City police commissioner Ray Kelly. "Mark Madoff was found hanging from a pipe in the living room of the apartment. Mr. Madoff apparently left some email notes. There was no note at the scene, but [he] communicated with members of the family."...

According to sources close to the family no one could have seen the suicide coming, although Madoff, 46, had been distraught, felt unemployable, and was sure that he would never be able to extricate himself from the thickets of notoriety....

Madoff and his children were being sued for all of their wealth and he faced the prospect of criminal prosecution in two countries.

I am never quite sure how to respond emotionally or intellectually to a high-profile suicide of someone I have never known.  But I am sure that this sad additional chapter of the saga surrounding Bernie Madoff's spectacular crimes prompts a number of questions for the sentencing scholar in me.

One theoretical question appears in the title of this post, and I especially mean for the question to prompt some reflection on the relationship between personal pain and the concept of punishment.  The connection between pain and punishment is getting lots of scholarly attention lately, and the fact that Bernie Madoff must be experiencing personal pain as a result of his son's suicide leads me to wonder if this event might be thought of as another part of his punishment.

A related practical question concerns whether Bernie Madoff now regrets having pleaded guilty.  At the time of his guilty plea, the only significant benefit Bernie seemed to garner was the chance to try to protect his family from some of the fall-out from his crime.  But the suicide of his son suggests that Bernie's efforts to shield his family were not especially successful.

Cross-posted at Prawfs