« December 18, 2011 - December 24, 2011 | Main | January 1, 2012 - January 7, 2012 »

December 30, 2011

Is a plan to "insta-shame" those arrested for drunk driving a good deterrence strategy?

The question in the title of this post is prompted by this new piece from a local Texas paper reporting on a program designed to deter drunk driving offenses during the holidays.  The piece is headlined "Drunk? Drive? Consider your good name," and here are excerpts:

If you drink and drive this holiday weekend, landing in jail might not be your only worry. You could also end up on the Tarrant County district attorney's website, for all the world to see that you've been charged with drunken driving.

The new DWI postings will be part of a "no-refusal" weekend aimed at taking drunken drivers off the road.  More than 25 law enforcement agencies and the district attorney's office will work together to speed up Breathalyzer and blood tests on suspected drunken drivers.

"We're hoping that this will deter people," Assistant District Attorney Richard Alpert said Thursday.  "We don't need more arrests.  We don't need more DWIs.  We are hoping for another fatality-free New Year's weekend."

Those arrested from 10 tonight through 5 a.m. Monday and officially charged with DWI will get their name posted on the website; no photographs will be used.  The no-refusal program will allow police agencies to rapidly obtain search warrants to draw blood from suspected drunken drivers who refuse voluntary testing.  Extra judges and medical personnel will be available to expedite the process.

District Attorney Joe Shannon said he hopes the program will encourage residents to forgo alcohol over the holiday or select a designated driver, rather than have to explain to relatives and friends "what you've been up to and why you didn't get home on time."

Defense attorneys, however, said the postings could violate the civil liberties of those accused of driving drunk.  "I absolutely condemn driving while intoxicated ... but these people are presumed innocent," attorney Richard Henderson said.  "I just don't think that's right."

Attorney Steve Gordon, president of the Tarrant County Criminal Defense Lawyers Association, said the postings could violate state ethics rules for prosecutors.  "There are some people [members] who are very upset about it," Gordon said.  "Is he going to pull the information on the case when he loses?"...

The no-refusal program has been in use for several years on New Year's Eve and other selected holidays. Tarrant County has had only one fatality -- a July Fourth death -- since the program started, Alpert said. 

Last year, 67 people were arrested during New Year's weekend, a sharp drop from the close to 100 drivers in previous years.  Only 18 drivers refused to consent to blood tests, officials said at the time.  Tarrant County handles 5,000 to 6,000 drunken-driving cases each year, Alpert said.

Though it is hard to draw a firm conclusion from just this article, it sounds as though some of the touch techniques being used by law enforcement in Tarrant County are working to reduce drunk driving and associated harms. Consequently, "kudos" is my chief reaction to this story.

December 30, 2011 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Might some death penalty supporters be pleased Oregon's Governor blocked Gary Haugen's execution?

The question in the title of this post was my first thought upon reading this new local article headlined "Gary Haugen describes life on death row; He slams governor for granting reprieve."  (Hat tip: How Appealing.)  Here are excerpts:

Oregon's best-known death row inmate is mired in a familiar rut as he awaits a new year. Gary Haugen says each day at the Oregon State Penitentiary plays out in repetitive fashion, like a darker version of the movie "Groundhog Day."

He pins much of the blame for his fate on Gov. John Kitzhaber who canceled his scheduled Dec. 6 execution. "I woke up on the seventh (of December) and I just felt like ---- man," the 49-year-old inmate said in a recent interview with the Statesman Journal, "this is surreal. This is like 'Groundhog Day,' man. I'm Bill Murray, and he's God."...

For Haugen, death row is a grim reality, with no end in sight. He is locked down in a single cell for nearly 23 hours a day. Haugen doesn't know how long he will languish on "the row."

"I waived all my appeals, so I'm just stuck in limbo," he said. The twice-convicted killer continues to criticize Kitzhaber for foiling his bid to die by lethal injection. Kitzhaber did not commute Haugen's death sentence. He imposed what he called a temporary reprieve.

Haugen rips Kitzhaber for subverting the will of Oregon voters, who reinstated capital punishment in 1984, and for taking away his right to relinquish his appeals and be executed. "If you can't do the will of the people, then get out of the way," he said, referring to Kitzhaber.

Haugen has been on death row since 2007 for the 2003 fatal beating and stabbing of inmate David Polin. He had been serving a life sentence with the possibility of parole for the 1981 beating death of his ex-girlfriend's mother, Mary Archer, of Portland.

The Oregon Supreme Court upheld Haugen's conviction and death sentence in November 2010. Haugen then wrote a series of letters to court officials expressing his frustration about the justice system and stating his desire to waive his future appeals and proceed with his execution....

"I'm just so nauseated with the system that I refuse to participate in this anymore," he said in June. "Believe me, it's not an easy call by any means, but it's one I'm willing to make."

Talking about his topsy-turvy case this month, Haugen again cited his contempt for the legal system as the primary motivation for dropping his appeals and seeking to be put to death. He downplayed death row's extreme isolation and dreary routines as factors. "Look, I never said I couldn't clock the time," he said. "I just said, 'I'm sick and tired of participating under this system.' " He added: "I've been doing this (incarceration) for 30 years. I can do this until stars burn out. That's all I know. But I just said, 'I choose not to.' "....

Haugen subsequently was found competent to drop his appeals, putting the Dec. 6 execution on track. In stopping what would have been Oregon's first execution in 14 years, Kitzhaber said at a Nov. 22 news conference that he has long regretted allowing two executions to go forward, in 1996 and 1997, during his first term as governor.

Asserting that Oregon's death penalty system is "broken" and "a perversion of justice," Kitzhaber declared that he would allow no executions during the remainder of his current term. The Democratic governor called for a statewide debate about capital punishment, and he vowed to ask lawmakers to "bring potential reforms before the 2013 Legislature."

Haugen slams Kitzhaber for waiting until two weeks before the scheduled execution to act on his conscience and for putting off potential capital punishment reforms until 2013. "If you're saying the system is broken, how are you going to allow individuals to sit back and litigate in a broken system?" he asked, referring to the 36 other Oregon inmates on death row who are pursuing appeals.

I assume at least a few (some? many?) death penalty supporters are not generally pleased when an inmate's execution takes place only because the inmate himself has expressed an interest in dying. (After all, one hears relatively few calls for helping those on death row commit suicide.)  Consequently, perhaps a few (some? many?) capital punishment supporters may be pleased that multiple murderer Gary Haugen is not getting his death wish, and that he is pretty grumpy about the limbo in which Oregon's Governor has now placed him.  

I certainly have little sympathy for Haugen's belly-aching, and I cannot help but think a kind of through-the-looking-glass kind of justice has now been achieved in this case.  I am also wondering if refusing to execute a murderer like Haugen who wants to die is a perverse way to make both death penalty abolitionists and death penalty supporters pleased with the operation of our legal system. 

December 30, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5) | TrackBack

Assessing reasons for California's steep drop in death sentences in 2011

67058367The Los Angeles Times has this new piece noting the signficant drop in California in the number of new death sentences handed down in 2011.  The piece is headlined "Annual total of death sentences in California falls to 10: The prior two years had each seen capital punishment ordered for 29 criminals. Analysts say a broken appeals process is driving the trend, and some observers cite tight budgets prosecutors face."  Here are excerpts:

The number of death sentences issued in California dropped this year to 10, one of the lowest levels since the state reinstated capital punishment in 1978.  The decline, from 29 in each of the last two years, may signal that the decades-long appeals process for capital convictions and a 6-year-old moratorium on executions have encouraged prosecutors to seek life sentences without the possibility of parole in more murder cases....

Legal analysts on both sides of the debate say a broken appeals process is driving the trend.  Prosecutors faced with tight budgets have had to make tough choices about the time and money needed to pursue a death sentence, while some family members of murder victims have pressed them to pursue the swifter justice of lifelong imprisonment with no chance of getting out....

Some of the decrease in death sentences can be attributed to the electoral success of district attorney candidates who pledged to be more discerning in deciding which homicides should be prosecuted as capital cases.  Riverside County imposed just two death sentences this year, compared with six in 2010.  Dist. Atty. Paul Zellerbach said he is reviewing 56 capital cases that were pending when he took office in January....

Legal experts who monitor capital punishment say the budget cuts imposed on local governments across the state have played a role in discouraging prosecutors from seeking the death penalty.  "It would be stunning if prosecutors were not impacted by these developments.  The financial issues just have to weigh significantly in some cases because prosecutors, defense lawyers and everyone involved in government in California has had to make extraordinarily difficult choices about how to spend the resources they have, and they are well aware of what capital cases cost," said Elisabeth Semel, a UC Berkeley law professor and founder of the school's death penalty clinic....

Those who support maintaining the death penalty as a sentencing option express frustration with a system that has carried out only 13 executions in 34 years. "The fact that executions aren't being carried out has a discouraging effect" on prosecutors' willingness to push for a death penalty, said Kent Scheidegger of the Criminal Justice Legal Foundation. The time and cost of prosecution and appeals continue to increase "as defendants and defense lawyers drag things out," he said.

Scheidegger said the state needs to keep the death penalty as an option because it causes some defendants to plead guilty in exchange for life without parole, leverage that wouldn't exist without the threat of execution.

That threat may remain illusory for years. A Marin County judge earlier this month threw out newly drafted lethal injection procedures, ruling that state officials ignored the law's requirement of meaningful public participation in the process. The judge also criticized corrections officials for failing to consider a one-drug execution method used by some states.

Nationwide, the number of new death sentences in 2011 fell to 78 from last year's 112, according to the Death Penalty Information Center, a nonprofit archive run by advocates of abolition. That was the lowest sentencing level since the U.S. Supreme Court reinstated capital punishment in 1976.

December 30, 2011 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (0) | TrackBack

Oregon Commission on Public Safety calling for significant sentencing reforms

As reported in this local article, a "state commission examining Oregon's justice system Thursday recommended an overhaul of the state's sentencing laws, increased spending to drive down recidivism, and improved programs to care for crime victims."  Here are more of the details:

The state Commission on Public Safety will deliver its recommendations Friday to Gov. John Kitzhaber, who appointed the commission earlier this year. The commission met by teleconference Thursday to approve its report.

"Many opportunities exist to improve how Oregon protects its residents from crime while limiting or reducing costs to government, to the public and to victims of crime," said state Chief Justice Paul DeMuniz in a cover letter to the report. DeMuniz chaired the commission....

The commission took pains not to recommend specific changes in state sentencing laws, but rather urged the governor to continue the group's work. The group proposed that it prepare a reform package for the 2013 Legislature. The group recommended state judges get more discretion at sentencing, and that more should be done to cut recidivism.

"Oregon can increase public safety at less cost by investing in the most cost effective programs targeted at offenders for the purpose of reducing recidivism, preventing future crime and victimization," the report said. The commission also recommended that some savings from less reliance on prison should be dedicated to helping crime victims.

Commission members besides DeMuniz included former Gov. Ted Kulongoski, state Sen. Jackie Winters (R-Salem), state Sen. Floyd Prozanski (D-Eugene), state Rep. Andy Olson (R-Albany), state Rep. Chris Garrett (D-Lake Oswego), and Dick Withnell, a Salem business executive.

Much of the work and lots of documents related to the work of the Oregon Commission on Public Safety can be found via this effective state website.  I expect the commission's report will be posted on that site before too long.

December 30, 2011 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1) | TrackBack

December 29, 2011

Washington state voters appear likely to vote on ending pot prohibition in 2012

As this AP article reports, "[s]upporters of an effort to legalize and regulate the recreational use of marijuana in Washington state plan to turn in signatures this week to qualify their initiative."  Here is more:

New Approach Washington expects to turn in more than 355,000 signatures to the secretary of state's office on Thursday, said the group's campaign director, Alison Holcomb. An initiative to the Legislature requires at least 241,153 valid signatures of registered state voters to be certified, though the secretary of state's office suggests at least 320,000 as a buffer for any duplicate or invalid signatures.

Initiative 502 would create a system of state-licensed growers, processors and stores, and impose a 25 percent excise tax at each stage. Those 21 and over could buy up to an ounce of dried marijuana; one pound of marijuana-infused product in solid form, such as brownies; or 72 ounces of marijuana-infused liquids. It would be illegal for a motorist to have more than 5 nanograms of THC per milliliter of blood in their system. THC is the active ingredient of cannabis....

Once the initiative goes to the Legislature, it has to take action during the upcoming 60-day legislative session that begins Jan. 9 or the measure automatically goes to the November ballot. The initiative has several high-profile sponsors, including former Seattle U.S. Attorney John McKay and travel guide Rick Steves.

A spokeswoman for Gov. Chris Gregoire said that she has concerns about the legalization initiative because of the conflict with the federal government, which still says the drug is illegal. "Even if this were to pass, we'd still have to deal with federal law," said spokeswoman Karina Shagren.

Shagren said that Gregoire would prefer to focus on getting clarity when it comes to medical marijuana laws. She noted that the governor's focus is on a recent petition that she and Rhode Island Gov. Lincoln Chafee filed with the U.S. Drug Enforcement Administration asking the agency to reclassify marijuana so doctors can prescribe it and pharmacists can fill the prescription.

Washington state already has a voter-approved medical marijuana law that gives doctors the right to recommend — but not prescribe — marijuana for people suffering from cancer and other conditions that cause "intractable pain."...

Washington isn't the only state considering marijuana legalization.  Colorado will vote next year if a similar measure there makes the ballot.  Supporters there are expected to turn in signatures in the coming weeks to qualify for the November ballot.

While the AP article mentions that Colorado will likely have a legalization measure on the ballot in 2012, it fails to mention the high likelihood that a similar measure will also appear on California ballots.  Though it is way too early to make firm prediction on such matters, if these three states all have reasonable ballot proposals to end pot prohibition, I would put the odds that at least one state will have fully legalized marijuana next year at over 50/50.

I have seen talk of a pot legalization ballot effort in Montana and a few other western states, too, but I am not sure these efforts are as likely to get before voters.  In addition, I know a handful of other states are likely also to have medical marijuana issues before the voters in 2012 (Florida and Ohio are two big states in which I have seen the issue discussed).  

I think an enterprising lawyer or political operative or pundit or blogger would be wise to jump on this movement and develop some (non-partisan?) expertise on the wide array of dynamic legal, political and practical issues that all these initiative are sure to post for 2012 and beyond.  In so many ways, the import and impact of pot law and policy is growing like a weed.

December 29, 2011 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences | Permalink | Comments (3) | TrackBack

Is there any good reason for Governor Jerry Brown NOT to grant clemency to Shirley Ree Smith?

Shirley-smithThe question in the title to this post is prompted by this new article in the Los Angeles Times, which is headlined "Gov. Jerry Brown weighs clemency petition for a grandmother."  Here are the basics: 

Gov. Jerry Brown is giving strong consideration to a clemency petition for a grandmother whose conviction for shaking her infant grandson to death was overturned by an appeals court and reinstated by the U.S. Supreme Court, lawyers close to the case said.

The governor, who received the petition Wednesday, is being asked to commute the life sentence of Shirley Ree Smith, a 51-year-old grandmother who was sentenced to 15 years to life in 1997 for causing the death of a child.

Although Brown is notoriously unpredictable, a longtime advisor said he would be "very surprised" if Brown did not grant clemency to Smith, who has spent 10 years in prison for a death she has maintained was a tragic case of Sudden Infant Death Syndrome, not a crime against a beloved child.

A federal appeals court found "no demonstrable support" for the prosecution's claim that Smith shook 7-week-old Etzel Glass to death in 1996 and granted her release from prison in 2006 after striking her conviction by a Van Nuys jury.  But the U.S. Supreme Court in October reinstated the conviction on the grounds that courts should not second-guess verdicts "supported by the record."

The high court admitted that doubts about Smith's guilt were "understandable," and three justices penned a dissent criticizing the majority in the 6-3 decision for intervening to assert a procedural point.

A growing number of medical experts have questioned the science behind so-called "shaken baby" cases, especially those decided in decades past. Smith's trial took place only weeks after the headline-grabbing case of British nanny Louise Woodward brought the fatal act of child abuse to the nation's attention.

Clemency petitions are generally futile, granted mostly when governors are leaving office. But Smith's case so concerned some federal judges that they privately reached out to ensure that the petition got Brown's close attention, lawyers said.

Three weeks ago, a clerk from the 9th Circuit called Michael Brennan, Smith's attorney, asking if he was going to file a clemency petition.   Brennan said he told her he would but considered it futile.  "All the clerk said was, 'You might be mistaken. A petition might be well received,' " Brennan said. "Clearly, she was sort of saying, 'File the petition.' "

Smith, reached at her home in Kankakee, Ill, said she has been living on tenterhooks waiting for word on whether she must go back to prison to serve the remainder of her sentence.   "I've been trying to find someone who can explain to me what's going on," said Smith, who was hoping to follow her daughter to Minnesota so she could continue babysitting her younger grandchildren.  "The lawyers keep saying this isn't about me, it's about the courts and the law on decisions.  But how can it not be about me when I'm the one who may have to go back to prison?"

In the fall of 1996, Smith moved to Van Nuys from Illinois to help her daughter Tomeka care for newborn Etzel, 14-month-old Yondale and 3-year-old Yolanda. On the night of Etzel's death, Smith was sleeping in the living room of her sister's apartment with the three grandchildren. When she got up to use the bathroom, she found him lifeless and summoned paramedics. An emergency room physician listed the cause of death as SIDS.

An autopsy revealed a small pool of blood on the baby's brain, which two officials in the medical examiner's office testified at Smith's trial was the result of violent shaking. Neither defense expert testimony that the baby probably died of SIDS nor Tomeka's assertions that her mother had never raised a hand against her or her children dissuaded jurors from the prosecution's theory that Smith had become irritated by the infant's crying and shook him to make him stop.

Given that the majority opinion in the Supreme Court ruling that reinstated Sirley Ree Smith's conviction make express reference to the clemency process (noted here), I find it disturbing — and perhaps a telling indication of the sorry state of modern clemency politics and practice — that her lawyer considered a clemency petition to be likely futile.  Moreover, as the title of this post suggests, I have a hard time coming up with a reason why Governor Brown should not commute Smith's sentence to time served.

Smith claims she is innocent, and there seems little dispute that the evidence she committed any crime is less than lock solid.  If she is indeed innocent (and Governor Brown is convinced of this fact), a mere sentence commutation is really an insufficient clemency response, but still justified and justifiable.  And, based on what I have read, it does not seem that the prosecution ever claimed Smith meant to kill her grandchild.  Thus, even if she was involved in the child's death, the decade Smith has spent in prison surely strikes me as more than enough prison time to punish someone for accidentally causing an infact's death.  Finally, California surely cannot afford "wasting" scarce prison monies and space on a person who would seem to pose no threat to the public and whose own daughter apparently still wants her involved in the care of her grandchildren.

I suppose one could urge resisting the arguments for clemency here by taking the view that a Governor should never grant clemency for any reason in any case. (My understanding is that Mitt Romney has express such a view in the past.)  But unless you are absolutely against the exercise of clemency in every case, I wonder if there is any reason not to support clemency in this case.

December 29, 2011 in Clemency and Pardons, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10) | TrackBack

An effective review of the SCOTUS year that was(n't much)

Writing in The National Law Journal, Tony Mauro and Marcia Coyle have put together this lovely review of Supreme Court highlights from 2011.   The piece is headlined "Aside from Wal-Mart, few huge cases at high court; In business cases, there were rulings that pleased and angered both sides."  Here is the start of the piece along with are a few of the passages discussing some criminal justice SCOTUS happenings from the year that was:

The year 2011 at the U.S. Supreme Court was the calm before — and after — the storm.

The Court was no longer fodder for the State of the Union address, as it was in 2010. Few of the cases it decided in 2011 had the incendiary impact of the Citizens United decision of 2010 — or of the high-profile cases it will decide in 2012. The Court has agreed to hear cases on the Affordable Care Act, redistricting in Texas, Arizona's tough immigration law, broadcast indecency and environmental regulation, among others.  For a Court that views itself as apolitical and above the fray, 2012 will place the justices in the headlines plunk in the middle of a presidential campaign....

Other highlights and lowlights of this year at the Supreme Court: ...


California fared worse than Arizona in 2011. A bitterly divided Court, citing "needless suffering and death" in California prisons, upheld a court order requiring the state to reduce its prison population by an estimated 40,000 prisoners within two years to relieve overcrowding. The decision in Brown v. Plata, written by Justice Anthony Kennedy, drew a stinging dissent from Justice Antonin Scalia, who wrote that the Court was affirming "what is perhaps the most radical injunction issued by a court in our Nation's history." The state also lost the violent video game wars when the justices struck down on First Amendment grounds the state law barring the sale or rental of those games to minors.


To underscore the crowded conditions in California jails in the Plata case, Kennedy added some dramatic photographs in an appendix to his majority opinion.  Drawn from the trial record, they looked like photos from a magazine exposé or a documentary.  The use of photographs, maps or other images is extremely rare in Supreme Court decisions, and usually confined to redistricting cases or border disputes.  North Carolina lawyer Hampton Dellinger, who once catalogued the use of photos in Court rulings, said the practice should remain rare.  "Justices have plenty to disagree over, wielding words alone," he opined. "With today's visual technologies — more manipulable than ever — any movement towards making photos a regular part of the Court's opinions will likely lead to more arguments among the justices rather than less."...


The Court also continued a revolution begun in 2004 to revitalize the Sixth Amendment's confrontation clause. The justices, whose divide in these cases is not along the usual ideological lines, held that prosecutors may not introduce a forensic lab report containing a testimonial certification through the in-court testimony of an analyst who did not sign the document or personally observe the test.  The revival of the confrontation clause continued this term with a case heard in December....


Scalia once said writing dissents made life bearable.  By that measure, June 9 was a red-letter day.  He dissented in Sykes v. U.S. and introduced a new word to the Supreme Court lexicon.  Kennedy wrote the 6-3 majority opinion, interpreting the Armed Career Criminal Act.  The Court found that fleeing from a law enforcement officer counted as a violent crime for purposes of the law.  That, Scalia said, represents "a fourth ad hoc judgment that will sow further confusion.  Insanity, it has been said, is doing the same thing over and over again, but expecting different results.  Four times is enough."  He did not stop at implying his colleagues were nuts.  Scalia made mincemeat of Kennedy's analysis in what he called the majority's "tutti-frutti opinion."

December 29, 2011 in Recap posts, Who Sentences | Permalink | Comments (0) | TrackBack

December 28, 2011

Intriguing list of "Ten Most Significant Criminal Justice Stories of 2011"

Over at The Crime Report, this new special report sets forth a list of "The Ten Most Significant Criminal Justice Stories of 2011." Here is part of the set up authored by Stephen Handelman, Executive Editor of The Crime Report, and then just the list without the accompanying descriptions:

What we want to celebrate and take note of — more than anything else — are developments in criminal justice policy, practice and theory that challenge preconceptions and break new ground; and that are worth following up in 2012.   Lists are inevitably subjective. Your list may be different from ours — and that’s fine.  We want to hear your comments, suggestions, ideas — and criticism.

Some of our choices cover ideas and approaches begun years before--but for one reason or another showed special promise or produced interesting and replicable results in 2011. Many of the programs that attracted headlines or commentary this year in fact had their roots in the paradigm-busting ideas of a few hardy thinkers as much as a decade ago.

One final note, which we can’t over-emphasize: this list includes notable accomplishments on both the left and the right of the spectrum: we honor both the Right on Crime movement begun by conservatives and new civil rights activism by Eric Holder’s Justice Department — underlining The Crime Report’s rigorous non-partisanship.

1.  Right on Crime

2.  Eyewitness ID

3.  Hawaii HOPE experiment

4.  Non-incarceration interventions utilized by San Francisco

5.  Changing rape definition

6.  Think Outside the Cell

7.  New Media In Criminal Trials

8.  DOJ Website crimesolutions.gov

9.  Revival of US DOJ civil rights division

10.  Justice Realignment (California)

As is the case with most "Top 10" lists, I find some of these choices compelling and others curious.  In my view, the biggest omission is the decline in the nation's imprisoned population for the first time in many decades (which is also taking place at the same time as a continue decline in crime rates).

December 28, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recap posts, Who Sentences | Permalink | Comments (2) | TrackBack

California having success(?) in complying with Plata prison reduction order

According to this new local media report, "California’s prison system has been shedding an average of 933 inmates a week since the governor’s realignment plan took effect this fall, and the state almost hit a court-mandated goal to reduce the population to 133,000 inmates by Dec. 27." Here is more:

As of today, the state’s prisons held 134,804 inmates — just 1,800 short of the target and far closer to that goal than many expected. California prison officials announced the numbers Tuesday and said they are in the midst of preparing a report, due by Jan. 10, that details the progress made toward meeting the court-ordered reductions.

The U.S. Supreme Court ruled in May that California must obey a lower court order to reduce its prison population, agreeing with federal judges who had found that overcrowding was the main cause of “grossly inadequate provision of medical and mental health care.” In the 5-4 ruling, the high court agreed that the prison system — which has held nearly twice its designed capacity for more than a decade — should cut its population to 110,000 by spring of 2013. The court also and set a series of benchmarks for state officials to reach before then.

While state officials did not meet the first target — 167 percent of designed capacity, or 133,000 inmates — by Dec. 27, they got pretty close. In a short statement announcing the numbers, prison officials appeared to credit Gov. Jerry Brown’s realignment plan for the progress. The plan calls for most lower-level and nonviolent offenders to serve their prison sentences in local jails and report to county probation departments instead of the state parole agency upon release. In the written statement, prison officials said the plan — instituted Oct. 1 — has resulted in state prisons taking in an average of 933 fewer inmates per week.

The progress puts the state exactly where it said it would be in an August court filing. In that filing, state officials predicted they would miss the 167 percent by two percentage points (the system is now at 169.2 percent of capacity) but would hit the next goal, a reduction to 155 percent, or 124,000 inmates, by June 27.

I have placed a question mark following the work success in the title to this post because simply meeting court-ordered prison reduction benchmarks is not the only real measure of how successful California is being with its prison-reduction efforts.  But if crime continues to decline in the state AND the prison population keeps shrinking, then California will truly have had a successful response to the Plata litigation.

December 28, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

December 27, 2011

Effective Washington Post commentary talks up great (and still puzzling) crime decline

Charles Lane has this new commentary in the Washington Post headlined "Taking a bite out of crime." Here are excerpts:

The most important social trend of the past 20 years is as positive as it is underappreciated: the United States’ plunging crime rate.

Between 1991 and 2010, the homicide rate in the United States fell 51 percent, from 9.8 per 100,000 residents to 4.8 per 100,000.  Property crimes such as burglary also fell sharply during that period; auto theft, once the bane of urban life, dropped an astonishing 64 percent.  And FBI data released Dec. 19 show that the trends continued in the first half of 2011.  With luck, the United States could soon equal its lowest homicide rate of the modern era: 4.0 per 100,000, recorded in 1957.

To be sure, the United States is still more violent than Europe or Canada, and that’s nothing to brag about.  But this country is far, far safer than it was as recently as the late 1980s...

We are reaping a domestic peace dividend, and it can be measured in the precious coin of human life.  Berkeley criminologist Franklin E. Zimring has found that the death rate for young men in New York today is half what it would have been if homicides had continued unabated.

The psychological payoff, too, is enormous.  Only 38 percent of Americans say they fear walking alone at night within a mile of their homes, according to Gallup, down from 48 percent three decades ago.  For my teenage son and his classmates, dread of crime is far less prevalent than it was in my generation....

Lower crime rates also mean one less source of political polarization.  In August 1994, 52 percent of Americans told Gallup that crime was the most important issue facing the country; in November 2011, only 1 percent gave that answer.  Think political debate is venomous now?  Imagine if law and order were still a “wedge issue.”

Did I mention the economic benefits?  Safe downtowns draw more tourists for longer stays. Fewer car thefts mean lower auto insurance rates.  Young people who don’t get murdered grow up to produce goods and services.

Plunging crime rates also debunk conventional wisdom, left and right.  Crime’s continued decline during the Great Recession undercuts the liberal myth that hard times force people into illegal activity — that, like the Jets in “West Side Story,” crooks are depraved on account of being deprived.  Yet recent history also refutes conservatives who predicted in the early 1990s that minority teenage “superpredators” would unleash a new crime wave.

Government, through targeted social interventions and smarter policing, has helped bring down crime rates, confirming the liberal worldview.  Yet solutions bubbled up from the states and municipalities, consistent with conservative theory.  Contrary to liberal belief, incarcerating more criminals for longer periods probably helped reduce crime.  Contrary to conservative doctrine, crime rates fell while Miranda warnings and other legal protections for defendants remained in place.

On the whole, though, what’s most striking about the crime decline is how little we know about its precise causes.  Take the increase in state incarceration, which peaked at a national total of 1.4 million on Dec. 31, 2008.  This phenomenon is probably a source of success in the war on crime — and its most troubling byproduct.  But increased imprisonment cannot explain all, or most, of the decline: Crime rates kept going down the past two years, even as the prison population started to shrink....

“What went wrong?” is the question that launched a thousand blue-ribbon commissions. But we also need to investigate when things go right — especially when, as in the case of crime, success defied so many expert predictions.

I certainly agree that the modern crime decline over the last 20 years is a cause for great celebration and intense examiniation, and also that the benefits resulting from this crime decline are broad and varied. (I would add one important caveat, though, especially after Lane stresses that "Young people who don’t get murdered grow up to produce goods and services": more people not murdered also means more people growing old, seeking entitlement benefits, and driving up health care costs as they age.)

I fully agree with Lane's suggestion about creating a blue-ribbon commission to investigate the great crime decline. Indeed, I would think it would make for very good politics, as well as good policy, for President Obama or Attorney General Holder to create just such a commission to explore these issues throughout 2012.  Especially in the wake of the failure of Congress to create the National Criminal Justice Commission pushed by retiring Senator Jim Webb (basics here), the President and AG Holder could and would make lots of positive headlines by inviting folks like Webb and, say, former AG John Asahcroft and some state AGs to be part of an executive working group to make assessments about what may be the best explanations for why governments are continuing to do so well with crime control.

Some related posts on the great modern crime decline:

December 27, 2011 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (45) | TrackBack

"California executions remain in everlasting limbo"

The title of this post is the headline of this new piece in the San Jose Mercury News.  Here are excerpts:

As California nears its sixth year without an execution, state officials find themselves once again grappling with a judge's order that concludes they've botched crafting a new and legal method of putting condemned killers to death by lethal injection.

For the third time during the six-year moratorium on executions, a judge has ordered the state back to square one in creating new lethal injection procedures. The development all but ensures San Quentin's death chamber will remain dormant until at least well into 2013.

The timing could be important: The issue will draw heightened debate next year against the backdrop of a ballot measure designed to repeal the death penalty and replace it with life in prison without the possibility of parole.

And last week, California Supreme Court Chief Justice Tani Cantil-Sakauye added her voice to the debate, telling the Los Angeles Times the death penalty is "not effective" and needs an overhaul the state cannot afford....

Death penalty foes have pounced quickly on a Marin judge's order earlier this month scrapping California's latest version of its lethal-injection method. They cite it as another example of why voters should do away with a seldom-used punishment on the state's 720-inmate death row, the nation's largest.

Meanwhile, death penalty advocates find the state's lengthening pattern of bungled bids to kick-start executions maddening. "Some frustration is an understatement," said Kent Scheidegger, executive director of the Criminal Justice Legal Foundation, a leading death penalty group....

The latest roadblock to executions is part of two separate but related legal challenges unfolding in the state and federal courts. In last week's order, Marin County Superior Court Judge Faye D'Opal found California failed to follow proper state administrative procedures when it adopted a new lethal-injection procedure in 2010.... D'Opal identified numerous flaws in the state's method but singled out the fact that prison officials failed to explain why they did not choose a single-drug method that involves using a fatal dose of a sedative to execute the condemned. California's own expert recommended using that method to replace the three-drug combination used in past executions, which has been challenged because of concerns the third and final paralytic drug can mask an inmate's pain before death.

Two states, Ohio and Washington, have already opted for the single-drug option. And as early as 2006, San Jose U.S. District Judge Jeremy Fogel essentially invited California to resolve the legal challenge to lethal injection by switching to the single-drug method because it would eliminate worries about the effect of the third drug. But California stuck to the three-drug method -- and finds itself back at the drawing board....

Scheidegger has urged state prisons chief Matthew Cate to adopt the single-drug method to move executions forward. And he maintains that state officials can end run the administrative process by citing "operational needs" to avoid further delays. "All he has to do," Scheidegger said, "is click his ruby slippers and say, 'one drug, operational needs.' There is no excuse for holding up justice any longer."

The story of California's abject inability to reform its lethal injection protocol successfully in the last six years is both sad and comical.  In the end, it is very hard not to think that many state actors are really not much interested in getting its machinery of death operational again.   

December 27, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (18) | TrackBack

ACLU blog provides series of notable year-end posts

I am pleased to see that the folks at the ACLU have had the energy and inspiration to do a series of posts recapping the year that was in criminal justice news and developments.  Here are links to these posts:

December 27, 2011 in Death Penalty Reforms, Prisons and prisoners, Recap posts, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

December 26, 2011

Lengthy new New Yorker piece on juve LWOP and 14-year-old Michigan murderer

2012_01_02_p323The January 2, 2012 issue of The New Yorker (which had an awesome cover I could not avoid posting) has this lengthy piece discussing life without parole sentences for juvenilines. The piece, authored by Rachel Aviv, is titled simply "No Remorse: Should a teen-ager be given a life sentence?".  Here is the abstract provided by the magazine's website:

Shortly after midnight on March 6, 2010, Dakotah Eliason sat in a chair in his bedroom with a .38-calibre pistol in his hands, thinking about what the world would be like if he didn’t exist.  Earlier that night, Dakotah, who was fourteen, had taken his grandfather’s loaded gun off the coatrack.  Dakotah wondered if he was ready to die, and contemplated taking someone else’s life instead.  He walked into the living room and stared at his grandfather, Jesse Miles, who was sleeping on the couch. A retired machinist and an avid hunter, Jesse often fell asleep while watching the Discovery Channel.  For forty-five minutes, Dakotah sat on a wooden chair, three feet from his grandfather, and talked to himself quietly, debating what to do next. If he got hand towels from the bathroom, he could gag his grandpa. If he used a steak knife, the whole thing might be quieter.  He figured he’d use the cordless phone on his bed to report the crime.  He felt as if he were watching a movie about himself.  Finally, at just after three in the morning, he raised the handgun, his arms trembling, and shot his grandfather in the head.  “Man, I shot Papa!” he shouted.  He put the gun on the floor and rushed into his grandmother Jean’s bedroom. She yelled for Dakotah to call 911. When officers from the police department in Niles, a rural town in southeast Michigan, arrived seven minutes later, Dakotah was waiting outside next to his grandmother.

Tells about Dakotah’s arrest and his trial as an adult for first-degree murder, which in Michigan carries a mandatory sentence of life imprisonment without the possibility of parole.  Discusses the history and evolution of the American juvenile justice system. Although judges have long been attuned to the difficulty of trying mentally ill defendants, there is little recognition that people may be incompetent to stand trial because of their age. Each year, more than two-hundred thousand offenders younger than eighteen are tried as adults, yet only about half of them understand the Miranda warning.  Discusses recent and upcoming Supreme Court cases on the sentencing of juveniles.  Dakotah was found guilty of first-degree homicide and sentenced to life in prison without parole.  Writer visits Dakotah in prison.  Discusses his relations with family and with other prisoners.

This piece is quite timely as the top-side briefs are soon to be filed in the big Eighth Amendment juve LWOP cases of Jackson and Miller.  According to the docket information at the SCOTUS website, the petitioners' briefs are due to be filed on January 9, 2012 (and that, in turn, means the amicus briefs to be filed in support of the juve defendants will be filed by January 16, 2012).  I am very interested to see how both petitioners and amici develop their arguments in these cases because there are so many distinct ways to pitch the argument that their sentences are constitutionally problematic.

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

December 26, 2011 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

"Mom of 4 reflects on first year in prison for $31 pot sale"

The title of this post is the headline of this new article in the Tusla World, which provides an update on a state drug sentencing story that I have previously covered.  Here are excerpts from the interesting piece:

[Patricia] Spottedcrow, 26, was arrested and charged for selling $31 in marijuana to a police informant in December 2009 and January 2010.  [Her mother, Delita] Starr, 51, was also charged. Because children were in the home, a charge of possession of a dangerous substance in the presence of a minor was added.

In blind pleas before a judge, Spottedcrow received a 12-year sentence and her mother received a 30-year suspended sentence.  Neither had prior criminal convictions. The judge sentencing the two said she allowed Starr to avoid prison so she could care for Spottedcrow's children.

When Spottedcrow was booked, after her sentence was handed down, marijuana was found in the jacket she was wearing. She pleaded guilty to that additional charge and was sentenced to two years running concurrent with the previous sentence.

After her story was published in the Tulsa World, a groundswell of support grew. Supporters expressed concern with possible racial bias, unequal punishment among crimes, women in prison, effects on children of incarcerated parents and extreme sentences for drug offenses.

Oklahoma City attorney Josh Welch has been donating his services to fight what he calls an inequitable punishment.  In October, a Kingfisher County judge took four years off her sentence. The judge issued an order rather than allow her an appearance in court. Her attorney and supporters believe it was to avoid the crowd expected to be at the courthouse that day.

Welch said he plans to file for post-conviction relief, alleging the original attorney was ineffective and had a conflict in representing Spottedcrow and her mother. He plans to make the filing in early January and submit an early parole packet at the same time. "We are grateful to get four years taken off her sentence but still believe the sentence is unjust and excessive," Welch said....

"The first eight months were a blur," Spottedcrow said. "I just cried a lot. It's like I woke up a couple of months ago." Her daily schedule starts with breakfast at 5:30 a.m., followed by her job in the laundry. At 4:30 p.m., she is released and goes to the gym, followed by dinner and then church at 7 p.m.  "You have to try and keep your mind busy," she said. "It's easy to get sad, depressed and stuck in your own head in here."

Prison is no picnic, even at a minimum-security campus like Eddie Warrior, she said. "I took for granted using the bathroom by myself, what clothes you can wear and being able to pick up and go to the store when you want," Spottedcrow said.  "I hate not being able to use your own shampoo and you are limited to spending $10 a month (in the commissary)."

But it's her kids taking up most of her thoughts.  "I was there every day taking of care of them before this," she said.  "I did everything from going to football games and PTA."

While in prison, Spottedcrow has taken parenting classes, finished her GED and participates in a grief/loss recovery program, a behavior course, Alcoholics Anonymous/Narcotics Anonymous and a faith-based program.  She is on a waiting list to begin higher education and Career Tech classes.  "The life I was living before, that's over," Spottedcrow said. "I'm not playing with my life anymore. I would never chance this again for my children."

Spottedcrow never denied she smoked pot but said she was never a drug dealer or ever used or sold marijuana in front of her children.  "I got myself in this situation, and I'm not saying I shouldn't be punished," she said.  "But I think this is a little excessive, especially looking at other cases from my county.  And I'm sleeping next to people who have killed people, and they have less time than me. There are days I really can't believe I'm in prison."

In prison, she has had three misconducts: one for bartering when she gave an inmate cigarettes, one for having contraband when cookies were found in her locker without a receipt and another for aiding and abetting when she did not tell authorities a woman put bleach in the laundry area.  "I have a big heart," she said.  "When I see someone in need, like for food, I want to help if I can.  But you can get a misconduct in here for the littlest things."...

At the Kingfisher home, it's been a tough existence and one that is relying on the generosity and help of others.  Spottedcrow's oldest child has been acting out since her incarceration.

"He's in trouble for stealing, and his mouth is real swift and sharp," Starr said.  "He blames me a lot for what happened to his mother.  The girls want to cry a lot.  They don't like to listen to me, saying, 'You're not my mother.' We struggle every day."

Related prior posts on Spottedcrow's crime and punishment:

December 26, 2011 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Race, Class, and Gender | Permalink | Comments (17) | TrackBack

California's chief justice joins growing chorus lamenting state's ineffective death penalty

The Los Angeles Times ran this notable piece a few days ago under the headline "California chief justice urges reevaluating death penalty; Chief Justice Tani Cantil-Sakauye, one of the high court's more conservative members, says the death penalty is no longer working for the state." Here is how the piece begins:

Chief Justice Tani Cantil-Sakauye, who heads the state's judicial branch and its highest court, said in an interview that the death penalty is no longer effective in California and suggested she would welcome a public debate on its merits and costs.

During an interview in her chambers, as she prepared to close up shop for the holidays, the Republican appointee and former prosecutor made her first public statements about capital punishment a year after she took the helm of the state's judiciary and at a time when petitions are being gathered for an initiative to abolish the death penalty.

"I don't think it is working," said Cantil-Sakauye, elevated from the Court of Appeal in Sacramento to the California Supreme Court by former Gov. Arnold Schwarzenegger. "It's not effective. We know that." California's death penalty requires "structural change, and we don't have the money to create the kind of change that is needed," she said. "Everyone is laboring under a staggering load."

In response to a question, she said she supported capital punishment "only in the sense I apply the law and I believe the system is fair.... In that sense, yes." But the chief justice quickly reframed the question. "I don't know if the question is whether you believe in it anymore. I think the greater question is its effectiveness and given the choices we face in California, should we have a merit-based discussion on its effectiveness and costs?"

Cantil-Sakauye's comments suggest a growing frustration with capital punishment even among conservatives and a resignation that the system cannot be fixed as long as California's huge financial problems persist.

Her predecessor, retired Chief Justice Ronald M. George, was similarly disheartened. A former prosecutor who defended the state's death penalty before the U.S. Supreme Court, George concluded in his later years on the California Supreme Court that the system was "dysfunctional."

Cantil-Sakauye, 53, alluded to the proposed ballot measure to replace the death penalty with life without possibility of parole but declined to say whether she supported that plan. "That really is up to the voters or to the Legislature," she said, asking whether the criminal justice system can "make better use of our resources."

December 26, 2011 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack