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May 21, 2011

"States Seeking New Registries for Criminals"

The title of this post is the headline of this new piece from the New York Times.  It gets started and finishes this way:

Lawmakers around the country are pushing for online registries, like those used for sex offenders, to track the whereabouts of people convicted of a wide variety of crimes, from arson and drunken driving to methamphetamine manufacturing and animal abuse.

State senators in Illinois are considering a law to create the nation’s first registry for first-degree murderers. In Maine, legislators are debating an online registry of drunken drivers. And proposals to register animal abusers have been put forward in several states; one such registry, in Suffolk County on Long Island, will become operational next week.

Under a canine version of Megan’s Law, Virginia even registers dangerous dogs, including Elvis, a cat-killing collie in Roanoke whose bad acts are among those listed on the state’s database.

Advocates for online registries, many of them searchable by the public, argue that people have a right to know about potentially dangerous offenders in their midst and that the benefit of alerting parents, neighbors and others in a community outweighs any privacy concerns.

But as the registries proliferate, so do questions about their value. Critics say that while the registries are attractive to politicians who want to appear tough on crime, they often do little more than spread fear and encourage vigilantism.

The monitoring systems cost money at a time when recession-strapped states can ill afford the extra expense, the critics say, and their effectiveness is dubious: Sex offender registries, for example, have had little success in reducing repeat crimes, studies suggest....

Perhaps the biggest question about criminal registries is how effective they are in preventing offenders from committing future crimes....

Only a handful of studies have so far examined the effect of registry and notification laws for sex offenders on recidivism, Dr. [Jill] Levenson said, but “so far, the vast majority of those studies do not show a decrease in repeat sex offenses that can be attributed to sex offender registry or notification.”

Murderers have among the lowest rates of recidivism. Only about 1.2 percent of convicted murderers go on to commit another murder within three years of their release; roughly 35 percent commit other types of crimes within the same time period. But in Ms. [Patricia] Rosenberg’s view, if even one murder is prevented by notifying the public it is worth it. “Would it be more plausible if you thought they would commit four, five, six, seven murders?” she asked. “I think any life, one life, is worth saving.”

May 21, 2011 in Criminal Sentences Alternatives, Offense Characteristics | Permalink | Comments (26) | TrackBack

Revised data from USSC concerning potential impact of FSA guideline retroactivity

The US Sentencing Comission now has posted here this document described as an "Analysis of the Impact of Guideline Implementation of the Fair Sentencing Act of 2010 if the Amendment Were Applied Retroactively." This Commission document provides an updated estimate of the impact on drug offenders currently incarcerated of any decision to make the new revised crack guidelines retroactive. Here are key snippets from the lengthy document:

On October 15, 2010, the United States Sentencing Commission promulgated a temporary, emergency amendment that implemented the emergency directive in section 8 of the Fair Sentencing Act of 2010. On April 6, 2011, the Commission re-promulgated the temporary amendment as a permanent amendment, which will become effective, absent congressional action, on November 1, 2011.  The Commission also voted to publish an issue for comment regarding whether, pursuant to 28 U.S.C. § 994(u) and 18 U.S.C. § 3582(c)(2), it should give the amendment retroactive effect, and announced a hearing for June 1, 2011 regarding that issue.  This memorandum estimates the impact on offenders currently incarcerated in the federal prison system of portions of the amendment, if the Commission were to make all of the amendment, or those portions, retroactively applicable....

After accounting for those offenders for whom the sentencing range would not change after application of the FSA Guideline Amendment, the total number of crack cocaine offenders incarcerated on November 1, 2011, who are estimated to be eligible to receive a reduced sentence under 18 U.S.C. § 3582(c)(2) is 12,040....

Based on [various] assumptions, the average sentence reduction for all impacted offenders with sufficient information to perform this analysis would be 22.6 percent (or 37 months, from 164 months to 127 months)....  [It appears] that 7,152 offenders (78.1%) would receive a sentence reduction of 48 months or less.  Conversely, 280 offenders (3.1%) would receive a sentence reduction of more than 10 years.

May 21, 2011 in New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (3) | TrackBack

May 20, 2011

"Obama Pardons: Alligator Hides, Hashish and Satellite TV"

The title of this post is the headline of this Time piece reporting the news that President Obama has now issued his second batch of pardons.  Another notable piece about Obama's clemency efforts comes from PS Ruckman at the Pardon Power blog in this post titled "Obama: 8 More Pardons to the Tiny Little Pile."

The Time piece's intro to its list of the eight pardon recipients provides a telling indication of how recent presidents have turning this historic power into a near punchline:

You know it’s a Friday afternoon if the White House sends out the latest list of presidential pardons. Here are today’s lucky winners, all of whom were convicted of non-violent crimes. Some swing states represented, but no campaign contributors.

Relatedly, I received via e-mail a reaction from Families Against Mandatory Minimums (FAMM) president Julie Stewart, who released this fitting statement in response to President Obama's announcement of eight pardons:

"We're happy that these eight people will have their civil rights restored by this presidential pardon, but it's sad that the Justice Department has not brought the president one prison sentence to shorten.  It can't be true that there isn't a single person among the 210,000 currently in federal prison who shouldn't be there.  In fact, during the campaign the president acknowledged that federal prisons are filled with nonviolent offenders serving excessive sentences.  Why, then, can't he find one to commute?"

May 20, 2011 in Clemency and Pardons, Who Sentences | Permalink | Comments (1) | TrackBack

Wisconsin Supreme Court upholds LWOP sentence for 14-year-old murderer

As reported in this new AP piece, "Wisconsin judges can sentence 14-year-olds to life in prison without parole in homicide cases, the state Supreme Court ruled Friday in upholding a life sentence for a man who participated in a gruesome homicide when he was a teenager."  Here are more of the details of the ruling and the underlying crime that presents the setting for the latest juve LWOP debate:

In a case watched by psychiatrists, family advocates and defense attorneys, the court found that neither the U.S. nor the Wisconsin Constitution prohibits life sentences without parole for 14-year-olds in homicide cases and no national consensus has formed against such sentences.  "We ... confirm what objective evidence already informs us: Contemporary society views the punishment as proportionate to the offense," Justice Annette Kingsland Ziegler wrote for the majority.

The case stems from a crime that took place more than a decade ago in Green Bay. Omer Ninham, then 14, helped throw another teenager off a parking ramp for no apparent reason.  Ninham's attorney, Byron Stevenson of the Equal Justice Initiative, had argued that such sentences amount to cruel and unusual punishment.  He vowed to appeal to the U.S. Supreme Court....

Judges across the country rarely sentence juvenile offenders to life without parole. According to statistics compiled by the Equal Justice Initiative the Wisconsin justices cited in their opinion, 73 children 14 or younger across 18 states have received that sentence.

Last year the U.S. Supreme Court ruled such sentences for anything less than homicide was unconstitutional.... But the [Wisconsin] justices said in a 5-2 decision that Ninham failed to show that children 14 and younger deserve different constitutional status in homicide cases. The lack of homicide life sentences for children across the country doesn't signal national sentiment has turned against such sentences, only that juveniles rarely kill people, the justices said.

In Ninham's case, the punishment fit a crime that "cannot adequately be reduced into words," the opinion said.  According to court documents, 13-year-old Zong Vang was riding his bike home in September 1998 after picking up tomatoes at the grocery store for his family.  A group of five people between the ages of 13 and 14 accosted him for no reason. Ninham and another member of the group started teasing Vang, then punched him.  Vang ran into a nearby hospital parking ramp.  The group cornered him on the top floor.  Ninham and a friend seized him by the wrists and ankles.  As Vang cried and screamed, they threw him over the edge. Vang fell five stories to his death.  A bystander on the ground said he heard a sound "like a wet bag of cement hitting the pavement."...

Under Wisconsin law, anyone 10 or older accused of homicide can be tried in the adult system. A jury convicted Ninham of first-degree intentional homicide and child abuse in 2000. The other charges were dismissed but the judge was allowed to consider them at Ninham's sentencing.

First-degree intentional homicide carries a mandatory life sentence in Wisconsin.  The state does not have the death penalty. The only issue at sentencing is whether a judge will grant parole eligibility.  Brown County Judge John D. McKay gave Ninham, who was by then 16, life and denied him any chance at parole.  The judge noted Ninham had a tough family life and he snorted cocaine weekly and drank every day, usually until he passed out.  But he said the crime devastated Vang's family and the Green Bay community and described Ninham as a "frightening young man."

The full 68-page opinion in Wisconsin v. Ninham, 2011 WI 33 (Wisc. May 20, 2011) is available at this link.  Here is part of the majority opinion begins:

Ninham mounts a categorical constitutional challenge, arguing that sentencing a 14-year-old to life imprisonment without parole is cruel and unusual in violation of the Eighth Amendment of the United States Constitution and Article I, Section 6 of the Wisconsin Constitution.  In the alternative, Ninham seeks sentence modification on the grounds that (1) his sentence is unduly harsh and excessive; (2) new scientific research regarding adolescent brain development constitutes a new factor that frustrates the purpose of the sentence; and (3) the circuit court relied on an improper factor when imposing the sentence. We disagree with Ninham on all four grounds, and accordingly, we affirm the decision of the court of appeals.

May 20, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (24) | TrackBack

"The Great Writ is dead in this country" ... at least for some illegal sentences, it seems

A number of helpful readers have made sure that I did not miss while joyfully distracted at the US Sentencing Commission's annual conference a big (and in my view ugly) en banc habeas ruling from the Eleventh Circuit. And one reader made my blogging efforts especially easy by providing this terrific review/summary of the ruling:

The Eleventh Circuit finally issued its en banc opinion in Gilbert, the case about collaterally attacking an illegal sentence. (Previously covered here and here on this blog.)  The Eleventh Circuit rules for the government, 8-3, with Judge Carnes writing, Judges Tjoflat, Pryor, and Dubina each writing a separate concurring opinion, and Judges Martin, Barkett, and Hill each writing a separate dissenting opinion.

Here's the majority:

Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced.  Gilbert insists that prisoners have a right to have errors in the calculation of their sentences corrected no matter how long it has been since the sentences were imposed.  His insistence calls to mind Justice Holmes’ observation that “All rights tend to declare themselves absolute to their logical extreme.”  Hudson Cnty. Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531 (1908).  But as Holmes also explained in the same thought, “Yet all [rights] in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.” Id.

The principles of policy that limit the right to be resentenced in accord with the latest guidelines decisions are those regarding finality of judgment and the important interests that finality promotes.  For reasons we will discuss, the statutory provisions and the decisions furthering finality of judgment are strong enough to hold their own against Gilbert’s claimed right to have a long-ago error in calculating his sentence corrected.

And here's Judge Hill's dissent:

Today, this court holds that we may not remedy such a sentencing error.  This shocking result -- urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice and accepted by a court that emasculates itself by adopting such a rule of judicial impotency -- confirms what I have long feared.  The Great Writ is dead in this country.

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence.  The government hints that there are many others in Gilbert’s position -- sitting in prison serving sentences that were illegally imposed.  We used to call such systems “gulags.”  Now, apparently, we call them the United States.

Nancy King over at the Habeas Book blog has this post describing the Gilbert ruling further, with particular emphasis on the discussion of the Constitution's Suspension Clause in the dueling opinions.

May 20, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (20) | TrackBack

DSK formally indicted, though gets bail with lots of conditions

The latest notable news about the highest-profile NY sex offense come via this MSNBC article, which includes these details:

Former International Monetary Fund chief Dominique Strauss-Kahn, accused of a sex attack on a New York City hotel maid, was awaiting release from jail Friday morning after having been granted bail on Thursday.

After Strauss-Kahn spent nearly a week in police custody and then jail, the judge agreed to free him on $1 million cash bail plus an additional $5 million bond — provided he's confined to a New York apartment.  He will be subject to electronic monitoring and under the watch of an armed guard, a prosecutor said....

Strauss-Kahn wasn't immediately released from the city's bleak Rikers Island jail, where he had been kept in protective custody and on a suicide watch.  But his lawyers expect he'll get out Friday, after he posts the bond and authorities review the security arrangements involved in his house arrest....

Lawyers arguing whether the ex-IMF chief would be released from jail pending a trial have used two famous examples from different sides of the spectrum to make their case — Roman Polanski and Bernard Madoff.  Prosecutors brought up Polanski, the French filmmaker whom U.S. authorities pursued for decades after he jumped bail in a 1977 child-sex case.  Defense lawyers, meanwhile, have mentioned Bernard Madoff, the financier who was freed on high bail and strict house arrest, the same conditions that a judge approved Thursday in a bail package for Strauss-Kahn....

"The proof against him is substantial. It is continuing to grow every day as the investigation continues," Manhattan assistant district attorney John "Artie" McConnell told the judge Thursday as prosecutors announced that Strauss-Kahn had been indicted on charges including attempted rape and a criminal sex act.  The maid had told a "compelling and unwavering story," McConnell said.

The indictment, a crucial procedural step in a felony case, marked a grand jury's "determination that the evidence supports the commission of non-consensual, forced sexual acts," District Attorney Cyrus R. Vance Jr. said. Strauss-Kahn, whose lawyers have suggested evidence won't support a forcible encounter, is due back in court June 6.

May 20, 2011 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

May 19, 2011

In praise of the USSC's annual conference and its (still developing) website

Becuase I am having so much fun already at the US Sentencing Commission's annual conference (seriously!), I decided to use my lunch break to again praise/thank the USSC for inviting me to participate again and also to follow-up a comment I made during this morning's first plenary session.  Specifically, I expressed to the Commissioners this morning my appreciation for their efforts to improve the official USSC website, but then I also suggested the website could be improved further still.

Proving yet again that the USSC always welcomes constructive criticism, a member of the USSC staff asked me to consider developing a Top 10 list of possible ways to make the new USSC website even better.  (My #1 suggestion likely is to be to urge the USSC to have the text of I8 USC 3553 and other critical federal sentencing statutes readily linked (and even annotated) on its website.) 

In addition to being grateful for this chance to provide input, I thought it would be useful to ask the readership of this blog for thoughts about how the USSC website could be improved and/or expanded ito better serving not only federal practitioners, but also any and everyone else who makes regular use of the data and other materials that appear (or should be readily available) via the USSC's website.

UPDATE:  Paul in the ends of the comments provides this quite specific and therefore very helpful comment that I hope gets noticed and that I hope might prompt still more folks to chime in with details and concerns about the USSC's website:

There are places where "Topics of Interest" highlight the 2009 Sourcebook, even though the 2010 is available. Last Congressional Testimony is may 2009? The categories of "Research," "Data and Statistics," and "Publications" have substantial overlap and is confusing. Really, if you didn't know the site, where would you start to look for a statistical research report?


May 19, 2011 in Who Sentences | Permalink | Comments (7) | TrackBack

Oregon Supreme Court says federal law does not allow denial of local gun permits for state marijuana users

As detailed in this AP report, today the "Oregon Supreme Court unanimously ruled Thursday that a retired school bus driver can have her medical marijuana and a concealed handgun, too." Here are the basics:

The ruling upheld previous decisions by the Oregon Court of Appeals and circuit court that determined a federal law barring criminals and drug addicts from buying firearms does not excuse sheriffs from issuing concealed weapons permits to people who hold medical marijuana cards and otherwise qualify. "We hold that the Federal Gun Control Act does not pre-empt the state's concealed handgun licensing statute and, therefore, the sheriffs must issue (or renew) the requested licenses," Chief Justice Paul De Muniz wrote in the ruling issued in Salem.

Cynthia Willis, one of four plaintiffs, welcomed the ruling. "I feel like a big girl now," Willis said. "I feel like a real human being now, not just a source of revenue to the county."

Leland Berger, the attorney representing Willis and other medical marijuana patients in the state, said the ruling was important in the continuing national debate over making marijuana legal to treat medical conditions. "I am hopeful we will end cannabis prohibition the same way we ended alcohol prohibition, which was by refusing to enforce federal laws within the state," Berger said....

Willis, 54, has carried a Walther .22-caliber automatic pistol for personal protection since a messy divorce several years ago. She volunteers at a Medford smoke shop that helps medical marijuana patients find growers, and teaches how to get the most medical benefit from the pound-and-a-half of pot that card carriers are allowed to possess. She uses marijuana cookies, joints and salves to treat arthritis pain and muscle spasms.

Elmer Dickens, a lawyer representing the sheriffs of Washington and Jackson counties, said the ruling provided needed clarification on whether the defendants should follow federal or state law on what has been a cloudy issue. Dickens did not anticipate an appeal to the U.S. Supreme Court, because the ruling focused so tightly on state law. "Every sheriff knows now what the rules are, and we got what we needed," he said.

The ruling also said Congress has no constitutional authority to require states to use gun licensing statues to enforce a federal law like the prohibition on handguns for marijuana users....

Oregon Attorney General John Kroger had argued in favor of the medical marijuana patients and against the sheriffs of Jackson and Washington counties who withheld handgun permits....

Nearly 40,000 Oregonians hold medical marijuana patient cards, with more than 36,000 of them for severe pain, according to Oregon Medical Marijuana Program statistics. Another 22,000 are registered as growers, and 21,000 as caregivers.

The unanimous ruling from the Oregon Supreme Court is available at this link.  It will be interesting to see if any federal officials either at the Justice Department or in Congress have any official reaction to this ruling or the broader issues or "lawful" possessors of pot and guns.  Because the pot use issue skews left and the gun possession issue skews right politically, I suspect that most federal folks and politicians will just seek to avoid having to discuss this ruling and the intersection of drug policy and gun policy in states like Oregon that tend to favor individuals on both fronts over government control.

May 19, 2011 in Drug Offense Sentencing, Graham and Sullivan Eighth Amendment cases, Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (5) | TrackBack

Federal prosecutors cut probation deal for rich woman who hosted cocaine parties for years!?!?

I am about to head off (and off-line) for the US Sentencing Commission's annual conference, where tomorrow I will be on a panel discussing plea bargaining.  With that background, and especially given that crack and powder cocaine sentencing will be a frequent topic of discussion, I found especially timely this remarkable (and shocking?) local federal story out of Montana.  The piece is headlined "Billings businesswoman sentenced for holding cocaine parties," and here are the details:

A U.S. District Court judge on Wednesday sentenced Billings businesswoman Dru Cederberg to two years probation, including eight months of house arrest, and fined her $550,000 for attempting to maintain a drug-related premises.

For about a decade, Cederberg, a millionaire and an heir to the Brach's Confections fortune, hosted series of dinner parties at her home. After the dining ended, people moved to the back of her home, and Cederberg laid out cocaine in the bathroom for the guests' use, testimony showed.

Cederberg, 52, is the latest person convicted and sentenced in the high-profile conspiracy involving cocaine in Billings and the surrounding area. Cederberg had testified for the federal government when her drug dealer and friend, Domingo Baez, was convicted. She also testified in the trials of some other defendants.

U.S. District Judge Charles C. Lovell said his first inclination was to reject the proposed plea agreement worked out between the U.S. Attorney's Office and Cederberg's lawyer that she be sentenced to two years' probation and a $50,000 forfeiture or fine. "The plea agreement on its face is exceptionally lenient compared to the sentences imposed on the other defendants," Lovell said. Lovell told Cederberg she was more culpable than Terri Jabs Kurth, who served eight months in prison, and was second in culpability only to Baez, who is serving 15 years in prison.

He did praise her role in cooperating with the Justice Department and testifying against some other defendants. But then Lovell tacked on an additional $500,000 fine and said he would have fined Cederberg more had he been allowed to do so under federal sentencing guidelines.

Marcie Zinke, a federal probation officer, had recommended that Cederberg be incarcerated for 18 months, be sentenced to three years of supervised release afterward and be fined $250,000. "The reason I have accepted this plea agreement ... is certain mental health concerns and the yeoman's service you provided to the United States," Lovell said.

He said the evidence would support a greater charge than the Justice Department brought forward. "But I think the appropriate penalty here is a financial one, rather than one of incarceration," he said.  "A prison sentence is not appropriate for you -- at least not at this time."

Cederberg has net assets of at least $14 million, including three homes valued at a combined $3 million, including the $2 million home in which she lives, Lovell said, quoting the federal probation officer's report.  Cederberg is a single mother with a 15-year-old daughter....

Friends and business associates, in letters submitted to the court, testified to Cederberg's compassion and widespread anonymous generosity in the Billings area.

"You do have an extreme history of a usage of illegal drugs, I think beginning at about age 17," Lovell said in sentencing her. "I do understand that you have given up that habit and are not using any illegal drugs.  You are what we would refer to as a wealthy individual here in Montana."  Cederberg's attorney, Mark Parker, testified that his client has said she hasn't that used cocaine since 2008.  Lovell told Cederberg he believes she introduced the use of cocaine to a number of who otherwise may not have used the illegal drug....

Cederberg will be required to wear monitoring devices provided by the probation officer so it can monitor her locations.  She cannot leave her home for eight months except for medical reasons, court appearances and any other activities approved in advance by the court.

Lovell said each one of the dinner parties where Cederberg laid out cocaine for her guests' use amounted to "a distribution of an illegal controlled substance," Lovell said, saying it amounted to thousands of dollars worth of drugs.

Cederberg's attorney presented the $50,000 check agreed to under the plea deal to the judge, and the Thaggard turned it over to someone from the U.S. Marshals Service. As for the $500,000 additional fine, Lovell told Cederberg: "If you pay the fine within 30 days, the court won't apply interest to that amount. I think from your net worth, you'll be able to do it."

I could and perhaps should make this remarkable case the focal point of an entire federal sentencing course, because almost every hot-button issue in modern federal drug sentencing policy and practice is implicated here.  What an amazing example this case is concerning, e.g., charge bargaining by prosecutors, a sweet plea deal for a cooperator, lenient (and special?) treatment for a female and well-to-do (white?) defendant involved with powder cocaine and not crack, the relationship between prison, home confinement and financial sanctions, the impact of addictions and mental health on crime and punishment, and the role and impact of prosecutors, probation officers and judges at sentencing.

Especially given the addition of a big fine (which I wish was even higher), I am not asserting that the deal cut by prosecutors and accepted by the district judge here is misguided or unjust.  Indeed, a pretty good argument can be made in this context that Dru Cederberg's novel and notable sentence does achieve 3553(a)'s mandate of being "sufficient but not greater than necessary" to achieve the punishment goals set forth by Congress.  However, given that a large number of poor urban men and women are serving not merely years, but decades, in federal prison for distributing small amounts of crack cocaine, it is still somewhat stunning to hear of a case of involving rich rural woman getting probation for hosting cocaine parties for a decade.

May 19, 2011 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (15) | TrackBack

Might private prisons actually cost taxpayers more than public prisons?

The important question in the title of this post is prompted by this new piece in the New York Times, which is headlined "Private Prisons Found to Offer Little in Savings."  Here is how the piece starts:

The conviction that private prisons save money helped drive more than 30 states to turn to them for housing inmates. But Arizona shows that popular wisdom might be wrong: Data there suggest that privately operated prisons can cost more to operate than state-run prisons — even though they often steer clear of the sickest, costliest inmates.

The state’s experience has particular relevance now, as many politicians have promised to ease budget problems by trimming state agencies. Florida and Ohio are planning major shifts toward private prisons, and Arizona is expected to sign deals doubling its private-inmate population.

The measures would be a shot in the arm for an industry that has struggled, in some places, to fill prison beds as the number of inmates nationwide has leveled off. But hopes of big taxpayer benefits might end in disappointment, independent experts say. “There’s a perception that the private sector is always going to do it more efficiently and less costly,” said Russ Van Vleet, a former co-director of the University of Utah Criminal Justice Center. “But there really isn’t much out there that says that’s correct.”

Such has been the case lately in Arizona. Despite a state law stipulating that private prisons must create “cost savings,” the state’s own data indicate that inmates in private prisons can cost as much as $1,600 more per year, while many cost about the same as they do in state-run prisons.

Some recent related posts on private prison sale plans in Ohio and Florida:

May 19, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

In Arizona, there are "[m]ore conservatives joining push to change sentencing guidelines"

The quote in the title of this post is the headline of this effective lengthy article in from a local Arizona media outlet.  Here are snippets from the reporting:

Since the late 1970s, state and federal lawmakers have reacted to rising crime and the illicit drug trade by mandating prison time for many non-violent offenses, ranging from driving under the influence to possession of small amounts of marijuana.  Those sentencing guidelines also targeted repeat offenders regardless of whether their offenses were violent.

Advocates, generally offering a liberal perspective, have responded that eliminating the options of fines, work release, substance-abuse treatment and house arrest in favor of prison time can turn non-violent offenders into career criminals.  Losing contact with their families, communities and jobs contributes to this, they argue.

As states face large budget deficits, calls for reforming sentencing for non-violent offenders also are coming increasingly from conservatives who call prison costs unsustainable....

The Goldwater Institute, a private think tank dedicated to limited government and free markets, has included alternative sentences for non-violent offenders in its recommendations for reducing the state budget.

Byron Schlomach, director for the Institute’s Center for Economic Prosperity, said judges and juries should be allowed to look at whether options other than incarceration would allow low-risk offenders to earn money to pay restitution and help cover the cost of their supervision.  “Anything that’s cheaper than what we are spending on incarcerated individuals now -- that’s just fiscal sense,” he said.  “So why wouldn’t we do that, especially if there’s evidence, and there is, that it’s at least as effective as a deterrent on future crime as the current system is.”

Schlomach said he sees a “weird confluence” of liberal and conservative arguments on the subject.  “That just sounds all kinds of conservative to me, and it also sounds merciful to these other people who come from a different point of view,” he said.

May 19, 2011 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2) | TrackBack

Should the federal system welcome and encourage more plea deals with binding sentencing terms?

The question in the title of this post is prompted by (1) my presence at the USSC Annual Conference at which I will be discussing plea bargaining on Friday, and (2) this new article on SSRN by Wes Porter titled "The Pendulum in Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role for Binding Plea Agreements Post-Booker." Here is the article's abstract:

Binding plea agreements once served an important function of counterbalancing the vast judicial discretion at sentencing.  The federal judiciary enjoyed wide discretion in imposing a sentence; the government and defendant’s freedom to contract for an appropriate sentence mirrored that discretion.  The United States Sentencing Guidelines (the Guidelines) effectively replaced, and marginalized the role of, binding plea agreements. Binding plea agreements became a stigmatized novelty in federal criminal practice. The valuable tool has remained underutilized and unavailable to criminal defendants for more than 20 years.

Aside from its legislative goals of uniformity and proportionality, the Guidelines promoted predictability and informed decision-making for the defendant.  In its 2005 decision in United States v. Booker, the Supreme Court relegated the Guidelines to a mere sentencing “consideration” and introduced a new process in federal sentencing.  The sea change that resulted from Bookerseemingly improved federal sentencing for the judiciary, the prosecution and the defense.  After several years of “advisory Guidelines,” courts have exercised their discretion decidedly in favor of the criminal defendant imposing lower sentences than were called for when the Guidelines were mandatory.  The fall of the Guidelines may benefit defendants statistically, yet the new process will never be as predictable and informative.

This Article argues that in addition to the swing toward increased judicial discretion and overall lower sentences, the pendulum also can swing toward predictability and informed decision-making for the defendant.  Increased use of binding plea agreements in federal court could complement the progressive developments following Booker.  After years of isolated and inconsistent use, binding plea agreements could again restore some predictability and informed decision-making for the defendant.  This Article proposes that Congress should enact a new standard for judicial acceptance of binding plea agreements post-Booker, as well as policy and perception changes.  While binding plea agreements are not appropriate in most cases, the parties must be permitted to enter into agreements for a specific sentence that is “reasonable” and consistent with Congress’ original intent underlying Rule 11(c)(1)(C).

I am eager to hear from practitioners whether they agree with this article's endorsement and recommendation for "increased use of binding plea agreements in federal court."

May 19, 2011 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10) | TrackBack

"Enron exec Andy Fastow nears prison release"

The title of this post is the headline of this new CNN piece.  Here are snippets:

Former Enron executive Andrew Fastow has been transferred from prison to a halfway house, the last stage of incarceration before his scheduled release later this year, according to the federal Bureau of Prisons.

Fastow, who was chief financial officer at the now-defunct energy company, was moved on Monday to a facility in Houston, according to the bureau. Moving into a halfway house is a typical move for most prisoners during the last portion of their sentence. "It's a bridge, if you will, a transition period," said bureau spokesman Edmond Ross.

The purpose of the halfway house is for prisoners to reestablish family ties and adjust to society outside of prison, he said. Prisoners are allowed to leave the facility to go to their jobs, but their movements are still controlled. "They cannot come and go as they please," said Ross. "Their lives are restricted to the rules of the halfway house."...

Fastow pleaded guilty in 2004 to two counts of wire and securities fraud for his role in the accounting scandal that brought down Enron.... Fastow provided information on Enron's sketchy financial shenanigans, including the names of bankers who he considered complicit, to lawyers representing Enron shareholders.

May 19, 2011 in White-collar sentencing | Permalink | Comments (0) | TrackBack

May 18, 2011

On way to San Diego for USSC annual conference

Blogging will be light today and likely for the rest of the week as I travel to the west coast to attend and participate in the US Sentencing Commission's annual conference in San Diego. I hope to be able to blog some of the doings, though SoCal trappings may keep me off line much of the day.

May 18, 2011 in Who Sentences | Permalink | Comments (0) | TrackBack

Fifth Circuit rules that secret sentencing was improper

As reported in this Houston Chronicle article, the Fifth Circuit late yesterday "ruled it was illegal for a judge to lock the public and the press out of a Houston courtroom while a man who was once one of the most wanted, feared and violent drug traffickers in the world was sentenced, without giving the Houston Chronicle a chance to challenge the secrecy."  The full Fifth Circuit opinion in this matter is available at this link, and it starts this way:

This case involves a district court’s order to close the sentencing proceeding of a drug cartel leader without first giving the press and public notice and an opportunity to be heard regarding the decision to close the hearing.  We conclude that the press and public have a First Amendment right of access to sentencing hearings, and that the district court should have given the press and public notice and an opportunity to be heard before closing the sentencing proceeding in this case.

May 18, 2011 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

May 17, 2011

"IMF head on suicide watch at NYC jail as he adjusts to life behind bars"

The title of this post is the headline of this latest AP update on the highest-profile sex offense case in the world right now (and perhaps ever?).  Here are some interesting excerpts:

Guards at New York City’s massive Rikers Island jail complex are taking unusual precautions to make sure IMF chief Dominique Strauss-Kahn doesn’t come to any harm behind bars.  The 62-year-old banker and diplomat has a whole jail wing to himself, a medical device to make sure he doesn’t stop breathing during the night and guards checking him 24 hours a day to make sure he doesn’t kill himself....

Since his arraignment Monday on charges that he tried to rape a hotel maid, Strauss-Kahn has been held at the city’s massive Rikers Island jail complex, home to thousands of prisoners serving short sentences or inmates awaiting trial. Because of his stature, Strauss-Kahn has been assigned to a facility at the jail that normally houses inmates with very contagious diseases, like measles or tuberculosis....

As a pre-trial detainee, Strauss-Kahn isn’t required to wear a prison uniform. He may bring his own clothing and wear what he chooses in his cell, whether it be designer suits, or something more casual.  There are two exceptions: First, he has had to give up his shoes.  All prisoners are required to wear standard-issue, lightweight, slip-on sneakers (although he is allowed to don regular dress shoes for court appearances, if he wishes). Secondly, to see visitors, he is required to put his civilian garb aside and don a gray jumpsuit, specially designed without pockets or other hiding places where contraband could be stashed.

Prisoners at Rikers island are not given an inmate number like in the movies, but are identified by a statewide criminal justice system code that sticks with them for life, even if they are incarcerated later somewhere else.  Strauss-Kahn’s NYSID number is 09132366L.

May 17, 2011 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

Judge Weinstein's final order finding Eighth Amendment prohibits 5-year minimum term for young child porn offender

In March in this post, I reported on Judge Jack Weinstein's "Tentative Draft for Discussion Purposes" in United States v. C.R., in which Judge Weinstein suggesting a 30-month sentence was appropriate for a young child porn offender after deciding that application of the statutory five-year mandatory minimum would be constitutionally problematic.  I have learned from a helpful reader that Judge Weinstein has now filed his final opinion in C.R. in which he decides that a five-year mandatory minimum prison term as applied to this defendant violates the Eighth Amendment's prohibition against cruel and unusual punishment.  I have the full opinion available for download below, and here is just some of many notable passages from the very long opinion (which covers a lot more than just the constitutional issues discussed below):

The law described in this section, as well as the science and particulars of defendant‘s background, leads to the conclusion that, as applied to this defendant, a five-year term of imprisonment would be cruel and unusual.  Requiring five-years of incarceration, most of it without effective treatment, would constitute a violation of the Constitution. 

Mere peer-to-peer file sharing of pornography by teenage boys, even if it includes pictures of minors, does not signify the sort of social deviance which would support long minimum prison terms for such immature persons.  A teenager confused about his developing sexuality in a splintered and dysfunctional family, who uses easily available Internet facilities to look at lewd pictures of children, is not fully responsible. The defendant was fifteen and had just entered puberty when he began viewing these pictures. And, even at nineteen, he was emotionally much younger than his chronological age.

Courts have recognized these developmental factors in cases involving teenagers and child pornography. Interest in lewd images of minors by one who is emotionally a minor himself does not manifest the same kind of sexual perversion as would a mature adult‘s focus on the same pictures.  In United States v. Stern, 590 F. Supp. 2d 945, 953 (N.D. Ohio 2008) the district court emphasized the peer-level nature of the sexual interest when imposing a sentence far below the guideline range for a college student who had begun viewing child pornography at age fourteen.  In addition to citing the scientific literature on "the unformed nature of the adolescent brain," id. at 953 n.6, it recognized that "the 14-year-old is acting on normal impulses in an unacceptable manner (and may well be unaware of the impact of his crime), whereas the forty-year-old is acting on deviant impulses and is expected to understand the terror that this crime inflicts upon its victims." Id....

 A five-year minimum sentence as applied to this defendant serves no legitimate penological goal.  "A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense" and therefore, unconstitutional under the Eighth Amendment." Graham, 130 S. Ct. at 2028.  Neither "retribution," "deterrence," nor "rehabilitation," id. at 2028-2029, justifies a five-year mandated prison sentence for an adolescent, plus what could constitute lifelong strict supervised release. Excessive and unnecessary imposition of suffering and destruction of opportunity for a constructive life as a youngster constitutes cruel and unusual punishment. See David Gray, Punishment as Suffering, 63 Vand. L. Rev. 1619, 1692-93 (2010) (discussing relationship between suffering and punishment and arguing that "excessive suffering requires remediation").

One the one hand, treatment and supervision within the community are necessary for C.R. to mature into a responsible, productive, law-abiding individual.  Requiring the defendant to spend the formative years of his young adulthood in a sex offender penal treatment unit, on the other hand, presents significant risks.  Hr‘g Tr. 216, Jan. 26, 2011 (Testimony of Dr. Kaplan) ("He could spend three or five-years fantasizing about 12-year-old boys and being reinforced by pedophiles . . . and come out with more of an interest in young boys.").  While the treatment program at FMC Devens will provide the defendant an opportunity for focused therapy, a sentence of five years in such an environment for an immature and impressionable defendant is counterproductive.

Download US-v-CR Weinstein Sentencing_Memorandum (FINAL)

May 17, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Ninth Circuit panel split on capital habeas appeal concerning IAC

Today in Leavitt v. Arave, No. 08-99002 (9th Cir. May 17, 2011) (available here), a panel of the Ninth Circuit split 2-1 when reviewing Idaho's appeal of the grant of habeas relief to a murder defendant sentenced to death.  The authors of the rulings in this case listed on page one of the 37-page opinion provide knowledgeable readers with an immediate notion of the outcome: "Opinion by Chief Judge Kozinski; Dissent by Judge Reinhardt."  Lest there is any uncertainty, here is the start of the majority opinion authored by Chief Judge Kozinski:

With fifteen strokes of his knife, Richard Leavitt slashed and stabbed Danette Elg to death in her bedroom.  Then, as Ms. Elg lay dying on top of her punctured waterbed, Leavitt hacked out her womanhood — just as his ex-wife had seen him do to “play[ ] with the female sexual organs of a deer.”  State v. Leavitt (Leavitt I), 775 P.2d 599, 602 (Idaho 1989).  We decide whether Leavitt’s lawyer rendered ineffective assistance of counsel while trying to have him acquitted of the death penalty.

And here is the start of the dissent authored by Judge Reinhardt:

The circumstances of Richard Leavitt’s murder of Danette Elg are indeed horrendous.  That alone should have been a signal that there was something radically wrong with Leavitt, who was otherwise a law-abiding citizen, a father and a husband.  I agree with the trial judge who sentenced Leavitt to death that “the fact that” such a person “would do this act leaves one[ ] asking why.”  Leavitt’s counsel, David Parmenter, failed to provide an answer to that question that could have saved his client’s life: Leavitt suffered from an organic brain disorder in the part of the brain responsible for regulating emotion and impulse control.  Despite the majority’s many tangents and alternative holdings, Leavitt’s habeas petition concerns one simple point: whether counsel should have made a motion for the MRI examination of his brain that the courtappointed neurologist had recommended. Had Parmenter done so, the examination would have revealed Leavitt’s organic neurological disorder — powerful mitigating evidence that could well have altered the sentencing decision of the trial court.  That alone is sufficient to resolve this case. Parmenter’s failure, despite the neurologist’s recommendation, to seek the examination that was necessary to establish the existence of Leavitt’s organic brain disorder unquestionably rendered his performance deficient; and that inexplicable conduct prejudiced his client under any reasonable standard.  Not surprisingly, the United States District Court for the District of Idaho so found, and we are asked simply to affirm the lower court.

May 17, 2011 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (9) | TrackBack

"Five Years for Opening a Bottle of Ketchup? Trying to Make Sense of New Jersey’s Patchwork Sentencing Guidelines"

The title of this post is the headline of this interesting new piece from The Jersey City Independent, which in turn reports on an interesting public policy report from the Drug Policy Alliance. Here is how the piece starts:

If you ever have to decide between opening a bottle of ketchup and placing it back on the supermarket shelf, or engaging in a fisticuffs with a consenting adult, go for the latter. Giving and taking punches in public might earn you a 30 day sentence, but popping that ketchup seal could cost you five years hard time.  And if, by some chance of fate, you find yourself deliberating between attending a dog fight or punching someone in the eye, take a swing.  The black eye will cost you 180 days in jail, but watching the dog fight could land you in prison for five years.

If the disparities between those sentences don’t seem rational, that’s because they aren’t.  They are the product of decades of ad hoc legislative revision of the New Jersey criminal code that has resulted in overlapping charges, inconsistently graded offenses, and mandatory minimums whose penalties conflict with the values of New Jersey residents. Many of those irrationalities and redundancies have been compiled in “Crime and Punishment in New Jersey,” a new report published by the Drug Policy Alliance (DPA) that the group has been distributing in an attempt to create momentum for sentencing reform legislation.

In 1978, New Jersey, like the majority of states, adopted the Model Penal Code, a comprehensive code of criminal justice that was designed to incorporate most of the serious criminal activity a creative mind might engage in.  In total, the version of the Model Penal Code adopted in New Jersey included 243 offenses and suboffenses, a large but not unmanageable number.  But since then, Garden State legislators have added an additional 407 offenses and suboffenses.  Which raises the question: Are New Jersey’s criminals so creative they have discovered 407 new ways to create mischief in 33 years, or has something gone wrong in the legislature?

According to the DPA, the fault lies with the legislature.  In its study, the Alliance surveyed New Jersey residents about the seriousness of criminal offenses. They asked respondents to grade crimes by grouping them according to perceived seriousness.  Respondents were also asked about what penalties should be assessed for crimes such as opening ketchup at the supermarket, watching a dog fight, or punching someone in the eye, and found that 90 percent of the time New Jersey residents believed the appropriate punishment was less severe than the criminal code currently calls for.

Often when respondents thought offenses were comparable (ketchup vs. fist fight; dog fight vs. black eye), the criminal code assigned wildly disparate penalties to them. “I think the big take-home message is really that voters’ positions on criminal sentencing are a lot more nuanced and reasonable than the general perception,” Roseanne Scotti says.

Scotti is the New Jersey state director of the DPA, and therefore most interested in the portion of the report that documents the public’s opinion of drug sentences. “I think most people have no idea you can get 10 or 20 years for a few marijuana plants in New Jersey,” she says, referencing one of the report’s findings.

May 17, 2011 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2) | TrackBack

Might Arizona mass murderer Jared Loughner be incompetent to stand trial?

The question in the title of this post is prompted by this Wall Street Journal article headlined "Loughner's Mental Competence Is Doubted." The piece starts this way:

Two federal court filings Monday in the criminal case of the man accused in the January shooting of Rep. Gabrielle Giffords and 18 others in Tucson, Ariz., strongly suggest that two health professionals who evaluated his mental state have determined he isn't competent to stand trial, according to legal experts.

The filings, one by the defense and one by the prosecution, indicate that a competency hearing for Jared Loughner scheduled in a Tucson federal court for May 25 could largely be a formality. Both filings agreed that the two doctors who evaluated Mr. Loughner wouldn't need to testify. The filings also said neither side would dispute the doctors' written reports.

If these reports, which are under seal, hadn't concluded Mr. Loughner was incompetent to stand trial, the defense would almost certainly be planning to put up a fight, experts said. "My initial gut reaction would be that both have found him not competent to stand trial," said Kurt Altman, a former assistant U.S. attorney in the Phoenix office who isn't involved in the case. Mr. Altman said defense lawyers wouldn't object to a finding of incompetence since it would delay Mr. Loughner's trial. Mr. Loughner could face the death penalty.

At the same time, prosecutors wouldn't be in a position to argue the findings of the two doctors, given that they pushed to have the competency exams done, say people familiar with the matter. A decision by Judge Larry Burns, who is presiding over the case, that Mr. Loughner was currently incompetent could postpone any trial of Mr. Loughner for months or even years, say legal experts.

In cases where a defendant is found incompetent to stand trial, the defendant is kept in custody until it is determined he is able to understand the charges against him and able to aid his lawyers in his own defense. Such people could be treated with drugs, possibly without their consent, legal experts said.

May 17, 2011 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Notable federal judge gives notable (probation?!?) sentence in "despicable" child porn case

A helpful reader alerted me this local press story, headlined "Rio Grande City man gets five years probation in child pornography case," reporting (somewhat confusingly) on a notable federal child pornography sentencing decision coming from a notable federal sentencing judge.  Here are the (somewhat unclear) details as reported in this piece:

Ethan Saenz clenched his hands tightly behind his back as he begged a federal judge Monday to grant him a second chance at life, vowing to never have anything to do with child pornography again.  And U.S. District Judge Ricardo Hinojosa complied, citing the 25-year-old’s history of physical and sexual abuse as a child when he sentenced him with just five years of probation for possession of child pornography.

“If you look at his childhood, wouldn’t you say…this is somebody who’s actually been a victim himself?” the judge asked.  “This is someone’s who’s different. He hasn’t physically abused somebody like he’s been physically abused as a child.”

Arrested in 2005, the Rio Grande City man faced more than six years in federal prison after investigators found more than 100 images and several videos of boys participating in sexual acts, sometimes bound and gagged and often with older men on Saenz’s computer.  Though he described that pornographic collection as “despicable,” Hinojosa did not concede to a federal prosecutor’s urgings to grant Saenz a heavy sentence.

Assistant U.S. Attorney Juan Felipe Alanis was unconvinced Saenz deserved a lesser sentence because of his troubled history, which included losing his mother early in life to a bus accident, an absent father and a foster mother who hit and molested him and another child in her care.  “Many of the people have hard lives similar to him, but they don’t turn to child pornography,” Alanis said.  “It’s an excuse the government sees a lot.”

Yet Hinojosa said Saenz’s circumstances were too different to ignore and noted he never took his actions a step further and actually preyed on young children like other suspects the judge has encountered.  He also said Saenz had made progress since his initial plea of guilt, including five years of home confinement, earning a bachelor’s degree at the University of Texas, Pan American, staying away from controlled substances and seeking psychological care.

The judge also referenced the positivity he saw in many statements submitted on Saenz’s behalf from his professors, pastors and more....  Under his sentence, Saenz also must wear an electronic tracking device for another 24 months and register as a sex offender for the remainder of his life, updating his residence when he moves.

Though the headline of this press report call the sentence for Saenz "five years probation," it appears the defendant has already been subject to a lengthy term of home confinement and will be subject to continued electronic monitoring for two years.  Also unclear is whether the judge here used traditional departure authority or 3553(a) variance discretion to impose the way-below-guideline sentence here despite the defendant's "despicable" crime.

But while the exact sentence here is a bit unclear, what is clear is that even a member of the US Sentencing Commission, and one who was the USSC Chair during the recent run-up in child porn prosecutions and harsh sentences, recognizes big problems with the usual operation of the federal child porn guidelines in some cases.  As informed readers know, U.S. District Judge Ricardo Hinojosa is a current member and the former Chair of the US Sentencing Commission.  For that reason, I have an inkling that his sentence here might have used departure authority rather than variance discretion to do justice.  Whatever the particulars, it would be really great if Judge Hinojosa produced a written opinion to explain the basis for his judgment that here probation(?) was a "sufficient but nor greater than necessary" sentence for at least one federal child porn offender.

May 17, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (8) | TrackBack

Ohio completes "bloody" lethal injection execution, as Mississippi prepares for second of three executions in May

As reported in this local story, headlined "Killer of 2 is executed after 27 years; Daniel Lee Bedford lethally injected at Lucasville," this morning Ohio completed its fourth execution of 2011. This one, as detailed in the story, was more eventful than the others for a number of reasons:

A last-minute flurry of legal appeals did not stop today's execution of double-murderer Daniel Lee Bedford. Bedford, 63, was lethally injected this morning at the Southern Ohio Correctional Facility near Lucasville. The time of death was 11:18 a.m.

The prison staff appeared to have trouble getting the IV into his left arm. After several attempted sticks with the needle, one of his lawyers, Carol Wright stood up and made at least one phone call from the witness area to a colleague in another part of the prison. "They're clearly having problems," she said, adding at one point "it's a bloody mess."

Previous executions have been marred -- one was even postponed -- by multiple attempts to get the needle into a suitable vein. In the 11 minutes it took to insert the IV, Wright was calling out to Bedford through the glass separating the witness area and death chamber. "Are there problems, Dan? Are there problems, Dan?" she kept repeating. He obviously could hear her, and said something in return about the number of times he was being stuck with the IV.

Once the line was attached, Bedford told prison authorities he had no last statement so they removed the microphone. But he began talking out loud to his daughter, Michelle Connor, who was watching through the glass. "I love you, 'Shell,'" he said. She called back to him, "I love you, daddy." After the lethal drugs began flowing, his final words were, "Love you all. God bless you."...

Three witnesses were on hand for the victims; two brothers, one uncle of his former girlfriend, Gwen Toepfert. One brother held up a framed picture of the young, attractive blonde, pointing it toward Bedford. He was the oldest of 45 men Ohio has put to death since resuming capital punishment in 1999.

Earlier this morning the U.S. Supreme Court denied a final appeal to halt Bedford's execution. The uncertainty over court rulings delayed the execution from its scheduled 10 a.m. start. A federal appeals court late last night lifted a stay of execution in the case, prompting attorneys for the convicted killer from Cincinnati to turn to the high court.

U.S. District Court Judge Algenon L. Marbley had granted a request to halt the execution filed by Bedford's legal team -- the federal public defender's office and Cincinnati attorney Alphonse Gerhardstein -- to halt the execution. Executing Bedford would be a violation of the state and federal constitutions because of his mental condition, Bedford's attorneys said. Bedford told the prison's mental health staff early today that "he understands he will die and is preparing himself," a prison spokesman said.

Meanwhile, as detailed in this story from another state published yesterday, before the end of May, "Mississippi could rival Texas and Ohio with the most executions carried out in the first five months of this year."  Here are the details:

The first of the three planned executions occurred last Tuesday, when Benny Joe Stevens, 52, was put to death for murdering four people -- his ex-wife, her husband, her 10-year-old son and the son's 11-year-old friend -- in 1998 in Marion County.

Barring an unlikely reprieve, Rodney Gray, 38, will be next to die a little after 6 p.m. this Tuesday for the 1994 murder of 79-year-old Grace Blackwell, who also was kidnapped, raped and robbed in Newton County.

Then 47-year-old Robert Simon Jr. is set to be put to death May 24 for killing four family members in Quitman County in 1990.

Texas and Ohio are the only states that have carried out three executions this year, according to the International Justice Project.

Of course, a truly up-to-date body count has Ohio in the lead for 2011 with four executions.  By the end of June, according to this DPIC list of upcoming executions, Texas will return to its usual place of leading state executioner.  But, at least for a few weeks, Ohioans can claim its state is now number one in state killing for 2011. 

May 17, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (17) | TrackBack

SCOTUS taking up private prison Bivens issue

As detailed in this lengthy new SCOTUSblog post, titled "New curb on Bivens remedy?", the SUpreme Court yesterday granted cert "on a case involving a damages lawsuit against private individuals working for a private contractor as guards at a federal prison."  Here is the basic backstory:

Last June, the Ninth Circuit Court added a new Bivens-type claim: it ruled that a prison inmate, Richard Lee Pollard, could sue a group of private individuals working under contract as prison guards for Wackenhut Corrections Corp., the operator of the federal prison in Taft, Calif.  Pollard contended that he broke his elbow in a fall after tripping over a cart left in a hallway, but that prison guards required him to make use of the arm in painful ways in taking him to and from an outside clinic for treatment, refused to provide a splint for the injury though a doctor had prescribed one, and was required to return to work at a prison job before he had healed fully.  (Wackenhut has since become a part of GEO Corp.)

The Circuit Court remarked that “neither the Supreme Court nor our court has squarely addressed whether employees of a private corporation operating a prison under contract with the federal government act under color of federal law.”  It went on to rule that their actions were as if they had been federal employees, and the fact that the prisoner could have sued under California state law did not deprive him of a federal constitutional remedy.  Over the dissent of eight judges, the Circuit Court refused to reconsider the ruling en banc.

On Monday, the Supreme Court agreed to review the decision, in the case of Minneci, et al., v. Pollard (docket 10-1104).

At this stage, the Court does not explain why it will hear a case, but the ruling by the Ninth Circuit conflicts directly with decisions of two other Circuit Courts (the Fourth and the Eleventh), and involves the creation of a perhaps wide expansion of the Bivens decision.  The private organization, DRI, which seeks to curb civil liability in general, told the Court in a separate amicus brief that the Ninth Circuit ruling “takes Bivens into uncharted territory by exposing private employees to an unprecedented form of personal liability,” and potentially may extend Bivens-type liability well beyond the prison setting, given how common it is for private employees to work under contract for federal agencies.

As this SCOTUSblog post spotlights, this new case would seem to be of interest to the Justices primarily because of its concern about Bivens jurisprudence rather than a distinctive interest in the workings of private prisons.  Nevertheless, especially at a time when a number of states are talking about privatizing prison services, it seems likely that this case might prompt some useful discussion and briefing on the operations, regulations and litigation surrounding the private prison industry.

May 17, 2011 in Prisons and prisoners, Who Sentences | Permalink | Comments (3) | TrackBack

"Setting an Agenda for Family-Focused Justice Reform"

The title of this post is the title of this new report from the Family Justice Program of the Vera Institute of Justice.  Here are excerpts from the report's executive summary:

Research shows that incarcerated youth and adults who have contact with supportive family members have better outcomes after their release.  This finding has obvious implications for the corrections, community corrections, and juvenile justice fields.  But it also has significant, if sometimes less apparent, consequences for other systems, such as schools, child welfare agencies, health care, and law enforcement.

The Vera Institute of Justice brought together national experts from a range of fields to talk about the next steps for family-focused justice reform.  The conversation sharpened the definition of a family-focused approach as one that includes four key components: it is multidisciplinary, it adopts a broad definition of family, it is strength-based, and it is applicable along the continuum of a person’s involvement with the justice system. Participants in the roundtable also described many actions that organizations can to take to leverage the positive influence of families and communities to support people involved in the justice system.

Drawing on that conversation, this report sets forth an agenda for family-focused justice reform ... [and] recommendations are offered to inspire people who work not only in juvenile or criminal justice, but in systems that feel the repercussions of related policy and practice on the local, state, or federal level.  It is the authors’ belief that if agencies tap families as a resource, their work will be more effective, to the benefit of the communities they serve.

May 17, 2011 in Offender Characteristics, Reentry and community supervision | Permalink | Comments (1) | TrackBack

May 16, 2011

Mental disability claim prompts execution stay in Ohio (and lots more litigation, I suspect) ... UPDATE: Sixth Circuit lifts stay

As detailed in this new AP story, "federal judge in Ohio is halting the execution of a man who was convicted in the 1984 shootings of his ex-girlfriend and her boyfriend but says he doesn’t remember the slayings." Here is more:

Sixty-three-year-old Daniel Lee Bedford was scheduled to be put to death Tuesday. His attorneys had sought a stay of execution to allow more time for the courts to consider issues they raised.  They say Bedford has dementia and a mild mental disability that keep from fully understanding the meaning and purpose of his death sentence....

A spokeswoman for the Ohio attorney general’s office says prosecutors will appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati.

Based on this brief press report, the exact nature of the defense claims and the reasons for the stay are a bit opaque.  But what seems quite clear is that Ohio officials will be seeking to get this stay lifted by the Sixth Circuit and/or the Supreme Court. 

Because the issues are a bit fuzzy and because Ohio has not had many of these eleventh hour stay litigation battles recently, I am not sure how this story is going to turn out.  I am sure it will be one worth watching over the next 24 hours.

UPDATE:  As detailed in this new local piece, a "federal appeals court late last night lifted the stay of execution in Daniel Lee Bedford's case, putting the convicted killer from Cincinnati back on schedule to be executed today at 10 a.m."  Here is more:

A three-judge panel of the 6th U.S. Circuit Court of Appeals vacated the stay that U.S. District Judge Algenon L. Marbley in Columbus had ordered earlier in the day.     In response to the 6th Circuit panel's late-night ruling, Bedford's attorneys were preparing an appeal to the U.S. Supreme Court in a last-minute effort to halt the execution.

May 16, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9) | TrackBack

"Rose (and others) deserve our forgiveness"

The title of this post is the headline of this notable recent commentary in Cincinnati Enquirer authored by David Singleton, the Executive Director of the Cincinnati-based Ohio Justice & Policy Center.  Here is how the commentary links baseball and criminal justice policy through the notion of forgiveness:

In the words of philosopher Jacques Barzun, "Whoever wants to know the heart and mind of America had better learn baseball."  Barzun's quote implies, as several scholars have argued, that baseball is a prism reflecting core American values, such as hard work, fair play, high aspirations and pulling together for the common good.

Forgiveness and redemption are essential to these ideals -- our dedication to them is shown not when the going is easy, but when circumstances test our commitment.  The case of Pete Rose, the all-time Major League Baseball hits leader banned from the sport for betting on baseball, gives America's game the opportunity to send a powerful message to society about the necessity of giving second (and, if necessary, third, fourth and fifth chances) to those who break the rules.

Forgiveness and redemption have always been at the heart of America's identity.  These concepts are central to all major religious traditions, including those upon which our country was founded.  Former President George W. Bush acknowledged as much when he said during his 2004 State of the Union Address: "America is the land of second chance --and when the gates of the prison open, the path ahead should lead to a better life."

President Bush's words resonate with us because we've all made mistakes, some, of course, more serious than others.  And we all hope not to be judged forever by the worst we have done but instead by the best we have to offer.

But when it comes to the transgressions of others, too frequently we withhold the forgiveness we seek for ourselves, especially when the wrong committed is serious.  We are quick to judge, condemn and ostracize people who have committed felonies or otherwise broken the social contract in significant ways.  We call those who have done wrong "criminals," "felons" and "convicts" -- labels we use to dehumanize people to justify our denial to them of full membership in the community.  With those labels, we cut people off from America's most distinguishing value: aspiration to better oneself and make life better for those around us.

Each year approximately 700,000 people return from prison to communities across the United States.  For most, job prospects are bleak.  Not only are employers reluctant to hire someone with a felony record, but state and local laws limit the types of jobs those with criminal records can pursue.  In Ohio alone there are more than 400 state laws that restrict employment options for ex-offenders.  And without employment, ex-offenders are severely limited in their ability to get back on their feet and productively rejoin society. In recognition of this fact, U.S. Attorney General Eric Holder of the Department of Justice (DOJ) sent a letter to each state on April 18, asking each to review its laws that prevent people with criminal records from obtaining jobs....

So what does any of this have to do with Pete Rose and Major League Baseball? If baseball truly reflects our core values, including forgiveness and redemption, then Major League Baseball should reinstate Rose and make him eligible for the Hall of Fame....

Lifting Rose's lifetime ban would not only benefit baseball -- the Hall of Fame is diminished by the Hit King's absence -- but it would also reinforce the broader social importance of not writing off forever people who have made serious mistakes.  America has always taken pride in fostering the highest aspirations of its citizens, regardless of their past deeds or present circumstances.  Major League Baseball has a golden opportunity to truly promote forgiveness and redemption, the values inherent in the game itself.

May 16, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (4) | TrackBack

IMF Chief Dominique Strauss-Kahn denied bail in NYC sex assault case as alibi talk emerges

Though not (yet?) a sentencing story, the high-profile arrest of Dominique Strauss-Kahn, head of the International Monetary Fund, for sexual assault is too interesting of a criminal justice story to escape blog coverage today (especially since SCOTUS is to keep us waiting at least another week for any big sentencnig rulings).  Here, thanks to this new New York Times piece, are some factual and legal basics:

Dominique Strauss-Kahn, the leader of the International Monetary Fund, was ordered on Monday to be held without bail over allegations that he had sexually assaulted a maid in a $3,000-a-night suite at a Midtown hotel.

Prosecutors had asked the judge, Melissa C. Jackson, supervising judge of Manhattan Criminal Court, to remand Mr. Strauss-Kahn, 62, contending that he was a flight risk. They also indicated that a similar attack may have occurred....

In opposing bail, prosecutors highlighted the serious nature of the allegations. “The defendant restrained a hotel employee inside of his room,” Mr. McConnell said. “He sexually assaulted her and attempted to forcibly rape her,” and when that failed, Mr. McConnell said, he forced her to perform oral sex....

Benjamin Brafman, one of Mr. Strauss-Kahn’s lawyers, argued that “there is a very, very defensible case and he should be entitled to bail,” asking that his client be allowed to post $1 million bail. He said his wife would provide the money. She was scheduled to arrive in New York from Paris at 1 p.m., Mr. Brafman said. He added that his client was not trying to flee when he was arrested on an Air France plane that was about to take off from Kennedy International Airport on Saturday....

But prosecutors said that Mr. Strauss-Kahn’s resources, the lack of an extradition treaty between the United States and France and the defendant’s history were all reasons that he should not be granted bail....

Mr. Strauss-Kahn has been charged with various counts of sexual assault including attempted rape, sexual abuse and criminal sexual act. He faces up to 25 years in prison if convicted.

After Judge Jackson announced that Mr. Strauss-Kahn would be held without bail, Mr. Brafman asked if she would be amenable to changing her decision if he were able to strike a deal with the Manhattan district attorney’s office in which his client would wear an ankle monitor. Judge Jackson indicated that she would not change her ruling, meaning that Mr. Brafman may have to make a bail appeal to the appellate court.

Mr. Strauss-Kahn’s appearance in Manhattan Criminal Court, which lasted only 26 minutes, capped a 43-hour odyssey through New York’s criminal system. He was arrested, held in a special cell in East Harlem, placed in a police lineup, and submitted to a forensic medical exam for possible evidence....

On Sunday afternoon, Mr. Strauss-Kahn’s accuser picked him out of a lineup in East Harlem, where he was being held at the Special Victims Unit, and new details emerged on how he came to be taken into custody.... The police have provided few details about the woman at the center of the case beyond saying she was 32 and an African immigrant.

Meanwhile, this new Forbes piece reports on reports of an alibi for the defendant knows often by the initials DSK:

Benjamin Brafman, star defense attorney in charge of Dominique Strauss-Kahn’s defense (DSK) from charges that he sexually attacked a 32-year-old maid at the Sofitel New York in midtown, told Judge Melissa C. Jackson his client was innocent and he could prove it. As the case explodes into a global media frenzy and speculation soars, French media outlets have claimed they have gotten a hold of what would be DSK’s alibi.

According to Le Figaro, generally right-leaning and one of Paris’ largest newspapers, DSK’s lawyers have reconstructed his schedule and can prove both that he checked out of his room before the attacks supposedly took place and that he was having lunch with his daughter at the time. (Read IMF Chief Denied Bail As Legal Problems Now Brew In France).

A double sexual attack was thought to have occurred around 1:00 PM on the 28 floor of the Sofitel New York, deputy commissioner and spokesman for the NYPD, Paul J. Browne, explained to reporters. The French daily, though, notes that sources have put DSK’s check out time closer to noon, with center-right daily Liberation citing police sources claiming the IMF chief handed in his keys at exactly 12:28 PM.

After leaving his room, DSK is said to have gone to lunch with his daughter, a graduate student at Columbia University.

That same information, which, if proven, would constitute the IMF chief’s innocence, is undermined by information gathered by Liberation in New York. The daily, founded by philosopher and playwright Jean Paul Sartre, had Paul Browne, NYPD spokesman cited above, saying “”we said initially that [the attacks] was around 1PM, in fact it was closer to noon.” If the information proved to be accurate, DSK would have had about 28 minutes to sexually attack the 32-year-old and check out of his hotel.

May 16, 2011 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (9) | TrackBack

What SCOTUS opinions seem likely to be worth the wait for sentencing fans?

As detailed in this SCOTUSblog post, the Supreme Court is expected to release opinions this morning and there are lots of criminal justice cases still waiting to be resolved.  I would like to hear from readers about which still pending cases they think could be a really big deal as the SCOTUS term comes down to its final few weeks

Because I am due to be on the road and thus off-line most of the day, I have an eerie feeling the Court will hand down the Plata decision concerning California's prison crowding problems (background here).  That's the biggest case still pending from my watch list, and there are also few federal statutory sentencing cases that could be interesting if the Justices decide to write broadly about the Armed Career Criminal Act or other federal statutes.  And maybe there is a sentencing sleeper lurking among some other cases, though I doubt it because the Roberts Court has not tended to make little cases bigger than they need to be.

May 16, 2011 in Who Sentences | Permalink | Comments (4) | TrackBack

"A growing burden: As more elderly prisoners serve time, state officials struggle to pay their medical costs"

The title of this post is the headline of this new Houston Chronicle piece, which gets started this way:

A growing population of elderly inmates is driving up prison medical care costs to the point that some Texas lawmakers would like to see more of those who are feeble and chronically ill released early.  In the last decade, the number of inmates 55 and older has spiked as much as 8 percent each year, growing to about 12,500, while the general inmate population has remained fairly flat.

In prisons across the country, inmates grow old serving longer sentences and enter prison at an older age. Between 1999 and 2008, the number of inmates 55 and older in state and federal prisons increased by 76 percent to 76,400 inmates, according to the Federal Bureau of Justice Statistics.  The general population grew by 18 percent.  

With rising medical care costs and dwindling state budgets, policy-makers and prison officials have struggled to keep pace.  Elderly inmates in Texas make up 8 percent of the state's prison population, yet they account for more than 30 percent of prison hospitalization costs.

In fiscal 2010, the state spent more than $545 million on inmate health care. It paid $4,853 per elderly offender for care compared with $795 for inmates under 55, according to the Correctional Managed Health Care Committee.

Some older posts on older inmates:

May 16, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (11) | TrackBack

May 15, 2011

Keen coverage of capital realities, including deals to avoid death, in Ohio

My own Columbus Dispatch today had these two notable pieces on the operation of the Buckeye death penalty:

Here is an excerpt from the first of these pieces:

The death penalty in Ohio is more than just a form of punishment -- it's a tool prosecutors rely on to get information, avoid lengthy and costly trials and to provide quick justice to families in pain.  In contrast, pursuing a death-penalty case can mean decades before an execution date even is set....

Brent Yager, prosecutor in Marion County, said he believes he has a duty to seek the death penalty if the crime fits the requirements.  But circumstances can change, he conceded.  Sometimes, the threat of death is indeed a bargaining chip, a means to a conviction.  Other times, more information simply comes to light. "As you get closer to trial, a lot can happen," he said.  "You learn more about the case, you learn more about the defendant and, probably most importantly, you get to know the victim's family and you learn their wishes."

Sometimes, cost is a factor for poor, rural counties.  Yager said he understands that but wishes it wasn't so.  "Cost should carry the least amount of weight when choosing whether to seek a death sentence," he said.  "And, in my mind, the wishes of the family should be given the most."

Citing the cost and racial imbalance, two Democratic state lawmakers want to abolish the death penalty in Ohio. Reps. Ted Celeste, of Grandview Heights, and Nickie Antonio, of Lakewood in the Cleveland area, have introduced the legislation.  It likely is going nowhere in the Republican-dominated House.  Still, prosecutors worry about losing the option...

Defense attorneys counter that prosecutorial leverage is no justification for the death penalty.  "If we look at the death penalty as something there to extract guilty pleas more readily, I think that's a hell of a bad reason to have the death penalty," said Marc Triplett.

May 15, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

Obama Administration proposing mandatory minimum for harmful hackers

A helpful reader altered me to this Wired story, headlined "White House Wants Mandatory Three-Year Sentence for Critical-Infrastructure Hackers."  Here are the details:

Hackers who breach and cause substantial harm to critical infrastructure systems would face a mandatory minimum three-year prison sentence if the White House gets its way.

The Obama administration is requesting the mandatory prison sentence in a legislative proposal it submitted to Congress on Thursday, which outlines a long but vague list of cybersecurity provisions the White House would like included in upcoming bills.  The list includes a number of changes to laws governing hacking (.pdf), as well as laws authorizing the federal government to assist private companies in securing their computer networks when asked to mitigate threats....

Of all the items on the White House cybersecurity wish list, the provisions dealing with criminal penalties are the easiest for lawmakers to grant.  The criminal penalty for hacking into critical infrastructure is designed to emphasize the national security threat of such intrusions.  According to the proposal, the three-year sentence the White House is seeking could not be served concurrently with sentences for other violations a suspect might receive, nor could the court use the three-year mandatory sentence to reduce a suspect’s other sentences as compensation.

The administration also wants lawmakers to extend the Racketeering-Influenced and Corrupt Organizations Act, or RICO, to cover felony computer crimes. RICO has traditionally been used to prosecute the mob and other organized crime groups but does not presently cover computer crime.

So while one of President Obama's would-be 2012 challengers is talking about getting smarter on crime and another is urging withdrawal from the war on drug, the President is talking up new statutory mandatory minimum sentencing provisions.  Interesting sentencing times.  

May 15, 2011 in Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences | Permalink | Comments (2) | TrackBack

Iranian judiciary postpones planned "eye for eye" punishment

As detailed in this new Time piece, the "Iran's judiciary has postponed the blinding of a man as punishment for throwing acid in the face of a young woman in 2004, after she rejected his offer of marriage." Here is more on this proposed and now postponed form of retributive justice:

The delay came in the face of mounting outcry both inside Iran and in the West over the sentencing, which is permissible under qesas, a principle of Islamic law allowing victims analogous retribution for violent crimes.

The case has stirred passionate interest in Iran since 2004, when Majid Movahedi, a university student, accosted Ameneh Bahrami on a Tehran street and tossed a red bucket of sulfuric acid in her face.  Bahrami, an attractive young engineer, had repeatedly spurned Movahedi's proposals and reported his harassment to the police.  She was blinded and severely disfigured in the attack, and has spent the intervening years between Iran and Spain undergoing numerous unsuccessful operations to reconstruct her face and repair her sight.

Much of the public outcry in Iranian media, news websites, and blogs, surrounds the Iranian legal system, which produces such verdicts by practising an 'eye for an eye' approach to justice based on seventh century Islamic jurisprudence.  These principles effectively offer victims of violent crime two legal choices, forgiveness or qesas, analogous retribution....

Speaking on the interactive television program Saturday, Bahrami said she favored a more modern course, suing for damages.  "I want him to be punished foremost. But if there are human rights considerations, then I'll accept two million Euros and his life imprisonment," she said....

Bahrami, who was scheduled to herself administer the blinding drops to an anaesthetized Movahedi, learned of the delay outside the Judiciary Hospital in Tehran. Human rights groups and Western governments pleaded with Iranian authorities last week to call off the punishment.  Iran's government usually responds to such foreign pressure by lashing out rather than backing off, but Bahrami's case poses a unique dilemma: unlike many human rights cases which excite opinion primarily in the West, it has resonated deeply throughout Iranian society; the attention inside Iran raises the prospect of a public backlash at a time when the regime is deeply divided by political infighting. "There's no doubt public opinion inside Iran has been stirred up," says Amini.  "There's been a huge outpouring of sympathy for both of them, and this puts pressure on the government."

May 15, 2011 in Sentencing around the world, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

"In Prison Reform, Money Trumps Civil Rights" ... but I think civil liberties should trump all

The title of this post comes from the headline of this important op-ed in today's New York Times by my colleague Michelle Alexander, who is the author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”  Here are excerpts:

Thirty years of civil rights litigation and advocacy have failed to slow the pace of a racially biased drug war or to prevent the emergence of a penal system of astonishing size.  Yet a few short years of tight state budgets have inspired former “get tough” true believers to suddenly denounce the costs of imprisonment.  “We’re wasting tax dollars on prisons,” they say. “It’s time to shift course.”

Newt Gingrich, the former House speaker, shocked many earlier this year when he co-wrote an essay for The Washington Post calling on “conservative legislators to lead the way in addressing an issue often considered off-limits to reform: prisons.”

Republican governors had already been sounding the same note. As California was careering toward bankruptcy last year, Gov. Arnold Schwarzenegger lamented that more money was being spent on prisons than on education.  Priorities “have become out of whack over the years,” he said.  “What does it say about any state that focuses more on prison uniforms than on caps and gowns?”  Another Republican governor, John R. Kasich of Ohio, recently announced support for reducing penalties for nonviolent drug offenders as part of an effort to slash the size of the state’s prison population....

Given this political reality, it is hardly a surprise to read a headline that says, “N.A.A.C.P. Joins With Gingrich in Urging Prison Reform,” rather than the other way around....

What to do now?  Understandably, civil rights advocates and criminal justice reformers are celebrating this moment of what Professor [Derrick] Bell calls “interest convergence.” They say we must catch the wave and ride it.  Many have given up all hope of persuading the white electorate that they should care about the severe racial disparities in the criminal justice system or the racial politics that birthed the drug war.  It’s possible now, they say, to win big without talking about race or “making it an issue.”  Public relations consultants like the FrameWorks Institute — which dedicates itself to “changing the public conversation about social problems” — advise advocates to speak in a “practical tone” and avoid discussions of “fairness between groups and the historical legacy of racism.”

Surely the Rev. Dr. Martin Luther King Jr. would have rejected that advice....

Those who believe that righteous indignation and protest politics were appropriate in the struggle to end Jim Crow, but that something less will do as we seek to dismantle mass incarceration, fail to appreciate the magnitude of the challenge.  If our nation were to return to the rates of incarceration we had in the 1970s, we would have to release 4 out of 5 people behind bars.  A million people employed by the criminal justice system could lose their jobs . Private prison companies would see their profits vanish. This system is now so deeply rooted in our social, political and economic structures that it is not going to fade away without a major shift in public consciousness.

Yes, some prison downsizing is likely to occur in the months and years to come.  But we ought not fool ourselves: we will not end mass incarceration without a recommitment to the movement-building work that was begun in the 1950s and 1960s and left unfinished.  A human rights nightmare is occurring on our watch.  If we fail to rise to the challenge, and push past the politics of momentary interest convergence, future generations will judge us harshly.

I share Michelle's belief that mass incarceration is not going to go away unless and until we have a "a major shift in public consciousness."  However, I strongly believe that liberty, not fairness, need to be the guiding principle in this major shift.  After all, one big aspect of the modern mass incarceration movement has been an affinity for structured guideline reforms and the elimination of parole all in order to have greater fairness and consistency at sentence.  What we have really achieve is less liberty as much, if not more, than less fairness.

Put slightly differently and in the spirit of the headline of Michelle's important op-ed, I strongly believe the prison reform movement needs to focus on civil liberties as much if not more than civil rights.  Liberty is a value that all Americans prize and support (at least in their rhetoric), and it is a value that rarely (unlike fairness) can be seen as a zero-sum game.

May 15, 2011 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (27) | TrackBack

Interesting data concerning the near-dormant death penalty in Pennsylvania

Today's Philadelphia Inquirer has this lengthy piece headined "Rarely used, Pennsylvania's death penalty remains a headache on both sides of the debate."  Among the strong parts of the piece are its effort to assemble data on the death penalty's administration in the Keystone State.  Here are excerpts:

Year after year, polls show that about 60 percent of U.S. citizens support executing people convicted of murder.  Until those citizens become jurors.  An Inquirer analysis of almost 2,000 Pennsylvania homicide cases filed between Jan. 1, 2007, and Feb. 3 shows that just 3 percent of first-degree murder cases — the only charge for which capital punishment is possible — that went to a jury ended with the jury's choosing death.

A third of all first-degree murder cases ended with a sentence of life in prison with no chance of parole, the remainder with guilty verdicts on lesser degrees of homicide, guilty pleas, acquittals, or dismissal of charges.

For the eight people with the dubious distinction of being condemned by Pennsylvania juries since 2007, it's more likely they will die of old age than the injection of chemicals that is now the state's method of execution.

Just three people have been executed since Pennsylvania reinstituted capital punishment in 1978 — two in 1995, the last in 1999 — and only because all three ended appeals and asked for death.  For the other 215 awaiting execution, there is life on death row — solitary confinement 23 hours a day in special units at four state prisons, some for as long as 27 years — a sentence some inmates have called "death on the installment plan."...

Yet considering the controversy the death penalty stirs, data on the subject are hard to come by in Pennsylvania.  Although prosecutors must file a court notice when they intend to seek the death penalty, Pennsylvania's court system does not keep statistics on when the 67 county prosecutors do so.  Neither do the Pennsylvania District Attorneys Association and the Philadelphia District Attorney's Office.

"We've been looking for that kind of information for years," said Robert B. Dunham, an assistant federal defender in Harrisburg who has long handled appeals of indigent people facing execution.  Dunham, lawyers in the homicide unit of the Defender Association of Philadelphia, and local death-penalty consultant Marc Bookman have been left to glean their own anecdotal data based on what defense lawyers tell them and media accounts.

At The Inquirer's request, the Administrative Office of Pennsylvania Courts supplied a computer spreadsheet of all cases from Jan. 1, 2007 — when the Supreme Court implemented uniform reporting rules for all counties — through Feb. 3, 2011. The 362 pages of data list 1,975 cases originating in 56 Pennsylvania counties where a person was accused of causing the death of another.

From this list, 639 cases from 41 counties were culled because first-degree murder — a premeditated, malicious killing — was charged, the only crime for which death may be the punishment.  Among first-degree murder cases, 231 ended in a guilty verdict and a life sentence.  In only eight cases did the jury opt for death by lethal injection....

Dunham, the federal defender, noted that of 222 death sentences reversed since 1978 - the year Pennsylvania reinstituted capital punishment — 124 were for ineffective defense attorneys. Many of those cases are reappearing in county courtrooms for new trials or sentencing hearings — and often result in a guilty plea to a lesser grade of homicide....

The cost to taxpayers, say legal experts, is enormous.  The Death Penalty Information Center in Washington estimates a death sentence costs up to three times as much as imprisoning an inmate for life at high security.  But like most things involving the death penalty in Pennsylvania, data about the cost of prosecuting, defending, and appealing death penalty cases are not collected.

May 15, 2011 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack