« May 15, 2011 - May 21, 2011 | Main | May 29, 2011 - June 4, 2011 »

May 28, 2011

Oregon Supreme Court clarifies importance of victim rights at sentencing

As reported in this article from The Oregonian, headlined "Oregon Supreme Court: Victims have right to see sentencing; Beaverton man must be resentenced," the top court in the Beaver state yesterday handed down a very interesting sentencing procedure decision.  Here is the start of the press report:

The Oregon Supreme Court said today that a crime victim’s right to be present at court hearings is so crucial that the sentence of a Beaverton defendant must be thrown out and a judge must resentence him so his victim can be present.

The ruling offers a stern reminder to judges, prosecutors and defense attorneys that they can’t resolve criminal cases while victims are left in the dark — if victims have told prosecutors they want to be kept up to date on the process.  The ruling affects victims of all types of crime — including rapes, assaults, burglaries, car prowls and identity thefts.

“It is a significant victory for victims of crime here in Oregon to make sure their voices are heard,” said Meg Garvin, executive director of the National Crime Victim Law Institute in Portland and a clinical professor at Lewis & Clark Law School.  Garvin said the decision also is gaining national attention because the justices clearly stated what should happen once the victim’s right has been violated.

The right to be told of crucial criminal proceedings — and to speak, if victims wish — was guaranteed by a 1999 voter-approved amendment to the Oregon Constitution. Voters clarified a remedy if those rights are violated in 2008, and lawmakers wrote that into state statute in 2009.  The high court’s ruling is its first on this issue.

This notable ruling is available at this link, and here is key passage from the Court's discussion of the victim's right to the remedy of resentencing after her rights were not respected in the first sentencing of the defendant:

The principles outlined in [US Supreme Court case] DiFrancesco resolve this case.  The victim sought the remedy of resentencing, so the issue is whether double jeopardy barred the trial court from granting that remedy.  The only double jeopardy protection possibly implicated by requiring that defendant be resentenced is the protection "against multiple punishments for the same offense."  Id. at 129 (internal quotation marks and citation omitted).  However, the reasoning of DiFrancesco demonstrates that the prohibition against multiple punishments would not be violated by resentencing in this case.  The imposition of the original sentence is not comparable to an acquittal for double jeopardy purposes, and resentencing defendant with the possibility that his sentence may be increased is not inconsistent with either the history or the policies of the Double Jeopardy Clause.  "The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." Id. at 137.

The victim was entitled to a remedy by due course of law under [the Oregon Constitution's] Article I, section 42(3)(a).  Her proposed remedy -- vacating defendant's sentence and conducting a resentencing hearing -- was permissible, in that it was not barred by the Double Jeopardy Clause.  Because the remedy could be "effectuated after the disposition" of this criminal proceeding, the victim had not waived her rights under ORS 147.533.  The trial court erred in not granting the victim the relief that she sought.

May 28, 2011 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (13) | TrackBack

Pennsylvania Supreme Court declares local sex offender residency restrictions preempted by state law

As reported in this Philadelphia Inquirer article, which is headlined "Pa. high court strikes down a county's Megan's Law residency restrictions," the top court in the Keystone State has ruled that local sex offender residency restrictions are preempted by state law.  Here is the start of the press report:

In a ruling with statewide ramifications, the Pennsylvania Supreme Court on Thursday invalidated an Allegheny County law that restricted where convicted sex offenders could live, saying the ordinance would banish offenders to "localized penal colonies" with little access to jobs, support, or even their families.

The seven justices concluded that the Western Pennsylvania county law was at odds with the state's "Megan's Law," which requires convicted sex offenders across the state to report their residency so that nearby residents can be notified, but does not restrict where offenders can live.

Allegheny County's ordinance, enacted in 2007, went further, prohibiting such offenders from living within 2,500 feet of any child-care facility, community center, public park or recreation center, or school.

While the precedent-setting decision applied specifically to Allegheny County, an estimated 150 municipalities, mostly near Pittsburgh, but also in Bucks and Delaware Counties, have enacted similar laws as public-safety measures in the last few years.  As of last year, there were more than 10,000 registered sex offenders in Pennsylvania.

I cannot yet seem to find a link to this notable ruling, but will provide one when it becomes available.

UPDATE:  A helpful reader forwarded this link to the opinion from the PA Supreme Court.

May 28, 2011 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

May 27, 2011

"China used prisoners in lucrative internet gaming work"

Images The title of this post is the headline of this recent report from the Guardian, which starts this way:

As a prisoner at the Jixi labour camp, Liu Dali would slog through tough days breaking rocks and digging trenches in the open cast coalmines of north-east China. By night, he would slay demons, battle goblins and cast spells.

Liu says he was one of scores of prisoners forced to play online games to build up credits that prison guards would then trade for real money. The 54-year-old, a former prison guard who was jailed for three years in 2004 for "illegally petitioning" the central government about corruption in his hometown, reckons the operation was even more lucrative than the physical labour that prisoners were also forced to do.

"Prison bosses made more money forcing inmates to play games than they do forcing people to do manual labour," Liu told the Guardian. "There were 300 prisoners forced to play games. We worked 12-hour shifts in the camp. I heard them say they could earn 5,000-6,000rmb [£470-570] a day. We didn't see any of the money. The computers were never turned off."

Memories from his detention at Jixi re-education-through-labour camp in Heilongjiang province from 2004 still haunt Liu. As well as backbreaking mining toil, he carved chopsticks and toothpicks out of planks of wood until his hands were raw and assembled car seat covers that the prison exported to South Korea and Japan. He was also made to memorise communist literature to pay off his debt to society.

But it was the forced online gaming that was the most surreal part of his imprisonment. The hard slog may have been virtual, but the punishment for falling behind was real. "If I couldn't complete my work quota, they would punish me physically. They would make me stand with my hands raised in the air and after I returned to my dormitory they would beat me with plastic pipes. We kept playing until we could barely see things," he said.

It is known as "gold farming", the practice of building up credits and online value through the monotonous repetition of basic tasks in online games such as World of Warcraft. The trade in virtual assets is very real, and outside the control of the games' makers. Millions of gamers around the world are prepared to pay real money for such online credits, which they can use to progress in the online games.

Especially because it is late Friday before a holiday weekend, readers are welcome (and even encouraged) to respond to this post with jokes about sentencing prisoners to play Angry Birds or about what kinds of required on-line activities might be deemed cruel and unusual punishment.

May 27, 2011 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (11) | TrackBack

Might the Framers have viewed LWOP more like torture than like a death sentence?

The question in the title of this post is prompted by a passage in the majority opinion from the Wisconsin Supreme Court in Wisconsin v. Ninham, 2011 WI 33 (Wisc. May 20, 2011) (available here; blogged here), which rejected a constitutional challenge to the imposition of an LWOP sentence for defendant who committed a horrendous murder as a 14-year-old.  Here is the passage:

At common law, children ages seven and older were subjected to the same arrest, trial, and punishment as adult offenders, In re Gault, 387 U.S. 1, 16 (1967), which means that, theoretically, even the death penalty could have been imposed for a crime committed by a child as young as seven years old, see Stanford v. Kentucky, 492 U.S. 361, 368 (1989), overruled by Roper, 543 U.S. at 574; see also Thompson, 487 U.S. at 828 n.27 (reporting that a 10-yearold child was hanged in Louisiana in 1855 and another in Arkansas in 1885). Notably, once a child turned 14 years old, he or she no longer benefitted from the presumption of incapacity to commit a capital, or any other, felony. Stanford, 492 U.S. at 368 (citing 4 William Blackstone, Commentaries *23- 24); Thompson, 487 U.S. at 864 (Scalia, J., dissenting)

Given the common law understanding that 14-year-olds were not immune from capital punishment, it is clear that Ninham cannot establish that sentencing a 14-year-old to life imprisonment without parole was considered cruel and unusual at the time the Bill of Rights was adopted.

I highlight this passage because I commonly hear this claim that because the Framing Era accepted the death penalty for young criminals, then the Framers must not have viewed an LWOP term as violating the Eighth Amendment's prohibition on cruel and unusual punishment.  But, I am not sure this logic is air-tight, because (1) it seems likely the Framers expected and wanted the Eighth Amendment to prohibit torture as a form of punishment, and (2) is seems plausible that the Framers could have viewed an LWOP sentence to be more like torture than death as a punishment.

I understand that in modern times it is common (and perhaps even logical) to view an LWOP sentence as a categorically less severe punishment than the death penalty.  But in the Framing era, when lots of folks died young and when nobody was subject to imprisonment for extremely long periods, I am not sure everyone would have embraced this modern view of relative punishment severity.  After all, Patrick Henry famously said "Give me liberty or give me death!" and the discouraging prospect of lives subject to a sovereign's dominion fueled the American Revolution.  Against this backdrop, I do not think it far-fetched to wonder if some (many?) Framing era thinkers would have viewed an LWOP sentence eliminating all personal liberty and any future chance of personal liberty for half a century or longer to be more akin to torture than to a death sentence.

Perhaps someone knows of historical sources for exploring with rigor whether and how the Framers viewed punishments involving extreme liberty deprivations.  But unless and until I see evidence that the Framers embraced the modern perspective that an LWOP sentence is categorically less severe than the death penalty, I will continue to be troubled when courts and advocates assert that LWOP sentences are obviously constitutional for certain persons because the Framers authorized the death penlaty for these persons.

May 27, 2011 in Assessing Graham and its aftermath, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (20) | TrackBack

Another account of the crime rate's changing realities: blame the baby boomers

A great topic of debate this week on the blog has been over how to best account for modern decline in crime rates (see posts and comments here and here).  Now, this news article out of California, headlined "People age 40 and up buck tradition, commit more crime while felony juvenile arrests drop," prompts me now to think we can and should blame crime spikes in the 1980s and 1990s and crime declines thereafter to the baby boom generation entering and then leaving the peak crime ages. It also suggests that some baby boomers are bucking the usually tendency for old folks to age out of crime. Here is how this news piece starts and ends:

Researchers studying the effects of California's three-strikes law have found a puzzling trend: older adults are being arrested for felonies in droves, while felony arrests of juveniles are dropping.

The trend can be attributed to an "enormous increase in drug abuse" by an aging population, according to Mike Males of the San Francisco-based Center on Juvenile and Criminal Justice, during a three-strikes symposium at the University of Southern California earlier this month.  "We now see a dramatic reversal in the aging of the crime population," Males said. "It baffles me."

Males' finding was part of a report he released in April titled "Striking Out: California's 'Three Strikes and You're Out' Law Has Not Reduced Violent Crime."  The report fuels the debate over California's three-strikes law, which passed in 1994 and requires life sentences for third-strike felony convictions....

Males' report [which can be accessed here] recommends that the law be amended to require that the final strike be a violent crime and found that while it was projected to cost taxpayers billions of dollars, had negligible effects on violent crime levels.

At the same time, the age of offenders arrested for felonies has been steadily rising.  The number of people over age 40 going to prison has more than quadrupled over the last three decades, according to the study. In 1980, about 24,200 felony arrests were made of the 40-plus age group, with that number growing to 110,700 in 2009.

Meanwhile, the number of arrests of juveniles -- a demographic that experiences the least strike sentencing -- has been on the decline, from 97,000 to 58,600 in the same period.

The average age of a third-striker is 43 and an older population is increasingly being incarcerated, Males said. The development is a peculiar one, according to researchers. "In criminology, we assume that people slow down and commit fewer crimes," said Barry Krisberg, Research and Policy Director at UC Berkeley's Earl Warren Institute on Law. "We may need to revisit that and look at that again."

Juveniles tend to commit violent crimes at a higher rate than the older population, noted Harvey Sherman, deputy public defender of the L.A. County Public Defender's Office. With the nation's overall rate of violent crime at a 50-year low, fewer juveniles are going to jail, Sherman said.  At the same time, he expects to see the aging felons trend continue.

"They came back from Vietnam after being shot and they used morphine and heroin," Sherman said.  "Part of the addiction and the length of the addiction that some of these people have on these really nasty drugs means we're going to have some older people who just can't get off the dope."  The aging inmate population combined with the three-strikes law is foreboding for a cash-strapped state.

Of course, the age of those subject to California's three-strikes law will be older because it takes some time to get the first two strikes and get released to commit yet another strike.  In addition, there is reason to suspect and hope that the decline in juve crime is itself a product of the tough three-strikes law because perhaps more folks are fearful of even getting a first strike.  And the notion that these trends are all a product of a generation's time in Vietnam is really a bit silly (as is my basic suggestion that we can and should just blame the baby boomers for crime).

There is, however, a broader point that merits emphasis in this context: the nature, age and behaviors of criminals and would-be criminals is always evolving.  As I have said before and will say again, because human experience and behavior is always so dynamic, any single or simple assessment of the realities of crime and punishment is likely to be incomplete and may perhaps distort our ability to continue to more sentencing law and policy forward efficiently and effectively.

Recent related posts:

May 27, 2011 in Data on sentencing, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Does the ages of federal judges impact sentencing jurisprudence and decision-making?

The question in the title of this post is prompted by this new Slate commentaryheadlined "Not Getting Any Younger: President Obama's penchant for older judges scuttled Goodwin Liu." Here is how the interesting piece starts:

Goodwin Liu is out. Nominated to the 9th Circuit Court of Appeals more than a year ago, Liu was filibustered by Senate Republicans.  This week, he asked President Obama to withdraw his judicial nomination.  Critics in progressive circles have charged Republicans with hypocrisy over use of the filibuster.  But Liu's nomination was always vulnerable to obstruction, and not only because of his political or judicial outlook. His age was a crucial factor. Had Liu been 59 years old, instead of 39, he would not have been filibustered.

Consider that Liu was the President's youngest judicial nominee — younger than the next oldest nominee by nearly four years. And given his relative youth, he would have been an obvious candidate for elevation to the Supreme Court. Even if he weren't elevated, he might well have spent the next 30 to 40 years serving on the 9th Circuit.

Aside from Liu, none of President Obama's nominees to the federal appellate courts are under 40. Only two are under 45.  On average, Obama's nominees are more than 54 years old, which is four years older than the nominees under Presidents Ronald Reagan, George H.W. Bush, and George W. Bush.  But the averages tell only part of the story. Consider these statistics: Of the 50 youngest appellate judges nominated since the Reagan administration, 41 were tapped by Republicans.  Of the 30 youngest judges, 28 are Republican nominees; and the 18 youngest are all Republican nominees.  By contrast, if you take the 50 oldest judges nominated since Reagan, nearly half of them were nominated by Democrats.  For decades now, and as a matter of strategy, Republicans have been nominating younger judges.  The real question is why Democrats have been doing just the opposite.

What Democrats seem to have missed is that judicial age matters.  The list of the 50 youngest appellate judges appointed since the Reagan presidency — all nominated under the age of 45 — reads like a Who's Who of most accomplished federal judges of our time: Alex Kozinski (nominated at age 34), Frank Easterbrook (36), J. Harvie Wilkinson (39), Samuel Alito (39), Douglas Ginsburg (40), Clarence Thomas (41), and Richard Posner (42), to name just a few.  That list also includes rising conservative stars appointed by George W. Bush, including Neil Gorsuch (nominated at age 38), Steven Colloton (40), Jennifer Elrod (40), Brett Kavanaugh (41), Raymond Kethledge (41), and Jeffrey Sutton (42).  By this point in his first term, President Bush had nominated at least a half dozen judges who were 42 years old or younger. But President Obama has nominated just one: Goodwin Liu.

Especially while I am still relatively young (I have a few more months until I will age out of the group of persons "42 years old or younger"), I can see the virtue of this call for younger nominees.  And yet, especially when I take off my relatively-young-guy hat and put on my sentencing-observer hat, I am not sure youth is always a virtue when it comes to the development of sound sentencing jurisprudence and decision-making.  I thus am interested to hear if commentors have a view as to whether the wisdom of age or the freshness of youth seems to be an important attribute in judicial sentencing decision-making.

May 27, 2011 in Who Sentences | Permalink | Comments (3) | TrackBack

May 26, 2011

Interesting Brookings report on US crime rates in various regions

As detailed in this press release, the Brookings Institution has released an interesting report about declining crime rates in the US.  Here are the particulars:

The new report, City and Suburban Crime Trends in Metropolitan America, finds that factors like immigration, ethnicity, and poverty, when combined, do not play the roles in encouraging crime many might believe they do.

“Many people know the rates of violent and property crimes have declined significantly in recent years,” said Steven Raphael, Professor of Public Policy at the University of California, Berkeley and one of the report authors.  “What may come as a surprise is that some of the social characteristics we have associated with crime in the past are not associated with criminal behavior as they were once upon a time.  Crime rates have dropped everywhere, but they have declined the most in the nation’s inner cities that are often poorer, more urbanized, and more minority than their suburban counterparts.” ...

Among the report’s key findings:

  • Rates of violent crime and property crime declined significantly between 1990 and 2008 in the country’s 100 largest metropolitan areas, with the largest decreases occurring in cities.   Violent crime rates dropped by almost 30 percent in cities, while property crime fell by 46 percent.  Though city crime rates remain considerably above those in suburbs, smaller decreases in suburban violent and property crime rates over this time period (7 percent and 37 percent, respectively) narrowed the gap.
  • The gap between city and suburban violent crime rates declined in nearly two-thirds of metro areas.  In 90 of the 100 largest metro areas, the gap between city and suburban property crime rates narrowed from 1990 to 2008.  In most metro areas, city and suburban crime rates rose or fell together.
  • Among suburban communities, older high-density suburbs registered the largest declines in crime rates.  All types of suburban communities saw property crime rates fall over this time period.  Cities and high-density suburbs also saw violent crime rates decline, but low-density exurban communities experienced slight increases that are not explained by their changing demographics.
  • As crime rates fell and communities diversified, relationships between crime and community demographic characteristics weakened significantly.  The association between crime and community characteristics — like the proportion of the population that is black, Hispanic, poor, or foreign-born — diminished considerably.

The full report from the Brookings folks is available at this link.

May 26, 2011 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (4) | TrackBack

William Bennett says "'Lock 'em up' not always best solution"

Adding to the chorus of Republicans making a prominent pitch for sensible sentencing reforms, former drug czar William J. Bennett has this new commentary at CNN.  Here are excerpts:

As budget battles in Washington and the states unfold, politicians are striving to achieve the most for their money, pinpointing where they can cut spending without sacrificing service.  Although lowering spending can mean major overhauls to a lot of services, some states have realized that with a little outside-the-box thinking, corrections reform can simultaneously decrease the taxpayer burden and increase the efficacy of criminal justice systems.

In 2007, Texas launched this legislative trend of cutting corrections costs without sacrificing its tough-on-crime principles.  It has achieved this by making an effort to divert low-risk, nonviolent offenders from prison and rehabilitate them through community treatment programs and tighter supervision of probationers and parolees.  This effort has saved Texans more than $1 billion on corrections costs, decreased probation revocations by 4%, shrunk parole revocations by 25% and lowered incarceration by 9.2%. These reforms coincided with Texas achieving its lowest crime rate since 1973.

A famously tough-on-crime state, Texas is proving "lock them up and throw away the key" is not always the best solution, and leaders around the country are beginning to agree.  In December 2010, I joined Right on Crime, a coalition of conservatives, including former U.S. Attorney General Ed Meese and prison reform advocate Chuck Colson, that promotes the truly conservative case for criminal justice reform.  It is a platform that promotes traditional conservative values such as accountability, limited government and fiscal responsibility.

Including Texas, a dozen states have adopted policies consistent with Right on Crime's ideals, and reform is pending in several other states, including Florida, Georgia and Louisiana. The details of the legislation vary state to state, but the overarching goals of lower cost and higher effectiveness are the same....

Many states, such as Ohio, Illinois, Nevada and Vermont, are shifting away from incarceration to alternate sentencing for low-risk, nonviolent offenders. By capitalizing on probation and parole programs that use evidence-based practices such as drug courts, electronic shackling and increased community sentencing measures, states have been successful at turning offenders into rehabilitated, taxpaying community members....

Tough-on-crime conservatives can lead the cause of criminal justice reform in a way that should garner bipartisan support, demonstrating that "tough on crime" can also be smart on crime and tough on spending. Conservative-thinking leaders are fighting to cut spending across the country, working to improve efficiency and save taxpayer dollars.  As the budget battle wears on, corrections policy offers legislators a way to cut spending without sacrificing results, producing as close to a win-win solution as possible in politics.

May 26, 2011 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (12) | TrackBack

Does a state capital defendant have a "right to competency" for federal habeas proceedings?

The intereseting and intricate question in the title of this post is at the heart of a dispute within a Sixth Circuit panel in a ruling today in Carter v. Bradshaw, No. 08-4377 (6th Cir. May 26, 2011) (available here).  Though the Carter case is not easily summarized, the conclusion of the majority opinion for the panel explains the essential issues:

The district court did not abuse its discretion in holding a pre-petition competency hearing or by concluding that Carter was incompetent.  However, dismissing Carter’s petition and equitably tolling the AEDPA statute of limitations prospectively was an inappropriate disposition.  Rather, with respect to Carter’s ineffective assistance claims, the habeas proceedings should be stayed until Carter is competent according to section 4241. The district court must examine the remainder of Carter’s claims to determine whether Carter’s assistance is essential to their full and fair adjudication. If not, the court should appoint a next friend to litigate those claims.  Accordingly, we AMEND the district court’s judgment and REMAND the case to the district court for proceedings in accordance with this opinion.

Judge Rodgers, writing in dissent, thinks this panel ruling is all washed up, as highlighted by this first paragraph of his dissent in Carter:

Today the court allows habeas petitioners to prevent States from enforcing their judgments, potentially forever, on the grounds of a nonexistent right to competency in habeas proceedings.  The asserted right has no basis in the Constitution or federal statutes.  Civil suits can be brought by lawyers representing mentally incompetent plaintiffs, and habeas cases are no different.  Nor are capital cases different in this respect.

I would expect an en banc and/or cert petition may follow, and it will be interesting to see if the question posed by the title of this post and by the capital defendant in Carter gets significant further consideration in the months and years ahead.

May 26, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8) | TrackBack

Big criminal justice day from SCOTUS, though no blockbusters or left/right splits

Thanks to the live-blogging of the folks at SCOTUSblog, it appears that the Supreme Court is continuing its focus on criminal justice opinions this week.  This morning the Court handed down four opinions, three of which involve criminal justice matters and all of which appear to have produced intricate rulings without any of the kind of ideological 5-4 splitting seen earlier this week in Plata

None of today's SCOTUS criminal rulings appear at first glance to be major or even really all that consequential.  (And they are sure to be overshadowed by a 5-3 split ruling in Chamber of Commerce v. Whiting, wherein the Chief explains for the Court why Arizona laws imposing obligations on employers with respect to alien employees are not preempted by federal immigration laws.)  Here are links to the SCOTUS opinions in the three criminal justice cases handed down this morning, with a super-brief summary of the issues in play:

Camreta v. Greene: reviewing qualified immunity win for state officials on Fourth Amendment claim

Fowler v. United States: elements of federal witness tampering statute

United States v. Tinklenberg: calculating Speedy Trial Act timelines

As always, I will be grateful to commentors and readers for alerting me to anything that seems especially noteworthy or important in these SCOTUS opinions for sentencing law and policy fans.

May 26, 2011 in Who Sentences | Permalink | Comments (4) | TrackBack

Is California so dysfunctional that doom and gloom is the right reaction to Plata?

Cal prison population Regular readers likely realize that I see much of the doom and gloom coming from the Plata dissenters and from some commentators to be overheated reactions to the Supreme Court's decision to affirm the prisoner release order requiring California to significantly reduce its prison population.  Experiences in Texas and New York and a number of other states show that astute sentencing and correction reforms can allow a significant reduction in a state's prison population without a severe adverse impact on public safety.  Thus, I do not believe a huge Golden State crime spike is a necessary (or even likely) consequence of the Plata ruling if California responds reasonably and effectively to the population reduction order.

That said, two new pieces appearing in today's Los Angeles Times has me fearing that California's politics and practices may be so dysfunctional that perhaps the state will fail to be able to respond reasonably and effectively to the Plata population reduction order.  For starters, consider this piece headlined "No easy fix for California's prison crisis; Even if a court order to ease crowding can be met, sentencing laws could fill lockups again, analysts say," which reports on these on-going realities:

[W]ithout sweeping policy changes, the state will still send high numbers of offenders to prison under "three-strikes" sentencing laws, put about 70% of parolees back behind bars for violations within three years of their release and keep ambitious prison construction plans on hold for lack of money, according to experts and inmates' advocates....

Gov. Jerry Brown's plan to ease crowding would move inmates convicted of low-level and nonviolent crimes into the custody of county officials. The nonpartisan Legislative Analyst's Office estimated that as many as 32,500 such inmates could be transferred in time to meet the court's two-year deadline.

But Brown's plan requires the state to pay local officials hundreds of millions of dollars to help them cope with the influx, and the money would come from tax increases or extensions that are politically controversial. So far, there's no guarantee the state will come up with the money or would continue to provide it indefinitely, although Brown wants a constitutional guarantee that Sacramento could not cut funding to the counties....

Loyola Law School professor Laurie Levenson, a former federal prosecutor and veteran criminal law scholar, points to the high recidivism rate and past cuts in funding for prison rehabilitation and education programs as a formula for continued — even worse — crowding. "We have to stop the insanity of sending nonviolent drug offenders and low-level theft offenders to prison for life," Levenson said. "Nobody is saying we should let murderers out.... We have to stop the revolving door of parolees being returned for minor violations."

Compounding the situation is Jessica's Law, the 2006 initiative barring sex offenders from living within 2,000 feet of schools or parks, making it difficult for California's 92,000 released sex offenders to comply with that parole condition, especially in large cities.

In 2009, the most recent year for which the California Department of Corrections and Rehabilitation has statistics, almost 85,000 parolees were sent back to prison, most of them for two- and three-month sentences. That forced the state to erect three-tier bunks in sports halls, where parole violators spend their terms in the company of hardened criminals and without access to the minimal educational and rehabilitative programs that the corrections system retains after years of budget cuts.

With the average number of parolees in California at 127,383 on any given day, the state's overcrowding problem is bound to reemerge unless substantial changes are made to sentencing laws, parole conditions and in-prison rehabilitation programs, Levenson said.

Drug counseling and education have been severely hampered by overcrowding that has spilled into gymnasiums and meeting rooms. "There's no space and no money" for those programs, said [Michael Bien, whose law firm launched a 1990 case addressing poor mental healthcare in California prisons that ultimately led to Monday's ruling].

Even more distressing than these chronic challenges facing California are more acute problems such as the one reported in this piece, headlined "Computer errors let violent California prisoners go free; A computer system that lacked key information about inmates factored in the release of an estimated 450 prisoners with a "high risk of violence," according to the California inspector general." Here are the worrisome details:

Computer errors prompted California prison officials to mistakenly release an estimated 450 inmates with "a high risk for violence" as unsupervised parolees in a program meant to ease overcrowding, according to the state's inspector general. More than 1,000 additional prisoners presenting a high risk of committing drug crimes, property crimes and other offenses were also let out, officials said.  No attempt was made to return any of the offenders to state lockups or place them on supervised parole, said inspector general spokeswoman Renee Hansen.

All of the prisoners were placed on "non-revocable parole," whose participants are not required to report to parole officers and can be sent back to prison only if caught committing a crime.  The program was started in January 2010 for inmates judged to be at very low risk of reoffending, leaving parole agents free to focus on supervising higher-risk parolees.

The revelations come two days after the U.S. Supreme Court ruled that California's prisons are dangerously overcrowded and upheld an earlier order that state officials find a way to reduce the 143,335-inmate population by roughly 33,000.  The state has two years to comply. State Sen. Ted Lieu (D-Torrance), a former prosecutor who requested an investigation of the unsupervised-parole program, said the inspector general's report "confirms my worst fears" about it.

Investigators reviewed case files for 200 of the 10,134 former inmates who were on non-revocable parole in July of last year. They found that 31 were not eligible, and nine of those were determined likely to commit violent crimes.  The inspector general and corrections officials refused to identify the inmates who were released erroneously. They also would not specify what their original offenses had been.

Using the 15% error rate they found in their sample, investigators estimated that more than 450 violent inmates had been released during the first seven months of the program, the time period they reviewed.  Prison officials have disputed the findings, saying they had corrected some of the computer problems discovered by the inspector general.  The error rate is now 8%, the inspector general report says.

Gov. Jerry Brown's plan to address overcrowding would shift tens of thousands of low-level offenders from prison to county custody.  Counties would also supervise most low-risk parolees, like those in the non-revocable program.

But if the state can't properly identify which inmates qualify for an unsupervised parole program, Lieu said on Wednesday, "how can the public have confidence they can release 33,000 felons safely?"

Under the law that created non-revocable parole, inmates are excluded if they are gang members, have committed sex crimes or violent felonies or have been determined to pose a high risk to reoffend based on an assessment of their records behind bars.  That's where the problems begin, according to the inspector general.  The computer program prison officials used to make that assessment does not access an inmate's disciplinary history.

Prior posts on the Plata ruling:

May 26, 2011 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (9) | TrackBack

Kidnapper of Elizabeth Smart gets LWOP federal sentence

As detailed in this report from the Salt Lake Tribune, a high-profile kidnapping case wrapped up with an expected and deserved severe sentence for the kidnapper yesterday in federal court in Utah.  Here are the basics: 

As he’d done in court many times before, Brian David Mitchell quietly sang church hymns Wednesday, with his cuffed hands clasped together and his eyes closed.  But the sentencing — for one of the most notable crimes in Utah history — proceeded despite Mitchell’s bizarre behavior.

And at the finale of Mitchell’s eight-year legal saga, the former homeless street preacher’s antics in federal court were overshadowed by an assertive Smart, who evenly delivered a message to the man who took so much from her when she was just 14.

Smart, now 23, drew a deep breath after walking to the center of U.S District Judge Dale Kimball’s courtroom, then turned to face Mitchell, 57.  “I don’t have very much to say to you,” she told the unresponsive defendant.  “I know exactly what you did,” she said. “I know that you know what you did was wrong.  You did it with a full knowledge.  I also want you to know that I have a wonderful life now, that no matter what you do, it will not affect me again."...

Smart’s powerful statement came minutes before Kimball ordered Mitchell to spend life behind bars for kidnapping Smart from her Salt Lake City bedroom in order to make her a plural wife.  Kimball called Mitchell’s crimes against Smart “unusually heinous and degrading.  “A life sentence reflects the seriousness of the crime,” the judge said.

May 26, 2011 in Offender Characteristics, Offense Characteristics | Permalink | Comments (0) | TrackBack

Arizona completes execution with substitute drug

As detailed in this Reuters piece, an "Arizona apartment complex custodian was put to death by lethal injection on Wednesday for the 1984 rape and murder of a 13-year-old girl, after a flurry of last-minute court appeals failed." Here is more:

Donald Edward Beaty, 56, died at 7:38 p.m. local time at a state prison in Florence, Arizona, officials said, in an execution delayed for more than nine hours by a legal dispute over one of the drugs used to kill him.  Beaty, convicted of killing newspaper carrier Christy Ann Fornoff, had won a temporary stay from the Arizona Supreme Court after his lawyers objected to the last-minute substitution of a drug to be used in the lethal-injection mix.

But the court lifted the stay after conducting a special hearing on Wednesday morning, rejecting arguments that the state breached Beaty's constitutional due process rights and protections against cruel and unusual punishment.  Petitions to the 9th U.S. Circuit Court of Appeals and the U.S. Supreme Court were unsuccessful....

Arizona switched the sedative in the three-drug "cocktail" it planned to administer to Beaty from sodium thiopental to pentobarbital on Tuesday after federal officials said the state failed to fill out a required form to bring the substitute drug into the country. Sodium thiopental, which renders the prisoner unconscious, has been at the center of a debate over appropriate execution drugs. Supplies have become scarce in the United States, and efforts to buy stocks overseas have stirred controversy and been turned down flat by some manufacturers.

Beaty was convicted of snatching Fornoff from her newspaper route in Tempe, Arizona, in May 1984.  He sexually assaulted her, then suffocated her in what was then one of the state's more sensational criminal cases.  Court records said he kept the body inside his apartment for two days.  She was later found wrapped in a sheet behind a dumpster there....

He is the second inmate executed in Arizona this year, and the 26th since the death penalty was reinstated there in 1992. Nineteen people have been executed in the United States so far this year, according to the Death Penalty Information Center.

May 26, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

May 25, 2011

"Loughner Found Incompetent to Stand Trial"

The title of this post is the headline of this Wall Street Journal report on the results of a high-profile court hearing today in Arizona.  Here are the details:

A federal judge in Tucson, Ariz., Wednesday declared alleged killer Jared Loughner mentally incompetent.  The decision could delay any trial by months and raises the possibility that the 22-year-old accused shooter of Rep. Gabrielle Giffords and 18 others might never appear before a jury.

Mr. Loughner, who has been in custody since the Jan. 8 shootings — in which six people died — will now be evaluated with the aim of coming up with a treatment plan to restore him to competence so his trial can proceed, possibly through the use of psychiatric drugs, say legal experts.

The ruling sets the stage for a possible legal battle over whether Mr. Loughner, if he refuses treatment, should be forced to take drugs that might help him regain competency and face trial....

Thousands of defendants each year in the U.S.'s courts are deemed incompetent to stand trial, experts say.  "In the overwhelming majority of cases people are treated and restored" for trial within months, said Richard Bonnie, a professor of law and medicine at the University of Virginia.

May 25, 2011 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Making the full-throated case for the notion that more Internet = less crime

I was pleased to see Nathan Koppel through this post at the WSJ Law blog pick up on my post here yesterday about possible contributors to the great modern crime decline.  And though the comments at the WSJ Law blog to Nathan's post are not nearly as informed and engaging as are the comments here at SL&P, there was an interesting link to this post at the blog "Lifelong Learner," which make a lengthy and compelling case for why more internet explains why there is less street crime. Here is how that post concludes:

In 1969, Professor Hirschi asked an interesting question, why do people not commit crime, instead of why people commit crime.  He concluded that people do not commit crime because they are bonded to society in four ways, i.e., through in commitment, attachment, involvement, and beliefs.  If Hirschi was correct, then the young people who are crazy about the Internet and spend hours and hours on it to learn gaming or do networking are not likely to be in the street causing trouble.

More simply, being hooked on the Internet, the young people have a purpose and meaning in life. The “commitment” and “involvement” with the Internet (activities and community) takes them away from street crime.  Each hour the young people are glued to the computer means an hour less for committing crime or causing trouble in the street. This is not to say that the young people would not commit crime in Internet, but most of them are not reported as street crime.

The Internet has made our street safer by engaging our kids in senseless to parents, useless to society, but meaningful activities to the young people!!!

May 25, 2011 in Data on sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack

Supreme People's Court of China orders lower courts to suspend death sentences for two years

Changes in the law, policy and practice of the death penalty in China is now appearing to be even more dynamic than in the US these days.  Specifically, as detailed in this new BBC piece headlined "China orders suspension of death sentences," the highest court in China is apparently ordering a big change in capital practices in lower courts.  Here are the details:

China has apparently introduced new standards to reduce the number of criminals it executes.  The Supreme People's Court -- the highest in China -- has told lower courts to suspend death sentences for two years. But this should only happen in cases where there is no need for "immediate execution", the court said.

China has introduced a number of measures over recent years to cut down the number of executions. This latest development appeared in the annual report of the supreme court. "Suspend the death sentence for two years for all cases that don't require immediate execution," read the report.

The court does not say why some cases might need to be carried out immediately, although in the past the government has instructed judges to be more severe in cases that involved crimes it was targeting.  Those benefiting from the changes will probably never be executed. Criminals given a suspended death penalty usually have their sentences commuted to life imprisonment.

China does not reveal the number of executions it carries out each year, but it is thought to kill more people than any other country.  Four years ago the Supreme People's Court took back the right to review every death sentence handed out by lower courts. The result has been fewer executions.

Earlier this year China reduced the number of crimes that carry the death penalty by 13 to 55.  "Strictly control and unify standards relating to the death penalty, and ensure that it only applies to a very small minority of criminals committing extremely serious crimes," read one section of the supreme court's report.

May 25, 2011 in Death Penalty Reforms, Sentencing around the world, Who Sentences | Permalink | Comments (0) | TrackBack

Post-Graham advocacy that "Every Child Deserves a Second Chance"

The title of this post is drawn from the title of this new commentary now appearing at The Huffington Post.  The piece is by Anthony Barkow, Executive Director of the Center on the Administration of Criminal Law at New York University School of Law, and here are excerpts:

Just one year ago in Graham v. Florida, the Supreme Court of the United States ruled that it is unconstitutional to sentence juveniles to life without the opportunity for parole for a non-homicide crime committed when they were under age 18.  The Court concluded that these offenders should have an opportunity to have their sentences reviewed, and the logic of the Court's opinion extends to every young person convicted of a serious crime.

I was a prosecutor for 12 years.  During that time, I prosecuted a wide variety of crimes, ranging from international terrorism to securities fraud, from domestic violence and sexual abuse to homicide.  I prosecuted cases in which offenders received very substantial sentences. I am proud of my work as a prosecutor and I have no doubt that criminal punishment is critical to keeping communities safe....

But ... there are other youthful defendants who have been sentenced to unjust sentences of life without the opportunity for parole....  [And there is a] critical fact to keep in mind about those seeking to end life without parole for juveniles.  No one is arguing that any particular individual should be let out of prison.  Ending juvenile life without parole merely leaves open the possibility that a child who commits a crime can petition for release later in life, if he can demonstrate that he is remorseful, has rehabilitated, and will not reoffend.  Parole authorities can and should be trusted to make informed, reasoned decisions regarding the release and continued incarceration of inmates petitioning for parole.

This approach makes sense as a matter of justice and economics.  Juvenile offenders have diminished culpability: a view supported by science -- and common sense, as anyone can attest to who remembers his or her years as a teenager.  Juvenile offenders also have increased potential for rehabilitation and, in fact, even without intervention, most offenders age out of crime commission.  Thus, in certain instances, spending on extremely lengthy terms of incarceration on juveniles would be wasteful.

Extending the reasoning in Graham, so that it applies to every young person, will have no significant adverse impact on public safety and will allow for flexibility in juvenile sentencing.  This will reduce incarceration costs and support the possibility for rehabilitation in young offenders.  As a society we can no longer afford to declare youth worthless and sentence them to die in prison without giving them an opportunity to have their sentence reviewed.  Before Graham's next anniversary, policy makers must implement reforms to end the practice of sentencing youth to life without parole.

May 25, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Dissenting from denial of en banc review, Judge Williams makes strongest case for applying FSA to pipeline cases

As regular readers know, I have been following closely (and have been at times involved in) the litigation surrounding the issue of applying the Fair Sentencing Act's revised mandatory minimum sentencing provisions to not-yet-sentenced defendants.  Today, Seventh Circuit Judge Williams (joined by Judge Hamilton), has this opinion making the strongest arguments for applying the FSA to these pipeline cases, though this opinion comes as a dissent from the circuit's denial of en banc review of a panel decision (blogged here) that was decided the other way in March.

Anyone involved with on-going FSA litigation will want to review this new opinion, and here is a passage that effectively articulates what I consider the strongest justification for reading the FSA's new minimums to apply to not-yet-initially sentenced cases:

The panel recognized [the argument based on the FSA's Section 8 directive to the USSC to amend the crack guidelines ASAP], but then stated that Congress “could have dropped a hint” that it sought to apply the FSA to pending cases “in its charge to the Sentencing Commission.”  I see no hint that Congress intended otherwise.  In that very charge, in fact, Congress ordered the USSC to exercise emergency powers to conform the guidelines to the FSA “as soon as practicable,” and no later than ninety days, instead of waiting for the Commission to promulgate new guidelines under existing procedures.  When the FSA was enacted, Congress was undoubtedly aware of the default rule of applying amended guidelines to pending cases, which would require the application of a new 18:1 guideline ratio regardless of when the violation occurred.  Section 8 of the FSA sought to promote “consistency” between the guidelines and the statute, which signals an intent to apply the FSA to pending cases just as the guidelines would be.  Under the panel’s interpretation, for many defendants currently being sentenced whose conduct occurred before the FSA was enacted, the sentencing court would calculate an 18:1 guideline ratio, but would have to apply a statutory 100:1 ratio.  Oddly, under the panel’s interpretation, of these defendants, the only ones who benefit from this “emergency authority” are the worst offenders, whose new guidelines range would be reduced to the statutory minimum. Congress’s mandate in section 8 would not have made much sense if Congress did not intend the FSA to apply to defendants in Dorsey’s situation because, regardless of what the Commission promulgated, the new guidelines would simply look to the old statutory minimums. 

Some posts on this FSA issue:

UPDATE Thanks to this post at SentencingSpeak, I saw this effective local article about one (of many?)individuals adversely impacted by the continued application of the old crack mandatory minimums.  The piece is headlined "Old mandatory-minimum law lengthens Pittsburgh man's crack-cocaine sentence," and here is an excerpt:

In December, Mr. Brewer pleaded guilty to aiding in the possession with intent to distribute five grams or more of crack-cocaine, worth a street value of about $500. He was sentenced Wednesday to five years in federal prison, a mandatory minimum penalty authorized by a defunct law.

If Mr. Brewer were arrested today in the same situation, he would face a guideline sentence of 46 to 57 months incarceration. A federal law enacted in August eliminated the 60-month mandatory minimum for defendants like him, raising the amount of crack-cocaine needed to trigger that punishment to 28 grams....

The sweep of the new law did not catch Mr. Brewer, though, who was indicted before it was implemented. That conundrum has blindsided defendants across the nation since the sentencing act was passed, frustrating their lawyers and baffling their families.

"I know people who have shot someone and gotten less than five years in jail," said Mr. Brewer's mother, Nicole Roach, who drove more than 100 miles in a rented car to attend her son's sentencing. She emerged in shock, recalling how Mr. Brewer's guilty pleas in 2005 and 2007 to drug possession resulted in probation. "If there's a new law, it should be applied," said Mr. Brewer's fiancee, Ebony Tolliver, of Mount Washington. "How does that work?"

May 25, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Bipartisan call for making new crack guidelines retroactive (without fear of "blood on the streets" or a "grim roster of victims")

I am pleased to see that in this new commentary at the website Main Justice, Asa Hutchinson and Laura Murphy are making a bipartisan pitch for retroactive application of the lowered federal sentencing guidelines implemented in response to the passage of the Fair Sentencing Act. The piece is titled simply "Fairer Sentencing: Sentencing guidelines for crack cocaine offenses should be applied retroactively," and here a few notable paragraphs:

The U.S. Sentencing Commission will soon consider whether to apply the new crack guidelines retroactively so that fairness will apply both to future offenders and to those who were sentenced under the old law. With those of the political left and right rarely agree on matters of policy, the fact that we -- a representative of the ACLU and a former federal prosecutor -- can both support this change by the Sentencing Commission demonstrates vividly the logic and fairness of the change....

The Justice Department should continue to provide the moral leadership it has to date on crack sentencing fairness by urging the U.S. Sentencing Commission today (and Congress tomorrow) to apply the new, fairer crack penalties retroactively.

As the title to my post here is meant to highlight, it is all too easy to imagine a much different type of commentary on this sentencing issue which draws on the kind of rhetoric in the Plata dissents and in some commentary since the Supreme Court's affirmance of the prisoner release order in this case.

Applying the new crack guidelines retroactively would likely lead to the early release of thousands (perhaps even tens of thousands) of federal prisoners convicted of serious crack offenses.  Thus, were one eager to trump exaggerated public safety fears over sentencing fairness, one could readily assert that the result of applying new guidelines retroactively will bring "blood on the streets" and a "grim roster of victims."  Fortunately, we have not (yet?) seen too much of this rhetoric in the context of crack sentencing, and it is really a shame that this rhetoric has been used so readily in response to the Plata ruling.

UPDATE:  In related news, this new press releaseexplains that "A group of seven prominent national civil rights organizations that includes The Leadership Conference on Civil and Human Rights sent a letter to the U.S. Attorney General Eric Holder urging him to support the retroactive application of a new set of sentencing guidelines that accompany the implementation of the Fair Sentencing Act (FSA), which reduced the discriminatory sentencing disparity between crack cocaine and powder cocaine offenses."  The letter is available at this link.

In addition, the US Sentencing Commission now has posted this notice and this agendaconcerning the public hearing to be held next Wednesday, June 1, 2011, in DC which is "for the Commission to gather testimony from invited witnesses regarding retroactivity of Amendment 2, pertaining to federal drug offenses."  The agenda lists 18 individuals to be testifying on retroactivity from various perspectives, and I will boldly predict that at least 15 of those persons scheduled to testify will be urging some form of retroactivity for some of the new lowered crack guidelines.

May 25, 2011 in Drug Offense Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3) | TrackBack

Third Circuit to hear feds' complaints about 55-month sentence for corrupt state politician

As effectively reported in this new piece in the Philadelphia Inquirer, which is headlined "Prosecutors to argue for longer Fumo jail term," the Third Circuit hears argument today in a high-profile sentencing appeal by prosecutors.  Here are the essentials:

Federal prosecutors will appear before a three-judge panel Wednesday to argue that former State Sen. Vincent J. Fumo, nearly midway through a 55-month sentence for corruption, should be resentenced to a longer term.  Once one of the most influential politicians in Philadelphia and Harrisburg, Fumo was convicted in 2009 on 137 counts of corruption and fraud. Prosecutors want a sentence that meets federal guidelines, which call for a much longer term of 21 to 27 years....

Fumo was sentenced after the jury found that he had turned his Senate staff into personal servants and political minions, doing errands for him on state time.  The jury also found that he had defrauded a pair of nonprofit organizations.  After Fumo realized the FBI was on the trail, he tried to obstruct the probe. The wrongdoings cost taxpayers and the nonprofit groups more than $2 million.

At sentencing, U.S. District Judge Ronald L. Buckwalter said the 55-month term was justified by Fumo's public service, 259 letters asking for leniency and extolling Fumo's work, and the nature of Fumo's offenses.

"It's not murder. It's not robbery. It's not even assault," Buckwalter said of Fumo's wrongdoings.  "It's nothing violent.  It's not the selling of a political office," Buckwalter said at Fumo's sentencing hearing.

His decision produced an outcry, and federal prosecutors are hoping the Third Circuit will send the case back for resentencing.  Meanwhile, Fumo is asking for a new trial. The three-judge panel will decide both issues.  "It is likely impossible to identify a defendant in recent years who stole over $2 million, abused a position of public trust, and obstructed justice in the process who received a sentence anything like Fumo's," Assistant U.S. Attorney Robert Zauzmer wrote in the government's appeal....

In their court filings, the defense attorneys argue that there were "no significant" errors in Buckwalter's sentencing and that the cost to taxpayers of Fumo's fraud was just below $2.5 million.  A greater financial loss, as prosecutors insist occurred, would have likely meant a longer sentence.

Related posts concerning Fumo sentencing and appeal:

UPDATE:  As detailed in this Philadelphia Inquirer piece, it appears that at least two judges on the Third Circuit panel indicatyed at oral argument that "the sentencing of the disgraced politician in 2009 was rife with serious procedural errors."

May 25, 2011 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

"Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible"

The title of this post is the title of this notable new forthcoming piece from Kimberly Kessler Ferzan, which is now available via SSRN. Here is the abstract:

The traditional approaches to dangerous persons have been crime and commitment.  The criminal law punishes responsible actors, and the civil law confines the mentally ill.  These approaches leave a gap: The state cannot substantially restrict the liberty of responsible actors until they have committed a crime.  In response to this gap, the criminal law’s boundaries have expanded to include preparatory offenses and early inchoate conduct that are deserving of only minimal, if any, punishment in attempt to incarcerate the dangerous.  Meanwhile, the Supreme Court’s effort to articulate a test of mental disease warranting involuntary confinement of sexual predators has failed to draw a principled distinction between the ordinary criminal and the mentally ill.

This Article argues that rather than contorting the criminal or commitment models, there is a theoretical justification for substantial liberty deprivations of responsible, but dangerous, actors.  Drawing on the concept of “liability to defensive force” from the self-defense literature, this Article argues that just as a culpable attacker’s own conduct grounds a defender’s right to response, a dangerous actor who begins a course of criminal conduct grounds the state’s right to stop him.  This Article articulates what conduct is sufficient for “liability to preventive interference” as well as what the forms of preventive interference could be. In addition, this new form of liability is assessed in terms of constitutional implications, the civil-criminal divide, and practical considerations.

May 25, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

DOJ gets in way of Arizona execution based on illegal acquisition of lethal injection drug

There is an amazing death penalty administration story coming today out of Arizona, as reported in this new ABC News piece headlined "DOJ Tells Arizona it Illegally Obtained Death Penalty Drug." Here are the details:

Hours before the scheduled execution of an Arizona death row inmate, the Department of Justice informed the state that it should not use a controversial drug as part of the execution protocol because the state had illegally obtained the drug from a foreign source.

The last-minute move stunned lawyers for convicted murderer Donald Beaty who had argued for months that Arizona hadn't been in compliance with federal law regarding the importation of sodium thiopental, one of the three drugs commonly used for lethal injection executions. The drug is no longer manufactured in the U.S.

The chief judge of the Arizona Supreme Court issued an unusual late night order delaying the execution. Arizona had consistently argued that it had properly obtained the drug. In a filing with the Arizona's Supreme Court the state's Attorney General said that it in order to "avoid questions about the legality " of the drug it had decided to comply with the request from United States Associate Deputy Attorney General Deborah A. Johnston.

In the filing it said it planned to substitute another fast-acting barbiturate—pentobarbital—for the sodium thiopental. Arizona law allows it to change its protocol without hearings and legislative review required by some other states.

Long before the surprise announcement from Arizona's prison, Dale Baich, Beaty's public defender, had contacted the Department of Justice seeking guidance why the Drug Enforcement Agency (DEA) had seized the drug from five other states this year but not Arizona.

The DEA seized the imported drug from Alabama, Georgia, Kentucky, South Carolina and Tennessee informing prison officials that it believed they had failed to follow federal importation laws. But the agency it did not seize the drug from Arizona and four other states who had also obtained the drug from abroad....

Beaty was sentenced to death in 1985 for the brutal rape and murder of Christy Ann Fornoff who was 13 years old and on her paper route when she disappeared....

The Department of Justice refused to comment on the case, or explain why it believes that Arizona properly imported the drug. According to one of the DEA documents obtained by the ACLU, Mark Caverly, chief of the liaison and policy section of DEA's Diversion Control, laid out the agency's policy. In a letter to the Washington State Penitentiary, Caverly wrote: "Any person seeking to import a controlled substance into the United States must obtain a DEA registration… and utilize the services of a DEA registered importer. DEA has no authority to waive a statutory requirement."

But victim's rights advocate Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said before the announcement to change the drugs was made public, that even if a law requires registered importation, it doesn't mean that the agency has to strictly enforce that requirement in a context in which Congress did not intend it to apply. "The federal scheme for regulating drugs is for the purpose of providing safe drugs for medical treatment. It was never intended to apply to executions. The government doesn't have to enforce every letter of the law wherever it literally applies if a situation arises where it wasn't intended to apply, " he says.

While Beaty sought an explanation for why the DEA didn't seize Arizona's supply, Scheidegger had the opposite concern. "The explanation that the government needs to provide is ..why it seized the sodium thiopental from other states. It's terribly hard on victim's families, who have waited all these years for far too long, for justice to be carried out in these cases."

May 25, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (13) | TrackBack

May 24, 2011

A simple take on Plata: Congress asked for this in the PLRA

I am still working my way through the various opinions in Plata, but I keep coming back to one simple idea when considering the case and the Supreme Court's ruling: when enacting the Prison Litigation Reform Act in 1996, Congress clearly contemplated and clearly authorized federal courts to enter a "prisoner release order" under the PLRA.  See 18 U.S.C. § 3626(a)(3) (setting forth in detail the requirements for court issuance of a "prisoner release order").  Given that Congress envisioned the possibility of such an order, combined with the extraordinary record of constitutional problems in California's operation of its prison system and the extraordinarily long period in which California has been unable to correct these problems, the Plata case seems to be "perfect storm" fact pattern that would require a federal court to issue such an order.

In other words, anyone who does not like the idea of federal courts ordering a state to release prisoners really should be complaining about the fact that Congress in 1996 clearly contemplated and clearly authorized federal courts to enter such an order through the enactment of the PLRA.  And especially given the reality that Republicans controlled both houses of Congress when the PLRA was enacted, there is a certain irony to any complaints by Republicans now about the seemingly straight-forward application of the PLRA in Plata.

Prior posts on the Plata ruling:

May 24, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (16) | TrackBack

Lots and lots of interesting commentary on SCOTUS Plata prison ruling

At lots of old and new media outlets, I am already seeing lots of interesting commentary on the Supreme Court's major California prison ruling yesterday in Plata (basics here).  Here are just a few of the interesting and diverse pieces I have seen:

May 24, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0) | TrackBack

Informed thoughts on President Obama's clemency work to date

In the wake of the announcement late last Friday that President Barack Obama had issued a handful of new pardons (basics here), former Pardon Attorney Margaret Colgate Love wrote to me about this President's practices to date.  With her permission, I reprint Margy's reporting here:

The Justice Department announced on Friday that President Obama had pardoned eight individuals, bringing the total number of his pardons to 17. Most of the new pardons, like the nine last December, were bestowed on people convicted decades ago, who spent no time in prison and who are relatively unknown outside their communities.

What Justice didn't announce, but what nearly three thousand people learned by e-mail on Monday morning, was that the President also denied 791 pardons and 1,947 sentence commutations. This sets a new record in number of clemency cases denied in one day, and at one stroke eliminated the case backlog in the Pardon Attorney’s office. It is hard to see how the five lawyers in that office could have produced a meaningful report for the President in all 3000 of these cases even in two years.

The way in which the bad news was delivered -- by a form e-mail – was also unusual. Two of my clients called me in tears -- not so much because they thought they were going to be pardoned (they didn't) but because of the impersonal and abrupt way the news was delivered, after both had waited years. Always in the past there was at least a letter on nice DOJ stationery signed personally by the Pardon Attorney, a comparatively classy gesture under all the circumstances. Now, apparently, those denied mercy will be so informed by USPardon.Attorney@usdoj.gov.

A quick glance at the facts of the eight successful pardon cases, based largely on accounts from local newspapers, suggests that they are indistinguishable from many of the cases denied on the same day. And, as Julie Stewart of FAMM remarked in response to the news that there had still been no commutations, it seems hard to believe that there was not a single prisoner petition among the hundreds denied last Friday that was deserving of this President's favorable consideration. There has never been a time in our history when the pardon power was more necessary to compensate for shortcomings in the legal system, and evidently never one when it was less valued by those responsible for its exercise.

I would not have thought it possible that this great power of the presidency could be further debased. Perhaps this President believes that he can take up his pardoning responsibilities in a second term, but the experience of his predecessors ought to give him pause. His record to date of using this most personal of his constitutional powers ought to give us pause as well.

Some recent and older related posts:

May 24, 2011 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (5) | TrackBack

Notable report on the recent success of parole practices in Texas

I have long thought that the complete elimination of parole in the federal system and in many state systems took away a potentially important back-end sentencing mechanism that, if used properly and effectively, can serve a criminal justice system well.  Of course, there are historically lots of stories of parole not being used properly and effectively.  For this reason and others, I am pleased to learn of this new report titled "The Role of Parole in Texas: Achieving Public Safety and Efficiency" coming from the Center for Effective Justice of the Texas Public Policy Foundation. Here is how the report begins:

Texas recently earned national acclaim for avoiding what was expected to be a catastrophic prison overcrowding crisis.  In 2005, in anticipation of overcrowding, the Legislative Budget Board recommended building more than 17,000 new prison beds.  Texas did not build the beds, however, and it still managed to reduce crime throughout the state.  Part of the credit for this impressive accomplishment must go to the state’s parole system.  In 2009, out of 76,607 parole-eligible cases considered, 23,182 Texas inmates were placed on some kind of parole supervision.  More importantly, the number of parolees revoked to prison has sharply declined from 11,311 in 2004 to 6,678 in 2010, reflecting a drop in both new crimes and technical violations serious enough to warrant revocation.

May 24, 2011 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

Wonderfully puzzling violent crime rate continue to decline (despite NFL lockout)

As detailed in this New York Times piece, headlined "Steady Decline in Major Crime Baffles Experts," new FBI statistics show that the "number of violent crimes in the United States dropped significantly last year, to what appeared to be the lowest rate in nearly 40 years, a development that was considered puzzling partly because it ran counter to the prevailing expectation that crime would increase during a recession."  Here are more of the basics that justify both celebration and head-scratching:

In all regions, the country appears to be safer. The odds of being murdered or robbed are now less than half of what they were in the early 1990s, when violent crime peaked in the United States.  Small towns, especially, are seeing far fewer murders: In cities with populations under 10,000, the number plunged by more than 25 percent last year....

Criminology experts said they were surprised and impressed by the national numbers, issued on Monday by the Federal Bureau of Investigation and based on data from more than 13,000 law-enforcement agencies.  They said the decline nationally in the number of violent crimes, by 5.5 percent, raised the question, at least in some places, of to what extent crime could continue to fall -- or at least fall at the same pace as the past two years. Violent crimes fell nearly the same amount in 2009.

“Remarkable,” said James Alan Fox, a criminologist at Northeastern University.  “Given the fact that we have had some healthy declines in recent years, I fully expected that the improvement would slow.  There is only so much air you can squeeze out of a balloon.”

There was no immediate consensus to explain the drop.  But some experts said the figures collided with theories about correlations between crime, unemployment and the number of people in prison.

Take robbery: The nation has endured a devastating economic crisis, but robberies fell 9.5 percent last year, after dropping 8 percent the year before. “Striking,” said Alfred Blumstein, a professor and a criminologist at the Heinz College at Carnegie Mellon University, because it came “at a time when everyone anticipated it could be going up because of the recession.”

Nationally, murder fell 4.4 percent last year.  Forcible rape — which excludes statutory rape and other sex offenses — fell 4.2 percent.  Aggravated assault fell 3.6 percent. Property crimes — including burglary, larceny, motor vehicle theft and arson — fell 2.8 percent, after a 4.6 percent drop the year before....

Nationally, the drop in violent crime not only calls into question the theory that crime rates are closely correlated with economic hardship, but another argument as well, said Frank E. Zimring, a law professor at the University of California, Berkeley.

As the percentage of people behind bars has decreased in the past few years, violent crime rates have fallen as well.  For those who believed that higher incarceration rates inevitably led to less crime, “this would also be the last time to expect a crime decline,” he said.

“The last three years have been a contrarian’s delight — just when you expect the bananas to hit the fan,” said Mr. Zimring, a visiting law professor at New York University and the author of a coming book on the decline in the city’s crime rate.  But he said there was no way to know why — at least not yet.  “The only thing that is reassuring being in a room full of crime experts now is that they are as puzzled as I am,” he said.

As I have said before and will say again, academics and researchers of all stripes should be doing whatever they can to try to figure out what is working with respect to crime these days.  As this NY Timespiece highlights, all the usual tropes about the impact and importance of incarceration rates and braoder economic realities seem to fail to explain what is going on these days.  Some new (and perhaps unappealing) theories need to be explored.

For the sake of generating discussion, I will here throw out a bunch of ideas that I have come to wonder might have some role in the great modern crime decline:

  1. modern technology like the internet and HD TV leads a lot more people to spend a lot less time in crime-prone areas (like outside); 
  2. modern pharmacology is enabling the early diagnosis and medication as juveniles of many who would grow into crime-prone adults; 
  3. modern extreme collateral consequences like registration for sex offenders is "working" in various ways to deter or reduce serious criminal activity;
  4. modern availability of "medical" marijuana and prescription opiates are enabling many more crime-prone people to self-medicate making them less crime-prone; 
  5. the election of a self-made African-American President has prompted more people who might otherwise be discouraged by societal realities to seek more law-abiding means of personal improvement; 
  6. the Heller gun rights decision (along with the modern surge in gun sales) has, directly or indirectly, prompted more potential criminals to rethink the risks of criminal behavior; 
  7. this blog has helped Americans fully understand the costs and benefits of crime and punishment, thereby enabling more efficient and effective crime-fighting strategies on both frontiers.

Of course, I am eager to hear reader views concerning crime realities and my various (only slightly silly?) hypotheses for why crime keeps going down. 

May 24, 2011 in Data on sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (50) | TrackBack

Prison advocates in Illinois pointing to Plata to help their case for reform

It will be interesting to watch whether and how the Supreme Court's major California prison ruling yesterday in Plata (basics here) will impact sentencing and prison reform debates in other states.  This local article, headlined "Call made for sentencing standards reform in Ill.," shows that folks in Illinois are already hearing echoes from the ruling: 

A U.S. Supreme Court ruling ordering California to release tens of thousands of prisoners to ease overcrowding should serve as a warning bell about the need to overhaul sentencing standards in Illinois, a prison watchdog group said today.

“We don’t want to become California,” said John Maki, executive director of the Chicago-based John Howard Association.  “We need to be talking about ways to have a more effective justice system, and heavy sentencing is not the best way of preventing crime.”

The number of inmates in state custody has soared in recent months after Gov. Pat Quinn suspended early release programs after a botched attempt to speed up the rate at which inmates could receive good-time credit.

There are currently 48,661 inmates in state custody, and while that is higher than in recent years, the state is capable of properly housing 50,000, said Cara Smith, chief of staff for the Illinois Department of Corrections.  Smith said the department is engaged in discussions about ways to reform sentencing standards.  She noted 5,000 inmates a year enter the system on relatively minor crimes, such as drug possession and retail theft.

May 24, 2011 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

"Padilla and The Delivery of Integrated Criminal Defense"

The title of this post is the title of this notable new paper by Professor Ron Wright.  Here is the abstract:

The traditional starting point for the Sixth Amendment jurisprudence is the individual defense attorney, acting alone.  Padilla v. Kentucky, however, replaced the image of the lawyer as a heroic and individualistic figure with a focus on the lawyer’s responsibility to consult others and to create an effective defense team.  This evolving conception of the lawyer as a team manager is a long-term trend that applies throughout the legal profession.

Public defender organizations already experiment with various methods for delivering the best service to clients with potential immigration issues mixed in with their criminal law issues.  Some of those methods contracted out the immigration work to specialists outside the organization; others brought the immigration expertise inside the organization, either through placing experts in a single state-level position, or by disseminating immigration experts in local offices.

The Padilla holding gives some impetus to the insider strategy.  It increases the costs to a defender organization if one of its lawyers fails to recognize a straightforward immigration issue.  As a result, Padilla tilts the field towards larger defender organizations with greater specialization of function and more coordination of effort among attorneys -- in short, toward a more bureaucratic criminal defense.

May 24, 2011 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0) | TrackBack

Brother of Raj Rajaratnam asks friends to write letters to judge urging leniency

As detailed in this interesting article, which is headlined "Raj's Brother Tells Friends How They Can Influence Raj's Sentencing With A Letter To The Judge," Rengan Rajaratnam "has sent a long letter to friends asking them to write to Judge Holwell to help make sure his brother Raj gets a more lenient sentence."  Here are excerptsfrom the now-public letter:

As we prepare for the appeals process, we need your help and I am I only sending this letter to a handful of people.  The sentencing phase is coming up relatively quickly and the federal guidelines are calling for 15 to 19 years in jail.  The guidelines are harder and less flexible than many prison sentences for violent and predatory offenders.  This is simply unfair, and we are praying for leniency from the judge while we prepare for the appeal.

In the meantime, on behalf of Raj and the family, I would like to enlist your support one last time.  Positive character letters from family, friends, and colleagues that know Raj well can play a pivotal role in helping persuade the Hon.  Judge Holwell to be fair, and lenient during Raj’s sentencing.

If you can find it in your hearts to write a personal letter to Judge Holwell describing your relationship with Raj; when and how you met; as well as illustrate some of the positive experiences you’ve had with him, it would be of immense service to Raj and our family. The longer you can state you have known Raj, clearly the better.

The goal is to appeal to Judge Howell, by informing him that Raj is a loving human being with deep friendships and ties to the community.  That Raj is a person of good character, a positive member of society who is deserving of the court’s leniency.  As many of you may be aware, Raj has donated significant amounts of money to charity in excess of $30 MM in the last 5 years alone.  If you need specifics, please call me.

It is important that the letter come from you, and paints Raj in a positive light. Since time is of the essence, it would be great if you could send the letters to me before the end of the week or the early part of next week.

The format of the actual letter is important, and there are several examples on the web. I have included one link that I found helpful on some guidelines on how to properly write a character reference: http://www.ehow.com/how_4683439_write-letter-judge-before-sentencing.html

I am interested to hear from experienced federal practitioners concerning whether they believe in this case (or others) that "character letters from family, friends, and colleagues ... can play a pivotal role" in post-Booker sentencing decision-making.

May 24, 2011 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (8) | TrackBack

May 23, 2011

Early press coverage and reactions to SCOTUS California prison ruling in Plata

Thanks to this post at How Appealing, everyone can quickly jump to some of the early press coverage of the Supreme Court work in the Plata prison ruling this morning (basics here).  Here are some of the highlights:

Today's main posts on the Plata ruling:

May 23, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (10) | TrackBack

"Judge orders felons to write 5-page essays"

The title of this post is the sub-heading of this alternative sentencing article from the Toledo Blade, which carries the main headline "For some offenders, sentences are just that."  Here are excerpts from the piece:

Lying among the volumes of paper piled on Judge Stacy Cook’s desk was a handwritten report from a young man she last saw standing at the defendant’s table in her Lucas County Common Pleas courtroom.  “In today’s society, guns and drugs have put most teens at risk,” the paper began. “The number of teens with drugs and guns has risen rapidly. People are wondering why … “

The report isn’t the answer to the nation’s problem of teen violence and drug use — it isn’t supposed to be.  But for the 22-year-old man who was required to write five pages on “youths at risk with drugs/alcohol and guns,” the paper was a way to force him to take a look at his choices.

Since taking the bench in 2007, Judge Cook has seen hundreds of felony defendants.  Some she sends to prison; for others she orders time on community control.  And still others get probation with a few added requirements — such as a five-page paper on teen violence, or a report on closed-head injuries.

It’s a practice not seen elsewhere in the courthouse.  But in Judge Cook’s fourth-floor courtroom, it’s a method she believes is working.  “From years of practicing law, I felt that there was a huge missing link in getting people to understand what they did wrong, not just in committing the crime but where there was error in judgment,” Judge Cook said. “I’ve always thought people needed to understand that what they did sent out this ripple effect.”

The judge said that ordering papers is more than just busy work.  It’s an attempt to make defendants think of how their crimes affect others — in essence, putting their actions back into their lap.  But even more important, it’s an attempt to change a lifestyle.

Judge Cook has ordered as many as 30 defendants to write reports on closed-head injuries and several others to document statistics of guns and violence among youth....

But does it work?  Judge Cook said she can only gauge success on the number of times those on community control have violations.  In particular she looks for those who return to her court after committing a new crime or because of continued drug use.  And while she has no statistics and can’t say for sure, the judge said after a few reflective moments that the numbers for what she would consider serious violations seem to be low.

Lawyer Richard Hasbrook, the public defender in Judge Cook’s courtroom, agrees. He said that across the state, courts are trying new things in sentencing to deal with Ohio’s overcrowded prisons. “I see it as just another tool to bring discipline and structure to otherwise undisciplined and unstructured lives,” he said.

Morris Jenkins, chairman of the criminal justice and social work department at the University of Toledo, has researched alternative sentencing and restorative justice.  He said that by adding requirements to offenders’ probations, the court is making individuals more accountable.

Mr. Jenkins said he has not studied the effects of written papers on recidivism, but added that he’d be willing to do so.  But of the research he has conducted, much of which originates in juvenile court, he has seen that alternative sentences have proven effective. “I’m glad that we have a judge with foresight and courage to do [alternative sentencing] with adult offenders,” he said. “A lot of individuals deserve second chances. Not everyone but a lot of people do, and by making them do something like a paper, I guarantee they’ll remember it later.”

May 23, 2011 in Criminal Sentences Alternatives, Who Sentences | Permalink | Comments (11) | TrackBack

Has Justice Scalia started drinking Justice Breyer's "Active Liberty" Kool-Aid? Really?!?!

Snl_reallyThough the line has already been noted by Grits in a prior comment, I cannot help but blog more about one key sentence at the start of Justice Scalia's dissent in the Plata SCOTUS case handed down today.  As he revs up his attack rhetoric, Justice Scalia asserts: "There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa." 

Huh?  Or to paraphrase Seth Myers et al., Really!?! Justice Scalia!?!  Really!?!

Perhaps others can help me understand how this line about tradition and common sense shaping the law conforms to Justice Scalia's usual textualist philosophy; to me, this approach to jurisprudence sounds a lot more like what we usually expect to hear from Justice Breyer.  Indeed, throughout Justice Breyer's book "Active Liberty" one can readily find frequent references to tradition and common sense to justify Justice Breyer's dynamic approach to constitutional and statutory interpretation.  Indeed, Justice Breyer has often stressed tradition and common sense to complain about Justice Scalia's work in landmark cases like Heller and Blakely. 

So, Justice Scalia, is the mere prospect of a federal court ordering a state to release its least dangerous offenders in the face of extreme and long-standing overcrowding all it takes to prompt you to give up a career commitment to textualism?  Really!?! Justice Scalia!?!  Really!?!

Today's main posts on the Plata ruling:

May 23, 2011 in Who Sentences | Permalink | Comments (8) | TrackBack

Renown criminolologist Ray Lewis explains key cause of crime

As detailed in this Fox News piece, Baltimore Ravens star Ray Lewis has figured out a key cause of crime: a lack of football.  Here is what Lewis had to say on this topic:

One of the consequences of a lost NFL season will be an increase in crime, Baltimore Ravens linebacker Ray Lewis said in a wide-raging one-on-one interview with ESPN.  "Do this research if we don't have a season -- watch how much evil, which we call crime, watch how much crime picks up, if you take away our game," Lewis told ESPN's Sal Paolantonio.

That's because, Lewis said, the NFL lockout affects "way more than us" -- the owners and the players. "There's too many people that live through us, people live through us," he said. "Yeah, walk in the streets, the way I walk the streets, and I'm not talking about the people you see all the time."

When asked why he thought crime would increase if the NFL doesn't play games this year, Lewis said: "There's nothing else to do, Sal."

May 23, 2011 in Who Sentences | Permalink | Comments (3) | TrackBack

Should SCOTUS (and lower court) opinions often include visual aids?

Among the many notable aspects of the Supreme Court's work today in the California prison overcrowding case (basics here and here) is the decision by the Court's majority to include three pictures from three different California prisons reflecting aspects of the overcrowding problems faced by these prisons.  And given the sharp rhetoric used by the dissents in Plata (examples here), I am a bit surprised that the dissenting Justices did not add pictures of crime scenes and/or crime victims and/or mean and scary looking prisoners to try to respond in kind to the majority's use of visuals.

Because it has long been known that a picture is worth a thousand words, I certainly think it appropriate and useful for courts to consider adding visual aids to their rulings.  And yet, I also recognize that a move to using more visual images in judicial opinions could open up a very interesting can of pictorial worms.  In this Plata case and in some other settings, the visual aids added to opinion have usually been made part of the case's record by one of the parties.  But I wonder if it would it be appropriate for an opinion to reprint a dramatic graphic or a special pictorial submitted into the record by the parties.  Further still, might some justices or judges even consider creating their own special graphics or even a video to highlight and punctuate the pictures they are trying to create with their words?

Especially because I am a terrible artist, I hope graphic skills do not soon become essential to being an effective litigator.  And yet, in this great new world full or new media, I do not think it is crazy to believe (and fear?) that visual images may begin playing a larger role in judicial decision-making.

May 23, 2011 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

Some big-time rhetoric in big-time SCOTUS Plata prison ruling

Based on my very quick first pass through the majority and dissenting opinions in the Plata prison ruling this morning (basics here), there appears to be a lot of rhetoric flying in all directions.  Here are just a few of the lines from each opinion that caught my eye at the outset:

From Justice Kennedy's opinion for the Court (with quotes/cited left out):

For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners’ basic health needs.  Needless suffering and death have been the well-documented result....

As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty.  Yet the law and the Constitution demand recognition of certain other rights.  Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.  The basic concept underlying the Eighth Amendment is nothing less than the dignity of man....

From the start of Justice Scalia's dissent:

Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.

There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa.  One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.  Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.

The proceedings that led to this result were a judicial travesty.  I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.

From the end of Justice Alito's dissent:

The prisoner release ordered in this case is unprecedented, improvident, and contrary to the PLRA.  In largely sustaining the decision below, the majority is gambling with the safety of the people of California.  Before putting public safety at risk, every reasonable precaution should be taken.  The decision below should be reversed, and the case should be remanded for this to be done.

I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims.  I hope that I am wrong.

In a few years, we will see.

May 23, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (41) | TrackBack

In 5-4 split, SCOTUS (per Justice Kennedy) affirms California prison reduction order

Here is the early blog report from the SCOTUSblog folks on the big California prison overcrowding ruling handed down this morning by the Supeme Court:

The first opinion is Brown v. Plata (prisons). The opinion is by Justice Kennedy. The Court has affirmed the decision of a three-judge district court in California.  The vote is 5-4; Justice Scalia dissents, joined by Justice Thomas. Justice Alito dissents, joined by the Chief Justice.

The Court rules first that the plaintiffs properly convened a three-judge panel to hear the case; that court did not err in concluding that overcrowding was the primary cause of the violations of the inmates' rights to medical and mental health care.

Plata opinion is here.

The injunction was narrowly drawn and extended no further than necessary to correct the violation and was the least intrusive means.

Very interesting and potentially very important.  Bloggy commentary will follow when I get a chance to review the opinions, though others should not wait for me to weigh in on what might be the biggest sentencing and corrections ruling of the Term.

May 23, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1) | TrackBack

Effective review of recent past, notable present and potential future of sentencing reform

The latest issue of the American Bar Association’s Criminal Justice magazine (for which I serve on the editorial board) includes a new piece by The Sentencing Project's Marc Mauer titled "Sentencing Reform: Amid Mass Incarcerations, Guarded Optimism."  The piece, which available at this link, reviews recent legal and policy developments at both the state and federal level and also urges assesses and makes recommendation for public policy advocacy in this arena.  Here is one of many notable paragraphs from the piece:

Perhaps nowhere in the realm of social policy is there such a broad consensus among scholars and practitioners than in the area of public safety as to what should be done to promote better outcomes yet where there has been less implementation. Despite a widespread critique of mass incarceration and virtually no credible defense of its policies, reforms have been exceedingly modest and slow in coming, given the scale of the problem. Thus, while we still have much to learn about prevention, treatment, and reentry, the key dilemma we face is not so much one of figuring out “what works,” but rather how to transform the political environment to one that is more receptive to reform.

May 23, 2011 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (2) | TrackBack

The sad realities of modern pardon politics

Many criminal justice reform advocates have been (justifiably) critical of President Barack Obama's failure to make serious and sustained use of his clemency powers.  Yet this new Politico piece, headlined "GOP governors could face pardon issue in 2012 campaign," highlights the sad reality that executive branch leaders are always shrewd to make little or no use of their clemency powers whenever an election is on the horizon.  Here is the start and ending of the Politico piece:

It’s still early in the presidential race, so the opposition research dumps haven’t really begun. But when the skeletons in the closets of 2012 GOP hopefuls begin to be revealed, the unique shape of the field — which will almost certainly feature a handful of current or former governors — makes it’s a good bet that someone is going to have a Willie Horton problem.

That’s code for a violent or deranged felon run amok on their watch — a reference to the notorious convict who went AWOL during a furlough from a Massachusetts prison, committed more crimes and ultimately became the subject of a devastating ad that helped seal the fortunes of 1988 Democratic presidential nominee Michael Dukakis.

With former Govs. Mitt Romney, Tim Pawlenty, and Jon Huntsman in the 2012 mix — and a few other current and former chief executives perhaps in the wings — the issue of pardons and furloughs is one that could play an unexpected and damaging role for some campaigns.

Before he departed from the race, Mike Huckabee, who issued more than 1,000 sentence reductions and pardons as Arkansas governor, was widely viewed as having the most exposure.  While no one in the current field has anything close to that in the oppo files, Romney and Pawlenty might be haunted by a few cons who could undermine their law-and-order credentials....

Some strategists argue that a candidate’s good faith attempt to look for signs of redemption or offer compassion will appeal to evangelical voters, possibly mitigating the political fallout.  “There are a lot of active evangelical Christians who don’t believe you’re criticized for trying to show mercy,” [Republican strategist Charlie] Black said.

Still, almost anything connected to ex-cons is fodder to be blown up into a negative ad. “Everything you did can, and will, be used against you,” warned said James Pinkerton, an analyst and commentator who has deep ties in GOP politics, and who was involved in the research that led to the Horton ad in 1988.  “Even if statistically the problem seems manageable, anecdotally it will be fatal.  And therefore you have to have your ducks in a row.”

May 23, 2011 in Clemency and Pardons, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (4) | TrackBack

Condemned Arizona inmate seeking to have entire state Supreme Court replaced

This AP article reports on a notable argument being made by an Arizona death row inmate scheduled to be executed this week.  Here are the basics:

Lawyers for an inmate set to be executed this week want the Arizona Supreme Court to withdraw his death warrant because the justices toured death row and met with prison officials.  Court papers filed Sunday also ask the entire five-member high court to step away from the case and appoint a panel of judges to hear Donald Beaty's appeals.

Beaty's lawyers wrote in their court filing that Chief Justice Rebecca White Berch and Justice Andrew Hurwitz met with Arizona Department of Corrections Director Charles Ryan last month to discuss execution scheduling and protocols.  Four justices toured two prisons and the death chamber May 10.

Defense lawyers say they were not invited and found out about the visits from Beaty.  They argue the visits and discussions were improper because the justices were considering their client's case at the time, and defense attorneys were not allowed to participate.  Lawyers for the state were notified of the meetings.  The court filings call the meetings "ex parte communications" that are barred under court rules because judges are expected to rule only on information in the formal record.  Defense attorneys argue the justices should recuse themselves from the case to avoid an appearance of impropriety.

Supreme Court spokeswoman Jennifer Liewer declined to comment, saying the high court does not discuss pending matters.

The state's top death penalty prosecutor, Kent Cattani, said in an email Sunday that there was no improper communication between the judges and Ryan because Ryan is not a party to the case.  He said the discussions between Ryan and Berch were to go over scheduling and were not improper communications.  Cattani said Ryan requested that executions be scheduled for midweek to minimize overtime.  "Accordingly, Beaty's allegations of ex-parte contacts are baseless," he wrote.

Beaty, now 56, was convicted in the 1984 rape and murder of 13-year-old Christy Ann Fornoff, a case that riveted the Phoenix area.  The girl was killed while she was collecting on her newspaper route at an apartment complex where Beaty lived and worked.

May 23, 2011 in Death Penalty Reforms, Who Sentences | Permalink | Comments (3) | TrackBack

May 22, 2011

California considering early "medical parole" for quadriplegic repeat violent offender

As detailed in this AP article, which is headlined "Calif. considers first inmate for medical parole," a repeat violent offender may (or may not) become the first to benefit from California's new medical parole rules. Here is how the piece starts:

Steven Martinez is a repeat violent offender who is 12 years into a 157 years-to-life prison sentence for kidnapping, beating and raping a woman after running her down with his vehicle as she left a San Diego dance club.

A stabbing behind bars left him a quadriplegic, but it's that act that may lead to the 42-year-old inmate's early release. Martinez could become the first California inmate granted medical parole under a law that took effect this year when his release is considered on Tuesday at Corcoran State Prison. The program is intended to parole inmates who are medically incapacitated, saving the state millions of dollars a year.

As the bill was being debated in the Legislature last year, critics worried that it was initially written so broadly that it could free inmates who remain a public safety threat or who are not totally incapacitated. Yet fewer inmates than originally anticipated are expected to qualify under the law, lowering the possible savings as the state struggles to close a $10 billion budget deficit. Moreover, public safety concerns could derail medical parole for some inmates, including Martinez.

Martinez was left permanently paralyzed from the neck down after his spine was severed in a knife fight with two fellow inmates at Centinela State Prison 10 years ago. His medical care alone costs the state about $625,000 a year, according to court documents.

But the Board of Parole Hearings twice has rejected Martinez's pleas for compassionate release, in 2008 and in September 2010, after deciding that he is dangerous even though he can't move. The separate compassionate release law lets the state free inmates who are permanently incapacitated or are terminally ill with less than six months to live.

The board concluded in September that Martinez "remains a violent person capable of using others to carry out his threats." It noted that Martinez repeatedly threatened prison nurses with harm even after he was paralyzed.

Martinez's attorney, Ken Karan of Carlsbad, said his client has at times been neglected in prison. He once suffered a severe pressure sore that required six months of treatment at an outside hospital. Martinez won $750,000 in damages from the department for the poor care, he said. "He can breathe on his own and he can talk. That's it," Karan said. "It's just not reasonable to suggest he is a likely candidate to go out and commit a crime through somebody else."

Richard Sachs, a supervising deputy district attorney in San Diego County, intends to oppose Martinez's release before two parole board commissioners at Corcoran, which is in the southern San Joaquin Valley between Fresno and Bakersfield. "The law is useful for saving money for the state, but it doesn't fit this particular situation because he's still very angry and very violent," Sachs said.

May 22, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (12) | TrackBack

Are "liberal courts and flawed defenses" the primary reason for a dysfunctional death penalty?

The question in the title of this post is inspired by this local article about the Pennsylvania capital punishment system, which is headlined "State has hundreds of death row prisoners, but they're seldom executed; Experts say liberal courts and flawed defenses stall the system." Here is how the piece starts and ends:

When a Northampton County jury sentenced Michael Eric Ballard to death for murdering four people last June, he became the 216th person on Pennsylvania's death row. That group of condemned men and women, scattered among prisons around the state, is the fourth-largest in the 34 states that have a death penalty. Pennsylvania, however, ranks near the bottom in the number of executions carried out.

Only three men, and no women, have been put to death since capital punishment was restored in the mid-1970s after a brief nationwide suspension, and each volunteered by abandoning his rights to appeal. Serial killer Gary Heidnik was the last, in 1999. The last time Pennsylvania executed a death row prisoner against his will was in 1962.

Why do prosecutors in Pennsylvania continue to pursue the death penalty when so few murderers are executed? The answer, Northampton County District Attorney John Morganelli says, is simple: The law says people convicted of first-degree murder can be sentenced to death and in some circumstances, the death penalty is warranted....

Out of about 420 death sentences in Pennsylvania since the 1970s, 224 have been reversed. Of those, about 124 were because the defense attorney made mistakes, said [Robert Dunham, an assistant federal defender in Harrisburg who teaches at Villanova University law school].

Of the 75 cases where the death sentence was thrown out, only five resulted in a jury handing down a death sentence a second time. In the remaining 70 cases, the defendant received a sentence of life in prison or less, Dunham said. "If you assume defendants got fair trials the first time, you would expect that there would be a substantial number of death sentences the second time," Dunham said. "What the numbers show is the system is way beyond arbitrary."

In the vast majority of Pennsylvania death penalty cases, the money to pay for the defendant's attorney comes from the county public defender's budget. Pennsylvania is the only state that doesn't pay to defend death penalty defendants who can't afford to pay for a lawyer at trial. That means lawyers are often unable to spend as much time preparing for a case as they should, Dunham said. "This is nothing new," Dunham said. "There have been numerous death penalty reviews in the past and every one of them has found the absence of resources is a major problem."

May 22, 2011 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (6) | TrackBack