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November 19, 2011

Special Georgia panel urges sentencing and court reforms to cut prison spending

This new piece in the Atlanta Journal-Constitution, headlined "Panel recommends reforms to stem prison spending," reviews the work of a special group assembled in Georgia to recommend criminal justice reforms. Here are the basics:

Shortening sentences for some nonviolent offenses and creating a statewide network of accountability courts could help prevent Georgia taxpayers from spending more than $250 million to accommodate an expanding prison population, a state panel said Friday.

The Special Council on Criminal Justice Reform said changes are needed to control the unimpeded growth in state prison spending, which has doubled over the past two decades to $1.05 billion a year. The panel noted the growth is being fueled by drug and property offenders who account for about 60 percent of all prison admissions.

The council noted more than 3,200 offenders enter prison on a drug possession conviction each year and two-thirds of these inmates have been found to be low risks to offend again. For that reason, the panel recommended the creation of a statewide system of drug, mental health and veterans' courts that offer alternatives to incarceration and a more robust supervision of offenders released from custody to reduce recidivism. Some of the cost savings from the reforms can be used to help fund these programs, the report said....

The council -- comprised of judges, lawmakers and other officials -- also recommended changing some sentencing laws that have been on the books for decades, but have not been changed to adjust for inflation. For example, it is a felony to shoplift more than $300 in merchandise. The council recommended that threshold be increased to $750, meaning anyone caught shoplifting less than that amount would face a misdemeanor, not a felony, charge. For some theft crimes, the panel recommended increasing the felony threshold from $500 to $1,500.

If nothing is done, the report said, the state's prison population will increase by another 8 percent to nearly 60,000 inmates by 2016, requiring an additional $264 million to expand prison capacity.

Gov. Nathan Deal, who called for the creation of the council earlier this year, said the report's recommendations are "a starting point." He said he will sign an executive order that allows the council to continue studying the issue. "We have an amazing opportunity to save lives as well as tax dollars," Deal said in a statement. "While we’ll never shrink from our duty to protect the public from dangerous criminals, we know that alternative sentencing for nonviolent offenders suffering from addiction or mental illness produces much better results. Let’s get to work on promoting recovery and rehabilitation rather than a system that simply hardens criminals."

House Speaker David Ralston, R-Blue Ridge, said he will make the report's recommendations a priority in the upcoming legislative session....

Efforts to overhaul tough sentencing laws and provide alternatives to incarceration for nonviolent offenders have picked up bipartisan support nationwide. This year, Arkansas, Kentucky and Ohio enacted comprehensive legislation that is projected to save taxpayers hundreds of millions of dollars in new prison construction and operating expenses, said the Pew Center on the States, which assisted the Georgia reform council in its study.

Georgia has some of the toughest sentencing laws in the nation for violent offenders and sexual predators, and the panel did not recommend changing them. The panel did, however, said the Legislature should consider a "safety valve" for some judges. This would allow a judge, after making certain findings, to depart from some mandatory minimum sentences, such as those for drug trafficking.

The panel also said safety valves could be considered for other, unspecified mandatory minimum sentences, just not those for the "seven deadly sin" crimes, such as murder, rape, kidnapping and armed robbery.

The full 25-page report with additional recommendations by the "Special Council on Criminal Justice Reform for Georgians" can be accessed at this link.

November 19, 2011 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack

November 18, 2011

"20 Years Later, Mandatory Minimum Sentences Are Still Mindlessly Draconian"

The title of this post is the headline of this new piece by Jacob Sullum over at Reason. Here are excerpts from an effective review of the US Sentencing Commission's recent report on federal mandatory minimums:

Twenty years ago, the U.S. Sentencing Commission issued a landmark report that highlighted the injustices caused by mandatory minimum penalties.  Since then several developments have helped mitigate those injustices. In 1994 Congress enacted a "safety valve" provision that allows low-risk, first-time offenders to escape mandatory minimums. In 2005 the U.S. Supreme Court held in U.S. v. Booker that the commission's sentencing guidelines (as opposed to mandatory minimums required by statute) should be treated as advisory because they hinged on facts that were not determined by a jury.  In 2007 the commission changed its guidelines to reduce recommended sentences for crack cocaine offenses. In 2010 Congress passed the Fair Sentencing Act, which shrank the senseless sentencing disparity between crack and cocaine powder.  Last month the commission issued a follow-up report on mandatory minimum sentences that reflects the improvements made by some of these changes but also shows that federal criminal penalties remain excessively harsh and rigid.

The report confirms that the safety valve, championed by Families Against Mandatory Minimums (FAMM), is having a significant impact.  In fiscal year 2010, drug offenders accounted for two-thirds of federal defendants convicted of offenses that carried mandatory minimums, but they qualified for shorter sentences about half the time. According to the report, "One-quarter (26.1%) of these offenders received relief through operation of the safety valve alone, 19.3 percent by providing substantial assistance to the government; and 9.0 percent through both the safety valve and substantial assistance provisions."...

Despite such modest progress, it's clear from the commission's report that federal sentences are still out of whack.  From interviews with prosecutors and defense attorneys, for example, "the Commission learned that inconsistencies in application of mandatory minimum penalties exist between districts, and often within districts, where individual prosecutors exercise their discretion differently.  In part, these differences may have developed to avoid the overly severe consequences that result from certain mandatory minimum penalties applying in individual cases."  In other words, prosecutors are exercising the discretion that once belonged to judges, effectively determining offenders' sentences by deciding how to charge them.

The commission also found that "mandatory minimum penalties for drug offenses sweep more broadly than Congress may have intended." The most common function among offenders subject to mandatory miniums was courier (23 percent), followed by wholesaler (21 percent), street-level dealer (17 percent), and high-level supplier/importer (11 percent). That breakdown suggests mandatory minimums continue to hit low-level offenders more often than "drug kingpins."

The irrationality is not confined to drug offenses. The share of federal sex offenders subject to mandatory minimums has risen dramatically in the last decade, from 5 percent in 2001 to 51 percent in 2010. And unlike drug offenders, they rarely qualify for lower sentences. Most sex offenders (72 percent in 2010) are charged with child pornography offenses, primarily (58 percent) possession only. The average sentence for child porn offenders subject to mandatory minimums is 11 years. "The Commission's preliminary review of the available sentencing data suggests that the mandatory minimum penalties for certain non-contact child pornography offenses may be excessively severe and as a result are being applied inconsistently," the report says.

Some recent related posts:

November 18, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

"Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing"

The title of this post is the title of this notable new article from the latest issue of the American Criminal Law Review (which has lots of sentencing coverage) by federal public defenders Joseph Trigilio and Tracy Casadio. Here is the abstract:

For over a century, the Supreme Court has crafted a specific analysis for determining whether a particular sentence is proportionate to the crime under society’s norms and to the culpability of the offender.  Such an analysis informs whether a sentence is “cruel or unusual punishment” and thus unconstitutional.  In the capital context, the Court has examined the proportionality of a death sentence for the crimes of murder and rape.  It has also examined the penalty in light of specific categories of defendants, including non-triggermen accomplices, the mentally retarded, and juvenile offenders.

Over twenty years ago, the Court decided a trilogy of cases that appeared to limit the capacity of proportionality principles to regulate death penalty eligibility.  That trilogy of cases began with Tison v. Arizona, which found that a death sentence was proportionate for an offender who neither killed nor intended to kill, but who was a major participant in a felony and acted with a reckless disregard for life.  Around the same time, the Court found that a defendant’s status as a juvenile offender or a mentally retarded person —characteristics impacting culpability — did not render the death penalty disproportionate.

In the beginning of the twenty-first century, however, the Court altered its analysis and ruled that the execution of the mentally retarded and juvenile offenders is categorically disproportionate to our society’s evolving norms and to the offender’s level of culpability. Yet, having reversed two of its prior decisions, the Court has not had occasion to review the holding of Tison.  This Article prepares the ground for that challenge.  It argues that, under the proportionality analysis articulated in Atkins v. Virginia, Roper v. Simmons, and Kennedy v. Louisiana, the contemporary “standards of decency” require a further narrowing of death penalty eligibility for those who do not kill nor intend to kill.  This conclusion is supported by a survey of the death penalty schemes in all fifty states as they apply to felony-murder non-triggermen, the extraordinarily low number of defendants in this category who are either on death row or who have been executed, international law, and a reasoned analysis of culpability principles as applied to felony-murder accomplices.

November 18, 2011 in Death Penalty Reforms, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

New poll shows continued concerns about blanket pot prohibition

Chart_03_marijuana_111117As report in this CBS News report, which is headlined "Poll: Public supports medical marijuana, but not full pot legalization," public support for an end to blanket pot prohibition continues to grow.  Here are the details:

According a recent CBS News poll conducted at the end of October, a slim majority of 51 percent continues to think that marijuana use should be illegal.  But support for specifically allowing doctors to prescribe marijuana for serious medical conditions -- or legalized "medical" marijuana -- is far stronger: 77 percent Americans think it should be allowed.

Still, even though most Americans support this, just three in 10 believe that the marijuana currently being bought in this country under state-authorized medical marijuana programs is being used in the way it has been authorized: for alleviating suffering from serious medical conditions.

A recent CBS News Poll conducted nationwide finds 40 percent of Americans think the use of marijuana should be legal, while 51 percent think it should not.  The percentage that favors legalizing marijuana use has been steady for the past two years, but it is larger than it was when CBS News first asked the question back in 1979.

Not all demographic groups view this issue the same, however:

  • Younger Americans support legalizing marijuana more than older Americans. Slightly more than half of those under thirty favor legalizing the substance (52 percent), while Americans between 30 and 44 are divided. Older Americans tend to oppose legalizing marijuana, particularly those 65 and older (62 percent).
  • Most women (54 percent) oppose legalizing marijuana, but men are divided: 46 percent of men favor legalizing it, while 47 percent oppose.... 
  • There are differences in terms of both party affiliation and political philosophy. Seven in 10 Republicans oppose legalizing marijuana, while Democrats are divided and independents lean towards legalizing it. Two in three liberals think marijuana should be legal while two in three conservatives think it should not be, and moderates are divided.

While a slight majority of Americans oppose the idea of legalizing marijuana in general, more than three in four think that doctors should be allowed to prescribe small amounts of marijuana for patients suffering from serious illnesses -- the conditions for use that are set up in all of the states that have legalized medical marijuana programs.  Support for this cuts across age, gender, region, and political affiliation.

But Americans are skeptical that most of the marijuana purchased in the U.S. through state authorized medical marijuana programs is being used in the way it has been sanctioned.  Just 31 percent of Americans think marijuana purchased under such programs is being used to alleviate suffering from serious medical illnesses.  More than half -- 52 percent -- think it is being used for other reasons, including four in 10 of those who think marijuana should be legal in general.

CBS has made results from the complete poll available at this link.

November 18, 2011 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences | Permalink | Comments (3) | TrackBack

Interesting data on crime and punishment in New Hampshire

This local article, headlined "N.H. has low crime rate, but high rate for incarcerating minorities," reports on some interesting aspects of crime and punishment in The Granite State. Here are some of the details:

New Hampshire owns one of the nation’s lowest crime rates. But that New Hampshire advantage is a disadvantage for residents of Hispanic origin. The Granite State has one of the nation’s highest per-capita rates for jailing Latinos.

Criminal justice experts say the state’s low crime rate might have to do with a culture in the state that holds people accountable for their actions. The high incarceration rate for Latinos might have more to do with economics and with unintentional and subtle rather than outright discrimination, experts say.

According to the most current U.S. Census Bureau statistics available, New Hampshire in 2009 had the third-lowest rate of violent crime, a rate of 169.5 violent crimes per 100,000 people. Maine had the lowest rate, and the District of Columbia the highest, with Nevada second highest.

Within the violent crime statistics, New Hampshire had the nation’s lowest murder rate. But it ranked near the middle with the 27th-highest rate for forcible rape. New Hampshire had the third-lowest rate for aggravated assault and the eighth lowest for robbery....

The state’s statistics aren’t so good when it comes to incarcerating minorities. New Hampshire in 2005 had the sixth-highest Hispanic-to-white incarceration ratio, and 19th-highest black-to-white ratio per 100,000 people, according to statistics compiled by the Sentencing Project, a research and advocacy organization based in Washington, D.C.

Among 100,000 people in 2005, New Hampshire incarcerated 289 people identified as non-Hispanic whites; 2,666 African Americans and 1,063 Hispanics. Pennsylvania incarcerated the most Hispanics by number per 100,000 people, and Connecticut had the highest ratio of Hispanics to whites incarcerated, according to the statistics.

November 18, 2011 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

November 17, 2011

California jails getting more prisoners than expected in realignment plans

As reported in this interesting Los Angeles Times article, the "number of state prisoners arriving in county jails under California's controversial prison diversion program is significantly higher than officials had estimated, adding new pressure on sheriff's departments to figure out what to do with thousands of extra inmates." Here is more:

Prisoners convicted of some nonviolent crimes began serving their time in county jails last month as California complied with a U.S. Supreme Court decision requiring the state to lower its prison population by 30,000.

But the number of state prisoners being transferred has been much higher than officials had predicted, prompting counties to speed up efforts to reopen shuttered jail wings and find other arrangements for some inmates.

Los Angeles County was projected to add about 600 state prisoners by now but has booked more than 900.  The tally in Orange County is running more than double what the state had estimated....  Some counties, such as Los Angeles, are under court order preventing jail overcrowding. So officials said it's almost a foregone conclusion that some inmates will be released to make way for the state prisoners.

Orange County Sheriff Sandra Hutchens said none of the alternatives are ideal.  For example, she said, she's not sure how many inmates can be trusted to serve time wearing GPS-monitored bracelets....

State corrections officials said they hadn't expected the plan known as realignment to be a smooth transition because it is such an unprecedented shift.  They acknowledged that their estimates have been off but believe the surge will be short-lived....  State officials and some sheriffs believe the higher-than-projected number of state prisoners being sent to jails has occurred in part because defense attorneys waited until realignment took effect to settle their clients' cases.  By doing that, the attorneys were assured that their clients would receive jail time instead of prison time.

"We believe it has occurred because of publicity the realignment received. Defense attorneys delayed a lot of adjudications until after Oct. 1," when the law took effect, said Merced County Sheriff Mark Pazin, president of the California State Sheriffs' Assn.  "Those persons who pleaded guilty ended up in the local facilities when under the old course of events they would have gone to prison."

Many county officials say it's just a matter time before some inmates have to be released. Riverside County Sheriff's Chief Deputy Jerry Gutierrez said his jail is now at 93% capacity and will be full by January.  In San Bernardino County, officials are planning to significantly expands their work-release and electronic monitoring programs, certain that the influx of state prisoners will force some releases.

"We just started the biggest system change in the history of California justice," said Nick Warner, legislative director for the State Sheriffs' Assn.  "Anyone who predicts with certainty failure or success is premature in that judgment."

November 17, 2011 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack

"Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications"

The title of this post is the title of this new piece on SSRN authored by Aaron B. Rabinowitz.  Here is the abstract:

As a result of the Supreme Court’s 2005 decision in Booker v. United States that rendered the United States Sentencing Commission’s Sentencing Guidelines non-mandatory, district courts now enjoy significant discretion in determining the appropriate sentence for convicted offenders and can.  Based on data for federal sentencing cases from 1997-2011, this article presents an empirical analysis of how the Booker decision has changed the way in which district courts imposes sentences on offenders convicted of intellectual property crimes, as well as a discussion of how sentences imposed on intellectual property offenders reflect more societal views of intellectual property crimes in general.

The empirical analysis reveals, inter alia, that sentences imposed on intellectual property offenders deviate from the advisory Guidelines in two out of every three cases; prosecutors seek and judges reduce sentences for intellectual property crimes more frequently than for other comparable crimes; and judge-initiated deviations occur after Booker about twice as frequently for intellectual property offenders than for other offenders, whereas such judge-initiated deviations before Booker occurred less frequently than for crimes in general or for other economic crimes.  These findings suggest that prosecutors’ and judges’ views of intellectual property crimes do not align with the sentences prescribed by the Guidelines for intellectual property crimes, and this article accordingly proposes solutions for harmonizing the advisory Guidelines sentences for intellectual property offenders with the sentences that are actually being imposed based on prosecutors’ and judges’ discretion.

November 17, 2011 in Booker in district courts, Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Two more states with two more executions make for pre-holiday capital flourish

As reported in this AP story, in Texas "convicted sex offender was put to death Wednesday evening for slipping into a San Antonio apartment in the middle of the night, snatching a 7-year-old girl and raping and strangling her." Meanwhile, as reported in this local piece, Idaho is scheduled to conduct an execution tomorrow morning.  If the Idaho execution goes forward, which seems likely now that a Ninth Circuit panel has refused to grant a lethal injection stay (opinion here), this week will have four executions in the United States (prior executions reported here); this pre-Thanksgiving week has thus been the busiest capital punishment period since seven murderers were executed in four states back in May 2010.

This "Upcoming Executions" page at the Death Penalty Information Center indicates that there is only one tentative execution date in December (in Oregon).  This means, as detailed on this DPIC page, that 2011 will likely end with slightly fewer executions (43 or 44) than 2010 (which had 47 US executions) and 2009 (which had 52 US executions).  But in part because there are already five executions scheduled in Ohio and Texas for the first two months of 2012, I do not expect this slight recent downward trend in yearly execution totals to continue into 2012 absent some surprising new litigation or policy developments in the death penalty arena.

November 17, 2011 in Death Penalty Reforms | Permalink | Comments (13) | TrackBack

"Cats outnumber inmates at Fla. prison about to close"

Lol cat 8It is rare I have a reasonable excuse to do any "cat blogging" in this space, but today I get an opportunity to do just that through the title of this post, which is also the title of this new AP article.  Here are the details:

Authorities say dozens of cats that snuck into a South Florida prison will get new homes before the facility closes next month....

As many as 80 cats have burrowed under fences and taken up residence at the state-run prison in Belle Glade. Inmates have been feeding the felines, even though prison rules prohibit that.

The 1,000-inmate prison closes Dec. 1. Officials tell The Palm Beach Post that as of Monday, there are more cats than prisoners at the facility. Just 69 inmates remain awaiting transfers.

Palm Beach County animal control officers are removing the animals so they won't starve when the prison closes. They're offering to waive adoption fees to find them new homes. However, some of the cats had to be euthanized because they were feral and couldn't be adopted.

As the picture I have posted above is meant to suggest, I encourage readers to come up with good jokes or puns about cats in prison.  Riffing off one of my old punny favorites, I will start the thread by wondering how many of these cats are now behind bars because they got involved with kitty porn.

November 17, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

GOP candidate Herman Cain says states, not feds, should decide marijuana policy

I am pleased to hear pot policy being discussed on the campaign trail, and I am especially pleased to learn that GOP candidate Herman Cain is articulating a small federal government theme here as reported in this MSNBC report.  The piece is headlined "Up in smoke? Cain says medical pot's a state issue," and here are excerpts:

GOP presidential candidate Herman Cain said he supports the ability of states to make medical marijuana available as a treatment for patients. "If states want to legalize medical marijuana, I think that's a state's right," Cain said while campaigning in Iowa. "Because one of my overriding approaches to looking at all of these issues -- most of them belong at the state, because when you do something federally ... you try to force one-size-fits-all."

That sentiment wouldn't necessarily make Cain the only Republican candidate who's sympathetic to marijuana rights. Texas Rep. Ron Paul supports the availability of medical marijuana, and former New Mexico Gov. Gary Johnson supports the drug's overall legalization.

When it comes to medical pot, an April 2010 poll by the Pew Research Center found that 61 percent of Republicans favored legalization, while 37 percent of Republicans opposed that. Self-described conservatives even split in favor of legalizing medical marijuana, 54-44 percent.

November 17, 2011 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1) | TrackBack

November 16, 2011

Fascinating CVRA and FSA issues seemingly ready for SCOTUS review

As I have mentioned before, John Elwood at SCOTUSblog does amazing work keeping up with the cases that the US Supreme Court is keeping in its midst for an unusually long time through his periodic posts labelled "Relist (and Hold) Watch."  And, in this latest installment, he notes sets of cases raising two issues that have gotten a lot of attention on this blog now perhaps finally groomed for SCOTUS review:

The Court relisted for the first time since calling for a response in Fisher v. U.S. District Court for the Northern District of Texas, 10-1518, which presents the question whether a crime victim seeking to enforce a right under the Crime Victims’ Rights Act is entitled to ordinary appellate review of a district court’s disposition of his claims, or only more limited mandamus review for clear and indisputable error.  The Court likely relisted Fisher to consider it together with Amy v. Monzel, 11-85, scheduled for the November 22 Conference.  In addition to the standard-of-review question also at issue in Fisher, Amy presents another question, and alleges another circuit split, about the role of proximate cause in restitution awards for victims of child pornography....

The Court also relisted in Davis v. United States, 11-5323, another in the group of petitions discussed last week that the Court is collecting for the November 22 Conference along with Hill v. United States, 11-5721, all addressing whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.  As noted last week, it seems all but certain the Court will grant cert. in one of these cases.

My SCOTUS sentencing cup will be running over if the Justices grant review on both these issues in the weeks ahead.  And, if the Court takes up these matters ASAP, what started as a pretty sleepy sentencing Term for the Court could quickly become one of the most interesting to watch in recent years.

November 16, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

North Carolina DAs urge state legislature to repeal Racial Justice Act

As reported in this AP article, North Carolina's district attorneys are urging state senators to swiftly repeal the state's Racial Justice Act.   Here are the basics from the start of the article, as well as snippets from the DAs pitch for repeal:

The Legislature should act quickly to repeal a new law that gives death row inmates another way to challenge their sentences on the grounds of racial bias, North Carolina's district attorneys argue in a letter to state senators. " ... if you do not address this issue quickly, the criminal justice system will be saddled with litigation that will crush an already under-funded and overburdened system," wrote Johnston County District Attorney Susan Doyle, president of the North Carolina Conference of District Attorneys.

The letter was sent Monday and addressed to Senate leader Phil Berger.  It also went to all senators, said Peg Dorer, executive director of the conference.  Forty-three of the 44 elected district attorneys support a resolution calling for the changes, Dorer said.  Durham County District Attorney Tracey Cline didn't sign the resolution, the conference said.

The Racial Justice Act allows death row inmates and defendants facing the death penalty to use statistics and other evidence to show that racial bias played a significant role in either their sentence or in the prosecutors' decision to pursue the death penalty.  The law says an inmate's sentence is reduced to life in prison without the possibility of parole if the claim is successful....

Doyle's letter cites four reasons that the law should be repealed: white inmates are taking advantage of the law; the cost is prohibitive; it created a quagmire in the courts; and contrary to what the law says, some inmates could be released if sentenced to life without parole.  "I challenge you (to) see RJA for what it really is, not a search to eliminate bias, but a backdoor deal to end the death penalty in North Carolina," Doyle said.

I cannot yet find the DAs letter on line, but I will post it if/when I find an electronic copy. 

Some related posts on the North Carolina Racial Justice Act:

UPDATE:  Via the ACLU, I found a copy of the two-page letter referenced here now available at this link.

November 16, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Notable sentencing reversal by Seventh Circuit in mortgage fraud sentencing

For understandable reasons, mortgage fraud crimes and punishments are generating more controversies in the federal courts these days.  Consequently, I suspect lots of folks for lots of reasons may be interested in today's sentencing work by a Seventh Circuit panel in US v. Robertson, No. 11-1651 (7th Cir. Nov. 16, 2011) (available here).  Robertson gets started this way: 

In the late 1990s, Henry and Elizabeth Robertson were involved in a Chicagoland mortgage fraud scheme.  Through their company, Elohim, Inc., the Robertsons bought residential properties and then sold those properties to nominee buyers at inflated prices.  Along the way they provided lenders with false information about the buyers’ finances, sources of down payments, and intentions to occupy the residences.  The scheme involved 37 separate fraudulent transactions and resulted in a net loss of more than $700,000 to various lenders.

After the scheme collapsed, the Robertsons went bankrupt but were not charged with any crimes. They went about the laudable business of rebuilding their lives and rehabilitating themselves.  Elizabeth continued to work as a full-time nurse in a hospital’s pediatric intensive care unit.  Henry worked as a full-time cable installer and technician.  They raised their three children and became fully engaged in their community.  Each volunteered as a coach in youth sports, and Henry assisted in fighting crime in their neighborhood by serving as president of their block club.  Neither Henry nor Elizabeth engaged in any criminal activity from 1999 to 2010, apart from a reckless driving offense by Henry in 2002.

But the Robertsons could not escape their past. On the day before the ten-year statute of limitations for one crime would have expired, the government charged the Robertsons with one count of wire fraud, 18 U.S.C. § 1343, and two counts of bank fraud, 18 U.S.C. § 1344.  The Robertsons both pled guilty to a single count of wire fraud, and both were sentenced on March 2, 2011.  The sentencing court based their sentences on the 2010 United States Sentencing Guidelines that were then in effect.  Elizabeth was sentenced to 41 months in prison, and Henry was sentenced to 63 months. They were also ordered to pay more than $700,000 in restitution.

The Robertsons appeal from their sentences on several grounds. First, they argue that the district court’s use of the more severe 2010 Sentencing Guidelines violated the ex post facto clause of the Constitution, and they urge us to overrule United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), which held that the ex post facto clause does not apply to changes in the now-advisory federal Sentencing Guidelines.  They also argue that their roles in the mortgage fraud scheme did not warrant a 2-level guide line enhancement imposed by the sentencing court pursuant to U.S.S.G. § 3B1.1(c) for their roles in organizing the scheme.  We reject these arguments.  But we agree with the Robertsons’ final argument, that the sentencing judge failed to consider adequately their unusually strong evidence of self-motivated rehabilitation.  For this reason, we vacate their sentences and remand for resentencing.  Because we remand, we do not address the Robert sons’ additional argument that their sentences were substantively unreasonable.

November 16, 2011 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

More great crime news: record low modern homicide rates reported by BJS!

Because everyone on all sides of the political spectrum agree "death is different" in important ways, and because there are various reasons to expect homicide data to be among the most accurate crime statistics, I always view homicide rates as the most notable and important of all crime metrics.  Consequently, I am especially excited to report via this new press release from the Bureau of Justice Statistics that the United States' "homicide rate fell to 4.8 homicides per 100,000 U.S. residents in 2010, its lowest level in four decades."  Here are some data details from the press release:

Much of the decline was in the nation’s largest cities, those with a population of one million or more, where the homicide rate dropped dramatically from 35.5 homicides per 100,000 residents in 1991 to a low of 11.9 per 100,000 in 2008.

The sharp increase in homicides from the mid-1980s through the early 1990s, and much of the subsequent decline, is attributable to gun violence by teens (age 14 to 17) and young adults (age 18 to 24).  Despite the recent decline, the number of gun homicides committed by teens and young adults in 2008 remained similar to the counts of the mid-1980s.

Most murders were intraracial.  From 1980 through 2008, 84 percent of white homicide victims were murdered by whites and 93 percent of black victims were murdered by blacks.  During this same period, blacks were disproportionately represented among homicide victims and offenders.  Blacks were six times more likely than whites to be homicide victims and seven times more likely than whites to commit homicide.

The number of homicides known to involve adult or juvenile gang violence has quadrupled since 1980, increasing from about 220 homicides in 1980 to 960 homicides in 2008.  From 1980 to 2008, gang violence increased from one percent to six percent of all homicides. During this same period, gun involvement in gang-related homicides increased from 73 percent to 92 percent.

Among the report’s other findings:...

In 2008, two of every five female murder victims were killed by an intimate. Among female murder victims for whom the victim/offender relationships were known, 45.3 percent were killed by an intimate whereas only 4.9 percent of male homicide victims were killed by an intimate....

Most homicide victims under age 5 were killed by a parent. In 2008, 59% of young child homicide victims were killed by a parent, 10% were killed by some other family member and 30% were murdered by a friend or acquaintance....

Most of these findings are based on the FBI’s Supplementary Homicide Reports (SHR), which collects yearly supplementary data regarding homicides committed in the United States. From 1980 to 2008, contributing agencies provided supplementary data for 508,568 of the estimated 565,636 murders.  The FBI’s annual report, Crime in the United States, provides additional summary data for 2009 and 2010.

The full report with all this data and lots more is titled Homicide Trends in the United States, 1980-2008, and can be found at this link.

November 16, 2011 in Data on sentencing, Offense Characteristics | Permalink | Comments (3) | TrackBack

How common are fines or other state sanctions on private prisons?

The question in the title of this post is prompted by this notable local article from New Mexico, which is headlined "State fines private prison operator $1.1 million over staffing shortage." Here are excerpts:

A Florida company will pay New Mexico $1.1 million in penalties for not adequately staffing a private prison it operates in Hobbs, a state official said.

GEO Group, which manages three of New Mexico's four private prisons, agreed to pay the settlement last week following a meeting between the corrections agency and the company's top management, Corrections Secretary Gregg Marcantel said Monday.  "They've agreed on it," Marcantel said of GEO.  "It's a very fair way of doing it.  They are not completely happy.  It needed to be done."...

GEO will pay the $1.1 million over several months, the corrections secretary said. In addition, GEO has agreed to spend $200,000 over the next calendar year to recruit new correctional officers for the Hobbs facility.

By contract, New Mexico can penalize The GEO Group and Corrections Corp. of America, the two firms that operate the private facilities, when staffing vacancies are at 10 percent or more for 30 consecutive days. The settlement represents the first time in years — possibly ever — that New Mexico has penalized the out-of-state, for-profit companies for not adequately staffing the facilities they operate.  The issue has come up in the past, but state officials said New Mexico had never levied penalties for understaffing issues.

The question surfaced in 2010 when state lawmakers were struggling to find ways to close a yawning state budget gap.  At the time, the Legislature's budget arm, the Legislative Finance Committee, estimated Gov. Bill Richardson's administration had skipped $18 million in penalties by not assessing penalties against the two firms for inadequate prison staffing levels....

GEO, headquartered in Boca Raton, Fla., recently reported $1.2 billion in earnings and $58.8 million in profit through the first nine months of this year, according to a Nov. 2 release by the company.

Some recent related posts: 

November 16, 2011 in Prisons and prisoners, Who Sentences | Permalink | Comments (1) | TrackBack

November 15, 2011

"Prevention as the Primary Goal of Sentencing: The Modern Case for Indeterminate Dispositions in Criminal Cases"

The title of this post is the title of this notable new piece by Professor Christopher Slobogin, which is now available via SSRN. Here is the abstract:

Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral.  This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so.

More specifically, the position defended in this Article is that, once a person is convicted of such an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within very broad ranges set by the legislature.  The territory covered in this Article, particularly as it addresses the debate between deontological retributivists and utilitarians, is well-trodden.  But this Article seeks to provide new perspectives on the morality, legality, and practicality of indeterminate sentencing.  It starts with an outline of what a properly constituted indeterminate sentencing regime would look like.  It then defends this regime against numerous objections.

I have always been a huge fan of Christopher Slobogin's work, and I expect this latest piece will only deepen my fandom.

November 15, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

AAG Breuer talking up federal sentencing at lawyer summit

Via the DOJ press room, I just saw this posting of remarks by a senior Justice Department official concerning sentencing issues. The posting is titled "Assistant Attorney General Lanny A. Breuer Speaks at the American Lawyer/National Law Journal Summit," and here are some choice excerpts:

Today, there are approximately 218,000 inmates in the federal prison system in the United States, on top of the approximately two million inmates in state prisons and jails.  Given how significant our prison population is, the policy surrounding prison sentences, and our prison system more generally, is tremendously important for each of us.   Whether you practice civil litigation or criminal law, or even if you are not involved in law at all, the way criminal defendants are sentenced, and what happens to them when they are in prison, matters.

Today, our sentencing and corrections policy faces serious challenges.

The first challenge is the degree to which disparities in federal sentencing have increased in recent years.  More than 25 years ago, Congress passed the Sentencing Reform Act of 1984, creating a set of federal sentencing guidelines that prescribed specific sentencing ranges for particular crimes, depending upon the defendant’s criminal history and other factors.  In 2005, however, the U.S. Supreme Court decided in the case of Booker versus United States that federal judges were not bound to follow those guidelines.  Not surprisingly, since the Booker decision, judges have increasingly been sentencing defendants to prison sentences outside the ranges prescribed by the guidelines....

The data show that the district in which a person is sentenced can have a huge impact on how much time he or she spends in prison.  For example, in fiscal year 2010, in the Southern and Western Districts of Texas, judges sentenced defendants to prison terms within the ranges prescribed by the guidelines approximately 71.5 percent of time. At the same time, in the Southern District of New York, judges sentenced defendants to prison terms within guidelines ranges just 32.6 percent of the time.  In short, many prosecutors, defense lawyers, and judges agree that more and more, the length of a defendant’s sentence depends primarily on the identity of the judge assigned to the case, and the district in which he or she is in.

Of course, disparity in sentencing is not necessarily an indication that sentencing policy is broken. Indeed, as Attorney General Holder has said, “ we must . . . be prepared to accept the fact that not every disparity [in sentencing] is an unwelcome one.”

Nevertheless, there is evidence that unwarranted sentencing disparities have been increasing in recent years.  In a report released last year, the U.S. Sentencing Commission found that certain demographic factors -- including race and ethnicity -- were “associated with sentence length to a statistically significant extent” in the post-Booker era....

The second, related, challenge in sentencing and corrections policy I want to discuss with you relates to the effect of today’s budget environment on our prison system and, consequently, on public safety.

As I mentioned, at present there are approximately 218,000 federal prisoners. That represents an increase of approximately 8,000 prisoners over last year, which is consistent with the general trend.  As a result of increasing federal prison populations, prison spending has naturally also been increasing.  Given today’s economic realities, however, federal funds available for law enforcement are decreasing, and are likely to continue doing so for the foreseeable future.  Consequently, maintaining the expanding federal prison population will necessarily consume larger shares of available funds in the years ahead....

The challenges in sentencing and corrections policy that I have been discussing today have, happily, been accompanied by consistently decreasing crime rates. Over the past 20 years, violent crime and property crime have decreased substantially, and this trend has continued in recent years as well.  According to statistics compiled by the FBI, violent crime decreased 5.3 percent nationwide in 2009, and an additional 6 percent in 2010. These decreases are the remarkable achievement of federal, state, and local law enforcement. They are also attributable, at least in part, to strong sentencing policy.

One important way in which the Justice Department has been working to reduce crime -- and must continue to -- is by assisting prisoners with their transitions back into society, through substance abuse treatment, employment and housing assistance, mentoring programs, and in other ways as well.  These efforts are necessary to give released prisoners an opportunity to turn their lives around and, more importantly, to steer them away from committing more crime.

Last year, the Justice Department awarded close to $100 million under the Second Chance Act to support reentry programs; the Department has announced that it will award $83 million dollars in Second Chance Act grants this year.  Our preliminary assessment is that these programs are succeeding.  As Attorney General Holder said when he convened the second meeting of the federal inter-agency Reentry Council with several other members of the Cabinet two months ago, “We must use every tool at our disposal to tear down the unnecessary barriers to economic opportunities and independence so that formerly incarcerated individuals can serve as productive members of their communities.”

I am disappointed (but not all that surprised) that this speech makes mention of the US Sentencing Commission questioned and questionable study from last year suggesting racial disparities have increased since Booker due to the execise of judicial discretion, but makes no mention of the USSC's more recent study noting the racial skew in the application of statutory mandatory minimum sentencing provisions which are primary impacted by the exercise of prosecutorial discretion.  

Under leadership by different Administrations and diverse Attorneys General, the Justice Department is consistently quick to highlight and lament sentencing disparities they claim are the result of (legally regulated and reviewed) exercises of judicial discretion and consistently mute concerning sentencing disparities that clearly result from the claim are the result of (unregulated and unreviewed) prosecutorial discretion.

November 15, 2011 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

Executions on tap in Ohio and Florida today

As reported in these new press articles, executions are scheduled for multiple murderers in two states today:

UPDATE: As detailed in this local article, today's Ohio execution proved eventful because of a delay and a notable final gesture:

With his middle-finger on his left hand raised toward his watching ex-wife even after the lethal chemicals had done their job today, child killer Reginald Brooks was defiant to the end -- and beyond.

Those witnessing the execution behind glass about 10 feet away gasped but said nothing as Brooks first glared at and then “flipped off” the mother of the three children he murdered nearly 30 years ago after she filed for divorce.

Brooks was declared dead at 2:04 p.m., after about 15 minutes of the chemicals flowing. He had no final words. At 66, Brooks was the 46th, and oldest, Ohioan to be executed since 1999.

Brooks lived nearly 30 years longer than the three sons he murdered in their beds in their East Cleveland home. His victims included Reginald Jr., 17, and Vaughn, 15, and Niarchos, 11.  His execution was delayed from 10 this morning while first a federal judge in Cleveland and then the 6th U.S. Circuit Court of Appeals ruled on his mental competency.  Brooks’ attorneys decided not to file another attempt with the U.S. Supreme Court, which had rejected an earlier appeal.

AND:  This AP article reports that Florida has now completed its scheduled execution today, too.

November 15, 2011 in Death Penalty Reforms | Permalink | Comments (15) | TrackBack

D'oh!: new research suggests being smart could be a gateway drug

For anyone deeply concerned about drug use, new research is suggesting that it is better for kids to be pretty dense like Homer Simpson rather than wicked smart like Lisa Simpson.  At least that seems to be the take away from this new CNN report headlined "High IQ linked to drug use," which starts this way:

The "Just Say No" generation was often told by parents and teachers that intelligent people didn't use drugs.  Turns out, the adults may have been wrong.

A new British study finds children with high IQs are more likely to use drugs as adults than people who score low on IQ tests as children.   The data come from the 1970 British Cohort Study, which has been following thousands of people over decades. The kids' IQs were tested at the ages of 5, 10 and 16.  The study also asked about drug use and looked at education and other socioeconomic factors. Then when participants turned 30, they were asked whether they had used drugs such as marijuana, cocaine and heroin in the past year.

Researchers discovered men with high childhood IQs were up to two times more likely to use illegal drugs than their lower-scoring counterparts.  Girls with high IQs were up to three times more likely to use drugs as adults. A high IQ is defined as a score between 107 and 158. An average IQ is 100.  The study [available here] appears in the Journal of Epidemiology and Community Health.

The lead researcher says he isn't surprised by the findings. "Previous research found for the most part people with high IQs lead a healthy life, but that they are more likely to drink to excess as adults," says James White a psychologist at Cardiff University in the United Kingdom.

It's not clear why people with high childhood IQs are more likely to use illegal drugs. "We suspect they may be more open to new experiences and are more sensation seeking," says White. In the paper, White and his co-author also mention other studies that find high IQ kids may use drugs because they are bored or to cope with being different.

November 15, 2011 in Drug Offense Sentencing | Permalink | Comments (7) | TrackBack

"Controlling Crime: How To Do More With Less"

9780226115122The title of this post is the headline of this effective new special report authored by Professors Philip Cook and Jens Ludwig, which is now posted at The Crime Report. Here is how it starts:

The unprecedented surge in incarceration since 1980 has stimulated a national debate between those who claim that locking up over 2 million people is necessitated by public safety concerns, and those who say the human and financial burden of imprisoning so many of our citizens is intolerable.

Recent declines in some state prison populations do not reflect a “win” for prison-reduction advocates so much as the extraordinary stringency of state budgets resulting from the Great Recession.  The issue will remain after the recession finally recedes and state revenues pick up.

Then what?  How should we determine how large a prison population is “right”?  One danger is that we may all get drawn into a debate that is much too narrow. The question of more versus less imprisonment emphasizes the division between those who worry about crime and those who worry about the costs of controlling crime; and it distracts from areas of potential agreement that arise when the focus instead is on the full range of policy choices that affect the crime rate.

If the primary purpose of imprisonment is indeed crime control, then what are the alternatives and what are their social costs?  Are there ways to re-allocate our society’s resources to reduce the burden on society from both crime and crime control?

With these questions in mind, we have (together with Justin McCrary of Berkeley Law School) organized a new Working Group on the Economics of Crime under the auspices of the National Bureau of Economic Research (NBER).  One of our first products is an edited volume from the University of Chicago Press called Controlling Crime: Strategies and Tradeoffs.

Our authors, a group of distinguished economists and other social scientists, review concepts and findings relevant to crime control in a number of domains, including the courts, schools, mental health, income transfer programs, and business improvement districts, with a particular emphasis on paying attention to results from randomized experiments or “natural experiments.”

The overriding conclusion is that there is “money on the table:” crime could be controlled at the current level at lower financial and human cost.  Here we sketch our conceptual framework for approaching crime control, and highlight some of the most interesting empirical conclusions.

November 15, 2011 in Data on sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Noticing and noting racial skew of recent Texas death sentencing in Harris County

The Houston Chronicle has this notable report on recent death sentencing in Texas headlined "Harris death penalties show racial pattern: 12 of the last 13 men condemned 
in the county have been black." Here are excerpts:

The last white man to join death row from Harris County was a convicted serial killer in 2004.  Since then, 12 of the last 13 men newly condemned to die have been black, a Houston Chronicle analysis of prison and prosecution records shows.  The latest death sentence was handed down in October to a Hispanic.

The role of race in capital punishment has emerged repeatedly this year in the unsuccessful appeals by Duane Buck, an African-American from Houston convicted in a double murder.  His 1997 sentencing featured testimony from a former prison psychiatrist who claimed blacks are more dangerous than whites.

Harris County District Attorney Patricia Lykos, elected as a reformer, has overseen decisions about whether to seek the death penalty since 2009.  Her staff says the decisions are "race neutral" and "fact based."...

As part of its review of the last seven years of death sentences, the Chronicle also examined capital cases first prosecuted in the 1980s and 1990s that were reviewed again after successful death row appeals.  Since November 2004, five men have been re-sentenced to death -- three white, one black and one Hispanic.

Robert Morrow, one of the county's busiest capital defense attorneys, called the string of consecutive African-Americans who received new death sentences from 2004-2011 startling. He said those numbers alone should prompt additional research and debate --especially since relatively few participate in the local decision-making process as jurors or as prosecutors....

Harris County has a long history of aggressive prosecution of capital cases. More than a third of the state's current 305 death row inmates came from Harris County.  So did half of the 121 black inmates on death row, according to Texas Department of Criminal Justice data.

Blacks account for about half of recent murder arrests in Harris County.  But they more often get charged with capital murder than whites or Hispanics, an analysis of more than 300 recent court cases by the Chronicle shows.

November 15, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (7) | TrackBack

November 14, 2011

Might restoration of felon gun rights actually reduce recidivism?

As first blogged here, today's New York Times has a lengthy front-page article on state restoration of gun rights to former felons.  The piece is (misleadingly?) headlined "Felons Finding It Easy to Get Gun Rights Reinstated," and the suggestion throughout the article is that the public should be very concerned and quite fearful that some states now make it too easy for some felons to get their gun rights restored after having completed their sentence.  But, because recidivism rates for many offenders are often very high, some of the statistics appearing in the Times piece led me to wonder whether resoration of felon gun rights might actually reduce recidivism and enhance public safety.

The Times article rightly noted that sound data on these matters are had to assemble and assess, but the Times was able to run some notable numbers for Washington state.  Here is some of what the Times found and reported:

That [crime] question — whether the restorations pose a risk to public safety — has received little study, in part because data can be hard to come by.

The Times analyzed data from Washington State....  Since 1995, more than 3,300 felons and people convicted of domestic violence misdemeanors have regained their gun rights in the state — 430 in 2010 alone — according to the analysis of data provided by the state police and the court system.  Of that number, more than 400 — about 13 percent — have subsequently committed new crimes, the analysis found.  More than 200 committed felonies, including murder, assault in the first and second degree, child rape and drive-by shooting....

The Times’s analysis found that among the more than 400 people who committed crimes after winning back their gun rights under the new law, more than 70 committed Class A or B felonies.  Over all, more than 80 were convicted of some sort of assault and more than 100 of drug offenses.

So the Times here reports a 13% recidvism rate for Washington state offenders with restored gun rights, but apparenently the recidivism rate is this high only due to counting of minor (i.e., misdemeanor) crimes.  As I understand these numbers, the Times found that only about 200 of the 3,300 prior offenders with restored gun rights since 1995 went on to commit a felony — roughly a 6% felony recidivism rate — and only 70 went on to commit Class A of B felonies — roughly a 2% serious felony recidivism rate.  That strikes me as an impressively low felony and serious felony recidivism rate for these offenders, especially given that states often report that half or more persons with a felony record end up committing a future offense.

Seeking general recidivism data for comparison purposes, I found this April 2008 report from the Washington State Sentencing Guidelines Commission, titled "Recidivism of Adult Felons, 2007," which reports that in Washington state the "overall rate of recidivism for men was 65.9% compared to 53.6% among women."  (I think it is fair to assume that the majority of felons seeking restoration of gun rights are men.)  Based on this data, is it fair to suggest that offenders with restored gun rights in Washington state are roughly than five times less likely to recidivate that other offenders?  (I also found this January 2011 report from the Washington State Institute for Public Policy which reports that "recidivism rates have declined" in Washington in the period from 1990 to 2006 and that "the largest reductions have been for higher risk offenders.")

This comparative data would seem to at least support a plausible working hypothesis that restoring gun rights to felons might actually reduce recidivism and enhance public safety.  Of course, there is a huge apples/oranges problem in trying to compare these recidivism rates.  I certainly hope and expect that Washington aspires to restore gun rights to former felons who appear to pose the least risk to public safety, and thus we should hope and expect recidivism rates to be generally lower for these folks than for others with a felony record.  Still, given that recidivism rates are appear to be so much lower for those who get their gun rights restored, there is a reasonable basis for at least speculating that the process and grant of restoration of rights works to provide additional encouragement for these former felons to stay crime-free in the future.

Some related Second Amendment and gun policy posts:

November 14, 2011 in Data on sentencing, Gun policy and sentencing, Offender Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (23) | TrackBack

SCOTUS health care litigation, federalism, freedom, and constitutional limits of federal criminal justice

The huge news out of the Supreme Court this morning concerns the Justices' decision to take up the various constitutional challenges to the Affordable Care Act.  This post at SCOTUSblog by Lyle Denniston, headlined "Court sets 5 1/2-hour hearing on health care," explains the basics:

Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours for oral argument, to be held in March. The Court, however, did not grant all of the issues raised and it chose issues to review only from three of the five separate appeals before it.  It is unclear, at this point, whether all of the cases will be heard on a single day.

The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled.

I will leave it to others to debate what the particulars of cert grant means for the law and policy debates over federal health care reform.  But, as the title of this post highlights, I will be watching all the forthcoming constitutional talk (and briefing) about federalism and freedom with a keen eye on what this litigation might end up meaning for (new?) constitutional limits on the reach of the federal criminal justice system.  As of this writing given recent precedents like Raich, any and all claims by federal criminal defendants that Congress exceeded its authority via a criminal prohibition is a non-started. Whether that constitutional reality might be subject to change as a result of the ACA litigation is a matter I will be watching in the months ahead.

November 14, 2011 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

Prison terms for downloading child porn in Canada are a lot different, eh?

This crime and punishment story from Canada, which is headlined "Man in record child porn bust set for sentencing," spotlights just how different the sentencing scale is for child porn downloading north of the border.  Here are the basics (with my emphasis added):

A New Brunswick man who pleaded guilty in a case involving the largest collection of child pornography in Canada will be sentenced Monday following a delay for a psychiatric evaluation.  Douglas Hugh Stewart, 52, of Moncton earlier pleaded guilty to possessing, accessing and distributing child pornography.

Crown prosecutor Karen Lee Lamrock said police found almost six million images and videos of girls — more than 4.5 million pornographic.  The others were images of children who were nude, including in bathtubs.

Lamrock said Stewart had been collecting since the 1980s and he looked for new material on a regular basis, and the size of the collection is something never dealt with before in Canadian courts.  Police spent 700 hours going through the images, involving girls as young as two years old.

The Crown is recommending a sentence of five to seven years in prison and wants Stewart to be listed as a registered sex offender.  Defence lawyer Maurice Blanchard is requesting a sentence of four years. The defence also noted Stewart has no criminal record, and co-operated with police from the beginning of the case.

Because the defendant here had downloaded and stored 6 million(!) images, I am tempted to call this case the holocaust of kiddie porn and to call the defendant the Hitler of child porn downloaders.  And yet notably, prosecutors in Canada have responded to the most aggravated of all cases of child porn downloading by recommending a sentence of five to seven years in prison.  

Meanwhile, in the United States, defendants prosecuted in federal court who downloaded 600 images of child porn regularly face guideline recommended sentencing ranges of a decade or more in federal prison — in other words, defendants who downloaded only 0.01% of the number of images downloaded by this Canadian defendant regularly face federal sentences at least twice as long as the sentence being urged by Canadian prosecutors.  And, in a notable state case from Arizona a few years back, Morton Berger received a 200-year state sentence for a much smaller kiddie porn collection (basics here and here), and just a few weeks ago in Florida, Daniel Enrique Guevara Vilca received a life without parole sentence for having lots of kiddie porn on a single laptop (basics here and here).

A few related older and more recent child porn prosecution and sentencing posts:

UPDATE:  The link above (also here) now has the updated sentencing story reporting that the Canadian defendant that I am calling the Hitler of child porn downloaders "has been sentenced to five years in prison in connection with the largest collection of child pornography ever seized in Canada."  Notably, five years is the statutory mandatory minimum term facing federal defendants charged with receipt of just a few images of child pornography, and the latest federal statistics reveal that federal child porn offenders on average receive a 10 year federal prison term.

November 14, 2011 in Offense Characteristics, Scope of Imprisonment, Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (26) | TrackBack

Big (ugly?) NY Times report on felons getting back gun rights

This morning's New York Times has this huge front-page story headlined "Felons Finding It Easy to Get Gun Rights Reinstated." Disappointingly (but not surprisingly), the theme of the article is decidedly not praise for efforts by some states to make it easier for former felons to regain a fundamental constitutional right.  Here are some excerpts from an article that should (and likely will) be the subject of lots of discussion and commentary:

Under federal law, people with felony convictions forfeit their right to bear arms. Yet every year, thousands of felons across the country have those rights reinstated, often with little or no review. In several states, they include people convicted of violent crimes, including first-degree murder and manslaughter, an examination by The New York Times has found.

While previously a small number of felons were able to reclaim their gun rights, the process became commonplace in many states in the late 1980s, after Congress started allowing state laws to dictate these reinstatements — part of an overhaul of federal gun laws orchestrated by the National Rifle Association. The restoration movement has gathered force in recent years, as gun rights advocates have sought to capitalize on the 2008 Supreme Court ruling that the Second Amendment protects an individual’s right to bear arms.

This gradual pulling back of what many Americans have unquestioningly assumed was a blanket prohibition has drawn relatively little public notice. Indeed, state law enforcement agencies have scant information, if any, on which felons are getting their gun rights back, let alone how many have gone on to commit new crimes.

While many states continue to make it very difficult for felons to get their gun rights back — and federal felons are out of luck without a presidential pardon — many other jurisdictions are far more lenient, The Times found. In some, restoration is automatic for nonviolent felons as soon as they complete their sentences. In others, the decision is left up to judges, but the standards are generally vague, the process often perfunctory. In some states, even violent felons face a relatively low bar, with no waiting period before they can apply....

Margaret C. Love, a pardon lawyer based in Washington, D.C., who has researched gun rights restoration laws, estimated that, depending on the type of crime, in more than half the states felons have a reasonable chance of getting back their gun rights.

That universe could well expand, as pro-gun groups shed a historical reluctance to advocate publicly for gun rights for felons. Lawyers litigating Second Amendment issues are also starting to challenge the more restrictive restoration laws. Pro-gun groups have pressed the issue in the last few years in states as diverse as Alaska, Ohio, Oregon and Tennessee.

Ohio’s Legislature confronted the matter when it passed a law this year fixing a technicality that threatened to invalidate the state’s restorations. Ken Hanson, legislative chairman of the Buckeye Firearms Coalition, argued that felons should be able to reclaim their gun rights just as they can other civil rights. “If it’s a constitutional right, you treat it with equal dignity with other rights,” he said.

But Toby Hoover, executive director of the Ohio Coalition Against Gun Violence, contended that the public was safer without guns in the hands of people who have committed serious crimes. “It seems that Ohio legislators have plenty of problems to solve that should be a much higher priority than making sure criminals have guns,” Ms. Hoover said in written testimony.

That question — whether the restorations pose a risk to public safety — has received little study, in part because data can be hard to come by.

The Times analyzed data from Washington State.... Since 1995, more than 3,300 felons and people convicted of domestic violence misdemeanors have regained their gun rights in the state — 430 in 2010 alone — according to the analysis of data provided by the state police and the court system. Of that number, more than 400 — about 13 percent — have subsequently committed new crimes, the analysis found. More than 200 committed felonies, including murder, assault in the first and second degree, child rape and drive-by shooting....

[T]he restoration of civil rights, which is now central to regaining gun rights, is relatively routine, automatic in many states upon completion of a sentence. In some states, felons must also petition for a judicial order specifically restoring firearms rights. Other potential paths include a pardon from the governor or state clemency board or a “set aside”— essentially, an annulment — of the conviction.

Today, in at least 11 states, including Kansas, Ohio, Minnesota and Rhode Island, restoration of firearms rights is automatic, without any review at all, for many nonviolent felons, usually once they finish their sentences, or after a certain amount of time crime-free. Even violent felons may petition to have their firearms rights restored in states like Ohio, Minnesota and Virginia. Some states, including Georgia and Nebraska, award scores of pardons every year that specifically confer gun privileges.

Felons face steep odds, though, in states like California, where the governor’s office gives out only a handful of pardons every year, if that. “It’s a long, drawn-out process,” said Steve Lindley, chief of the State Department of Justice’s firearms bureau. “They were convicted of a felony crime. There are penalties for that.”

Studies on the impact of gun restrictions largely support barring felons from possessing firearms. One study, published in the American Journal of Public Health in 1999, found that denying handgun purchases to felons cut their risk of committing new gun or violent crimes by 20 to 30 percent. A year earlier, a study in the Journal of the American Medical Association found that handgun purchasers with at least one prior misdemeanor — not even a felony — were more than seven times as likely as those with no criminal history to be charged with new offenses over a 15-year period.

Criminologists studying recidivism have found that felons usually have to stay out of trouble for about a decade before their risk of committing a crime equals that of people with no records. According to Alfred Blumstein, a professor at Carnegie Mellon University, for violent offenders, that period is 11 to 15 years; for drug offenders, 10 to 14 years; and for those who have committed property crimes, 8 to 11 years. An important caveat: Professor Blumstein did not look at what happens when felons are given guns....

Washington’s gun rights restoration statute dates to a 1995 statewide initiative, the Hard Times for Armed Crimes Act, that toughened penalties for crimes involving firearms. The initiative was spearheaded, in part, by pro-gun activists, including leaders of the Second Amendment Foundation, an advocacy group, and the N.R.A.

Although it drew little notice at the time, the legislation also included an expansion of what had been very limited eligibility for restoration of firearms rights. “There were a lot of people who we felt should be able to get their gun rights restored who could not,” said Alan M. Gottlieb, founder of the Second Amendment Foundation, who was active in the effort.

Under the legislation, “Class A” felons — who have committed the most serious crimes, like murder and manslaughter — are ineligible, as are sex offenders. Otherwise, judges are required to grant the petitions as long as, essentially, felons have not been convicted of any new crimes in the five years after completing their sentences. Judges have no discretion to deny the requests based upon character, mental health or any other factors. Mr. Gottlieb said they explicitly wrote the statute this way. “We were having problems with judges that weren’t going to restore rights no matter what,” he said.

The statute’s mix of strictness and leniency makes Washington a useful testing ground. The Times’s analysis found that among the more than 400 people who committed crimes after winning back their gun rights under the new law, more than 70 committed Class A or B felonies. Over all, more than 80 were convicted of some sort of assault and more than 100 of drug offenses.


November 14, 2011 in Criminal Sentences Alternatives, Gun policy and sentencing, Offender Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (15) | TrackBack

"Challenging the Habeas Process Rather than the Result"

The title of this post is the title of this notable new piece on SSRN authored by Professor Justin Marceau. Here is the abstract:

Habeas scholarship has repeatedly assessed whether the Antiterrorism and Effective Death Penalty Act’s (AEDPA’s) limitations on federal habeas relief were as severe in practice as they appeared to be on paper. By analyzing recent doctrinal shifts — particularly focusing on two decisions from this Term — and substantial new empirical data, this Article acknowledges that AEDPA’s bite has reached substantial proportions, in many ways exceeding the initial concerns and hype surrounding the legislation. More importantly, after acknowledging that federal habeas relief from state court convictions has become “microscopically” rare, this Article considers what the rarity of relief ought to mean as a prescriptive matter for federal oversight of state convictions.

Contrary to the dramatic proposals of scholars who have recently suggested that the general futility of habeas litigation dictates that individual, case-by-case habeas review should be abolished, this Article seeks to regain intellectual and practical traction for the longstanding view that federal courts play an important role in overseeing and enforcing the Constitution. To be sure, the path to success for state prisoners on federal habeas review has become infinitesimally narrow, but the recent scholarly interest in abandoning federal review of state convictions in nearly all circumstances other than capital cases misses the mark. This Article suggests that the paucity of success by habeas petitioners does not naturally or necessarily justify the abandonment of federal oversight, as the scholarly trend suggests. Instead, scholars and courts should recognize the critical role federal courts play in ensuring that the state court process is fundamentally fair. Indeed, if the primary responsibility for substantive review now rests with the state courts, the need for federal oversight of the procedures is heightened. To this end, this Article makes the case for focusing more attention on the need for challenges of process rather than result and discusses novel methods, both under § 1983 and § 2254, for bringing such litigation. By focusing federal review on the adequacy of the state process, the deterrence model of federal oversight retains a position of importance and distinction, and principles of comity, federalism, and fair process are well protected.

November 14, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

NY Times editorial urges Congress to rescind all mandatory minimum sentences

I am pleased to see that this morning's New York Times includes this editorial discussing the US Sentencing Commissions's recent report on mandatory minimum sentences.   The piece is headlined "A Blue-Ribbon Indictment," and here are excerpts:

A 645-page report from the United States Sentencing Commission found that federal mandatory minimum sentences are often “excessively severe,” not “narrowly tailored to apply only to those offenders who warrant such punishment,” and not “applied consistently.”  That is especially so for sentences of people convicted of drug-trafficking offenses, who make up more than 75 percent of those given federal mandatory minimum sentences.

This is a powerful indictment from the commission, which has three Republicans and three Democrats and operates by consensus.  The report shows that harsh mandatory minimums have contributed to the near tripling of federal prisoners in the last 20 years, reaching 208,000 in 2009 and putting federal prisons 37 percent over capacity....

The racial disparities in sentencing are also stark.  In some cases, mandatory minimums can be reduced for offenders if the crime did not involve violence or a gun.  But most African-American drug offenders convicted of a crime carrying a mandatory minimum sentence could not meet these and other requirements: only 39 percent qualified for a reduction compared with 64 percent of whites.

The report notes that inequitable sentencing policies “may foster disrespect for and lack of confidence in the federal criminal justice system.”  Not “may.”  Given the well-documented unfairness, Congress needs to rescind all mandatory minimum sentences.

November 14, 2011 in Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (3) | TrackBack

November 13, 2011

"Lawsuit seeks compensation for inmates held too long"

The title of this post is the headline of this local article out of Iowa. Here is how it starts:

Iowa inmates held past their proper release dates deserve to be compensated for each day they were improperly confined, according to a class action lawsuit filed this week in Polk County District Court. The lawsuit, filed on behalf of Mahaska County sex offender Richard Scott and other similarly situated inmates, contends that Scott was held for 46 days too long under new rules outlined in a decision this summer by the Iowa Supreme Court.

Justices ruled in July in a case involving convicted sex offender Michael Anderson that Anderson deserved credit for time spent under home supervision even though he was later found to have violated probation during that time. According to the decision, Iowa law clearly requires that any defendant committed to the state Department of Corrections for supervision “who has probation revoked shall be given credit for such time served.”

Iowa corrections officials say the ruling explicitly changed the math used to calculate prison release dates for more than 3,500 Iowa convicts. “Our position is that they have been prepared for this,” said Jeffrey Lipman, the Des Moines attorney behind the lawsuit. “Knowing that this was an issue, they should have been prepared.”

The class action lawsuit, filed against Iowa Department of Corrections director John Baldwin, contends that “hundreds if not thousands of Iowa inmates” have been detained past the dates they properly should have been set free.

November 13, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Great early commentary on SCOTUS taking "Another Bite at the Graham Cracker"

Scott Hechinger, who wrote one of the first thorough reviews of the Supreme Court's Eighth Amendment work in Graham (first discussed here), now has written this commentary for Georgetown Law Journal's online companion, Ipsa Loquitur, which explores the two new juve LWOP cases recently taken up by the Court.  The piece's full title is "Another Bite at the Graham Cracker: The Supreme Court’s Surprise Revisiting of Juvenile Life Without Parole in Miller v. Alabama and Jackson v. Hobbs," and here are snippets:

The Supreme Court’s decision this week to review the constitutionality of life-without-parole sentences imposed upon individuals convicted of homicide crimes committed at age fourteen and younger in Miller v. Alabama and Jackson v. Hobbs stunned sentencing law advocates and Court watchers, myself included.  This commentary will contextualize these two grants of certiorari within the Court’s shifting Eighth Amendment jurisprudence and the broader debate over the harshest forms of juvenile sentencing....

Miller and Jackson give the Supreme Court the opportunity to decide whether life without parole is unconstitutional when imposed on an individual fourteen years or younger (1) for a homicide offense, (2) as a result of a mandatory sentencing scheme, or (3) as a non-triggerman accomplice without a showing of “intent to kill.”  Notably, the cases also ask the court to recognize a new, distinct category of defendants — or subcategory of juveniles — deserving different treatment under the Eighth Amendment: those fourteen and younger....

The two somewhat more straightforward of these questions are (1) whether mandatory JLWOP is unconstitutional and (2) whether non-triggerman accomplice murder where no “intent to kill” is present falls within the ambit of Graham.  In both cases, the plain language of Graham itself seems to compel the affirmative answers the petitioners seek.

As to the mandatory nature of the sentencing schemes, the Graham court itself explicitly noted that “criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.”  Even Chief Justice Roberts, concurring in the judgment as to Terrance Graham’s sentence specifically, but arguing forcefully against the bright line drawn by the majority, demanded that sentencing judges be able to take the defendant’s youth into account on a case-by-case basis.  As to the issue in Jackson of whether non-triggerman accomplice liability should be considered “homicide” or “nonhomicide,” as already discussed above, the heart of Graham’s holding was the recognition that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”

The Court, therefore, could — and may — decide to simply rule narrowly in both cases, foregoing altogether the third, yet more fundamental question of whether children fourteen and younger are a distinct class of juveniles, who require greater Eighth Amendment protection — where JLWOP is unconstitutional in all circumstances, including homicide — than older juveniles aged fifteen to seventeen.  Though the Supreme Court successfully dodged the issue last year by dismissing Sullivan, I find it hard to imagine a repeat this time around.  The strength of Miller and Jackson, and the reason I think the Court was willing to grant certiorari so close in time to Graham, derives from this urged distinction between a “young adolescent” and “older teen.”  This distinction is necessary to allow the Court, if a majority is reached, to rule that JLWOP is unconstitutional for murder without overturning Graham....

Perhaps the clearest distinction ... between the two age categories seems to be in national sentencing consensus.  For while there are currently over 2,500 fifteen-to-seventeen year olds serving JLWOP for homicide in forty-one states, there are only seventy-three children age fourteen and younger who have been sentenced to JLWOP in only eighteen states (compared to the approximately 129 juveniles of any age sentenced to JLWOP for nonhomicide offenses found to be “exceedingly rare” in Graham).  This “extreme rarity” — as the petitions put it — is even more striking considering that over the last twenty years 3,632 children age fourteen and younger were arrested for homicide, meaning that they received a life-without-parole sentence only two percent of the time.

A few recent related posts on Jackson and Miller and related issues:

November 13, 2011 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (8) | TrackBack