Sentencing Law and Policy

"The Causes of Growth in Prison Admissions and Populations"

The title of this post is the title of this important new empirical paper by Professor John Pfaff now available via SSRN.  Here is the abstract:

The explosive growth in the US prison population is well documented, but its causes are poorly understood.  In this paper I exploit previously-unused data to define precisely where the growth is occurring.  In short, the growth in prison populations has been driven almost entirely by increases in felony filings per arrest.  All other possible sites of growth -- arrests, admissions per filing, convictions per filings and admissions per conviction, and even (perhaps most surprisingly) time served per admission -- have barely changed over the past four decades.  But the growth in filings tracks that of admissions almost perfectly.  This paper demonstrates the importance of felony filings and considers some of the possible explanations for their growth.

Only a year late, AG Holder sees light and reverses course on FSA pipeline sentencing issue

Regular readers know that, since the Fair Sentencing Act became law in August 2010, lower courts have been divided over whether defendants who committed crack offenses before the FSA was enacted but had not yet been initially sentenced should get the benefits of the FSA's new mandatory minimum provisions.  And, as I explained in this post way back in October 2010, I have been troubled and disappointed that the Justice Department had been arguing in these "pipeline" cases that defendants should continue to be sentenced under the old now repealed 100-1 crack/powder ratio if their crimes were committed before August 3, 2010.  

I am now pleased to report than I need not be troubled or disappointed by DOJ's position on this issue anymore, because today Attorney General Eric Holder has come to see the statutory sentencing light and reversed course.  In a two-page memo to all federal prosecutors dated July 15, 2011 (and available for download below), AG Holder details his new view on this issue: 

In light of the differing court decisions -- and the serious impact on the criminal justice system of continuing to impose unfair penalties -- I have reviewed our position regarding the applicability of the Fair Sentencing Act to cases sentenced on or after the date of enactment.  While I continue to believe that the Savings Statute, 1 U.S.C. § 109, precludes application of the new mandatory minimums to those sentenced before the enactment of the Fair Sentencing Act, I agree with those courts that have held that Congress intended the Act not only to "restore fairness in federal cocaine sentencing policy" but to do so as expeditiously as possible and to all defendants sentenced on or after the enactment date. As a result, I have concluded that the law requires the application of the Act's new mandatory minimum sentencing provisions to all sentencings that occur on or after August 3, 2010, regardless of when the offense conduct took place.  The law draws the line at August 3, however.  The new provisions do not apply to sentences imposed prior to that date, whether or not they are final.  Prosecutors are directed to act consistently with these legal principles.

Download Holder FSA memo 7.15.11

Though I am pleased that AG Holder has now seen the light on this issue of statutory interpretation, I remain deeply disappointed that the Justice Department argued a contrary (and, in my view, deeply misguided) position in courts around the nation for nearly a year.  Among the costs of this mistake has been a large number of sentencings based on the old law that now will need to be redone, not to mention many litigation resources expended as defense counsel and judges have been force to grapple with DOJ's prior position.  So while I celebrate DOJ now getting this right, I cannot help but express sadness that this reversal of course took so long.

Among the benefits of this change of position should be a quick end to lots of district and circuit (and possible SCOTUS) litigation over this pipeline issue.  But, of course, the principal benefit of this new DOJ policy is that more defendants will now be able to benefit from the fairer sentencing terms that Congress created through its enactment of the FSA last year.

Some posts on this FSA pipeline issue:

• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• WSJ notes dispute over application of FSA to pending cases
• A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
• Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes
• Dissenting from denial of en banc review, Judge Williams makes strongest case for applying FSA to pipeline cases
• First Circuit affirms Douglas, holding lower FSA crack minimums apply in pipeline cases
• Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment
• Eleventh Circuit panel re-issues (updated) opinion finding FSA lower crack mandatories apply all sentenced after FSA

Might horrific Jaycee Lee Dugard case have led SCOTUS to permit death penalty for child rape?

The question in the title of this post is prompted by this new commentary by Charles Lane for the Washington Post, which is headlined "The justices and Jaycee Dugard." Here is how the piece starts and ends:

A Stolen Life, Jaycee Lee Dugard’s harrowing memoir of sexual torture and confinement at the hands of Phillip Garrido, has hit the top of Amazon’s best-seller list. I read it, astonished at her courage and her eloquence — and disgusted at the crimes Garrido, on parole for a previous rape, committed against Dugard for years, starting when she was 11.

I also wondered how history might have been different if Dugard had escaped from her 18-year hell before the Supreme Court’s 2008 decision in Kennedy v. Louisiana, instead of a year after it.  This was the case in which the court voted 5-4 to ban the death penalty for raping a child.  No future Phillip Garrido need ever fear execution, though many who read Dugard’s book will agree with me that he would richly deserve it.

At the time, the majority opinion by Justice Anthony M. Kennedy struck me as a mixed salad of moralizing and debatable assertions.  Post-Dugard, it’s even less persuasive. ...

To be sure, Phillip Garrido, now sentenced to 431 years, would never have faced capital punishment in California even prior to Kennedy v. Louisiana, because the state didn’t allow it except for murder.  (His accomplice wife, Nancy Garrido, is also in prison).

And Justice Kennedy — joined by Justices John Paul Stevens, Stephen A. Breyer, David H. Souter and Ruth Bader Ginsburg — was not wrong to worry about allowing capital punishment for any rape, given this country’s sorry history of racially-biased sex-crime prosecutions.  The court has rightly ruled that the death penalty should be limited to the “worst of the worst”; reasonable people can debate whether non-lethal crime belongs in that category.

But that’s the point: These are as much policy issues as constitutional ones, and the court was wrong to trump the people’s representatives, especially on such a flimsy factual foundation.

If anything, there’s a “national consensus” in favor of the death penalty for raping a child. A poll after the court’s ruling showed that only 38 percent of the public agreed with it, while 55 percent disagreed.

A major presidential candidate said that “the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that does not violate our Constitution."

Barack Obama was exactly right.

"Black men survive longer in prison than out: study"

The title of this post is the headline of this Reuters article about a new study that seems sure to get significant attention.  Here are the details:

Black men are half as likely to die at any given time if they're in prison than if they aren't, suggests a new study of North Carolina inmates.  

The black prisoners seemed to be especially protected against alcohol- and drug-related deaths, as well as lethal accidents and certain chronic diseases.  But that pattern didn't hold for white men, who on the whole were slightly more likely to die in prison than outside, according to findings published in Annals of Epidemiology.

Researchers say it's not the first time a study has found lower death rates among certain groups of inmates -- particularly disadvantaged people, who might get protection against violent injuries and murder.

"Ironically, prisons are often the only provider of medical care accessible by these underserved and vulnerable Americans," said Hung-En Sung of the John Jay College of Criminal Justice in New York.     "Typically, prison-based care is more comprehensive than what inmates have received prior to their admission," Sung, who wasn't involved in the new study, told Reuters Health by email.

The new study involved about 100,000 men between age 20 and 79 who were held in North Carolina prisons at some point between 1995 and 2005.  Sixty percent of those men were black. Researchers linked prison and state health records to determine which of the inmates died, and of what causes, during their prison stay.  Then they compared those figures with expected deaths in men of the same age and race in the general population.

Less than one percent of men died during incarceration, and there was no difference between black and white inmates.  But outside prison walls, blacks have a higher rate of death at any given age than whites.  "What's very sad about this is that if we are able to all of a sudden equalize or diminish these health inequalities that you see by race inside a place like prison, it should also be that in places like a poor neighborhood we should be able to diminish these sort of inequities," said Evelyn Patterson, who studies correctional facilities at Vanderbilt University in Nashville, Tennessee....

As in the general population, cancer and heart and blood vessel diseases were the most common cause of death among inmates -- accounting for more than half of deaths. White prisoners died of cardiovascular diseases as often as expected and died of cancer slightly more often than non-prisoners.

Black inmates, by contrast, were between 30 and 40 percent less likely to die of those causes than those who weren't incarcerated. They were also less likely to die of diabetes, alcohol- and drug-related causes, airway diseases, accidents, suicide and murder than black men not in prison.

"For some populations, being in prison likely provides benefits in regards to access to healthcare and life expectancy," said study author Dr. David Rosen, from the University of North Carolina at Chapel Hill....     For Rosen, one of the main messages from the study is the need to make the world outside of prison walls safer, and to make sure people living there have adequate access to healthcare.

The underlying study appealing in the Annals of Epidemiology that is the basis of this article is available via this link 

"California's criminal law: So bad, it could get better"

The title of this post is the headline of this new piece in The Economist.  Here are excerpts:

Three strikes has indeed, as advertised, removed some dangerous “career criminals” from the streets. But it has also condemned people to life for stealing a pair of socks.  As these lifers age in prison, they not only mock justice but cost taxpayers ever more money. As for death sentences, it turns out that they exist more in theory than in practice.  California does have the country’s largest death row, with 714 inmates.  But it has executed only 13 people since 1978, whereas 1,242 have been executed in America as a whole.  On California’s death row, 78 inmates have instead died of old age, disease or suicide.  The process of appeal typically takes decades.

It is also tough on taxpayers. California’s death row has cost more than $4 billion since 1978, according to a new study by a federal appeals judge who has also been a state prosecutor in death-penalty cases.  And it will cost more in years to come.  This makes no sense at a time when California is cutting funding for its court system to balance ever tighter budgets.

Voters still favour the death penalty in principle, polls say.  But growing numbers of credible critics are turning against it.  These include Don Heller, the man who wrote the 1978 ballot measure reintroducing capital punishment, and Jeanne Woodford, once an administrator of death row.  Both now want to repeal the penalty and convert death sentences to life terms without parole.  A law to this effect is in the legislature, and could be on the ballot next year.

A similar trend is working against three strikes.  Prosecutors, who used to be its most ardent supporters, are increasingly using their discretion not to invoke the law for minor offences. Some are openly calling for reform.  A new ballot measure to repeal or relax the law may be drafted this summer.  A previous attempt, in 2004, failed.  But a recent Field poll found that 74% of voters now agree that three strikes must be changed — not least because of the chaos it causes in the prisons.

Lots of effective Clemens coverage and debate at WCCPB

The folks over at the White Collar CrimProf Blog have already a number of very good posts discussing and debating the mistrial declared yesterday in the trial of Roger Clemens and what might happen next:

• Roger Clemens Trial - Mistrial
• Commentary on Roger Clemens Mistrial - Called for Rain
• Clemens - The Game Should Have Been Played
• Clemens - This Case Could Go Into Extra Innings

In response to this prior post reporting on the mistrial, a terrific discussion broke out in the comments.  Perhaps that will happen again here if folks have more to say about about the feds mistake and how Judge Walton should handle this matter going forward.

"12-Year-Old Sentenced for Cyberstalking Classmate"

The title of this post is the headline of this ABC News piece reporting on a case showing that some kids today are now getting their cyber-criminal careers started very early.  Here is the start of the piece:

A 12-year-old Washington girl was sentenced on Wednesday to probation and community service for a cyberstalking incident in which she and another 11-year-old girl doctored a classmate's Facebook account with explicit photos and solicitations for sex.

But the mother of the victim, also 12, said she has "mixed feelings" about the sentencing of the girls who hacked her daughter's Facebook page, and she isn't satisfied with the judge's ruling. "We wrote a letter to the judge and we requested that she have no access to social media for the full term of her probation. The judge felt that it would be fine for her to be on with parental supervision," said Tara Cote, of Issaquah, Wash.

The 12-year-old, who pleaded guilty and whose name has not been released, was charged with Cyberstalking and Computer Trespass First Degree. She was sentenced to six months of probation and 20 hours of community service, along with mandatory adult supervision of all computer usage, according to the King County Prosecuting Attorney's Office.

Cote said she wants the tween to have cyber bullying-specific therapy. "Both girls went online and used social media to do damage and used it as a weapon? Regular therapy will not tell you how to not abuse the Internet," said Cote.

In my view, these kind of modern technology crimes call out for a kind of modern technology shaming sanction: perhaps judges can and should be able to require defendants in these kinds of cases (at least when they are adults) to have some kind of scarlet mark on their social media pages so that others know they do not play nice with technology.

"Re-Thinking Illegal Entry and Re-Entry"

The title of this post is the title of this new paper about federal sentencing for immigration offenses by Professor Doug Keller and now available via SSRN. Here is the abstract:

This Article traces the history of two federal crimes that have long supplemented the civil immigration system and now make up nearly half of all federal prosecutions: illegal entry and illegal re-entry.  Little has previously been written about the historical lineage of either crime, despite the supporting role each has played in enforcing the nation’s immigration laws, particularly along the U.S.-Mexico border.  

This Article takes a critical look at the use of each crime -- from when they were initially conceived of as a way to deter illegal immigration, then as a way to target dangerous aliens, and most recently as a way to do both.  These shifting strategies, however, have all had one thing in common -- ineffectiveness.  The crimes have never meaningfully deterred illegal immigration, and the government’s poorly designed proxy to determine if an alien is “dangerous” has ensured that prosecutions have not made the public safer.  The most recent period has been particularly troubling -- over 75,000 combined prosecutions a year, at the cost of well over a billion dollars a year and at the expense of prosecuting more serious crimes. Despite these huge costs and the related human carnage, the criminalization of illegal entry and re-entry is invariably left out of the discussion of comprehensive immigration reform, which is emblematic of the silent treatment these crimes have received in the literature on immigration policy and criminal law more generally.  By reviewing eight decades worth of ineffective strategy, this Article makes a case for why the enforcement of the crimes of illegal entry and re-entry warrants more attention and a fundamental re-thinking.

Fascinating (and Posnerian classic) opinion on diminished capacity, child porn, and sentencing theory

Judge Posner provides today's must-read circuit opinion in US v. Garthus, No. 10-3097 (7th Cir. July 14, 2011) (available here).  Judge Posner's opinion for the Seventh Circuit in Garthus packs in so much of interest in a tight 13 pages, I have a hard time deciding which part to exceprt.  So, here is just the very start of the opinion along with just one of many interesting passages (with cites removed) to whet everyone's appetite for the whole opinion:

The defendant pleaded guilty to federal crimes of transporting, receiving, and possessing child pornography and was sentenced to 360 months in prison. The guidelines sentencing range was 360 months to life; the statutory minimum sentence was 180 months; he was 44 years old when sentenced.  His appeal challenges his sentence on several grounds, of which the one most emphasized by defense counsel is that the district court improperly failed to consider her argument that the defendant had had “diminished capacity” to avoid committing the crimes, a ground recognized by the sentencing guidelines as a possible justification for a lower sentence....

Why diminished capacity in this sense (or senses) should be a mitigating factor in sentencing is obscure.  The diminution makes a defendant more likely to repeat his crime when he is released from prison.  That is especially so when the crime involves compulsive behavior, such as behavior driven by sexual desire.  Such behavior requires active resistance by the person tempted to engage in it, if it is to be avoided; and diminished capacity weakens the ability to resist.  One of the defendant’s experts opined that the defendant’s ability to resist could be strengthened substantially with medication and therapy.  But both defense experts believed, and defense counsel argued, that he wouldn’t get proper treatment in prison.  That is very damaging to the argument that he won’t recidivate, since by virtue of the statutory minimum he will spend many years in prison and when released may be unable to resist his criminal impulses because his condition will not have been treated effectively in prison.

From a “just deserts” standpoint, diminished capacity argues for a lighter sentence, but from the standpoint of preventing recidivism it argues for a heavier one.  The heavier sentence may not deter a criminal from repeating his crime when he is released (that is implied by saying he has diminished capacity), but it will reduce his lifetime criminal activity by incapacitating him for a longer time than if he received a lighter sentence.

How to choose?  The sentencing guidelines do not embody a coherent penal philosophy. “The [Sentencing] Commission’s conclusion can be summarized thus: since people disagree over the aims of sentencing, it is best to have no rationale at all.”  Andrew von Hirsch, “Federal Sentencing Guidelines: Do They Provide Principled Guidance?,” 27 Am. Crim. L. Rev. 367, 371 (1989).  In the case of diminished capacity the guidelines have embraced a just-deserts theory; but why it has done so — why it has in this instance elevated just-deserts considerations over the interest in preventing recidivism — is not explained.  In any event, under the Booker regime a sentencing judge can adopt his own penal philosophy. And so he can disregard the guidelines’ classification of diminished capacity as a mitigating factor, regard it as an aggravating factor, or regard it as a wash.

Feds cause mistrial in Clemens perjury trial...

should they get to try again?

UPDATE:  Here now are details about just how federal prosecutors messed up via this updated AP report, as well as details on how Judge Walton (over?)reacted to the mess up:

The judge declared a mistrial Thursday in baseball star Roger Clemens' perjury trial after prosecutors showed jurors evidence the judge had ruled out of bounds.     U.S. District Judge Reggie Walton said the prosecutors had made a grave mistake.  And he said Clemens could not be assured a fair trial after jurors were shown evidence against the court's orders in the second day of testimony....

Walton scheduled a Sept. 2 hearing to determine whether to hold a new trial. He told jurors he was sorry to have wasted their time and spent so much taxpayer money, only to call off the case.

"There are rules that we play by and those rules are designed to make sure both sides receive a fair trial," Walton told the jury, saying such ground rules are critically important when a person's liberty is at stake.  "If this man got convicted, he would go to jail," Walton said. 

He said that because prosecutors broke his rules, "the ability with Mr. Clemens with this jury to get a fair trial with this jury would be very difficult if not impossible."...  Prosecutors suggested the problem could be fixed with an instruction to the jury to disregard the evidence, but Walton seemed skeptical.  He said he could never know what impact the evidence would have during the jury's deliberations "when we've got a man's liberty at interest."....

Walton interrupted the prosecution's playing of a video from Clemens' 2008 testimony before Congress and had the jury removed from the courtroom.  Clemens is accused of lying during that testimony when he said he never used performance-enhancing drugs during his 24-season career in the Major Leagues.

One of the chief pieces of evidence against Clemens is testimony from his former teammate and close friend, Andy Pettitte, who says Clemens told him in 1999 or 2000 that he used human growth hormone.  Clemens has said that Pettitte misheard him. Pettitte also also says he told his wife, Laura, about the conversation the same day it happened.

Prosecutors had wanted to call Laura Pettitte as a witness to back up her husband's account, but Walton had said he wasn't inclined to have her testify since she didn't speak directly to Clemens.  Walton was angered that in the video prosecutors showed the jury, Rep. Elijah Cummings, D-Md., referred to Pettitte's conversation with his wife.

"I think that a first-year law student would know that you can't bolster the credibility of one witness with clearly inadmissible evidence," Walton said.  He said it was the second time that prosecutors had gone against his orders -- the other being an incident that happened during opening arguments Wednesday when assistant U.S. attorney Steven Durham said that Pettite and two other of Clemens' New York teammates, Chuck Knoblauch and Mike Stanton, had used human growth hormone.

Walton said in pre-trial hearings that such testimony could lead jurors to consider Clemens guilty by association.  Clemens' defense attorney objected when Durham made the statement and Walton told jurors to disregard Durham's comments about other players.

There was no objection from Clemens' team during the Laura Pettitte reference, but the judge stopped the proceedings, called attorneys up to the bench and spoke to them privately for several minutes.  Hardin pointed out during that time, the video remained frozen on the screen in front of jurors with a transcript of what was being said on the bottom....

The judge eventually told the jurors to leave while he discussed the issue with attorneys in open court. "Government counsel should have been more cautious," Walton said, raising his voice and noting that the case has already cost a lot of taxpayer money.  He then left the courtroom and said he would go consult with a colleague on what to do.

There are so many interesting dimensions to this development, including the notable (pre-)sentencing indication that Judge Walton will be imposing prison time at sentencing if Rogers Clemens gets convicted on the perjury charges he is facing.  

Notably, the early comments to this post all suggest that Judge Walton should not allow the feds to try Rogers Clemens again.  But the mess up by the feds here hardly seem based on this press account to super-extreme efforts to undermine Clemens' right to a fair trial.  I think allowing Clemens to now walk would be something of an unfair windfall for a defendant who is accused of a serious charge of lying to Congress.  But I am also somewhat sympathetic to the notion that, at this stage, the Rocket has already now been punished enough (especially given that Rusty Hardin hardly comes cheap and will surely have the meter still running as the legal  fall-out from this mistrial plays out over the coming months).

Could/will/should the federal debt and deficit showdown have any real criminal justice bite?

I often like to tell my students that every significant public policy story always has a criminal justice and sentencing angle.  (As my chief example, I assert that Bush v. Gore and the broader 2000 presidential election fight over who won Florida was really only made possible because Florida has one of the nation's broadest felon disenfranchisement laws.)  But I am having a hard time figuring out just how the 2011 federal political spat over the debt ceiling and federal spending has any significant criminal justice impact.

Of course, there is no doubt in my mind that that general concerns about the huge US debt and federal deficits are playing a role in the thinking of the Department of Justice and the US Sentencing Commission and others as it related to the economic costs of the federal criminal justice.  But, unlike in states when a huge percentage of budgets go to criminal justice spending, the federal criminal justice system rarely occupies much more than 1% of all federal spending.  Though funds can (and have) been cut from various federal criminal justice programs, it is still unclear to me if and how the current federal debt and deficit showdown inside the Beltway can or will have any real criminal justice bite.

On the assumption that some readers may know a lot more about the important issues of dollars and sense, perhaps somebody in the comments can explain just whether and how sentencing fans can and should have a unique rooting interest in what is keeping DC extra hot and bothered this summer.

Notable recent resentencing opinion on career offenders and Kimbrough discretion

I recently received a copy of a notable resentencing opinion from US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame.  The opinion in US v. Vazquez, No. 6:04-cr-212-Orl-31 (M.D. Fla. June 28, 2011) (available for download below), covers a number of modern federal sentencing issues and reviews a remarkable procedural history for a single low-level drug defendant.

Specifically, way back in 2005 just six months after the Booker ruling, Judge Presnell originally imposed a sentence of just over nine years in prison after refusing to essentially double the defendant's sentence, as the guidelines' career-offender provisions urged, based on two old convictions.  On the government's appeal, this sentence was vacated, with the Eleventh Circuit holding that policy-based criticism of the career-offender guidelines was not permitted.  Judge Presnell then imposed a substantially higher sentence (15 years in prison), a sentence which was upheld by the Eleventh Circuit.  But upon further appeal, the Solicitor General switched positions and argued that the Eleventh Circuit had misinterpreted Kimbrough, and the case was ultimately returned to Judge Presnell for another resentencing.

In this latest opinion, Judge Presnell explains all this history and accounts for the current state of the law within the Eleventh Circuit.  He then reimposes the original sentence, less another 20 months for post-sentencing rehabilitation under Pepper.  Notably, the opinion reports that "the parties agreed that a 20-month reduction would be appropriate to account for the Defendant’s post-sentencing rehabilitation."  Slip op. at 10 (emphasis added).  

There is now such great irony represented by this (finally!) final Vazquez sentence: by virtue of federal prosecutors fighting the original 110-month sentence so effectively from the outset, along with SCOTUS rulings along the way, the defendant here was able ultimately to secure an extra 20 months off his original below-guideline sentence, and federal prosecutors now apparently agree that a sentence even below that originally imposed is now just and proper.  And, assuming the defendant gets his 15% good-time credits for time already served, it would seem he is due to be released from prison not long after his sentence was finally resolved.

Download Vazquez_resentencing_order_from_Judge Presnell 

Will cost arguments convince California voters to ditch the death penalty in 2012?

The election season of 2012 will be amazing in California for sentencing fans because it appears that three major criminal justice issues could all be placed directly before the voters in propostions to (1) legalize marijuana, (2) reform the state's three-strikes law, and (3) repeal the state's death penalty.  In all three campaigns, the economic costs of the status quo and the potential benefits of reform will be a major focus, and a couple newspaper commentaries in California papers today are already making the case that California's capital punishment system is a waste of money.

From the Stockton Record, this editorial headlined "Slow-motion death penalty" makes these points:

Since being reinstated in 1978, the death penalty has resulted in 14 executions (one of them in Missouri), the first coming in 1992, 14 years after the penalty was reinstated, and the last in January 2006.  In that same period, 78 death row inmates have died, 18 by suicide but most from natural causes.  Today there are 714 condemned inmates, far more than the 513 men and women California has executed since 1893.  We can accomplish the same slow-motion death by putting these people in the general prison population.

Since 1978, the state has spent about $4 billion sustaining the system.  That's enough money to pay 5,000 police officers $60,000 a year for more than 13 years.  What's this all mean?  It means the system is broken and there is no evidence it can or will be fixed. One thing is sure: The cost of keeping it in place will only increase in the years ahead.

It is that wasteful spending that is at the heart of moves to ask state voters to again consider this punishment.  The simple question: Can its cost be justified?  Not according a growing number of studies and people, including attorney Don Heller, the former prosecutor who authored the state's 1978 death penalty law.  "I fervently believe that capital punishment should be abolished," Heller said. "It's costing the state a huge amount of money."...

Of course, there are those who believe just as fervently that you cannot put a put a price tag on justice. That the victims of the condemned deserve justice. And that killers who are killed don't kill again.

However, what Senate Bill 490 asks voters to do -- assuming it clears the Legislature and is signed by the governor -- is to set aside the moral arguments for and against the death penalty and consider it only in terms of money.  Is it worth the cost?  It has cost California an estimated $4 billion to execute 14 people since 1978.  Based on that, capital punishment is a colossal waste of resources.

Similarly, this op-ed by George Skelton in the Los Angeles Times is headlined "Repeal the death penalty: Each execution costs taxpayers $308 million, a colossal waste."  It begins this way:

Waste, fraud and abuse — also known as California's death penalty. It's a colossal waste of money for arguably the state's most inefficient program.

California has spent an estimated $4 billion to administer capital punishment over the past 33 years and executed only 13 people. That's about $308 million per execution. It's a shameless fraud on the public. Californians have consistently supported the death penalty and been led to believe that it exists. It really doesn't.

We just stack up more and more killers on death row. There's now a backlog of 714. It's an abuse of California resources — property and personnel, public and private.

San Quentin's death row occupies valuable land on San Francisco Bay that is better suited for economic development. Meanwhile, far too many brainy lawyers and academicians test their wits on death penalty issues rather than productively debating projects and policies needed to improve the state.

Don't misread me. You won't find any arguments here about the death penalty being unfair, immoral or barbaric. I don't buy it. Far as I'm concerned, these characters — once proven guilty beyond a shadow of doubt — should be immediately removed from our planet. Some creeps should be appropriately tortured first.

But the issue here is not about the merits of the death penalty. It's about inefficiencies and priorities. As we raise university tuitions out of sight, whack the poor and lay off cops, do we really want to be spending $308 million to snuff out one individual?

What California has been doing for the past 33 years is insane: piling murderers into death row with little prospect of executing them. There the condemned get their own single cells. They have access to free lawyers and personal TVs.

A recent extensive study of California's death penalty cited the case of a white supremacist who killed a fellow gang member. He asked his attorney to get him sentenced to death, researchers reported, "because, as his attorney explained, 'living conditions at San Quentin prison's death row will be better than if he serves a life term at Pelican Bay.'"

I personally find these kinds of cost arguments concerning the death penalty convincing and compelling, especially in California where a number of legal and social forces ensure that the state will have to spend many more millions in any effort to execute even a small number of the many hundreds of murderers now on its death row.  But I am certainly not the average California voter, and thus I really wonder whether these argument can and will be effective in a proposition campaign.

Creative (and wise?) Oregon state sentences for poachers

A favorite reader altered me to this interesting Oregon sentencing story headlined "Poachers will spend deer seasons in jail: A Springfield father and son are both barred from hunting for life." Here are the details:

In the words of a prosecutor, hunting season will now be jail season for a Springfield father and son who pleaded guilty Tuesday to more than 130 poaching-related charges.

Rory Donoho, 60, and Shane Donoho, 37, received the unusual sentence for leading what is purportedly Oregon’s largest illegal hunting scheme, wiping out the deer population in a portion of the McKenzie Wildlife Management District near Vida.

Instead of presumptive prison terms of three years and 6½ years, respectively, for their racketeering, identity theft and poaching convictions, the Donohos must report to the Lane County Jail for a 90-day sentence on Oct. 1, the first day of deer season, in each of the next four years.

Prosecutor Jay Hall struck the plea deal with attorneys for the two men. Lane County Circuit Judge Charles Carlson also stripped both men of their hunting privileges for life and placed them on five years of supervised probation.

He ordered Rory Donoho, convicted on 57 counts, to pay $20,000 in restitution to the state. He ordered Shane Donoho, convicted of 82 counts, to pay $42,000 in restitution to the state and to perform 400 hours of community service — including speaking to hunting groups and Boy Scout troops about his crimes. He also ordered him to undergo counseling for a hunting “addiction” as directed by his probation officer.

Hall said Shane Donoho admitted to killing more than 300 deer in the past five years. In most cases, Oregon hunters are limited to bagging one deer per season. Hall said the father and son obtained other people’s tags so they could appear legitimate if a game official caught them with one of their poached animals. The prosecutor called the family’s illegal hunting a generational pattern....

Boyd said Shane and Rory Donoho cooperated with authorities once they learned they were under investigation. Shane Donoho’s attorney, John Haapala, called his client “forthcoming in all regards,” and noted that he had no prior criminal convictions. He also stressed that the Donohos never made any attempt to sell the poached meat. Rather, they intended to eat it or share it with friends, he said.

Rory Donoho’s attorney, Brian Cox, noted that his client also had no previous convictions. “This case also showcases flaws in the system, because you don’t have to show any ID (when buying a tag) proving you are who you say you are,” he said. “This is a huge loophole in the law that screams for a fix.”

The Donohos also forfeited to the government 19 rifles, 1,600 pounds of processed and frozen game meat, and 106 pairs of trophy antlers valued at between $180,000 and $400,000. Boyd said the meat is not certified for human consumption because it wasn’t inspected, but that he intends to provide it to zoos and wildlife rehabilitation centers for feeding to carnivores there.

"Accused sex offender allowed to watch child porn in jail"

The title of this post is the headline of this local article out of Washington state concerning a story which becomes somewhat less alarming (though still notable) when all the details are explained. Here are all the details:

A strange quirk in the law is allowing an accused child rapist to watch child pornography inside the Pierce County Jail. Marc Gilbert is accused of sexually assaulting young boys and videotaping the abuse.

Under the law, defense attorneys are allowed to review material tied to the case. And because Gilbert has chosen to act as his own attorney, he has had unlimited access to the pornographic footage. Therefore, the jail says it has no choice but to allow Gilbert to review the footage times over with no limits. Restricting his access would risk a mistrial.

Investigators seized from Gilbert's possession more than 100 DVDs containing 28 hours of pornographic footage. Some of the material was allegedly shot by the former jet pilot, and feature the young boys he's accused of luring to his home and exploiting.

The prosecutor and the sheriff say the results of the legal loophole are sickening in this case, but say the state Supreme Court has ruled in Gilbert's favor. "Make no mistake -- I don't like it," said Pierce County Sheriff Paul Pastor. "But it is not my choice whether to do it or not to do it. There's no question that I don't like it. There's no question that this makes me grind my teeth."

"We don't like it. We don't want to do it, but we have to follow the law. The fix here is to change the law," said Pierce County Prosecutor Mark Lindquist.

To make sure no other inmates get a chance to see the pornography, Gilbert is made to review them in a separate room. Child advocates say allowing the tapes to be viewed further victimizes the victims.

I am not sure it is quite right to describe this defendant's right to defend himself by having access to the evidence against him as a "strange quirk in the law" or as a "legal loophole."  Nevertheless, as the headline suggest, this is a story that seems sure to be sensationalized.

Digging a bit deeper, I wonder about the local prosecutor's suggestion that the "fix here is to change the law" concerning access to trial evidence by the defense team: could there be constitutional problems with entirely preventing a defendant from having at least some access to the principal evidence to be used against him at trial?

Ohio decides not to appeal federal district court ruling in Smith halting execution

Regular readers may recall posts from last week here and here reporting on the ground-breaking Smith ruling by U.S. District Court Judge Gregory Frost last Friday, which stayed an upcoming execution based on a death row defendant's Equal Protection claim concerning how Ohio runs its machinery of death.  Now this local piece, headlined "Ohio executions may be on hold to adjust procedures," reports that Ohio has decided to try to satisfy Judge Frost (through tweaks of its execution process?) rather than seek an immediate appeal to Sixth Circuit to get the Smith ruling reviewed.  Here are the (surprising?) details:

Executions in Ohio could be on hold for an indefinite period while officials work with a federal judge who criticized the state's "haphazard application" of its lethal injection policies.

Ohio Attorney General Mike DeWine told The Dispatch that while he disagrees with U.S. District Court Judge Gregory L. Frost's decision, "the state is going to take that decision and follow it and make revisions and comply with it. Once that is done, I would anticipate that the state would go back to Judge Frost."

DeWine decided not to appeal Frost's order halting Tuesday's scheduled execution of condemned killer Kenneth Smith of Hamilton, Ohio. Smith, 45, was to be executed at 10 a.m. Tuesday at the Southern Ohio Correctional Facility near Lucasville for his role in the slayings of Lewis and Ruth Ray in their home on May 12, 1995.

Smith's attorneys questioned the Department of Rehabilitation and Correction's adherence to its execution policies, specifically regarding the required number of team members present and documentation of the mixing of drugs.

Frost's said in his decision that, "Ohio pays lip service to standards it then often ignores without valid reasons, sometimes with no physical ramifications and sometimes with what have been described as messy if not botched executions."

The ruling could have a far-reaching impact on other death penalty cases pending in Ohio. DeWine said the goal would be to "comply within a short period of time," he would not offer a time frame. The Ohio Supreme Court has set nine additional execution dates through September 2012.

In a statement, the state prisons agency said: "Those involved in implementing court-ordered lethal injection sentences in Ohio have consistently carried out this extremely difficult task in a dignified, professional and humane manner. We will use Judge Frost's decision as an opportunity to improve our policies and procedures in preparation for carrying out future lethal injection sentences."

If I recall correctly, many commentors to my  prior posts on Smith predicted it would only be a matter of time before the Sixth Circuit reversed the decision.  It now appears that Ohio is not even going to give the Sixth Circuit that chance.  How interesting.

Some recent related posts:

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Why Smith Equal Protection ruling and execution stay in Ohio is a huge (and national?) new death penalty story
• Ohio's queue for executions now 11 deep and more than a year long
• Georgia execution raising new questions (and more litigation) about new drug protocols
• DOJ gets in way of Arizona execution based on illegal acquisition of lethal injection drug
• Mississippi joins growing number of states with success using new execution drug 

Ohio Supreme Court finds new Ohio SORNA-compliant sex offender requirements punitive

In a ruling with potential national implications even though based only on state law, the Ohio Supreme Court this morning in a 5-2 opinion decided that the state's new sex offender registration requirements were punitive and thus could not, as a matter of Ohio state constitutional law, be applied to offenders who committed offenses before this new registration law was put into effect. The majority ruling in Ohio v. Williams, No. 2011-OHIO-3374 (Ohio July 13, 2011) (available here), concludes this way:

[Under the new law], offenders are no longer allowed to challenge their classification as a sex offender because classification is automatic depending on the offense.  Judges no longer review the sex-offender classification. In general, sex offenders are required to register more often and for a longer period of time. They are required to register in person and in several different places. R.C. 2950.06(B) and 2950.07(B).  Furthermore, all of the registration requirements apply without regard to the future dangerousness of the sex offender. Instead, registration requirements and other requirements are based solely on the fact of a conviction.  Based on these significant changes to the statutory scheme governing sex offenders, we are no longer convinced that R.C. Chapter 2950 is remedial, even though some elements of it remain remedial.  We conclude that as to a sex offender whose crime was committed prior to the enactment of S.B. 10, the act “imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction,” Pratte, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, at ¶ 37, and “create[s] new burdens, new duties, new obligations, or new liabilities not existing at the time,” Miller, 64 Ohio St. at 51, 59 N.E. 749.

No one change compels our conclusion that S.B. 10 is punitive. It is a matter of degree whether a statute is so punitive that its retroactive application is unconstitutional.  Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570.  When we consider all of the changes enacted by S.B. 10 in aggregate, we conclude that imposing the current registration requirements on a sex offender whose crime was committed prior to the enactment of S.B. 10 is punitive. Accordingly, we conclude that S.B. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.

The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders.  It may not, however, consistent with the Ohio Constitution, “impose[] new or additional burdens, duties, obligations, or liabilities as to a past transaction.” Pratte, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, at ¶ 37.  If the registration requirements of S.B. 10 are imposed on Williams, the General Assembly has imposed new or additional burdens, duties, obligations, or liabilities as to a past transaction.  We conclude that S.B. 10, as applied to Williams and any other sex offender who committed an offense prior to the enactment of S.B. 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws.

"Collateral Consequences after Padilla v. Kentucky: From Punishment to Regulation"

The title of this post is the title of this important new piece available via SSRN by Margaret Colgate Love.  Here is the abstract:

This Article analyzes the scope of Padilla v. Kentucky, concluding that its logic extends beyond deportation to many other severe and certain consequences of conviction that are imposed by statute or regulation rather than by the sentencing court.  It proposes a set of reforms that would limit the disruptive effect of these co-called “collateral consequences” on the guilty plea process, and make a defense lawyer’s job easier.

Part I describes a case currently pending in the Pennsylvania Supreme Court that may yield some important clues about how broadly the Padilla doctrine will be applied to status-generated consequences other than deportation.  At issue in Commonwealth v. Abraham is whether a lawyer should have warned his client, a retired public school teacher, that pleading guilty to a misdemeanor sex offense would result in the permanent forfeiture of his vested pension benefits.

Part II looks at the collateral consequences doctrine as applied by the courts before Padilla to demonstrate its weakness in the Sixth Amendment context.  It then examines the Padilla decision itself and its progeny to date, and proposes a test for determining when a lawyer should be constitutionally required to notify a client about a particular statutory or regulatory consequence of conviction.  It concludes that the pension forfeiture at issue in Abraham meets that test.

Part III proposes three non-constitutional reforms “to complete Padilla’s unfinished business” where the substance of plea agreements is concerned.  The goal of these reforms is to minimize the extent to which harsh categorical sanctions destabilize the plea process on which the justice system has come to depend.  Using principles set forth in the ABA Criminal Justice Standards, the article recommends that jurisdictions should 1) compile and disseminate information about collateral sanctions; 2) eliminate those sanctions that are disproportionately severe or bear only a tenuous relationship to the crime; and 3) provide timely and effective ways to avoid or mitigate the sanctions that remain.  These reforms will not only shore up the plea system, they will propel a move away from a punitive model of collateral consequences that is frequently self-defeating and unfair, to one that can be justified in both moral and utilitarian terms.

"Blaine hacker who terrorized neighbors gets 18 years in federal prison"

The title of this post is the headline of this interesting local article from Minnesota reporting on an interesting federal sentencing proceeding for an (interesting?) cyber-criminal who ultimately received an above-guideline sentence.  Here are the details:

Federal prison sentences aren't computed this way, but the 18 years Blaine hacker Barry Ardolf was sentenced to Tuesday works out to one year for every 39.3 days of hell he put his victims through.

Matt Kostolnik told a judge that the 707 days his family spent living next to Ardolf were days of dread and fear.  Ardolf had waged a cybercampaign of terror against them, all because they called the cops after the man planted what they called a "wet kiss" on their young son's lips.  "I felt like me and my family were under attack.  I went numb that day," Kostolnik told U.S. District Judge Donovan Frank of the day of the kissing incident, which occurred the day after they moved into a house on a cul-de-sac next to Ardolf. ...

Ardolf, 46, then a technician at Medtronic, was a "certified ethical hacker," according to the bumper stickler above his bed, who used his skills to hack into the Kostolnik's wireless router.  He then opened email accounts in Kostolnik's name to send lewd and threatening messages to several people in the Kostolniks' lives.  Some emails threatened the vice president and other elected officials, while other messages, to Kostolnik's co-workers and bosses at the downtown Minneapolis law firm where he worked as a lawyer, included child pornography....

The sentence was less than the 24-year, five-month term that Assistant U.S. Attorney Timothy Rank had asked for.  The seasoned prosecutor, who has stared down murderers, told Frank that Ardolf's capacity for "ruthless cruelty" ranked him among the most dangerous people he'd ever prosecuted.

Defense lawyer Kevin O'Brien had argued that while Ardolf's conduct was bad, the man himself wasn't.  A sentence of no more than 6-1/2 years was appropriate, he argued. O'Brien is Ardolf's court-appointed "stand-by" counsel; the defendant fired his second attorney this year and declared that he wanted to represent himself....

Ardolf was charged in June 2010, agreed to a plea deal, rejected it, was indicted on more charges, went to trial and then halted the trial after a couple of days to plead guilty.  Then, on the eve of his sentencing in March, he told Frank he wanted to withdraw his guilty plea and get a "do-over" trial.  The judge rejected his arguments, setting the stage for Tuesday's proceedings....

Dressed in orange jail antimicrobial clothing and sometimes wearing two pairs of glasses simultaneously, Ardolf, a widower, began his comments by apologizing to the Kostolniks, his own three children and his family, some of whom were in the courtroom.   But he spent most of his time talking about himself, a trait that had prompted Rank to complain at a hearing in May that Ardolf was a narcissist unable to show true remorse or feeling for his victims....

He reeled off a list of recent prison sentences he'd read about in the paper -- including the 10-year sentence meted out to former auto mogul Denny Hecker this year -- and said that relatively speaking, his crime wasn't as bad as those of some people sent to prison for terms less than what he was facing. "I didn't kill anyone," he said.

Even O'Brien stretched to explain Ardolf's behavior, saying that when he first met him, he found him to be "too arrogant, not willing to listen.  The question now is, What is a reasonable sentence for such unreasonable acts?" O'Brien asked.  He acknowledged that Ardolf has "done some bizarre, hurtful acts."

Ardolf had pleaded guilty to unauthorized access to a protected computer, two counts of aggravated identity theft, possession and transmission of child pornography and making threats to the vice president.  Frank said he'd gotten a handful of letters on Ardolf's behalf; a common theme: the man didn't seem the same after his wife died suddenly two days before her 38th birthday....

Frank noted that when Ardolf's points were computed, the guidelines called for a maximum of 15 years and eight months.  But the judge said a harsher punishment -- 216 months, or 18 years -- was called for. "Anything any less than that would not serve the purposes of justice," he told Ardolf, who stood before the judge, hands clasped in front of him.

Michigan Supreme Court rules homelessness not a defense for sex offender failing to register

As detailed this effective local article, "Sex offenders must register and tell law enforcement where they can be found, even if they are homeless, the Michigan Supreme Court ruled Monday." Here is more:

The court overturned a lower court ruling that a homeless sex offender shouldn't be punished for not registering an address or giving his whereabouts to law enforcement. Its four Republican members signed the majority opinion, sending the case back to Ingham Circuit Court.

"The Legislature intended SORA (Sex Offender Registration Act) to be a comprehensive system that requires all sex offenders to register, whether homeless or otherwise," Chief Justice Robert Young Jr. wrote in the opinion.  "An offender's homelessness in no way prevents that offender from physically entering a law enforcement agency" and reporting where he's living.

The three Democratic justices dissented, saying the majority's opinion "defies" common sense.  "Defendant had no 'residence' as that term is used in SORA. He had no habitual place at which to sleep. He had no place at which he kept his personal effects. Nor did he have a regular place of lodging,"  Justice Marilyn Kelly wrote for the minority.  "A park bench, highway underpass or steam grate may qualify as a place where a homeless individual sleeps, but they hardly qualify as a 'regular place of lodging' under the statute."...

In Monday's opinion, the majority said the definition of "residence" merely contemplates a "place," and that Dowdy had a legal duty under the law to report that place to police. The minority said the law required him to report his "residence" or "domicile," which it said he didn't have.

Legislation requiring homeless sex offenders to notify police when they change where they are staying passed the Michigan Senate last year but failed to pass the House.

The full Michigan Supreme Court opinion in Michigan v. Dowdy is available at this link.

Does (and should) Casey Anthony now have a Second Amendment right to buy a gun?

The provocative (but still serious) question in the title of this post is inspired by this recent post on Second Amendment jurisprudence and this new ABC News report headlined "Casey Anthony Cops May Provide Her Protection When She Leaves Jail."  Consider first the start of the news report:

The police who investigated Casey Anthony for murder -- and still believe she is guilty -- said today that they are assessing the threat to her safety and may provide police protection for Anthony when she leaves jail this weekend.

Orange County Sheriff Jerry Demings acknowledged the anger over the verdict that found Anthony not guilty of killing her 2-year-old daughter Caylee. The fury has been directed at Anthony, her parents, the judge and the jury.  "Our intelligence section is assessing the threats," said Sgt. John Allen, who helped interrogate Anthony at Universal Studios after she admitted she had lied about working there.

"A lot of people have strong sentiments about the outcome, but no one has the right to take the law into their own hands.... I would hope people step back and, regardless of their feelings, not commit another crime," Allen said at a news conference with other members of the team that investigated Anthony.

Demings said that when Anthony, 25, leaves jail Sunday, "We will assist in her departure from those premises."  If there is an "overriding public safety need," they will escort her to her destination, the sheriff said.  He added, however, "We will not be providing any elaborate protection for Casey once she leaves."

The jury's not guilty verdict has not changed the opinion of the cops who grilled Anthony and investigated Caylee's death.  When asked whether he still believed that Anthony was guilty, Allen replied, "I certainly don't have any doubt."

Consider also the interesting reality that federal gun laws (and apparently also Florida gun laws) only prohibit gun possession by persons convicted of a felony or a misdemeanor involving domestic violence.  Anthony's acquittal on all felony charges and convictions only for lying to the police would apparently not prohibit her, as a matter of state and federal statutory law, from now buying a gun upon her release from jail in a few days.

But if state or federal statutory laws (or related permitting regulations) were somehow read to prevent Anthony from buying a gun, am I wrong to suggest she might still have a fundamental constitutional right to buy a gun for self protection after Heller and McDonald?  Though not precise on the Second Amendment's contours, Heller and McDonald and subsequent lower court rulings all suggest the right of personal self-defense is closely linked and related to the core of the Second Amendment right to keep and bear arms.  The ABC News story reinforces that few persons in the US may be facing personal threats comparable to Anthony (and the same story may give her reason to worry that local police are now not likely eager to take a bullet for her).

Then again, the Seventh Circuit's recent Ezell ruling (discussed here) strongly suggests that it is only "law-abiding, responsible citizens" who get the full protection of the fundamental rights safeguarded by the Second Amendment.  Notwithstanding her jury acquittal on all felony counts, the evidence presented at Anthony's trial surely established that Anthony is not a prime example of a "law-abiding, responsible citizen."  Thus, I return to the serious question in the title of this post: Does (and should) Casey Anthony now have a Second Amendment right to buy a gun?

A few related Second Amendment posts:

• Why the Second Amendment is not (and should never be?) "part of normal constitutional law"
• "The Standardless Second Amendment"
• Can dismissed domestic violence complaint justify revoking gun permit?
• Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment
• Skoien and the many challenges of Second Amendment jurisprudence
• Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
• Assailing the unjustified Second Amendment limits in Heller
• Fourth Circuit orders Second Amendment hearing to assess constitutionality of § 922(g)(9)

Ninth Circuit essentially demands Congress amend restitution law to allow victims to recover from child porn possessor

As first noted in this post, yesterday a Ninth Circuit panel issue a very important ruling US v. Kennedy, No. 10-30065 (9th Cir. July 11, 2011) (available here), which vacated a restitution sentence imposed on a child porn possessor based on the conclusion that "the government failed to carry its burden of proving that Kennedy’s offense conduct proximately caused the losses incurred by the victims." Regular readers know that this issue has already divided district and circuit courts, and all should find notable these closing paragraphs from the Kennedy opinion:

[I]dentifying a method for imposing restitution on defendants convicted of possession, receipt, or transportation offenses is not easy.  The underlying problem is the structure established by § 2259: it is a poor fit for these types of offenses.  While direct evidence of a proximate loss, such as evidence that “after receiving notification of the [d]efendant’s offense, the victim had to attend any additional therapy sessions [or] miss any days of work,” Church, 701 F. Supp. 2d at 833, would be sufficient, it is likely to be a rare case where the government can directly link one defendant’s viewing of an image to a particular cost incurred by the victim.  While we do not rule out the possibility that the government could devise a formula by which a victim’s aggregate losses could be reasonably divided (for example, by developing a reasonable estimate of the number of defendants that will be prosecuted for similar offenses over the victim’s lifetime, and dividing the total loss by that amount), we suspect that § 2259’s proximate cause and reasonable calculation requirements will continue to present serious obstacles for victims seeking restitution in these sorts of cases.  Nevertheless, the responsibility lies with Congress, not the courts, to develop a scheme to ensure that defendants such as Kennedy are held liable for the harms they cause through their participation in the market for child pornography.  In the future, Congress may decide to reconsider whether § 2259 is the best system for compensating the victims of child pornography offenses, or whether statutory damages of a fixed amount per image or payments into a general fund for victims would achieve its policy goals more effectively.

Until Congress makes such a change, we remain bound by the language of the statute and our precedent. Because the district court’s restitution order directed Kennedy to pay for losses that the government did not prove were proximately caused by his offense, the order was unlawful under § 2259 and must be vacated.  On this issue, we remand to the district court for proceedings consistent with this opinion.  In all other respects, Kennedy’s conviction and sentence are affirmed.

In other words, the Ninth Circuit panel in Kennedy indicates it will be virtually impossible, in light of existing federal restitution law, for prosecutors to meet the burden of proving that an individual possessor of child porn proximately caused any of the losses claimed by a child porn victim.  Thus, as the title of my post suggests, the Kennedy ruling essentially demands that Congress change existing federal restitution law if it wishes for these victims to be able to recover from possessors of their pictures.

I suspect that some advocates for broad recovery of restitution by victims in the sentencing process, especially in this unique and uniquely emotional setting, will be trouble by the Ninth Circuit panel's work in Kennedy.  But I also suspect that fans of judicial restraint, as well as anyone who believe these sorts of victim compensation issues ought to be resolved in civil tort suits rather than in a criminal sentencing proceeding, will find a lot to like in the Kennedy conclusion.

Some related recent federal child porn restitution posts:

• Eleventh Circuit publishes (first?) circuit opinion affirming restitution in sentencing of child porn downloader
• Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA
• Fifth Circuit panel questions another panel's recent ruling on child porn restitution sentencing
• DC Circuit weighs in on host of challenging child porn restitution issues
• Restitution terms debated in another federal child porn downloading sentencing
• Another significant federal child porn restitution decision from NDNY district court
• Effective new opinion discussing restitution in federal child porn possession cases
• Another thoughtful and notable district court opinion on restitution in child porn sentencing
• Federal judge imposes large restitution punishment for downloading child porn
• Federal sentence for receiving child porn includes forfeiture of home
• "Prosecutors seek nearly $200k for child porn victim"
•  Notable report on latest developments in federal restitution awards in child porn downloading cases
• New student note on restitution sentences for child porn downloaders

Do all agree with Ohio's Governor that sentencing reform "isn't a place for politics"?

The question (and quote) in the title of this post is inspired by this report from the Cleveland Plain Dealer, which is headlined "Northeast Ohio leaders embrace sentencing reform law during Gov. John Kasich visit."  Here is the background:

Northeast Ohio community leaders publicly embraced Ohio's new sentencing reform law Tuesday at an event with its chief cheerleader, Gov. John Kasich.

"This bill is a long time coming," State Sen. Nina Turner of Cleveland said, standing behind a lectern at Mt. Sinai Baptist Church on Cleveland's East Side, before a couple dozen politicians, ministers and people who work directly with felons.

In addition to evening out the penalties for crack and powder cocaine, the law, formerly known as House Bill 86, diverts low-level criminals -- such as those arrested with drug paraphernalia – to community based programs focused on rehabilitation and education. It also allows future inmates to earn shorter sentences if they complete education and mental health programs while incarcerated....

Kasich said the sentencing reform had been stymied in the past by politics.  "It sat for 25 years and nobody wanted to do anything about this," he said.  "There isn't a place for politics.

"I am pretty emotional about this bill because I think what we have done with sentencing reform literally will save thousands of lives," said Kasich, who arranged the event and did not take questions from the audience....

William Denihan, chief executive of the Alcohol, Drug Addiction and Mental Health Services Board of Cuyahoga County, welcomed the passage of the sentencing bill, noting that the key obstacles for many low-level criminals are substance abuse and mental health problems. "These folks need treatment, not incarceration," he said....

The bill also gives judges more discretion in sentencing juveniles, says Gabriella Celeste of Case Western Reserve University's Schubert Center for Child Studies. Celeste, who testified before lawmakers on behalf of a coalition of juvenile justice advocates funded by the MacArthur Foundation, said judges can weigh a juvenile's personal accomplishments and issues. "We are just thrilled that in Ohio we are moving toward a place where we are treating kids as kids," she said.

In addition to believing Ohio Governor Kasich merits much praise for helping to get significant sentencing reform passed in Ohio, I also believe he is right to express frustration about how political posturing and rhetoric often thwarts the enactment of effective and just sentencing reforms.  And yet, I still find a bit jarring (while also a bit encouraging) to hear my Republican Governor assert categorically that "there isn't a place for politics" in the development of state sentencing reforms.  I wonder how others are inclined to react to this assertion.

Through the federal "crime of violence" looking glass with the Tenth Circuit

Among a number of interesting and notable federal criminal justice rulings handed down by the Tenth Circuit today is US v. Armijo, No. 09-1533 (10th Cir. July 12, 2011) (available here), which in the course of many dense pages highlights the Alice-in-Wonderland quality of some modern federal sentencing doctrine.

In short form, Armijo holds that a Colorado conviction for manslaughter is not a "crime of violence" for federal guideline calculation purposes, while a Colorado conviction for felony menacing is a "crime of violence" for federal guideline calculation purposes.  In other words, according to the Tenth Circuit's understanding of federal sentencing doctrines, the defendant in Armijo is not to be subject to a "crime of violence" guideline enhancement based on killing somebody a certain way in Colorado, but he is to be subject to such an enhancement based on threatening somebody a certain way in Colorado.  (I am tempted to joke that shrewd offenders in Colorado should start killing folks before threatening them.)

I am not faulting the Tenth Circuit for its (Mad Hatter) ruling as much as I fault the US Supreme Court, the US Sentencing Commission and especially the US Congress for letting federal sentencing doctrine get to a point where lower federal courts are forced to sort through these crazy legal disputes.  And I fear that, despite cries by Justices Alito and Scalia (and others), for Congress (or others) to clean up this mess, lower federal court judges will not be able to escape Wonderland anytime soon.

Judge Barksdale spotlights modern sentencing review challenges in lengthy dissent

An interesting little Fifth Circuit panel ruling in US v. Mudekunye, No. 09-10968 (5th Cir. July 11, 2011) (available here), came with a very lengthy partial dissent by Judge Barksdale that started this way:

I dissent only from the majority’s, under plain-error review, requiring resentencing for Mudekunye (part II.B.2.).  It has been almost 20 years since United States v. Olano, 507 U.S. 725 (1993), clarified application of plain-error review.  And, for reviewing sentences imposed through application of the Sentencing Guidelines, it has been over six years since United States v. Booker, 543 U.S. 220 (2005), held the Guidelines are only advisory.  In the light of Olano and Booker, it would seem that plain-error review would have been simplified and made more flexible.  Unfortunately, if not amazingly, just the opposite has occurred.

This is vividly reflected in the majority’s analysis and holding for Mudekunye’s sentence, through which it seeks to apply the Supreme Court’s and our precedent.  It’s time for our court to step back, re-examine, and simplify this important and all too often complex aspect for applying plain-error review to sentences imposed under the advisory Guidelines. Accordingly, I urge our court to review en banc this part of the majority opinion.

In vacating Mudekunye’s sentence, the majority emasculates the plain-error standard of review by applying it in a manner inconsistent with the Supreme Court’s and our precedent.  In an area of law it admits is unclear, the majority effectively creates a new rule: where defendant’s imposed sentence lies outside the correct advisory Guidelines sentencing range, defendant must be resentenced in district court. This rule is neither supported by precedent nor justified under plain-error doctrine.  The majority’s strained insistence on resentencing reflects that, within our circuit, plain-error review, in this context, has been weakened to the point of toothlessness, thereby defeating its many important and salutary purposes, including “to induce the timely raising of claims and objections . . . .”  Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).

Interesting (all-star?) curveballs aready being thrown in early innings of Rogers Clemens trial

Just a few of the news reports linked below emerging from the on-going trial of former MLB all-star Roger Clemens confirms my sense that, at least for hard-core criminal law and procedure fans, this federal perjury trial may prove even more interesting than the Casey Anthony state murder trial:

• From the AP here, "Clemens plans to question House hearing's validity"

• From the New York Daily News here, "Judge in Roger Clemens trial disturbed by ex-Yankee's family using social media to rip witnesses"

• From the AP here, "Roger Clemens might not testify at perjury trial"

The first story linked above raises interesting legal questions about whether and how the nature and validity of proceeding during which Clemens allegedly lied to Congress is legally significant. The second story linked above raises interesting practical (and constitutional?) questions about whether and how a trial judge might prevent friends of a defendant from attacking his accusers via social media. The third story linked above raises interesting strategic questions about whether and how a defendant can and should try to resist being convicted of lying under oath without being willing to speak under oath again.

Tonight I will be more focused on the MLB All-Star game than on figuring out answers to these legal, practical and strategic questions.  But these stories are leading me to believe the Clemens trial may prove over the next few months to be more interesting to follow thanmy fantasy baseball team (which remains mired near the bottom of my league thanks in part to poor play by Clemens' former battery mate, and possible trial witness, Jorge Posada.)

Another timely and terrific NASC conference in the works this summer

I am pleased to highlight the National Association of Sentencing Commissions' annual conference, which this year is being hosted by the Oregon Criminal Justice Commission and the Willamette University College of Law.  This year's NASC conference is taking place in Portland, Oregon from July 31 -- August 2, 2011, and the conference is titled "Blazing a Trail to the Future."  This year's agenda reveals how timely, thoughtful and forward-looking the program is for today's sentencing times, as evidence by this partial list of panel topics:

• Cost-Benefit Analysis in Criminal Justice
• Recidivism Research
• A New Look at Prosecutorial Discretion
• Examination of Mandatory Minimum Sentences
• Crime Perceptions and Media: Evidence Based Journalism?

A lot more information on the 2011 conference is available on the conference website at this link (and much information about past NASC conferences is now effectively assembled here).  

I am very bummed that other summer commitments mean I will not be able to make it out to Oregon for this event, but I heartily recommend this conference to all serious sentencing practitioners and academics.  When able to attend, I always learn more new stuff about sentencing reseaerch and also sentencing in the states from attending NASC conferences than from attending any other annual conference.

En banc Eighth Circuit finds misapplication of career offender guideline not cognizable under § 2255

Joining the Eleventh Circuit (and deviating, I believe, from at least one ruling by the Seventh Circuit), the Eighth Circuit today, though a split 6-5 en banc ruling, adopts federal prosecutors' "contention that [a defendant's] collateral attack on an application of the career offender guidelines provisions is not cognizable under § 2255." This ruling today comes in Sun Bear v. US, No. 09-2992 (8th Cir. July 12, 2011) (available here), and here is a key passage from the majority opinion per Judge Loken (with circuit cites/internal quotes) mostly omitted:

Section 2255 “was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis, 417 U.S. at 343.  Like habeas corpus, this remedy “does not encompass all claimed errors in conviction and sentencing.”  United States v. Addonizio, 442 U.S. 178, 185 (1979).  It provides a remedy for jurisdictional and constitutional errors, neither of which is at issue here.  Beyond that, the permissible scope of a § 2255 collateral attack on a final conviction or sentence is severely limited; “an error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.’”  Id., quoting Hill v. United States, 368 U.S. 424, 428 (1962).

These principles are reflected in the text of § 2255, which the Supreme Court described as “somewhat lacking in precision” in Davis, 417 U.S. at 343.  A § 2255 motion may be filed by a federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”  § 2255(a). The court shall grant appropriate relief if it finds “that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.”  § 2255(b).

Applying these principles, this court and our sister circuits have consistently held that ordinary questions of guideline interpretation falling short of the ‘miscarriage of justice’ standard do not present a proper section 2255 claim.  Therefore, such questions may not be re-litigated under § 2255....

In this case, the panel concluded that the miscarriage-of-justice exception applies because Sun Bear’s claim “is based on a post-conviction change in the law that renders unlawful the district court’s sentencing determination.” Sun Bear II, 611 F.3d at 930, citing Davis, 417 U.S. at 346-47. We disagree. Sun Bear’s 360-month sentence is not unlawful. An unlawful or illegal sentence is one imposed without, or in excess of, statutory authority. Sun Bear’s sentence is well-within the statutory maximum authorized for the offense of second-degree murder, see 18 U.S.C. § 1111(b), and in addition within the initial guidelines range of 292-365 months.

Here is the start of the en banc dissent in Sun Bear per Judge Melloy:

At sentencing and on direct appeal, Sun Bear correctly argued that he did not qualify as a career offender.  We rejected his arguments, but the Supreme Court subsequently vindicated his position in an opinion addressing the same question of law. See Begay v. United States, 553 U.S. 137 (2008).  That opinion has retroactive effect, is not clear the error below was harmless, and Sun Bear has diligently pressed his correct interpretation of the law at every available opportunity.  It is "inconsistent with the rudimentary demands of fair procedure," Hill v. United States, 368 U.S. 424, 428 (1962), and therefore amounts to a miscarriage of justice to deny Sun Bear the retroactive benefit of the Court's opinion. Accordingly, I dissent.  I would hold that Sun Bear's claim is cognizable pursuant to 28 U.S.C. § 2255(b) and that he is entitled to be resentenced.

"Mass Exoneration Data and the Causes of Wrongful Convictions"

The title of this post is the title of this new paper by Professor Russell Covey now available via SSRN. Here is the abstract:

What we currently know about the persons who have been wrongfully convicted is based largely on exonerations resulting from post-conviction testing of DNA.  Study of those cases has produced a dataset of information about the factors that contribute to wrongful convictions and the procedures relied upon both to convict and then, later, to exonerate, those defendants.  While critically important, this dataset has important limitations, chief among them is that it is largely limited to the kinds of cases in which DNA evidence is available for post-conviction testing.

Drawing on fresh empirical data, my paper attempts to improve the dataset on the wrongfully convicted by assessing another group of exonerees, those exonerated in two major scandals, the Rampart scandal in Los Angeles, and the Tulia scandal in Texas.  In both of these cases, large numbers of persons were wrongfully convicted and later formally exonerated.  The profile of these defendants varies dramatically from that of the typical DNA exoneree.  Broadening the data set to include these exonerees should cause us to rethink the major causes of wrongful convictions and the most pressing remedial solutions to the problem.

New study highlights the critical importance of effective corrections programming

This new item at The Crime Report about some new research on recidivism highlights the critical importance of effective criminal justice programming:

A study of 20,000 former adult inmates in Ohio found that those who participated in "unsuccessful" community-based correctional programs were 32 percent more likely to re-offend than those who were not involved in a program at all.

The research, conducted by over three years by researchers from the University of Cincinnati, will be presented next week at the International Congress on Law and Mental Health at Humboldt University in Berlin, Germany.

Researchers found that in halfway houses and other community corrections programs that had hands-on leadership, ongoing staff training and individual case plans, clients were half as likely to re-offend within two years than those who were not in programs.

Researchers looked at 64 residential treatment centers in Ohio and found that factors including community volunteer support, how rigorously the program self-monitored, and how well the staff assessed the individual needs of each client—including their marital status and reading level—made a major positive difference in outcomes.

New EJI report assails Alabama death sentences based on judicial override of jury life sentences

As detailed in this press release and in this new "Sidebar" piece by Adam Liptak in the New York Times, the Equal Justice Initiative has just released a new report on death sentencing in Alabama. The report, which is available here, is titled "The Death Penalty in Alabama: Judge Override."  Here is a summary of the report's coverage as provided by the start of the press release:

Allowing elected trial judges in Alabama to override jury verdicts of life in capital cases and impose the death penalty has resulted in some of the most arbitrary and unreliable death sentencing in the United States according to a new study by EJI.  A new report released today by EJI reveals that -- unlike in any other state -- elected Alabama judges overwhelmingly use their virtually unrestricted override power to impose death in cases where death-qualified Alabama juries have returned verdicts for life imprisonment without parole.

Of the 34 states with the death penalty, Alabama is the only jurisdiction where judges routinely override jury verdicts of life to impose capital punishment.  Since 1976, Alabama judges have overridden jury verdicts 107 times.  Although judges have authority to override life or death verdicts, in 92% of overrides elected judges have overruled jury verdicts of life to impose the death penalty.

Twenty-one percent of the 199 people currently on Alabama’s death row were sentenced to death through judicial override.  Judge override is the primary reason why Alabama has the highest per capita death sentencing rate and execution rate in the country.  Last year, with a state population of 4.5 million people, Alabama imposed more new death sentences than Texas, with a population of 24 million.

Override is legal in only three states: Alabama, Delaware, and Florida.  Florida and Delaware have strict standards for override.  No one in Delaware is on death row as a result of an override and no death sentences have been imposed by override in Florida since 1999.  In Delaware and Florida, override often is used to overrule jury death verdicts and impose life -- which rarely happens in Alabama.

Two notable and important child porn sentencing rulings from the Ninth Circuit

The Ninth Circuit today handed down a bunch of criminal law opinions, including two dealing with oft-occurring and important federal child porn sentencing issues.  Here are links and the basics from the start of the opinions, which were issued by two distinct panels:

US v. Kennedy, No. 10-30065 (9th Cir. July 11, 2011) (available here):

Joshua Osmun Kennedy was convicted by a jury of possessing and transporting child pornography.  He appeals his conviction, his sentence, and the district court’s order directing him to pay $65,000 in restitution to two victims.  We affirm Kennedy’s conviction and sentence.  Because the government failed to carry its burden of proving that Kennedy’s offense conduct proximately caused the losses incurred by the victims, we vacate the restitution order.

US v. Quinzon, No 10-50240 (9th Cir. July 11, 2011) (available here):

Pio James Quinzon was convicted of possession of child pornography. He now appeals a judgment that includes, as a condition of supervised release, a requirement that monitoring technology be installed on his computer-related devices.

The Kennedy ruling appears to be the most notable of this pair because, as it explains, the child porn restitution matter concerns a "difficult issue of statutory interpretation [that] has been considered, but not satisfactorily resolved, by several... circuits. See United States v. Monzel, ___ F.3d ___, 2011 WL 1466365 (D.C. Cir. 2011); In re Amy Unknown, 636 F.3d 190 (5th Cir. 2011); United States v. McDaniel, 631 F.3d 1204 (11th Cir. 2011).  (I hope to have a separate post on this issue and the  Kennedy ruling once I have time to consume it fully.)

"The Constitutionality of Post-Crime Guidelines Sentencing"

The title of this post is the title of this new piece by Benjamin Holley, an Illinois Assistant State's Attorney, which is now available via SSRN. Here is the abstract:

United States v. Booker famously excised the mandatory provisions of the federal Sentencing Guidelines, making them “effectively advisory.”  Judges are still required to calculate the applicable Guidelines range, however, and will rarely be overturned if they impose a within-Guidelines sentence.  The question thus arises: if the Guidelines are not formally mandatory, but remain the de facto basis for sentencing, does use of post-crime Guidelines violate the Ex Post Facto Clause?

A circuit split on this issue has developed, with the Seventh Circuit authorizing the use of post-crime Guidelines and the D.C. Circuit holding that such use can violate the ex post facto prohibition.  This article examines both the legal standards and the empirical evidence, ultimately arguing that the use of post-crime Guidelines does not violate the Ex Post Facto clause.

Intriguing Sixth Circuit habeas reversal concerning state resentencing lengthening prison term

The Sixth Circuit today issued an interesting habeas opinion today in Goodell v. Williams, No. 09-4338 (6th Cir. July 11, 2011) (available here), which gets started this way:

Warden Jesse Williams appeals from an order of the district court conditionally granting habeas relief to petitioner Charles Goodell.  The district court determined that the process by which Goodell was resentenced in the Lucas County (Ohio) Court of Common Pleas, resulting in a sentence longer than the original sentence he had successfully challenged, gave rise to a presumption of vindictiveness.  Finding that the presumption was not rebutted by the Warden, the district court ruled that Goodell’s resentencing violated his due process rights.  Further, the court held the Ohio Court of Appeals’ contrary ruling was contrary to clearly established federal law.  We conclude that the circumstances of Goodell’s resentencing do not give rise to a presumption of vindictiveness, that even if such a presumption applied, it was rebutted, and that, in any event, the Ohio Court of Appeals’ adjudication of these issues was neither contrary to nor an unreasonable application of clearly established federal law.  For the reasons that follow, the district court’s ruling is reversed.

Should a minor crime prevent offender from lawful use of medical marijuana?

The question in the title of this post is prompted by this interesting local piece out of Michigan, which is headlined "Judges snuffing out probationers’ medical marijuana," and begins this way:

Medical marijuana users who run afoul of the law are discovering probation is an antidote to their certification cards.

An Adrian man was warned against applying for a medical marijuana card when he was placed on probation Thursday for a cocaine offense.  Growing and using marijuana is still against federal law, said Lenawee County Circuit Judge Timothy P. Pickard.  And the state medical use program does not seem to be restricting certification to the seriously ill.

“I don’t buy it,” Pickard said during the sentencing. “It seems to be an excuse for everybody to light up and smoke dope.” Pickard, Lenawee County’s chief judge, said Friday the courts have no policy ruling out all use of medical marijuana for people on probation. But he has to be convinced there is a legitimate need, he said.

Regulations written by the state after a medical marijuana ballot proposal was passed by voters in 2008 do not require a prescription. Citizens can apply for certification cards with only a signed statement from a physician saying it may benefit their medical condition.

Probation terms can restrict otherwise legal behavior, Pickard said, such as drinking alcohol or associating with people having felony records. And it would be difficult to excuse violating federal law by growing and using marijuana while on probation.

Pickard said he will still consider approving medical marijuana use for probationers whose convictions are not drug-related and who can show evidence of a serious medical condition that can be treated with marijuana. If those conditions are met, “I’m fine with it,” Pickard said. “That doesn’t seem to be the case. I haven’t seen that yet.”

A similar approach is being followed in district court, where offenders frequently are required to surrender medical marijuana cards as a condition of probation. Chief probation officer Tony Gonzalez said district court has no written probation policy on medical marijuana. Judges review it on a case-by-case basis, he said. “We’re taking a hard stance on it,” Gonzalez said. “If they’re just going out shopping for it, we tell them no.”

The Michigan Depart­ment of Corrections also has no written policy on how medical marijuana should be addressed for offenders placed on probation, said department spokesman Russ Marlan. “We certainly would never make a recommendation that somebody do that,” Marlan said. But it is left to local judges to decide if medical marijuana is prohibited as a probation term.

"States: Death-penalty drug scramble, higher cost"

The title of this post is the headline of this new press report, which gets started this way:

States not only are having an increasingly difficult time getting the injectable drugs to carry out death sentences, they're also paying as much as 10 times more for the chemicals as in years past.

Ohio only has 40 grams of pentobarbital, enough for seven executions scheduled through February, meaning a likely scramble to find enough for the four scheduled beyond that.

Texas, with the country's busiest death chamber, says it has enough for eight more executions but won't comment on supplies past September.  It used the drug Thursday night for the execution of Mexican national Humberto Leal for the 1994 rape-slaying of a 16-year-old girl in San Antonio, despite White House pleas for a Supreme Court stay.

Ohio, Texas and several other states switched to pentobarbital from sodium thiopental this year, after the only U.S. manufacturer of sodium pentothal said it would discontinue production.

Lake Forest, Ill.-based Hospira, which strongly opposed the drug's use in executions, stopped manufacturing it altogether.  Hospira said it couldn't promise authorities in Italy, where the drug was to be produced, that it could control the product's distribution all the way to the end user to guarantee it wouldn't be used in executions.

States then switched to pentobarbital, but Denmark-based Lundbeck Inc., the only U.S.-licensed maker of the injectable barbiturate, said July 1 it would put the medication off-limits for capital punishment.  It announced a new, tightly controlled distribution system, intended to keep the drug out of the hands of prisons while ensuring deliveries to hospitals and treatment centers for therapeutic purposes, as in the treatment of epilepsy.

It's unclear whether states will be able to stockpile any remaining pentobarbital, which is marketed as Nembutal.  Lundbeck says it believes little inventory is left for states to purchase following the announcement.  And with an expiration date of about two years, states would have to switch by 2013 anyway.

If pentobarbital supplies dry up, executions could be delayed around the nation as states look for yet another alternative.  For many states, making a switch requires a lengthy regulatory and review process.  And any change typically leads to lawsuits from inmates who claim the substance violates the ban on cruel and unusual punishment. Lawsuits over pentobarbital are still being heard.

Is it sound, just and wise to often question the competency of juvenile offenders?

The question in the title of this post is prompted by this interesting article in the New York Times headlined "Legal Tactic Raises Issues for Juveniles."  Here are excerpts:

Over the past 18 months, there has been a tenfold increase in the number of cases in San Francisco’s juvenile courts in which defense lawyers question whether minors are able to understand the legal process or assist in their own defense and therefore should not be subject to legal proceedings.

The surge in competency cases has created a range of new problems for San Francisco’s juvenile justice system. When lawyers express doubts about their clients’ competency, the court suspends proceedings while the minors are evaluated.  Meanwhile they are often locked up for months or released without adequate supervision or services....

The drastic increase in competency cases is attributable, in part, to three precedent-setting cases tried in Sacramento between 2005 and 2008. In the most important of those cases — known as Timothy J — a Sacramento public defender, Arthur Bowie, successfully argued that children could be found incompetent based merely on their level of developmental maturity. The finding allowed the question of competency to come into play even in the absence of mental health problems or developmental disabilities.

“Why do we say a child can’t have a drink at 10 because he’s not thinking it through, but he can walk into a courtroom and understand what’s going on?” Mr. Bowie said in an interview....

Some argue that the Timothy J case has made it easier for defense lawyers to get minors released and cases dismissed.  “I know people are using it as a litigation strategy, and that’s not a good thing,” said George Beckwith, a private lawyer who defends minors in San Francisco.  “I don’t believe it’s rampant but I do believe it exists.”...

Patrick Mahoney, a San Francisco Juvenile Court judge, said competency had become a national issue. “What is happening is not unique to San Francisco,” he said. “This issue is being raised in every jurisdiction where I’ve had the opportunity to speak with judges.”...

Mr. Beckwith handled a case last year that involved a 12-year-old boy who was arrested for robbery twice in seven months.  Both times the boy was released because of incompetence.  Despite a court-ordered treatment plan, Mr. Beckwith said, most of the remediation services never arrived.  When the boy was arrested a third time last December, the judge placed him in juvenile hall, where he has been for more than six months.

After seeing that the boy had not received adequate counseling while incarcerated, Mr. Beckwith said he would never question competency again.  “I don’t care if the client is standing there blubbering, because they lock them up, proceedings are suspended, and they don’t get services,” he said.  “You fight like hell to get your kid into some kind of a program but for the average kid it’s not going to happen.”