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May 7, 2011

"Parole Board will hear case of jailed Akron mom"

The title of this post is the headline of this local article providing an interesting clemency follow-up to a high-profile case from Ohio.  Here is how the article starts:

The Ohio Parole Board today decided to schedule a full hearing on the case of Kelley Williams-Bolar, an Akron mother jailed for 10 days for enrolling her daughters in a school district where they were not residents.

In February, Gov. John Kasich asked the board to give him a recommendation on whether he should grant clemency to Williams-Bolar.  He could grant her a pardon, clearing her record of the two third-degree felonies, or reduce the convictions to misdemeanors.

After having a staff investigator look into the case, the board decided to set a date for a hearing in the next month or so to gather information from Williams-Bolar and the Summit County prosecutor, said Carlo LoParo, spokesman for the Ohio Department of Rehabilitation and Correction.

The case attracted national attention, with several activist groups urging Kasich to pardon Williams-Bolar so she can pursue a teaching license.  Having felonies on her record would prevent that.

Related posts:

May 7, 2011 in Clemency and Pardons, Collateral consequences, Offense Characteristics, Who Sentences | Permalink | Comments (5) | TrackBack

Fourth Circuit discusses inapplicability of FSA to case on appeal after enactment

The Fourth Circuit on Friday joined its fellow circuits in holding that the new provisions of the Fair Sentencing Act are inapplicable to cases sentenced before the FSA became law and now on direct appeal.  The ruling in US v. Bullard, No. 09-5214 (4th Cir. May 6, 2011) (available here), includes these passages and a key footnote:

Bullard argues that Congress’s instruction in the FSA to the Sentencing Commission to "promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable . . . ," Pub. L. No. 111-220, evinces its intent to have the law apply retroactively.  We disagree.  Congress’s desire to have the FSA implemented quickly in no way suggests that it also intended to have the Act apply retroactively to defendants sentenced before it was passed.[FN5]  Congress knows how to explicitly provide for retroactive application when it so desires.

[FN5] We do not address the issue of whether the FSA could be found to apply to defendants whose offenses were committed before August 3, 2010, but who have not yet been sentenced, as that question is not presented here.

May 7, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact | Permalink | Comments (2) | TrackBack

May 6, 2011

Data and debates over the death penalty's administration in Oregon

The Oregonian has this interesting piece, headlined "Oregon debate: How to cut the high cost of death penalty cases," which includes notable data on the application of the death penalty in a northwestern state.  Here is the reported data:

Death penalty in Oregon since 1984:

  • Aggravated murder cases with death penalty possible: 795
  • Cases dismissed or acquitted: 36
  • Cases still open: 31
  • Men sentenced to death: 60
  • Death sentences overturned or reduced on appeal: 21
  • Death penalty cases on appeal: 36
  • Men currently on death row: 35
  • Executions: 2

Here are parts of the debate as reported in the Oregonian article:

[There is] a debate under way in the Oregon Legislature about how to contain costs in death penalty defenses that run up to a combined $12 million a year.

Defense attorneys say changing how murderers are prosecuted could get the public the same result most often seen now -- life sentences -- at less cost.  Prosecutors are pushing back, saying defendants would be far less likely to take plea deals if the death penalty weren't hanging over them.  The savings that reformers promise would be swallowed by new and expensive criminal trials, they say.

No one is suggesting repeal of Oregon's death penalty, instituted by voters in 1984, though a handful of other states have abolished capital punishment in recent years.  In Oregon, the death penalty is rarely meted out, according to research by the state Public Defense Services Commission, which presented its findings at a recent legislative hearing....

Kathryn Aylward, business services director for the state Public Defense Services Commission, estimated the public spends $40,000 defending someone charged with aggravated murder -- $200,000 if the death penalty is involved.  The Senate Judiciary Committee, by a 3-2 vote, passed a measure (Senate Bill 369) that would force prosecutors to declare within six months of filing a charge whether they will seek the death penalty.

Attorney Jeff Ellis, director of the Oregon Capital Resource Center, which helps in death penalty cases, said earlier notice would avoid some of those costs.  Prosecutors disagree. "The cost savings are illusionary," said Norm Frink, Multnomah County chief deputy district attorney.  Defendants would more often take their chances by going to trial if they knew they wouldn't face the death penalty, he said, resulting in fewer plea deals sparing such costly trials.

"We have many people who are aggravated murder defendants who plead guilty to aggravated murder and either take a true life sentence or an extremely long mandatory minimum who would never do that if there was not a death penalty involved in the equation," Frink said.  Mary Williams, Oregon deputy attorney general, said forcing prosecutors to decide too early on a death sentence would mean "you are likely to simply have prosecutors keep all doors open."

But Ellis noted that most aggravated murder cases in Oregon already are resolved without a death penalty.  He said Oregon should follow Washington, where prosecutors must give early notice of their intent regarding the death penalty.

With the state's budget hole well into the billions of dollars, a growing group of people in the state and in the Legislature want to dramatically reduce the number of people who get death sentences because of the exorbitant costs of prosecuting and defending these cases.  "They save money early on," Ellis said. "Here, we've got that open spigot."

Another reform passed by the Senate committee, also part of SB369, requires the state Supreme Court chief justice to appoint a judge with no connection to the case to mediate appeals of death penalty cases.  Defense attorneys say the intent is to short-circuit years-long appeals that can cost millions.

Frink said the reform is aimed in the wrong direction.  "Maybe we should do something about restricting the endless and frankly silly lengths to which post-conviction relief is allowed," Frink said.  Williams agreed, saying defense attorneys "flood you with paperwork, make is so expensive to litigate, that they hope you're going to give up."

May 6, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (16) | TrackBack

"Fourth marijuana conviction gets Slidell man life in prison"

The title of this post is the headline of this local story from Louisiana, which a helpful reader brought to my attention.  Here are the details:

Cornell Hood II got off with probation after three marijuana convictions in New Orleans. He didn't fare too well after moving to St. Tammany Parish, however.  A single such conviction on the north shore landed the 35-year-old in prison for the rest of his life.

State Judge Raymond S. Childress punished Hood under Louisiana's repeat-offender law in his courtroom in Covington on Thursday.  A jury on Feb. 15 found the defendant guilty of attempting to possess and distribute marijuana at his Slidell home, court records show.

Hood moved from eastern New Orleans to the Slidell area after he admitted to separate charges of distribution of marijuana and possession with intent to distribute marijuana on Dec. 18, 2009, in Orleans Parish Criminal District Court.  He received a suspended five-year prison sentence and five years' of probation for each -- which was precisely the same penalty he got in that court after pleading guilty to possessing and intending to distribute marijuana on Feb. 22, 2005.

When Hood switched homes, he also requested a new probation officer based in St. Tammany.  Authorities granted the wish, and the officer, Dustin Munlin, drove to Hood's place for a routine visit on Sept. 27, 2010. Munlin found nearly two pounds of pot throughout the house, according to court records. He alerted Sheriff's Office deputies. They arrested Hood, who apparently shared the King's Point house with his mother and young son.

Prosecutors later charged him with one count of possession with intent to distribute marijuana.  At Hood's one-day trial this week, the evidence presented by the prosecution included a digital scale and about a dozen bags that had contained marijuana before being seized from the house, testimony showed.  Deputies also found $1,600 in cash and a student-loan application with Hood's name on it inside of a night stand.

Jurors deliberated for less than two hours and convicted Hood of a reduced charge, which usually carries no more than 15 years' imprisonment.  Assistant District Attorney Nick Noriea Jr. then used Hood's past convictions on Thursday to argue that he was a career criminal worthy of a severe punishment.

Drug offenders in the state are subject to life imprisonment after being convicted three or more times of a crime that carries a sentence exceeding 10 years.

May 6, 2011 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (29) | TrackBack

Oklahoma on verge of joining states enacting significant prison and sentencing reforms

As detailed in this local article, which is headlined "Prison reform bill heads to Oklahoma governor,"in the Sooner State a "bill intended to relieve prison overcrowding and reduce the strain it places on the state budget is on the way to the governor." Here are the specifics:

The House of Representatives on Thursday approved House Bill 2131, which among other things would expand both the use of community sentencing programs and the electronic monitoring of low-risk, nonviolent inmates.  It’s the first significant piece of legislation favoring alternative sentences for nonviolent offenders.  Legislators over the years have passed “tough on crime” measures that have increased penalties and prison sentences, a key reason why Oklahoma’s incarceration rate routinely ranks in the top five nationally.

The state’s prison population has grown from 22,600 in 2000 to nearly 26,000, with the Corrections Department’s budget increasing from $366 million to $483 million. More than half of the state’s inmates are in prison for nonviolent offenses.  The system is now at 96 percent capacity, but because of budget shortfalls, is staffed at 69 percent of authorized levels, according to the speaker’s office.

House Speaker Kris Steele, the author of the measure, said the bill is expected to save the Corrections Department at least $5 million a year.  But those savings would occur over time as more nonviolent offenders are sentenced to community service or are monitored with electronic devices. Both methods are far less expensive than keeping inmates in prison.

In Oklahoma, it costs about $56 a day to incarcerate someone; by comparison, it costs about $3.50 a day to send an offender to supervised community sentencing and electronic monitoring costs about $4.75 a day, according to the speaker’s office.  “We cannot afford to continue on the current path with our incarceration policies,” said Steele, R-Shawnee. “This bill shows we are serious about changing course to be smarter on crime.”

May 6, 2011 in Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1) | TrackBack

May 5, 2011

Plea deals and probation term bring closure to high-profile bullying-suidice prosecutions in Massachusetts

As detailed in this local article, which is headlined "Two more teens sentenced in Phoebe Prince case," plea deals have been worked out and sentences imposed for a group of teenagers who were criminally prosecuted after a classmate they bullied committed suicide. Here are some of the details details:

Two more teenagers charged in connection with Phoebe Prince's suicide were sentenced today to probation and community service, after another emotional statement from Prince's mother, who said Prince was harassed until school became intolerable....

Sharon Velazquez, 17, admitted to sufficient facts on a criminal harassment charge and Flannery Mullins, 18, admitted to sufficient facts on a civil rights violation and disturbing an assembly. Velazquez will be on probation until her 18th birthday; Mullins will be on probation until she turns 19.

Prince, a 15-year-old Irish immigrant, killed herself in January 2010 at her family’s South Hadley home after being bullied by other students at the town’s high school. The case made international headlines and helped spark a national debate on the problem of school bullying....

Alfred Chamberland, Mullins's defense attorney, read a statement outside the courthouse saying that the district attorney's office had brought excessive charges against his client and demonized her and the other defendants.

He said the plea was "an acknowledgment by the Northwestern district attorney’s office that these matters were overcharged and that the former administration brought felony indictments in cases which did not call for such,” he said. "By doing so, the Commonwealth unnecessarily exposed my client and the other juveniles in this case to unfair and harsh national and international media scrutiny.”

Two other teenagers were sentenced Wednesday to probation after an emotional hearing in which O'Brien's mother condemned one of them, saying his relationship with her daughter was "predatory" and his betrayal of her daughter had broken her spirit, the Globe reports this morning.

Do folks think justice has now been served in this high-profile case?   According to this article in the Boston Herald, there is "Outrage in Ireland over plea deals."

UPDATE:  This interesting Christian Science Monitor article about the Phoebe Prince case and these sentencings indicates that observers are looking to restorative justice principles to get ultimate satisfaction from the defendants here.  But, in light of recent comments by the lawyers and others, I am not sure everyone is committed to restoration here, whatever that means.

May 5, 2011 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (11) | TrackBack

USSC request comments on possible retroactivity of new crack and drug guidelines

As detailed in this document described as a "Reader-Friendly Version of the Commission's Request for Comment on Retroactivity," the US Sentencing Commission is now requesting public comment by June 2, 2011, concerning "whether Amendment 2 [of its most recent set of Guideline amendments sent to Congress], pertaining to drug offenses, should be included as an amendment that may be applied retroactively to previously sentenced defendants."  Here is more background and details from this document:

On April 28, 2011, the Commission submitted to the Congress amendments to the sentencing guidelines and official commentary, which become effective on November 1, 2011, unless Congress acts to the contrary.  Such amendments and the reasons for amendment subsequently were published in the Federal Register.  See 76 FR 24960 (May 3, 2011).

Amendment 2, pertaining to drug offenses, has the effect of lowering guideline ranges.... The Commission seeks comment regarding whether, pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(u), this amendment, or any part thereof, should be included in subsection (c) of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants.

The Commission also requests comment regarding whether, if it amends §1B1.10(c) to include this amendment, it also should amend §1B1.10 to provide guidance to the courts on the procedure to be used when applying an amendment retroactively under 18 U.S.C. § 3582(c)(2)....

Amendment 2, pertaining to drug offenses, contains three parts.  The Commission seeks comment on whether it should list the entire amendment, or one or more parts of the amendment, in subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants.

Part A changes the Drug Quantity Table in §2D1.1 for offenses involving crack cocaine. This has the effect of lowering guideline ranges for certain defendants for offenses involving crack cocaine.

Part B contains both mitigating and aggravating provisions for offenses involving drugs, regardless of drug type. The mitigating provisions have the effect of lowering guideline ranges for certain defendants in drug cases, and the aggravating provisions have the effect of raising guideline ranges for certain defendants in drug cases.

Part C deletes the cross reference in §2D2.1(b)(1) under which an offender who possessed more than 5 grams of crack cocaine was sentenced under §2D1.1. This has the effect of lowering guideline ranges for certain defendants for offenses involving simple possession of crack cocaine.

For each of these three parts, the Commission requests comment on whether that part should be listed in subsection (c) of §1B1.10 as an amendment that may be applied retroactively....

If the Commission does list the entire amendment, or one or more parts of the amendment, in subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants, should the Commission provide further guidance or limitations regarding the circumstances in which and the amount by which sentences may be reduced? 

May 5, 2011 in Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Sentences Reconsidered | Permalink | Comments (15) | TrackBack

"The Criminal Class Action"

The title of this post is the title of this very interesting looking new piece by Adam Zimmerman and David Jaros, which is now available via SSRN. Here is the abstract:

Over the past ten years, in a variety of high-profile corporate scandals, prosecutors have sought billions of dollars in restitution for crimes ranging from environmental dumping and consumer scams to financial fraud.  In what we call “criminal class action” settlements, prosecutors distribute that money to groups of victims as in a civil class action while continuing to pursue the traditional criminal justice goals of retribution and deterrence.

Unlike civil class actions, however, the emerging criminal class action lacks critical safeguards for victims entitled to compensation.  While prosecutors are encouraged, and even required by statute, to seek victim restitution, they lack adequate rules requiring them to (1) coordinate with other civil lawsuits that seek the same relief for victims, (2) hear victims’ claims, (3) identify conflicts between different parties, and (4) divide the award among victims.

We argue that prosecutors may continue to play a limited role in compensating victims for widespread harm.  However, when prosecutors compensate multiple victims in a criminal class action, prosecutors should adopt rules similar to those that exist in private litigation to ensure that the victims receive fair and efficient compensation.  We propose four solutions to give victims more voice in their own redress while preserving prosecutorial discretion: (1) that prosecutors and courts coordinate overlapping settlements before a single federal judge, (2) that prosecutors involve representative stakeholders in settlement discussions through a mediation-like process, (3) that courts subject prosecutors’ distribution plans to independent review to police potential conflicts of interest, and (4) that prosecutors adopt the distribution guidelines the American Law Institute developed for large-scale civil litigation to balance victims’ competing interests.

May 5, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Sex offender arrested for not telling authorities he was moving out of dumpster

This local story out of Albuquerque, headlined "Homeless man jailed for moving from dumpster," spotlights some of the sad realities that modern laws and practices present for sex offenders:

Charles Mader listed his address as a dumpster at 8th and Central in Albuquerque.  As a convicted sex offender he must give the Bernalillo County Sheriff's Department a physical address where he stays, so detectives can keep track of him.  Mader is convicted of trying to rape a six year old boy.

Mader lists the dumpster because he is homeless, but BCSO detectives say Mader moved from the dumpster and didn't report the move within ten days.  That violates his sex offender registration requirements.  Mader also must re-register with BSCO every 90 days. Detectives say he failed to do that, too.

On Monday, five deputies hunted for Mader and found him at a homeless facility north of downtown.  Detectives on the scene were frustrated with Mader saying they have told him over and over again to register....  Sheriff's officials say Mader now could face up to 3 years in jail because this is his third offense for failing to register.

KOB Eyewitness News 4 is told Mader moved from the dumpster to an abandoned building across the street from where deputies arrested him.

May 5, 2011 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (77) | TrackBack

Major Ohio sentencing and prison reforms close to becoming reality

As detailed in this local article, headlined "Sentencing overhaul would save state $78 million," Ohio is on the verge of enacting some significant criminal justice reforms. Here are the details:

House Bill 96, passed 95-2 yesterday by the Ohio House, is estimated to save the state nearly $78 million annually on prison costs, in part by diverting non-violent offenders to community programs and giving inmates credit off their sentences for participating in treatment and training.

In essence, the bill rolls back much of the "tough on crime" thinking that dominated state government for the past two decades -- resulting in a prison system with a nearly $2 billion biennial budget that is bulging with 31 percent more inmates than it was designed to hold.

Further, it provides the option of treatment instead of prison for low-level, nonviolent drug offenders, an option Ohio voters soundly rejected in a statewide ballot issue nine years ago.

The measure now heads to the Ohio Senate, where more tinkering is expected before it hits Gov. John Kasich's desk. The reforms were originally in Kasich's proposed two-year budget, but were pulled out this week to be considered as a separate measure.  "These are common sense improvements that are badly needed, and I look forward to their quick passage in the Senate so I can sign them into law," Kasich said in a statement after the vote....

Rep. Loretta Heard, D-Columbus, said the bill will "slow down the revolving door in Ohio prisons."  She said it will have "win-win outcomes for inmates and our communities."

On the other side of the aisle, Rep. Lynn Slaby, R-Akron, a former judge and prosecutor, said if he was "wearing my prosecutor's hat, I'd say, 'No, don't vote for it. We want to lock them all up and throw away the key. ' If I was wearing my judge's hat, I'd say, 'Don't vote for this because it takes away all my discretion, and you're trying to tell me how to do my job.'"  But as a freshman legislator, Slaby said he was happy to vote for the bill "because it accomplishes so much."

Among many provisions, the bill would:

• Authorize the Ohio Department of Rehabilitation and Correction to seek court permission to release certain inmates who have served at least 85 percent of their sentences.

• Credit offenders, with certain exceptions, who complete education, drug treatment and job training programs with up to five days per month off their sentence.

• Increase to $1,000 from $500 the threshold for increased theft penalties.

• Sentence most child-support offenders to community programs, not prison.

• Equalize penalties for crack cocaine and powder cocaine possession.

May 5, 2011 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack

May 4, 2011

Justice Stevens urges Congress to authorize suits against prosecutors for misconduct

As explained in this WSJ Law Blog post, retired SCOTUS Justice Stevens gave a speech earlier this week urging Congress to authorize suits against prosecutors for misconduct.  Here are the details:

Retired Justice John Paul Stevens said Supreme Court decisions have given local prosecutors impunity for violating constitutional rights, and urged Congress to respond by authorizing victims of misconduct to sue.

In a speech Monday night to the Equal Justice Initiative, which advocates for indigent defendants, Justice Stevens criticized the court’s March decision overturning a jury’s $14 million award to an innocent man who spent 14 years on death row after prosecutors concealed evidence that could have cleared him. (Click here to see the full text of Stevens’ speech.)...

Stevens said Monday that the nature of the American criminal justice system — where most local prosecutors are elected — “creates a problem of imbalanced incentives that ought to be addressed at the state and national level.”  Because district attorneys often run on tough-on-crime platforms, the pressures to ensure convictions far outweigh the rewards for respecting rights of the accused, Stevens said.

That could be fixed, he said, by making district attorneys liable when their subordinates commit outrageous violations of constitutional rights.  Private-sector employees already are liable for their employees’ misconduct, under a legal doctrine called respondeat superior.

The doctrine “provides a powerful continuing incentive for employers to make sure that their employees are adequately trained,” Stevens said, something “especially important where electoral incentives encourage abuse.”  More important, he said, “it would produce a just result in cases like Thompson’s in which there is no dispute about the fact that he was harmed by conduct that flagrantly violated his constitutional rights.”

May 4, 2011 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (42) | TrackBack

California gives up trying to get executions started until at least 2012

As detailed in this news report, headlined "California moratorium on executions is prolonged," the Golden state "will not be ready to defend its new lethal injection procedures in court until early next year, prolonging a moratorium on executions in California that has been in effect since January 2006." Here is why:

State lawyers told a federal judge last week that San Quentin's new warden, Michael Martel, needs more time to select a new team of guards to carry out executions.

Deficiencies in staff training and supervision were among the factors cited by U.S. District Judge Jeremy Fogel when he ruled in 2006 that the state's lethal injection methods posed an undue risk of a botched execution that would leave the inmate conscious and in agony while dying....

California has over 700 condemned prisoners, more than any other state, and has put 13 men to death at San Quentin since 1992, when executions resumed after a 25-year halt. Fogel told lawyers that the public must be wondering why the case has been on hold since 2006. "All they know is that it's taking five years to get to closure in this case and it's not easy to explain well," the judge said at Friday's hearing in San Jose, according to a transcript.

Lawyers for the state and the inmates told him they would need until at least mid-December to submit a list of issues for Fogel to address at a future hearing on the revisions in staff selection, training and injection procedures. The prison has also built a new execution chamber, which Fogel visited in February....

Even if Fogel rules that the new procedures comply with the constitutional ban on cruel and unusual punishment, appeals to higher courts will almost certainly delay the next execution until at least mid-2012.

Moral:  Where there is limited will, it is often hard to find the way.

May 4, 2011 in Death Penalty Reforms, Who Sentences | Permalink | Comments (14) | TrackBack

Two notable new empirical pieces on sentencing realities via SSRN

Recently posted on SSRN are these two very different pieces making very different empirical claims about sentencing realities:

A Test of Racial Bias in Capital Sentencing by Alberto Alesina and Eliana La Ferrara

Abstract: This paper proposes a test of racial bias in capital sentencing based upon patterns of judicial errors in lower courts. We model the behavior of the trial court as minimizing a weighted sum of the probability of sentencing an innocent and that of letting a guilty defendant free. We define racial bias as a situation where the relative weight on the two types of errors is a function of defendant and/or victim race. The key prediction of the model is that if the court is unbiased, ex post the error rate should be independent of the combination of defendant and victim race. We test this prediction using an original dataset that contains the the race of the defendant and of the victim(s) for all capital appeals that became final between 1973 and 1995. We find robust evidence of bias against minority defendants who killed white victims: in Direct Appeal and Habeas Corpus the probability of error in these cases is 3 and 9 percentage points higher, respectively, than for minority defendants who killed minority victims.

Estimating the Deterrent Effect of Incarceration Using Sentencing Enhancements by David Abrams

Abstract:  Increasing criminal sanctions may reduce crime through two primary mechanisms: deterrence and incapacitation. Disentangling their effects is crucial, since each mechanism has different implications for optimal policy setting. I use the introduction of state add-on gun laws, which enhance sentences for defendants possessing a firearm during the commission of a felony, to isolate the deterrent effect of incarceration. Defendants subject to add-ons would be incarcerated in the absence of the law change, so any short-term impact on crime can be attributed solely to deterrence. Using cross-state variation in the timing of law passage dates, I find that the average add-on gun law results in a roughly 5 percent decline in gun robberies within the first three years. This result is robust to a number of specification tests and does not appear to be associated with large spillovers to other types of crime.

May 4, 2011 in Data on sentencing, Death Penalty Reforms, Gun policy and sentencing | Permalink | Comments (2) | TrackBack

Another notable circuit ruling on internet restrictions for child porn offenders

The Third Circuit has a notable opinion today in US v. Albertson, No. 09-1049 (3d Cir. May 4, 2011) (available here), which gets started this way:

We consider once again what are appropriate computer-related supervised release conditions for child pornography offenders.  Appellant Randy Albertson pled guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). The District Court sentenced him to 60 months’ imprisonment (the minimum 3 mandated) and 20 years’ supervised release with eight special conditions.   On appeal, Albertson challenges the reasonableness of the 20-year term and three of the special conditions of his supervised release, including a restriction on internet access, mandatory computer monitoring, and a restriction on his association with minors.  As we agree with Albertson only that a wholesale ban on his internet use is broader than necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a), we affirm the duration of the supervised release term and the association-with-minors restriction, vacate and remand the internet restriction, and remand the monitoring requirement for adaption to a more tailored internet restriction.

May 4, 2011 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences | Permalink | Comments (9) | TrackBack

Why is the Obama Administration now talking up federal prosecutions of state medical marijuana providers?

The question in the title of this post is prompted  by this interesting new AP article, which is headlined "States reassess marijuana laws after fed warnings."  Here are excerpts:

Several states have started reassessing their medical marijuana laws after stern warnings from the federal government that everyone from licensed growers to regulators could be subjected to prosecution.

The ominous-sounding letters from U.S. attorneys in recent weeks have directly injected the federal government back into a debate that has for years been progressing at the state level.

Warnings in Washington state led Gov. Chris Gregoire to veto a proposal that would have created licensed marijuana dispensaries. Gregoire, the chair of the National Governors Association, now says she wants to work with other states to push for changes to federal marijuana laws to resolve the legal disputes caused by what she described as prosecutors reinterpreting their own policies. "The landscape is changing out there. They are suggesting they are not going to stand down," Gregoire said.

The Department of Justice said two years ago that it would be an inefficient use of funds to target people who are in clear compliance with state law.  But U.S. attorneys have said in their recent memos that they would consider civil or criminal penalties for those who run large-scale operations — even if they are acceptable under state law. In a letter to Gregoire, Washington state's two U.S. attorneys warned that even state employees could be subject to prosecution for their role in marijuana regulation....

Letters with various cautions have also gone to officials in California, Colorado, Montana and Rhode Island.  Federal authorities recently conducted a series of raids at grow operations in Montana, helping push lawmakers to put stricter limits on the industry. Federal raids also targeted at least two dispensaries in Spokane on Thursday, a day before Gregoire decided to veto the proposed law.

More than a dozen states have approved the medical use of marijuana, which is not legal under federal law.  About half of those states regulate medical marijuana dispensaries. The impact of the U.S. attorneys' letters is growing.  New Jersey is in the process of preparing to implement its new medical marijuana law, but Gov. Chris Christie's administration doesn't want to get operations fully up and running until it can get some clarity about the legal warnings issued in other states and how they might affect New Jersey workers and marijuana operators....

The federal comments have angered supporters of medical marijuana, who had believed that the Obama administration was honoring state laws.  Ezra Eickmeyer, political director for the Washington Cannabis Association, said it appears prosecutors are operating under a more aggressive policy.  "Coming in and trying to strong-arm legislatures is way over the top," Eickmeyer said.  "We would have expected this sort of thing form the Bush administration, but not Obama."

May 4, 2011 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (12) | TrackBack

"In Prison, College Courses Are Few"

The title of this post is the headline of this Wall Street Journal article, which gets started this way:

While serving more than 12 years for robbery, Carlos Rosado completed the requirements for a bachelor of arts degree from Bard College, helping him land a job after his release last spring from a New York state prison.  "Most inmates never have the opportunity to get a college degree," said Mr. Rosado, 36 years old, who works as a field engineer for a recycling firm.

The rarity of that opportunity was underscored in a survey to be released Wednesday by the Institute for Higher Education Policy, a nonprofit devoted to increasing access to post-secondary education around the world.

Based on data provided by correctional officers in 43 states, the survey found only 6% of prisoners were enrolled in vocational or academic post-secondary programs during the 2009-2010 school year.  Of those who were enrolled, 86% were serving time in 13 states, suggesting other states provide little access to inmate education.

The survey, funded by the Bill & Melinda Gates Foundation, argued for giving inmates greater access to education — including Internet-based programs — on grounds that doing so could reduce the overall cost of incarceration by limiting recidivism.  About 2.3 million prisoners in the U.S. cost about $52 billion a year, the survey said.  At a time of severe budget constraints, any plan to increase funding for prisoner education could face political difficulties.

Here is another excerpt which highlights the impact of some Clinton-era punishment policies:

Inmate education in America plummeted after President Bill Clinton's crime bill of 1994 rendered federal and state prisoners ineligible for Pell Grants, a form of federal financial aid for college.   Since then, the educational opportunities for state inmates have varied dramatically from state to state.  According to the study, 13 states have made it a priority: Washington, Idaho, California, Arizona, Texas, Louisiana, Arkansas, Missouri, Wisconsin, Indiana, Ohio, North Carolina and New York.

"Keeping someone in prison costs about the same per year as sending them to Harvard," said Max Kenner, founder of the Bard Prison Initiative, a privately funded nonprofit that brings Bard College classes to prisoners in five facilities in New York.  Published research shows that prisoners who obtain post-secondary degrees are much less likely than others to return to crime upon release, Mr. Kenner said.

A policy statement from the American Correctional Association, a trade group for correctional professionals, says that "public and private agencies should develop, expand, adequately fund and improve delivery systems for academic, occupational and other educational programs for charged and adjudicated juvenile and adult offenders."

May 4, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

Could violent video games actually reduce violent crimes?

The question in the title of this post is prompted by this notable research available via SSRN. The article is titled "Understanding the Effects of Violent Video Games on Violent Crime," and here is the abstract:

Psychological studies invariably find a positive relationship between violent video game play and aggression.  However, these studies cannot account for either aggressive effects of alternative activities video game playing substitutes for or the possible selection of relatively violent people into playing violent video games.  That is, they lack external validity.

We investigate the relationship between the prevalence of violent video games and violent crimes. Our results are consistent with two opposing effects.  First, they support the behavioral effects as in the psychological studies.  Second, they suggest a larger voluntary incapacitation effect in which playing either violent or non-violent games decrease crimes.  Overall, violent video games lead to decreases in violent crime.

May 4, 2011 in Offender Characteristics, Offense Characteristics | Permalink | Comments (5) | TrackBack

May 3, 2011

Texas becomes third state to use new drug in lethal injection execution

As detailed in this new Reuters piece, "Texas on Tuesday carried out its first execution using a sedative often used to euthanize animals." Here is more:

Cary Kerr, 46, was put to death by lethal injection for the 2001 sexual assault and strangling of Pamela Horton. The new drug, pentobarbital, replaced sodium thiopental in Texas' three-drug execution protocol.

The change was necessary because Hospira Inc. of Illinois announced in January it would stop making the sodium thiopental after Italy objected to Hospira manufacturing an execution drug in that country. That caused a shortage of the drug throughout the United States. Ohio and Oklahoma have already switched to use of pentobarbital in executions.

Another Texas inmate, Cleve Foster, had been scheduled to be the first person in the state executed using the new drug last month. But Foster received a temporary stay of execution from the U.S. Supreme Court over concerns his state-appointed lawyers were ineffective.

May 3, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

The latest story on Bin Laden's killing (which justifies a fresh thread)

This New York Times update, headlined "White House Corrects Bin Laden Narrative," provides the latest report on the latest story of what happened the night we drove Bin Laden down.  (Apologies, of course, to The Band for this phrasing (or to Joan Baez and The Muppets).)  Here are the basics:

White House officials on Tuesday sought to correct the official account of the raid in Pakistan that ended in the killing of Osama bin Laden, saying that the Qaeda leader was not armed and that his wife was not killed.

The new Defense Department narrative released by the White House, and read at a White House news briefing on Tuesday, said that one of Bin Laden’s wives was shot in the leg as she charged members of the commando team on the third floor of the compound.

“In the room with Bin Laden, a woman -- Bin Laden’s wife -- rushed the U.S. assaulter and was shot in the leg but not killed,” the brief statement said. “Bin Laden was then shot and killed. He was not armed.”

Jay Carney, the White House press secretary, read the narrative in an attempt to correct statements by administration officials who had suggested that Bin Laden was armed during the raid.

Under questioning, Mr. Carney said that the White House stood by its claim on Monday that Bin Laden had resisted capture, but said that “resistance does not require a firearm.” Mr. Carney said that the new narrative was the result of “fresh” information. “I want to make clear that this is, again, information that is fresh and, you know, we will continue to gather and provide to you details as we get them and we’re able to release them,” Mr. Carney said. “The resistance was throughout, as I said.”

Prior post (with lots and lots of comments):

May 3, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (25) | TrackBack

New letter to Congress urges cost-saving federal criminal justice reforms

I received via e-mail this notice from The Sentencing Project about a notable letter sent to leading members on Congress about criminal justice reform:

The Sentencing Project and a group of national and state organizations sent a letter to Capitol Hill yesterday urging lawmakers to enact a comprehensive plan to reduce the federal prison population. A number of states have already reduced corrections populations with no threat to public safety and the federal prison system should do the same.

The Sentencing Project’s 2010 report, Downscaling Prisons: Lessons from Four States, found that Kansas, Michigan, New Jersey and New York had all experienced significant declines, ranging from 5% to 20%, in their prison populations. The state reductions came about by limiting mandatory minimum sentences for drug offenses, diverting defendants with low-level convictions from incarceration, enhancing release programs and reducing parole revocations.

The federal prison system needs to make the same progress.  Its system has increased at more than double the rate of state prisons since 2000, contributing to an overcrowded system that is dangerous for staff and prisoners.   Since 1980, there has been a 700% increase in the prison population and a 1712% increase in expenditures.

The full letter, which is available at this link, makes for an interesting read.

May 3, 2011 in Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

Shouldn't crack sentences within old guideline ranges no longer be presumptively reasonable?

The question in the title of this post is inspired by a relatively uninspiring final paragraph from a relatively minor Eighth Circuit ruling today in the cocaine case US v. Hill, No. 10-3421 (8th Cir. May 3, 2011) (available here).  Here is the factual and legal lead up and the final paragraph that has me worked up:

Appellant Kevin Hill was convicted of three counts of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). On appeal, the appellant claims [inter alia] that the district court ... erred in not granting a variance from the advisory guideline sentencing range of 188 to 235 months....

The appellant was charged with three counts of distribution of cocaine base (crack cocaine). The indictment alleged that the appellant had distributed a total of 7.8 grams of crack cocaine to a confidential informant on three separate occasions. However, he later confessed to distributing an additional 198 ounces of cocaine, and the use of his confession is the primary subject of this appeal....

Finally, the appellant contends that the district court erred in not granting a downward variance from the guideline range. He asserts that the ratio of crack cocaine to powder cocaine creates an unwarranted sentencing disparity within the meaning of 18 U.S.C. § 3553(a)(6)....

Here, the district court properly considered all the arguments, including the crack to powder cocaine ratio argument, and the 18 U.S.C. § 3553(a) factors and sentenced the appellant to the bottom of the advisory range. A sentence within the guidelines range is presumptively reasonable. See United States v. Vinson, 631 F.3d 476, 487 (8th Cir. 2011) (citations omitted).  The district court did not abuse its discretion in sentencing the appellant to 188 months in prison.

I would need more information than what's provided in this opinion to come to a judgment as to whether Hill's 15.6-year sentence here for distributing 7.8 grams of crack cocaine to an informant is reasonable.  But I long ago came to the judgment that the presumption of reasonableness for within-guideline sentencing ought not apply to within-guidelines crack sentences which the US Sentencing Commission had repeatedly and emphatically determined to be contrary to 3553(a)'s purposes.  And now that crack guidelines have been reduced via statutes by Congress and new amendments by the Commission, I find it even harder to stomach the notion that within-guideline crack sentences imposed under defunct and unjust old law merit a presumption of reasonableness (a presumption which, to my knowledge, has never been rebutted)!

Again, to be clear, in the absence of more information about Kevin Hill's crimes and history, I cannot readily assail the decision to affirm his 15.6-year sentence here.  But I can and do readily assail the decision to affirm this sentence by presuming the reasonableness of guidelines that Congress in 2010 determined were so bad that they needed to be dramatically reformed.  The rationale of the Supreme Court's work in Rita was that a presumption of reasonableness for within-guideline sentence was permissible (though not required) to adopt because a within-guideline sentence generally indicated that both the USSC and a district judge assessed the need for a particular sentence under 3553(a) similarly.  But in crack cases sentenced under the old guidelines, there is long line of USSC reports and actions as well as now clear Congressional reforms, indicating that the old guideline ranges were unfair and unjust. 

In short, given that Congress has change crack sentencing laws to be more fair, why should the Eighth Circuit or other reviewing courts still declare sentences imposed under the old unfair guidelines essentially immune from substantive reasonableness review by mere invocation of the "presumption of reasonableness"?   It just makes no sense, and perhaps reveals just how resistant some (most? all?) circuits are to developing a true common-law of sentencing even six+ years after Booker called upon them to do so.

May 3, 2011 in Booker in the Circuits, Sentences Reconsidered, Who Sentences | Permalink | Comments (14) | TrackBack

"Moral Character, Motive, and the Psychology of Blame"

The title of this post is the title of this interesting new piece on SSRN, which is authored by Janice Nadler and Mary-Hunter McDonnell.  Here is the abstract:

Blameworthiness, in the criminal law context, is conceived as the carefully calculated end product of discrete judgments about a transgressor’s intentionality, causal proximity to harm, and the harm’s foreseeability.  Research in social psychology, on the other hand, suggests that blaming is often intuitive and automatic, driven by a natural impulsive desire to express and defend social values and expectations.  The motivational processes that underlie psychological blame suggest that judgments of legal blame are influenced by factors the law does not always explicitly recognize or encourage.

In this Article we focus on two highly related motivational processes -- the desire to blame bad people and the desire to blame people whose motive for acting was bad. We report three original experiments that suggest that an actor’s bad motive and bad moral character can increase not only perceived blame and responsibility, but also perceived causal influence and intentionality.  We show that people are motivated to think of an action as blameworthy, causal, and intentional when they are confronted with a person who they think has a bad character, even when the character information is totally unrelated to the action under scrutiny.  We discuss implications for doctrines of mens rea definitions, felony murder, inchoate crimes, rules of evidence, and proximate cause.

Though this piece ends by exploring implications for various traditional criminal law doctrines, I see the psychology of blame as uniquely important for sentencing law, policy and practice.

May 3, 2011 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

May 2, 2011

Bin Laden's killing, visions of justice and the death penalty

Unsurprisingly, today folks seem interested in talking about the topics in the title of this post, so here is a dedicated post to enable commentors to go at it.

UPDATE: The BLT has this notable post headlined "What Was the Legal Basis for the Bin Laden Strike?". It begins this way:

The killing of al-Qaeda leader Osama bin Laden is engaging some of the thorniest questions of the United States' post-Sept. 11 campaign against terrorism, including the government's legal justification for carrying out the targeted killing of suspected terrorists.

Lawyers who specialize in national security said today that the United States had several possible legal justifications for carrying out Sunday’s strike. But the operation in Abbottabad, Pakistan, raises other issues, too.

May 2, 2011 in Death Penalty Reforms | Permalink | Comments (74) | TrackBack

Interesting buzz about possible new marijuana initiative in Ohio

My local Columbus Dispatch has this notable new "daily briefing" piece about an interesting issue percolating in my backyard.  The piece is headlined "Billionaire Peter Lewis floating marijuana ballot issue," and here is how it starts:

Billionaire Peter Lewis is floating a proposal for an Ohio ballot issue to legalize medical use of marijuana.

Lewis, a Clevelander who is head of Progressive Insurance, the nation's third-largest insurer, has given millions over the years to marijuana-related causes.  Now he wants to bring the issue to his home state.  Through his attorney, Lewis put out a request for proposals to pass an Ohio issue that will "create a model for future campaigns in other states."

Following California in 1996, 14 other states have passed ballot issues legalizing marijuana for medically qualified patients, most through ballot issues.

The RFP says Ohio "stands out as having particularly high levels of voter support.  This provides an opportunity to enact a new law that will directly help patients and to do so in a manner that will serve as a model for other states."

Lewis is seeking a proposal to include drafting ballot language, qualifying for the ballot, building an organization, communicating with voters, and raising money.

May 2, 2011 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

SCOTUS summary reversal in another Ohio capital habeas case

As effectively reported over at SCOTUSblog, the Supreme Court this morning issued "a summary disposition in Bobby v. Mitts, No. 10-1000, [in which a] decision of the Sixth Circuit is reversed; the opinion is a per curiam one, with no separate statements or dissents."  This summary reversal, which concerns a habeas challenge to the penalty-phase instructions in an Ohio capital case, can be accessed here.

A quick glance at this brief PC opinion suggests there is not much of broader interest/concern here, but perhaps readers have another perspective.

May 2, 2011 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (15) | TrackBack

"Internet Lets a Criminal Past Catch Up Quicker"

The title of this post is the headline of this recent New York Times piece, which includes these interesting passages with data on criminal histories and their potential employment impact:

The pool of Americans seeking jobs includes more people with criminal histories than ever before, a legacy in part of stiffer sentencing and increased enforcement for nonviolent crimes like drug offenses, criminal justice experts said. And each year, more than 700,000 people are released from state and federal prisons, a total that is expected to grow as states try to reduce the fiscal burden of their overcrowded penal institutions.

Almost 65 million Americans have some type of criminal record, either for an arrest or a conviction, according to a recent report by the National Employment Law Project, whose policy co-director, Maurice Emsellem, says that the figure is probably an underestimate.... 

In a 2010 survey by the Society for Human Resources Management, almost 90 percent of the companies surveyed, most of them large employers, said they conducted criminal background checks on some or all job candidates.  Advocates for workers say that the indiscriminate use of background checks by companies has made finding employment extremely difficult for millions of Americans....

There is no federal law that prohibits discrimination against people with criminal records. But the Equal Employment Opportunity Commission has set guidelines on how employers can use such records.  Because African-Americans, Hispanics and other minorities have higher rates of criminal convictions, a blanket policy that screens out anyone with a criminal history will discriminate against these groups, the commission says, and is unlawful under Title VII of the Civil Rights Act of 1964....  The studies have been cited in some lawsuits over criminal background checks.  Taken collectively, they indicate that “it is no longer accurate to say that individuals with criminal records are always a higher risk than individuals without a criminal record,” said Shawn Bushway, an associate professor of criminal justice at the University at Albany, one of several researchers who have conducted redemption studies.

May 2, 2011 in Offender Characteristics, Who Sentences | Permalink | Comments (14) | TrackBack

May 1, 2011

Guest thoughts on the Ninth Circuit's recent significant child porn sentencing work

In the last few weeks, the Ninth Circuit has issued two significant federal child porn sentencing opinions in Apodaca (discussed here) and Henderson (discussed here).  I invited Joshua Matz, who authored a Harvard Law Review comment on the Second Circuit's big Dorvee case (noted here) and who hosted me at an HLS event last month, to author a guest-post on these cases.  Here is his effort:

Powerful Shots Across the Commission’s Bow on Child Porn Guidelines — This Time from the Ninth Circuit

It is no secret that the federal child porn sentencing guidelines have sustained withering criticism from the academy and district courts.  Motivated in part by a surge in federal prosecutions, commentators have strongly encouraged the Sentencing Commission to revisit guidelines widely decried as unduly severe and unmoored from empirical evidence.

In two recent cases, the Ninth Circuit staked out an aggressive position amongst these critics — first raising the specter of aggressive review for substantive reasonableness in US v. Apodaca, and then holding in US v. Henderson that district courts are free to vary from § 2G2.2 based solely on policy disagreement with that guideline.  These opinions likely will transform child porn sentencing practice in the Ninth Circuit and signals to the US Sentencing Commission that its failure to produce meaningful reform justifies unilateral judicial action.

The Ninth Circuit hardly stands alone.  In US v Dorvee, an opinion issued last May, the Second Circuit overturned a within-Guidelines sentence under U.S.S.G. § 2G2.2 as substantively unreasonable.  Its opinion sharply assailed the guideline’s empirical foundations and inability to achieve either parsimony or proportionality in sentencing.  A few months later, in US v. Grober, the Third Circuit affirmed a district court child porn sentencing opinion that mounted a sustained assault on the relevant guidelines provisions by discussing thirteen days of expert testimony presented to the lower court.

In Apodaca, the Ninth Circuit reprised many of these themes while exploring a defendants’ claim that his within-Guidelines term of lifelong supervised release was substantively unreasonable.  Focusing on the Guidelines’ failure to distinguish between contact and possession-only offenders — notwithstanding studies that strongly suggest different recidivism rates — Apodaca raised serious questions about the empirical support for a choice to treat these groups similarly.  Invoking Kimbrough in a concurring opinion, Judge William Fletcher went farther and argued that the Commission did not act in its “characteristic institutional role” when it failed to translate § 3583(k) into sentences appropriate to § 3553(a)-relevant subtypes of child porn crimes.  Because the Guidelines impose the same terms of supervised release on a broad range of offenders, he argued, they raise concerns about empirical support, similar treatment for dissimilar defendants, and focusing on particular characteristics of the offense and the offender.

The most surprising thing about Apodaca is that it affirmed the sentence below, turning aside at the last minute from its forceful criticism by finding that available evidence falls short of conclusive proof.  Given that the court identified only a single study questioning strong empirical support for different recidivism rates — and that a co-author of that single study has disowned the suggestion that his work disturbs a scholarly consensus — the ApodacaCourt’s own reasoning could easily have justified reversal of the sentence below.  Instead, the Court merely observed that additional evidence might provide “grounds to find that sentencing an individual like Apodaca to a lifetime term of supervised release is substantively unreasonable.”

This challenge, which defense counsel should treat as an invitation to press their empirical case in the district courts, suggests that the Ninth Circuit has joined the Second and Third in its willingness to searchingly explore the underlying justification for child porn sentences in light of § 3553(a)’s framework.  Indeed, the court’s use of substantive reasonableness review grounded in statutory principles of parsimony, proportionality, individualization, and empirical support mirrors Dorvee and participates in an important trend in appellate review of the Guidelines.

These same methods of reviewing a guideline should also play a significant role in post-Hendersonsentencing.  By holding that § 2G2.2 does not reflect the Commission’s “characteristic institutional role” and permitting variance based purely on policy disagreement, the Ninth Circuit opened the door to searching district court review of § 2G2.2’s rationality as both an exercise in administrative rulemaking and a guide to reasonable sentences in particular cases.  Judge Berzon actively encouraged such reflection and criticism in her concurring opinion, writing separately “to emphasize that unjust and sometimes bizarre results will follow if § 2G2.2 is applied by district courts without a special awareness of the Guidelines anomalous history.”

Now that district courts are required by Henderson to “appreciate” their Kimbrough discretion, and given the partial overlap between critiques of § 2G2.2 and § 5D1.2, trial counsel arguing the infirmity of child porn guidelines can simultaneously achieve two goals: (1) elaborating empirical and § 3553(a) grounds for future appellate findings of substantive unreasonableness and (2) providing district judges with concrete information relevant to a determination of whether their Kimbrough discretion ought to be exercised to vary from § 2G2.2 as a matter of policy.

These developments point to an explanation for why the Apodaca Court stayed its hand from an outright finding of substantive unreasonableness.  In that case, Judge William Fletcher concurred and called upon the Commission and Congress to “address the undifferentiated treatment of the dissimilar groups of sex offenders covered by § 3583(k) and U.S.S.G. § 5D1.2(b)(2).”  Just one week later, the Ninth Circuit essentially allowed each district judge to place § 2G2.2 under review.  These opinions strongly signal to the Commission that its policy statements are lacking and that, if it wants its Guidelines to avoid rougher judicial treatment in the future, the Commission should embrace the opportunity for reform provided by an upcoming reassessment of its child porn guidelines. In the interim, courts wielding Kimbrough discretion and substantive reasonableness doctrine will refine their own careful assessment of the Commission’s efforts.

May 1, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Private providers seeking piece of prison health care pie in Texas

The Austin American-Statesmen has this fascinating new piece on prison health care cost debates in Texas. The piece is headlined "Lawmakers chafe as push continues to privatize prison health care," and here are excerpts:

Efforts by private companies to get a piece of Texas' nearly $1 billion prisoner health care system are quietly continuing behind the scenes as company representatives make sales pitches to lawmakers and seek changes in state law to authorize privatization.

Some legislative leaders and others are chafing about the continued privatization push, saying the idea has not been studied or vetted publicly — and is being advanced by outside interests even though neither the House nor the Senate has embraced it.... The American-Statesman first reported the privatization efforts in March and that top aides to Gov. Rick Perry have been involved in some of the meetings with vendors and lobbyists....

Under current law, the University of Texas Medical Branch at Galveston and Texas Tech University Health Sciences Center are in charge of providing health care to Texas' 154,000 imprisoned felons.  Skeptics say Texas could be embarking on the next privatization boondoggle.

"Privatization usually means significantly higher costs and poorer care," said Tom "Smitty" Smith, Texas director of Public Citizen, a government watchdog group.  "This should be done in the open, not in the dark, after a full-blown analysis ... or it will end up just being another corporate giveaway."...   Ana Yanez Correa, executive director of the Texas Criminal Justice Coalition, also opposes the idea.... "It's a horrible idea. The only way to save money is to minimize the care that's provided."

Under the House-approved budget, correctional health programs would receive more than $700 million over the next two years.  The Senate version, not yet voted on, would allocate about $900 million.  At either amount, it's a big prize for private vendors.  Though officials with the various companies decline to discuss their lobbying or their proposals, lawmakers confirm that the sell is on.

In a written proposal circulated to lawmakers, Correctional Medical Services Inc. — which provides prison medical services to 277,000 inmates in 330 lockups in 18 states — says it could save Texas $30 million to $50 million annually.

Company officials could not be reached to elaborate, but its written proposal says it would cut costs by reducing admissions of prisoners to hospitals and by reducing the number of inpatient days that prisoners are there — a rate that the company says is 300 percent higher in Texas than the average at its locations.  It would also enhance medical treatment in prison clinics, as a way to keep convicts from being sent to a hospital, where the costs would be higher. Reducing annual admissions by 140 percent would yield a potential savings of $34 million, the proposal states....

Though state prison officials have indicated that they will probably seek information from potential bidders to determine whether privatization would provide savings, they and legislative veterans say they are wary of pushing ahead for privatization based on experiences with past prison outsourcing projects.

For example, the Texas Department of Criminal Justice has several times hired private companies to provide substance-abuse treatment programs in state prisons, only to face rising costs after the contracts started because the companies lowballed their bids and could not continue providing the services at the low prices....

Despite the concerns, members of the Board of Criminal Justice, which governs the prison system, say the potential savings are worth exploring, as a start....  Board members Tom Mechler of Amarillo and David Nelson of Lubbock said the continuing losses of the two university health care providers, and the state's tight budget, are driving interest in alternatives.  "We should be considering every option — to reduce the cost to taxpayers, to improve the quality of care, to make the system better," said Nelson, who until last month headed the board's health care committee. "In my view, everything is on the table."

May 1, 2011 in Prisons and prisoners, Who Sentences | Permalink | Comments (3) | TrackBack

"Sheriff's Program Teaches Prisoners To Get Out Of Jail"

The title of this post is the headline of this new NPR piece.  Here are excerpts from the provided text:

Los Angeles County Sheriff Lee Baca has a big job. He's responsible for the country's largest local jail jurisdiction, which held more than 160,000 inmates last year alone. But Baca isn't interested in locking up criminals and throwing away the key; he wants to give them an education.

His Education-Based Incarceration initiative focuses on promoting intellectual growth in prisoner... Menial jobs aren't the best way for inmates to spend their time in prison, Baca says, because "that's not what gets you a job outside the jail." What does is reliability, he says, and proving "you're smart enough to be trained in a new job."

The program launched this year and has about 2,000 inmates participating in the beta phase. Once incarcerated, individuals are given academic evaluations. Correctional personnel then create a personalized curriculum, which ranges from basic reading and writing skills to core subjects like science and history. It's a mixture of classes and reading materials, plus newer learning tools like MP3 players with pre-loaded lectures.

Baca wants his prisoners to accomplish more than academic achievement. He wants the program to equip inmates for a better life outside prison walls. Courses in life skills like leadership and decision making give time in prison a constructive purpose. "They are learning a different way of how to assess their time as they are serving time in jail," he says....

Right now, only Los Angeles County uses Education-Based Incarceration, but Baca knows for the program to truly be a success, the state jails will have to follow suit. "My belief is that you can incarcerate a body, but you should never incarcerate a brain," Baca says. "The brain must develop regardless of what the environment is."

May 1, 2011 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Tackling the challenges of prisoner fathers who owe child support

This new AP piece, headlined "Conn. to help inmates pare child-support bills," discusses a new state programs dealing with an enduring prisoner problem:

[For] incarcerated parents across the country, the vast majority of them fathers, [being] in prison does not mean they won't have to pay child support or repay the state for welfare paid to their families in lieu of child support.  Experts say the debt can make overwhelmed parents less likely to pay when they are released, and potentially damage relationships with their children.

Jessica Pearson, director of the Center for Policy Research in Denver, said her studies of state programs for the federal government show that more than half the inmates in both state and federal prisons are parents with children under 18, and half of those have active child-support cases. "In general, inmates seem to go in owing about $10,000 in child support and come out owing about $20,000," she said.

In several states, such as Tennessee, incarceration is considered "voluntary unemployment," and inmates cannot get child support obligation amended while in prison.  Those laws are designed to ensure inmates are not being rewarded for committing a crime, and children don't get penalized, Pearson said....

States such as Massachusetts and Texas allow inmates to have child-support orders modified to a minimum payment, which can range from $20 to $80 a month depending on the state, according to the federal Office of Child Support Enforcement.  Others, including Connecticut, allow a judge to eliminate the payments entirely while a parent has no income....

Several states, including Illinois and Maryland, have begun programs that will forgive any debt owed to the state, if a former inmate makes regular child-support payments for a specified amount of time, as little as six months in the case of Illinois, Pearson said.  Federal grants have been made available from the federal Office of Child Support Enforcement to states for programs to help inmates become better fathers, access state services and get jobs.  But Pearson said there is little incentive for states to pass legislation to forgive child-support debts.

"It's a land mine for politicians," she said.  "To be soft on prisoners, and cut them deals, and forgive state debt for prisoners? T hey also don't want to make the poor chap who is doing the right thing and working two or three jobs to pay off his debt feel like a fool."

May 1, 2011 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (4) | TrackBack