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November 25, 2011

What humane reasons justify blocking a sane death row inmate's wish to die?

The question in the title of this post is prompted by this new piece in the Los Angeles Times, which carries the headline "Death row inmates' desire to die renews debate: Legal experts are divided on whether a condemned prisoner who drops resistance to execution should be allowed a dignified end." The piece gets started this way:

Serial wife-killer Jerry Stanley wants to die. Imprisoned on death row for the past 28 years, Stanley insists he deserves execution for the cold-blooded killing of his fourth wife in 1980 and for shooting to death his second wife five years earlier in front of their two children.

Despairing of the isolation and monotony of San Quentin's rooftop fortress for the purportedly doomed, Stanley earlier this year stepped up his campaign for a date with the executioner by offering to solve the cold case of his third wife's disappearance 31 years ago — by disclosing where he buried her body.

When bartering failed to secure him a death warrant, he offered himself up as the test case for resuming the three-drug lethal injections, which had been suspended for six years and remain under judicial review.

"I am willing to be the experimental guy to see whether or not they work," Stanley, 66 and ailing, said in a statement to The Times.  "Assuming I can't get lethal injection because of the injunction on the chemicals, I am willing to accept the gas chamber.  I understand the gas chamber is available and I insist on getting a date."

One of 718 prisoners on California's death row, Stanley has renewed an ethical debate among legal experts about whether a condemned prisoner who drops resistance to execution has been driven insane by his confinement or has accepted his fate and should be allowed a dignified end.

An Alameda County judge has ruled that Stanley is competent to decide his own legal matters.  He is one of at least three condemned men on the nation's death rows volunteering to expedite their sentences.  Gary Haugen, an Oregon man convicted of killing his former girlfriend's mother in 1980, and a fellow inmate in 2003, was ruled competent in September and faced a Dec. 6 death by lethal injection until Gov. John Kitzhaber just days ago banned further executions during his term.  The third, Eric Robert, killed a guard at his South Dakota prison in April while serving an 80-year sentence for kidnapping. He has vowed to kill again until his death wish is granted.

Since the modern era of capital punishment began with the 1977 execution of Gary Gilmore in Utah, civil rights advocates and death penalty supporters have debated whether a state would run afoul of laws prohibiting execution of the mentally ill if they bow to a condemned inmate's suicidal impulse.

"Most of these people aren't dropping their appeals because they believe it's the punishment they deserve," said John Blume, a Cornell University law professor and author of "Killing the Willing," a 2005 study of those who abandon pursuit of reprieve.

Texas, Virginia, Oklahoma, Florida and other states with more frequent executions see more inmates asking their lawyers to drop appeals, said Blume, who believes that more than 10% of the 1,277 executed nationwide since 1977 had lost the will to live by the time they were executed.  "California has never had a lot of volunteers, maybe because you have lawyers that are better funded and better able to establish relationships with their clients, and there's not a pattern of systematic executions" to demoralize others on death row, said Blume.

One sometimes hears some abolitionists assert that an LWOP sentence is a harsher penalty than death, and some murderers who have been condemned to death apparently agree.  Assuming the condemned person is sane when expressing a genuine wish to die, I have never fully understood what humane justification could support requiring this person to continue living an awful extended and painful life of permanent confinement without any hope for freedom.  If one is eager to torture (psychologically and physically) a condemned murderer by denying him the opportunity to end his LWOP suffering, I suppose it makes sense not to honor his wish to die.  But is there a truly humane reason to refuse such a request to end LWOP suffering if the condemned murderer has no reasonable basis to hope for any eventual freedom from harsh imprisonment?

November 25, 2011 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (12) | TrackBack

"Perceptions of Fairness and Justice: The Shared Aims & Occasional Conflicts of Legitimacy and Moral Credibility"

The title of this post is the title of this new paper by Professors Josh Bowers and Paul Robinson, which is available via SSRN. Here is the abstract:

A growing literature on procedural fairness suggests that there is practical value in enhancing a criminal justice system's "legitimacy" with the community it governs by adopting and implementing fair enforcement practices and adjudicative procedures.  A separate literature suggests that there is practical value in enhancing the system's "moral credibility" with the community by distributing criminal liability and punishment according to principles that track the community's shared intuitions of justice.

In this Article, we examine the shared aims and the similarities in the operation and effect of these two criminal justice dynamics as well as the occasional differences in effect and potential for conflict.  By comparing the two dynamics, the article moves forward debates that -- though rich and important -- have grown stagnant.  Specifically, legal scholars have tended to invoke the two dynamics too casually, to ignore one but not the other, or to conflate or confuse the two.  This article provides a useful and necessary analytic framework for further exploration into the advantages and limits of moral credibility and legitimacy.  Finally, the article stakes out tentative positions within the on-going debates.  That is, it endorses the prevailing view that moral credibility and legitimacy are promising -- indeed, critical -- systemic enterprises that may carry significant crime-control advantages, and the article concludes that -- for empirical and theoretic reasons -- moral credibility ought to be the principal objective in uncommon circumstances in which a system may effectively pursue only one.

November 25, 2011 in Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

South Korea rolls out new robot prison guard

20111124000765_0As reported in this Wall Street Journal piece, "South Korea is about to put a new type of droid through its paces: a robot prison guard." Here are the brave new world details:

Under a project sponsored by the Ministry of Justice, trials of the robots will be held for a month at a jail in the city of Pohang, southeast of Seoul, from March.  The robots are designed to patrol the corridors of corrective institutions, monitoring conditions inside the cells.  If they detect sudden or unusual activity such as violent behavior they alert human guards.

“Unlike CCTV that just monitors cells through screens, the robots are programmed to analyze various activities of those in prison and identify abnormal behavior,” Prof. Lee Baik-chul of Kyonggi University, who is in charge of the 1 billion-won ($863,000) project, told the Journal.

The robots can also work as a communication channel when inmates want to contact guards in an emergency.  According to Mr. Lee, prison officers have welcomed the idea because the robots can potentially reduce their workload, particularly at night.

And how about the reaction of inmates?  “That’s a concern. But the robots are not terminators.  Their job is not cracking down on violent prisoners.  They are helpers.  When an inmate is in a life-threatening situation or seriously ill, he or she can reach out for help quickly,” he said.

Mr. Lee said his team is putting the final touches to the appearance of the robots to make them look more “humane and friendly” to those behind bars. 

November 25, 2011 in Prisons and prisoners, Sentencing around the world, Technocorrections | Permalink | Comments (5) | TrackBack

November 24, 2011

So very thankful for so much this Thanksgiving

I have so much to be thankful for on this Thanksgiving 2011, I do not even know where to start.  I do know that today is an especially good day to be thankful that most Americans will spend today reflecting on how much they have to be thankful for in this wonderful nation rather than spending so much time complaining about this or that.  

I know that I (and many others) do a fair share of complaining on this blog, but that goes with the lawyering territory: I often tell my law students that one of the greatest aspects of being a lawyer is that you get paid for complaining.  But, I am thankful that I have been successful as a professional complainer, and I hope readers know that much of my complaining on this blog about US sentencing law and policy is based in my belief that the greatest nation in human history can and should always be striving to be even greater in its commitment to human freedom and to fostering a national environment that enables all to enjoy life, liberty and the pursuit of happiness.

November 24, 2011 in On blogging | Permalink | Comments (3) | TrackBack

November 23, 2011

"Legal in California, Medical Marijuana Prompts Federal Crackdown"

The title of this post is the headline of this new article from the New York Times.  Here are excerpts:

An intensifying federal crackdown on growers and sellers of state-authorized medical marijuana has badly shaken the billion-dollar industry that has sprung up in California since voters approved medical use of the drug in 1996 and has highlighted the stark contradiction between federal and state policies....

Federal law classifies the possession and sale of marijuana as a serious crime and does not grant exceptions for medical use, so the programs adopted here, in 15 other states and in the District of Columbia exist in an odd legal limbo.  While federal agencies have long targeted Californians who blatantly reap illegal profits in the name of medicine, or who smuggle marijuana across state lines, the Justice Department said in 2009 that it would not normally pursue groups providing marijuana to sick patients, in accordance with state laws.

But in the last several weeks, federal prosecutors have raided or threatened to seize the property of scores of growers and dispensaries in California that, in some cases, are regarded by local officials as law-abiding models.  At the same time, the Internal Revenue Service has levied large, disputed tax charges against the state’s largest dispensary, threatening its ability to continue....

The growing federal pressure industry leaders say, could force the dismantling of some of the cooperatives that provide marijuana to more than 750,000 Californians who have obtained doctor “recommendations” to treat everything from cancer-related nausea to pain and anxiety.  Within a few years, hundreds of collectives, large and small, have deeply embedded themselves in the state, paying more than $100 million in sales taxes, joining local chambers of commerce and better business bureaus, even appearing on “adopt-a-highway” signs.

Here in Mendocino County, which gladly cooperates with federal agents against the rampant criminal cultivation of marijuana, officials devised a permit and monthly monitoring system for small-scale growers supplying patient groups.  The sheriff said this has eased his burdens and prevented diversion to the black market, and he praised the Northstone Organics Collective, run by Matthew Cohen, for scrupulous adherence to the rules.

But at 6 a.m. on Oct. 13, federal Drug Enforcement Administration agents with assault rifles and chainsaws raided Mr. Cohen’s property in the oak-covered hills north of Ukiah, cutting down the hefty 99 plants (6 to 12 feet tall) that were meant to provide marijuana for 1,700 members.  “The federal and state laws exist in parallel universes,” said Thomas D. Allman, the Mendocino County sheriff, in his office in Ukiah.  He is as tough as anyone on the illegal pot trade, he said, but “growing and using medical marijuana is a right of a California citizen.”...

Medical marijuana advocates accuse the Obama administration of going back on earlier promises not to go after groups abiding by local laws.  But federal justice officials say the real change is the proliferation of large, commercial enterprises, not their guidelines.

“A lot of the medical marijuana stores that claim to be nonprofit are making lots of money,” Benjamin B. Wagner, the United States attorney for the Eastern District of California, in Sacramento, said in an interview.  He added that prosecutors were skeptical about the medical needs of many buyers.  “We’ve found in California that anybody can get a medical recommendation,” he said.

Since late September, in their broadest crackdown yet, federal prosecutors have sent letters to more than 100 registered dispensaries or their landlords throughout the state, warning that their property may be confiscated and that they could face prison if they do not shut down....

Even many marijuana advocates agree that state laws governing medical marijuana are inadequate, largely leaving it to local officials to set rules for growing and selling that vary wildly by county.  It is also an open secret that a share of physician-approved buyers do not have plausible medical needs.  On Ocean Front Walk at Venice Beach, for example, touts compete to lure people into shabby clinics with names like “Medical Kush Doctor,” promising medical recommendations for $45....

Even if the state tightens controls and pares back the industry, the central clash, between the federal war on drugs and California’s desire to offer medical marijuana, will remain. Ms. Harris, the attorney general, said she hoped that if the state improved oversight, federal officials would find other priorities. “I’m a career prosecutor,” she said, “and I know that everyone has a lot of obligations and limited resources.”

November 23, 2011 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences | Permalink | Comments (2) | TrackBack

Oregon Governor halts upcoming execution, declares moratorium, and pushes for state repeal

As detailed in this local story from Oregon, on Tuesday "Gov. John Kitzhaber ... placed a moratorium on all executions, issued a temporary reprieve stopping the Dec. 6 execution of Gary Haugen and urged Oregonians to 'find a better solution' to a system that he said is arbitrary, expensive and 'fails to meet basic standards of justice'."  Here is more:

"In my mind, it is a perversion of justice," Kitzhaber said at a crowded news conference, his voice strained and uncharacteristically quavering at times.  "I refuse to be a part of this compromised and inequitable system any longer and I will not allow further executions while I am governor."

His decision comes just two weeks before Haugen, 49, was to die by lethal injection and after months of legal showdowns over the twice-convicted murderer's mental competence. Haugen appeared to overcome the last obstacle Monday when the state Supreme Court allowed the execution to proceed.  Kitzhaber said he made up his mind last week and wanted to wait for the legal issues to play out before making a public declaration.

It remains to be seen what will happen now.  Oregonians have abolished and reinstated the death penalty several times since it was first enacted in 1864, and Kitzhaber said he did not know if people will support repealing capital punishment.

Based on the governor's past, Haugen did not think Kitzhaber would intervene, said his attorney, Steven Gorham.  The reprieve for Haugen remains in place as long as Kitzhaber is governor.  It is too soon to say what Haugen will do, said Gorham, who had not yet spoken to the inmate.  But Gorham said he expects the decision will greatly disappoint Haugen, who chose execution as a political protest and a path to freedom from the confines of death row.

The Oregon Governor Kitzhaber's statement in support of this decision can be accessed at this link, and here are a few passages of note:

Oregonians have a fundamental belief in fairness and justice -- in swift and certain justice.  The death penalty as practiced in Oregon is neither fair nor just; and it is not swift or certain.  It is not applied equally to all.  It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury.  The only factor that determines whether someone sentenced to death in Oregon is actually executed is that they volunteer. The hard truth is that in the 27 years since Oregonians reinstated the death penalty, it has only been carried out on two volunteers who waived their rights to appeal....

And while it may be convenient to blame lengthy and expensive death penalty trials and appeals on inmates “working the system,” the truth is courts (and society) continue to reinterpret when, how and under what circumstances it is acceptable for the state to kill someone.  Over time, those options are narrowing.   Courts are applying stricter standards and continually raising the bar for prosecuting death penalty cases.  Consider that it was only six years ago that the U.S. Supreme Court reversed itself and held that it is unconstitutional to impose capital punishment on those under the age of 18.  For a state intent on maintaining a death penalty, the inevitable result will be bigger questions, fewer options and higher costs.

It is time for Oregon to consider a different approach.  I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am Governor.

November 23, 2011 in Clemency and Pardons, Death Penalty Reforms, Who Sentences | Permalink | Comments (63) | TrackBack

GOP candidate Ron Paul assails Obama pot policy and garners applause calling federal drug war "a total failure"

This Huffington Post piece provide a clip of Ron Paul in fine form at Tuesday's GOP debate assailing federal drug policy, and notes these trenchant points from a candidate who really sticks to his guns when discussing freedom and liberty:

"I think the federal war on drugs is a total failure," said Paul to hearty applause from the audience.  "The drug war is out of control," he added.  "I fear the drug war, because it undermines our civil liberties, it magnifies our problems on the borders -- we spent like over the last 40 years a trillion dollars on this war and, believe me, the kids can still get the drugs. It just hasn't worked."

November 23, 2011 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (4) | TrackBack

"Rezko gets 10.5-year sentence; 'Enough is enough,' says judge in ruling that may bode ill for Blagojevich"

The title of this post is the headline of this Chicago Tribune article reporting on a high-profile sentencing that took place in a federal district court on Tuesday.  The article gets started this way:

Even before Antoin "Tony" Rezko's long-awaited sentencing began Tuesday, his teenage daughter appeared anxious, her arms clutching her stomach and her face already in a pained expression. Two hours later, when a judge sentenced Rezko, once a top adviser to former Gov. Rod Blagojevich, to 10.5 years in prison, his daughter, Chanelle, broke down in sobs and collapsed into her mother's arms.

The sentence — one of the toughest ever handed out in the Dirksen U.S. Courthouse for a public corruption conviction — would appear to be bad news for Blagojevich, who is scheduled to be sentenced in two weeks by a different judge.

"Blagojevich could not have been happy when he heard the prison time that Rezko will serve," said former federal prosecutor Jeffrey Cramer. "He could reasonably get 12 to 15 years in prison."

About 40 relatives and friends attended Rezko's sentencing to show their support. At times during the hearing, some bowed their heads or placed their hands over their hearts.

In brief comments to U.S. District Court Judge Amy St. Eve, Rezko apologized and spoke of the guilt and shame he felt for what he has put his family through. "I come to ask for God's forgiveness and the court's mercy," said a pale and thin Rezko.

But St. Eve was not swayed, saying that "the sentence will send a message that enough is enough."

Rezko, 56, made a name for himself as a powerful insider and fundraiser, earning a position as one of Blagojevich's top advisers and confidants from early in his administration. He had a knack for cultivating up-and-coming politicians, including state Sen. Barack Obama, who would become president.

Prosecutors portrayed Rezko as a key member of Blagojevich's "kitchen cabinet" who exercised influence over the appointments made by the governor to state boards and commissions. In return, he expected campaign contributions to be made to Blagojevich, the government alleged.

A jury convicted him in 2008 of using his clout with Blagojevich and scheming with Stuart Levine, a longtime Republican political insider, to extort millions of dollars from firms that were seeking state business or regulatory approval.

November 23, 2011 in Booker in district courts, Celebrity sentencings, White-collar sentencing | Permalink | Comments (21) | TrackBack

November 22, 2011

Split Elevent Circuit refuses to reject Georgia's approach to implementing Atkins

A big en banc capital habeas decision came down from the Eleventh Circuit today in Hill v. Humphrey, No. 08-15444 (11th Cir. Nov. 22, 2011) (available here), concerning Georgia's sentencing procedures. Here is part of the start of the majority opinion:

In 1996 state habeas proceedings, Warren Lee Hill, Jr. unsuccessfully alleged that he is mentally retarded and ineligible for the death penalty. Hill, a Georgia death row inmate, was able to raise this claim in 1996, well before the Atkins decision was issued in 2002, because in 1988 the State of Georgia led the nation by abolishing the death penalty for mentally retarded defendants....

Although Georgia already prohibited executing mentally retarded defendants at the time of Hill’s trial, direct appeal, and initial state habeas petition, Hill did not claim he was mentally retarded until five years after his 1991 trial. In 1996, Hill amended his state habeas petition to allege mental retardation for the first time, and he later claimed that Georgia’s reasonable doubt standard of proof in O.C.G.A. § 17-7-131 violated the Eighth Amendment.

The national consensus against executing the mentally retarded that gave birth to the Atkins prohibition was a consensus that Georgia started by enacting the very same statute — § 17-7-131(c)(3), (j) — that petitioner Hill now claims violates Atkins by using a reasonable doubt standard.... The Georgia Supreme Court recently reaffirmed its holding in Hill III that Georgia’s beyond a reasonable doubt standard for proving mental retardation is constitutional.... 

As the Georgia Supreme Court correctly noted, there is no holding in Atkins, or any Supreme Court decision, invalidating a reasonable doubt standard for mental retardation claims. Just the opposite is true. Atkins expressly left it for the states to develop the procedural and substantive guides for determining who is mentally retarded. Bobby v. Bies, 556 U.S. 825, —, 129 S. Ct. 2145, 2150 (2009).  And in the 219-year history of our nation’s Bill of Rights, no United States Supreme Court decision has ever suggested, much less held, that a burden of proof standard on its own can so wholly burden an Eighth Amendment right as to eviscerate or deny that right.  Because there is no specific, much less “clearly established” by Supreme Court precedent, federal rule regarding the burden of proof for mental retardation claims, AEDPA mandates that this federal court leave the Georgia Supreme Court decision alone — even if we believe it incorrect or unwise — and affirm in this case.

November 22, 2011 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6) | TrackBack

Texas jury gives "career thief" 80 years for counterfeit concession caper

A student alerted me to this notable jury sentencing story from Texas, which is headlined "Man who used counterfit cash to buy movie theater snacks sentenced to 80 years in prison." Here are the basics from the press report:

A man who tried to buy hot dogs, popcorn and soft drinks with a counterfit $20 bill was sentenced to 80 years in prison on Friday in Tarrant County. Here's the press release from the Tarrant County District Attorney's office:

FORT WORTH -- A career thief who tried to pay for a movie theater hotdog with a fake $20 bill was sentenced on Friday to 80 years in prison.

On Wednesday, jurors in state district Judge Everett Young's court deliberated about three hours in convicting Charles Cleveland Nowden, 48, of forgery for passing the counterfeit money....

During the punishment phase of his trial, prosecutors presented evidence on two of Nowden's pending theft charges in Tarrant County and on another theft charge in Lamar County....

The jury also heard that Nowden had previous federal convictions for bank fraud, possessing counterfeit cigarettes, and being a felon in possession of a firearm. The jury was able to consider those extraneous offenses and other bad acts in determining his punishment.

He must serve at least 15 years before he is eligible for parole.

November 22, 2011 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Back story on crack offender who received Obama's first commutation

As reported in this post late last night, nearly three full years into his presidency, Barack Obama issued his first commutation to a federal defendant serving time in prison.   This report by Josh Gerstein at Politico provides a little of the defendant's back story along with some commentary about the grant: 

The White House announced Monday that Obama commuted the nearly 22-year prison sentence of Eugenia Jennings, 34, a mother of three from Alton, Ill. who pled guilty in 2000 to selling 13.9 grams of crack cocaine to a police informant.  She received the two-decades-plus prison term because she had two prior state drug sale convictions.

In testimony before a Senate Judiciary subcommittee in 2009 [which can be accessed here thanks to FAMM], Jennings's brother Cedric Parker said her sister was a drug addict, alcohol abuser and victim of sexual assault, who was trying to provide for her children. Parker also said Jennings, who is black, would have gotten half as much prison time if she was convicted of dealing in powdered cocaine rather than the crack form....

[F]ormer Justice Department pardon Attorney Margaret Love ... welcomed the news of Obama's first commutation. "I'm very pleased," Love said. "I hope that it is a sign he intends to look at the many other people in federal prisons serving very long crack sentences which his own administration has called unjust."

FAMM's statement said that the commutation for Jennings was backed by Sen. Dick Durbin (D-Ill.) and that Jennings is receiving treatment for cancer.  She is currently at a federal prison medical facility in Fort Worth, Texas, according to the Bureau of Prisons web site. It is unclear how, if at all, Jennings's illness affected Obama's decision to grant the commutation.  White House spokesman Matt Lehrich said he could not comment on specific cases.

Love said the president's grant of a single commutation after 34 months in office was hard to interpret.  "His exercise really does appear to be a bit random, like a lightning strike," she said.

Prior to the commutation, Jennings was due to be released in June 2019, the BOP site indicates.

November 22, 2011 in Drug Offense Sentencing, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

Sentencing court's second thoughts too late to benefit defendant

A little opinion from the Sixth Circuit today in US v. Hall, No. 10-3336 (6th Cir. Nov. 22, 2011) (available here), should serve as a poetic reminder to federal sentencing judges that sentencing second thoughts often come to late for defendants' benefit.   Here is how Hall starts along with a Shakespearean flourish toward the end of the opinion to make it a bit more memorable:

Eighteen days after originally sentencing Defendant-Appellee David Hall to eighteen years of imprisonment, the district court sua sponte resentenced him to three fewer years.   After fourteen days following the original imposition of sentence the district court lacked jurisdiction to resentence Hall; therefore, we must VACATE the district court’s revised sentence and REMAND for reimposition of the original sentence....

It is laudable that the district court seriously considered the sentence, returning again to the issues and prior statements of counsel to be certain that only the “appropriate” sentence would be imposed. That brings to mind Portia’s description of mercy:

The quality of mercy is not strain’d,
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.

The Merchant Of Venice Act 4, scene 1, 180-87.  However, the Government seeks enforcement under Rule 35.   Thus, it appears that the “gentle rain” of mercy had to drop from heaven within fourteen days.  It took eighteen.

Because the district court lacked jurisdiction to resentence Hall more than fourteen days after originally imposing sentence, we are required to vacate the district court’s March 1, 2010 judgment and remand for reimposition of the original sentence announced on February 5, 2010.

Critically, Rule 35 also limits the reasons as well as the timing of any sentence correction by a district judge after the announcement of the initial sentencing, and a judge's decision to show a little more mercy after the fact would not appear to qualify as “arithmetical, technical, or other clear error” required by the Rule. A federal district judge needs to be mercurial and mistaken, as well as merciful, for a defendant to be able to benefit from a sentencing correction under Rule 35.

November 22, 2011 in Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Federal Folly: FY2012 U.S. Department of Justice budget gorges on prisons, gouges juvenile justice"

Image-fullThe title of this post is the title of this new five-page issue brief from the Justice Policy Institute.   Here is how it starts and ends:

Last week Congress passed a 2012 budget for the U.S. Department of Justice that puts locking people up ahead of helping reduce delinquency, protecting youth that do come into contact with the juvenile justice system, and improving outcomes for the formerly incarcerated.  This brief is intended to show the potential impacts of these funding schemes and what can be done instead to improve communities.

Juvenile Justice Programs received $546.9 million in FY2002.  Funding has been dropping almost consistently since then, and with the proposed FY2012 budget, down to $263 million...

Both the FBI and the Drug Enforcement Administration (DEA) are budgeted to receive increases in funding, despite decreases in crime. With crime rates falling, both agencies should have been targeted for budget cuts. In particular, as public opposition to the “War on Drugs” is growing, the federal government should re-examine the negative impacts of continuing to pursue a law enforcement approach to drug addiction, when a public health approach has been shown to be much more successful.

Similar to efforts at the state and local level, increasing federal law enforcement will likely result in more people arrested for lower level drug and other offenses and increased prison populations.

There are currently more than 2.4 million people incarcerated in U.S. prisons and jails, the highest per capita rate in the world.   Attempting to improve public safety through increased law enforcement and correctional spending is a failed approach. If the Administration and Congress want to spend scarce federal dollars to improve public policies that have been shown to have positive and long-lasting effects on individuals and communities. These programs include:

  • community-based substance abuse and mental health treatment;
  • evidence-based prevention programs for youth;
  • employment, job skills, and education resources for underserved communities; and
  • diversion programs that keep people from entering the corrections system.

Putting resources toward these positive opportunities is the most effective, and costeffective, way of increasing public safety.

November 22, 2011 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1) | TrackBack

An American groom and/or a father ... and less of a crime risk

The demographics described in the title of this post seems to be the take-away from this new research appearing in the October 2011 issue of the Journal of Marriage and Family. (Hat tip: this post at Crime & Consequences.) The article reporting the reseach is titled "Changes in At-Risk American Men's Crime and Substance Use Trajectories Following Fatherhood," and here is the article's abstract:

Fatherhood can be a turning point in development and in men's crime and substance use trajectories.  At-risk boys (N = 206) were assessed annually from ages 12 to 31 years. Crime, arrest, and tobacco, alcohol, and marijuana use trajectories were examined. Marriage was associated with lower levels of crime and less frequent substance use. Following the birth of a first biological child, men's crime trajectories showed slope decreases, and tobacco and alcohol use trajectories showed level decreases.  The older men were when they became fathers, the greater the level decreases were in crime and alcohol use and the less the slope decreases were in tobacco and marijuana use. Patterns are consistent with theories of social control and social timetables.

November 22, 2011 in Data on sentencing, Offender Characteristics | Permalink | Comments (0) | TrackBack

November 21, 2011

President Obama commutes crack sentence and issues five more pardons

I am pleased to learn today of President Obama's decision to show some mercy via a real set of clemency grants to real people before the annual turkey pardons to save a couple fowl.  This AP article reports the basics:

President Barack Obama on Monday pardoned five people convicted of charges ranging from intent to distribute marijuana to running an illegal gambling business. And he issued his first commutation, ordering the release of a woman next month after serving 10 years on a 22-year sentence for cocaine distribution.

The actions mark Obama’s third set of pardons. He pardoned eight people earlier this year, and issued nine pardons in December 2010.

None of those pardoned was well-known, as was the case with the president’s previous orders. The cases date back to 1984, when Martin Kaprelian of Park Ridge, Ill., was sentenced to nine years in prison for conspiracy to transport stolen property in interstate commerce, and other related charges.

Obama commuted the 2001 prison sentence of Eugenia Marie Jennings of Alton, Ill. Jennings was convicted in 2001 for distributing cocaine, and sentenced to 22 years in prison. The president ordered her to be released next month, but kept intact her eight years of supervised release.

A press release from DOJ listing all the clemency recipients can be found at this link.  P.S. Ruckman has some effective commentary on this lastest round of clemency grants by President Obama in this post at his Pardon Power blog.  And FAMM has this new press release which provides some background on the defendant who had her prison term commutted:

In 2001, Jennings received a 22-year sentence for a low-level, nonviolent drug offense that involved selling a mere 13.9 grams of crack cocaine to a confidential police informant. Jennings was a survivor of domestic abuse and had a long-standing struggle with drug addiction.  She began selling small quantities of crack cocaine to support herself and her three children.

During her decade in federal prison, Jennings conquered her addiction, educated herself, and began speaking publicly to students, warning them of the consequences of drug use. Earlier this year, Jennings was diagnosed with cancer.  She has received chemotherapy treatments in prison and shows positive signs of an eventual recovery.

Jennings has a wide network of supporters and advocates, including Senator Richard Durbin (D-IL), who learned of her case when her brother, Cedric Parker, testified before Congress. Senator Durbin and Jennings’s lawyers, Thomas Means, Alexander Schaefer and Timothy Foden of the Washington, DC law firm of Crowell & Moring, advocated tirelessly for her release.

November 21, 2011 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

Committed sex offenders climb roof with nooses to protest confinement conditions

ImagesCAFGHOTPBreaking this afternoon is this interesting story out of Virginia, headlined "Rooftop standoff with noose-clad sex offenders ends."  The piece reports on the extreme (and successful) efforts by a pair of confined sex offenders to bring attention to their complaints about the conditions of their confinement.  Here are the details:

A three-and-a-half-hour standoff at a psychiatric facility for sex offenders who have already served their prison sentences ended without incident Monday when the two men who had climbed onto a roof with nooses around their necks climbed down and shook hands with police and officials.

The standoff at the Virginia Center for Behavioral Rehabilitation, which began around 11:30 a.m., ended just before 3 p.m. when police brought in ladders and the offenders took off their nooses and climbed down.  The men were not immediately arrested but were assessed by medical personnel, Virginia State Police Sgt. Thomas Molnar said.

Offenders at the facility told The Associated Press the men climbed a fence to get to the awning, which is connected to the main building and is about 15 feet off the ground.  The men had fashioned nooses from bed sheets and tied them to a building support, demanding to speak to a state official about conditions at the facility.  The protest could be seen from a nearby highway....

[S]everal residents of the facility identified them as William Dewey and Victor Johnson. Dewey has complained to the AP about his treatment at the facility on several occasions. "Nobody wants to listen to us anymore," said offender Timothy East, one of several to report the standoff.  "There's no voice here.  Some people are taking drastic measures to make their voice be heard."

In calls and letters to the AP, Dewey and other offenders have complained about an increase in security.  The nearly 300 offenders were sent to the facility after serving their prison sentences.  The U.S. Supreme Court has said such civil commitment programs are constitutional as long as the offenders are there for treatment, not further punishment.

The offenders argue their privileges, such as outside recreation and property allowances, continue to be cut back while security increases.  "It's too much of a prison mentality here," East said.  "When they start going back to prison mentality that means we'll go back to it, too, and they're not going to like it."

Gordon Harris, another offender at the center, said he was in art class when everyone started running toward the yard where the standoff was taking place.  He said many residents are upset over the restrictions and the lack of treatment.  "There is no treatment here," he said.  While two state inspector general reports in 2007 and 2008 were highly critical of the amount of treatment offenders received, that has increased in recent years.

November 21, 2011 in Criminal Sentences Alternatives, Prisons and prisoners, Sex Offender Sentencing | Permalink | Comments (30) | TrackBack

"Punishment and Recidivism in Drunk Driving"

The title of this post is the title of this new paper by Benjamin Hansen now available via SSRN, which includes lots of data and number crunching. Here is the abstract:

Traditional economic models of criminal behavior have straightforward predictions: raising the cost of expected cost of crime via apprehension probabilities or punishments decreases crime.  Estimating the extent to which increased punishments deter crime is often complicated by omitted variable bias, as the severity of a crime is often a key determinant of the punishment.

I overcome this obstacle by taking advantage of discrete thresholds for blood alcohol content (BAC) which determine punishments for driving under the influence (DUI). Regression discontinuity derived estimates suggest that having a BAC above the DUI threshold reduces recidivism by up to 2 percentage points (17 percent). As previous DUI violations increase future penalties for drunk driving, this is consistent with Beckerian models of criminal activity.  However, enhanced penalties for aggravated DUI also reduce recidivism by an additional percentage point (9 percent), despite the fact that the enhanced punishments only affect the current penalties.  This suggests a form adaptive expectations play a role in criminal behavior, whereby expectations of future punishments are based upon previous punishments experienced.

I am planning to read the paper and hoping to better understand its take-away points after a full read.

November 21, 2011 in Data on sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Connecticut Supreme Court upholds death sentence against various challenges

As detailed in this local press report, Connecticut's "state Supreme Court on Monday upheld the death sentence imposed on Todd Rizzo, convicted of beating a 13-year-old boy to death with a sledgehammer because he wanted to know how it felt to commit murder." Here are the basics of the ruling:

Rizzo, represented by the state public defenders office, appealed on nine grounds, from the way he was sentenced to death to the constitutionality of the death penalty. The state's high court, in an 86-page decision written by Chief Justice Chase T. Rogers, ruled against Rizzo on every issue.

Justice Peter T. Zarella wrote a one-paragraph concurrence. Justice Flemming L. Norcott, Jr. wrote a three-page dissent in which he said that he continues to "maintain my position that the death penalty has no place in the jurisprudence of the state of Connecticut."

The opinion for the court in this case is available at this link and it begins this way:

The defendant, Todd Rizzo, appeals from the judgment rendered by a three judge panel, following a penalty phase hearing held pursuant to General Statutes (Rev. to 1997) § 53a-46a, sentencing him to death for the murder of a thirteen year old victim, Stanley G. Edwards.  The defendant claims on appeal that: (1) his waiver of a jury for the penalty phase hearing was constitutionally invalid; (2) the presiding judge at the penalty phase hearing should have disqualified himself due to bias; (3) the absence of a specific intent requirement in the aggravating factor found by the panel renders his death sentence unconstitutional; (4) the panel’s finding of an aggravating factor lacks evidentiary support; (5) the method of establishing mitigating factors pursuant to § 53a-46a (d) violates the eighth amendment to the United States constitution; (6) the panel’s finding of a single cumulative mitigating factor but no individual mitigating factors was improper; (7) the panel improperly weighed aggravating and mitigating factors and determined that death was the appropriate punishment; (8) the death sentence was the product of passion, prejudice and other arbitrary factors; and (9) the death penalty is a per se violation of the state constitution.  We disagree with each of these claims and, accordingly, affirm the judgment sentencing the defendant to death.

November 21, 2011 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (20) | TrackBack

Ninth Circuit explains rules for 35(b) reductions for substantial assistance

A lengthy opinion from the Ninth Circuit today in US v. Tadio, No. 10-10144 (9th Cir. Nov. 21, 2011) (available here), discusses at great lengthy a technical and important set of issues concerning post-sentencing substantial assistance reductions. Here is how the opinion starts:

Federal Rule of Criminal Procedure 35(b) authorizes a district court, on the government’s motion, to reduce a defendant’s sentence “if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.”  The question in this case is whether a district court may consider factors other than a defendant’s substantial assistance in determining the amount of a Rule 35(b) sentence reduction.  

We hold that once a district court determines that a defendant has provided substantial assistance to the government, the court may consider factors other than assistance, including those listed in 18 U.S.C. § 3553(a), in order to ensure that the sentence ultimately imposed accords with the purposes of sentencing that Congress has articulated. See § 3553(a)(2).  The sentence imposed must be related to the degree of assistance rendered, but a district court may consider non-assistance factors in awarding a reduction, whether that reduction is greater than, less than, or equal to the reduction that a defendant’s assistance, considered alone, would warrant.

Here, after considering federal prisoner Dennis Tadio’s offense conduct and criminal history, the district court granted a sentence reduction of 24 months, which is what the government had requested based on Tadio’s assistance.  Tadio appeals, contending first that the district court erred by considering non-assistance factors when it decided on the length of the sentence reduction, and second that the district court assigned too low a value to the assistance he provided. The government contends that the district court did not err in considering the non-assistance factors when it decided whether to grant a sentence reduction greater than what Tadio’s assistance, considered alone, warranted. The government also argues that if the district court applied the appropriate legal standard under Rule 35(b), we lack jurisdiction to review the court’s exercise of discretion in choosing the length of the sentence reduction.  We agree with the government and the district court. Because the district court applied the correct legal standard in this case, we affirm its consideration of nonassistance factors and dismiss Tadio’s challenge to the length of the sentence reduction.

November 21, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Latest official data reveal slight drop in mass number subject to community supervision nationwide

As reporting in this official press release, the "number of adult offenders under community supervision on probation or on parole declined by 1.3 percent during 2010, dropping to about 4.9 million adults at yearend, the Bureau of Justice Statistics (BJS) announced today."  Here are some of the particulars:

Probation is a court-ordered period of correctional supervision in the community, generally as an alternative to incarceration. Parole is a period of conditional supervised release in the community following a prison term. At yearend 2010, about 1 in every 48 adults in the U.S. was on probation or parole, a rate lower than the 1 in every 46 that was observed in 2000.

The number of adult probationers declined (down 1.7 percent) for the second consecutive year, dropping to nearly 4.1 million probationers at yearend 2010. The entire decline in the community supervision population was attributable to the decrease in the probation population since probationers make up 83 percent of adults under community supervision.

During 2010, the number of adults on parole or other post-prison supervision increased slightly (up 0.3 percent), reaching about 840,700 parolees at yearend. The state parole population (down 0.3 percent) declined for the second consecutive year while the number of adult offenders on supervised release following a prison term in the federal system increased by 4.9 percent during 2010....

For the second consecutive year, the number of offenders discharged from probation supervision (about 2.3 million) exceeded the number who entered probation (about 2.2 million) during 2010, contributing to the decrease in the probation population.

The full BJS report with all this data and lots more, which is titled simply "Probation and Parole in the United States, 2010," is available at this link.

November 21, 2011 in Criminal Sentences Alternatives, Data on sentencing | Permalink | Comments (2) | TrackBack

North Carolina sex offender sentenced 5.5 to 7.5 years(!) for Facebook friending of victim

Because I am not a First Amendment expert, I am not sure if there are any viable constitutional arguments against punishing persons for using Facebook.  But as a sentencing expert, I am sure that this local story from North Carolina highlights how severe some punishments can be for sex offenders who use social media in prohibited ways.  Here are the details:

A convicted sex offender was sentenced to 66-89 months in prison Thursday after officials said he sent a Facebook "friend request" to one of his victims.   Victor Terrell Gaston, 36, of Reidsville, pleaded guilty to one count of using social media as a sex offender in Rockingham County Superior Court.  Judge Stuart Albright sentenced his as a habitual offender.

Officials say Gaston sent the request on July 4, exactly 10 years after the offense occurred in 2001.  Gaston had been ordered to not have contact with the victim. Gaston was arrested three days after sending the request. Officers said he had been using Facebook for about two weeks.

Gaston had been a registered sex offender since November 26, 2003.  He has previously been convicted of charges involving assault, larceny, indecent liberties with a child and burglary.

Rockingham County Chief Assistant District Attorney Julia Wolf Hejazi said it is important to keep sex offenders away from social media websites.  "Victims of sexual assaults have a right to be left alone, and this law helps to protect their privacy," Hejazi said, in a press release.

Some related posts:

UPDATE:  This recent AP article, which is headlined "Inmates harass victims via Facebook," highlights why the next bit important criminal law specialty may become social media and crime and punishment. Here is an excerpt:

Across the U.S. and beyond, inmates are using social networks and the growing numbers of smartphones smuggled into prisons and jails to harass their victims or accusers and intimidate witnesses.  California corrections officials who monitor social networking sites said they have found many instances in which inmates taunted victims or made unwanted sexual advances....

"The ability to have these kinds of contacts is increasing exponentially. In many ways, the law has not caught up with these changing technologies," said Rob Bovett, an Oregon district attorney...

Timothy Heaphy, U.S. attorney for the Western District of Virginia, said criminals' use of social networks to reach witnesses has made his job harder. "We deal every day with witnesses who are afraid of being identified," he said.  "If there are increased instances where folks who are incarcerated can reach outside the walls of the jail, that's going to make it more difficult for us to get cooperation." ...

The issue has emerged as cell phones have proliferated behind bars. In California, home to the nation's largest inmate population, the corrections department confiscated 12,625 phones in just 10 months this year.  Six years ago, they found just 261.  The number of phones confiscated by the federal Bureau of Prisons has doubled since 2008, to 3,684 last year....

In the old days, those behind bars would have to enlist a relative or friend to harass or intimidate to get around no-contact orders.  Social networks now cut out the middle man....

Last June, Oregon legislators approved a law prohibiting inmates from contacting their domestic violence victims from behind bars.   In California, prison officials are working with Facebook to identify inmate accounts and take them down. But that only generally happens only after the damage is done.

November 21, 2011 in Offense Characteristics, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (23) | TrackBack

Might the health care litigation finally get SCOTUS to open up to cameras?

The question in the title of this post is prompted by this commentary at Time by Andrew Cohen, which is titled "Why Won’t The Supreme Court Allow TV Cameras?."  Here is how it begins:

When the Supreme Court hears the constitutional challenge to President Obama’s health care program, the American people will be watching.  Well, make that: they should be watching, but they won’t be able to. We live in a media-saturated age, but the Supreme Court remains a camera-free zone.

C-SPAN wrote to the court last week asking for permission to televise the health care case.  C-SPAN would air the arguments itself and make the video available to other media outlets.  After many years of saying no to requests like this one, it is time for the Justices to say yes.

Not only do I agree that the health care SCOTUS arguments should be televised, I strongly believe that all Supreme Court arguments should be recorded on video.  I am not merely a strong advocate in transparency in this context, but I also believe that recorded SCOTUS arguments would make an incredible resource for law students and law schools both in real time and for history.  It would be amazing (and amazingly useful) if law schools could live-stream SCOTUS arguments and then have class discussions about Justices' questions and the lawyers' advocacy.

I am hopeful (though not yet optimistic) that the Justices will come to recognize not only the importance of allowing cameras to cover the health care arguments, but also will thereafter appreciate the potential benefits of having all the Court's arguments recorded.

November 21, 2011 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

November 20, 2011

"Lifers are growing part of prison population"

The title of this post is the headline of this local article from Pennsylvania, which gets started this way:

What's behind the increase of older inmates in the state prison system?  Experts point to everything from aging baby boomers and longer life spans to overall prison population growth and a trend toward stiffer sentences.

"Lifers" make up a sizable portion of the elderly state prison population, said Dr. Larry Rosenberg, a Millersville University assistant professor of sociology who teaches a course on modern corrections.

The elderly prison population also includes repeat offenders incarcerated after their "third strike" and inmates serving long sentences for crimes committed in their 40s and 50s, he said.

Older men are generally less likely to commit violent crimes, Lancaster County District Attorney Craig Stedman said.  His office also prosecutes only a small number of drug dealers over age 40, he said.

But Stedman has noticed a recent increase in older sex offenders. "We do prosecute a lot of older men for these offenses compared to other crimes, and they tend to get the long sentences, which keep them in," he said.

Regardless of why they landed in prison, it's increasingly difficult for inmates of any age to get out.  Nearly 4,800 men and women currently are serving life sentences in state prisons.

November 20, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

New documentary looks at "Young Kids, Hard Time"

Anyone concerned with juvenile crime and punishments (including Supreme Court Justices, who are starting to develop a whole Eighth Amendment jurisprudence on this front) ought to be sure to set their DVRs tonight at 10 pm EST to MSNBC, which will be premiering a one-hour documentary titled " "Young Kids, Hard Time."  A five-minute clip of Act One of the documentary is available at this link, where there is also this summary of the program:

Young Kids, Hard Time is an extraordinary new series from Calamari Productions and MSNBC that throws back the veil on the reality of young kids serving long sentences behind adult prison walls.  With sweeping access to go inside the maximum security Wabash Valley Correctional Facility in Carlisle, Indiana -- the only adult prison in the state of Indiana that houses kids sentenced as adults -- Young Kids, Hard Time reveals what life is like for young kids staring down decades behind bars.  Wabash Valley is home to the Youth Incarcerated As Adults cellblock (YIA), where 53 kids eat, sleep, study and recreate while being alienated from their adult counterparts.  But once a youth turns 18, they are transitioned into the adult population, where thousands of adult prisoners await.

UPDATE:  The Scripps Howard News Service has run a series of articles based on investigation of kids serving adult time, which is reported in these two new pieces:

This second piece includes this notable data:

Nine thousand times a year, U.S. judges move juvenile suspects into criminal court, opening the door to a stay in adult jail. While judges say these transfers are meant for youths suspected of the most dangerous offenses, only two out of five transferred youths stands accused of a violent crime against another person, the Scripps Howard News Service found in analyzing data from almost a quarter-million cases. Most youths moved to adult court are charged with crimes involving drugs, weapons or property....

Most transferred juveniles face charges for crimes other than murder, rape, robbery or assault, National Center for Juvenile Justice data show. The Pittsburgh-based nonprofit publishes records covering 228,771 cases moved from youth court to the adult criminal justice system from 1985 to 2008....

Even a very young age doesn't exempt defendants from transfer. The database shows some 1,528 suspects 12 or younger were transferred, including 623 charged with violent crimes. More — 651 — faced charges of property crimes.

November 20, 2011 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (5) | TrackBack