Sentencing Law and Policy

Former prisoners as consultants to prison-bound white-collar offenders

This interesting Chicago Tribune piece, headline "Ex-cons offer prison primers for soon-to-be incarcerated execs," reports on the "handful of consultants nationwide who gear their [sentencing and prison advice] services toward a white-collar population that includes mortgage fraudsters, tax evaders and Ponzi-schemers."  Here are some of the details:

The cottage industry is dominated by ex-offenders, retired jailhouse employees and advocates who support prison alternatives.  High-profile cases during the 1980s and '90s, including the prosecutions of corporate raider Ivan Boesky and former junk bond financier Michael Milken — both of whom used prison consultants — have helped heighten awareness.

Some criminal defense attorneys remain skeptical, and question whether the consultants can deliver what they promise.  But today's economic downturn has provided no shortage of work.

John Webster, a former attorney who served time in federal prison after lying for a client, started the Nashville, Tenn.-based National Prison and Sentencing Consultants in 2002.  At first, few people had heard of his industry.  "Now it's gotten to where a lot of people see the need and the benefit," he said.  "With the meltdown of the real estate industry, we had a lot more mortgage brokers who were getting indicted."  He charges $3,500 to $10,000 for prison coaching.

Some consultants are flashy, like ex-convict Larry Levine, whose Los Angeles-based operation asks on its website: "Going from the Exchange Floor to the Prison Yard?" Levine's clients include a former Highland Park couple, Robert and Virginia Carter, convicted in a $17 million embezzlement and money laundering case, according to news reports and Levine himself.

At the other end of the spectrum is Baltimore-based social worker Herbert Hoelter, who founded the nonprofit National Center on Institutions and Alternatives in 1977.  Bernard Madoff turned to him for help when he pleaded guilty in 2009 to one of the biggest Ponzi schemes in history, Hoelter said....

Some consultants try to strengthen a defendant's presentencing request to be enrolled in a 500-hour federal drug and alcohol abuse program, which can result in a shorter prison stint.  Others document medical reasons that argue why an inmate needs a lower bunk or special diet....

Before reporting to prison, offenders often have questions that lawyers can't answer about the daily prison routines, said Jeff Steinback, a prominent Chicago defense lawyer who represented Scott Fawell, Gov. George Ryan's closest political adviser, who pleaded guilty to mail fraud.  "There is a place for that kind of advice, as long as it is well-intended and not simply a business," Steinback said.  He typically pairs a newly sentenced defendant with someone who has already served time, to prepare them for incarceration....

Chris Burke, spokesman for the Federal Bureau of Prisons in Washington, said that he is not aware of any influence that consultants have on prison assignments.  And some defense attorneys question the effectiveness of a prison consultant, pointing out that information about the ins-and-outs of prison life can be found online.

"Chivalry is Not Dead: Murder, Gender, and the Death Penalty"

The title of this post is the title of this notable new paper available via SSRN by Steven Shatz and Naomi Shatz.  Here is the abstract:

Chivalry -- that set of values and code of conduct for the medieval knightly class -- has long influenced American law, from Supreme Court decisions to substantive criminal law doctrines and the administration of criminal justice.  The chivalrous knight was enjoined to seek honor and defend it through violence and, in a society which enforced strict gender roles, to show gallantry toward "ladies" of the same class, except for the women of the knight's own household, over whom he exercised complete authority.  This article explores, for the first time, whether these chivalric values might explain sentencing outcomes in capital cases.

The data for the article comes from our original study of 1299 first degree murder cases in California, whose death penalty scheme accords prosecutors and juries virtually unlimited discretion in making the death-selection decision.  We examine sentencing outcomes for three particular types of murder where a "chivalry effect" might be expected -- gang murders, rape murders and domestic violence murders.  In cases involving single victims, the results were striking.  In gang murders, the death sentence rate was less than one-tenth the overall death sentence.  By contrast, in rape murder cases, the death sentence rate was nine times the overall death sentence rate.  The death sentence rate for single-victim domestic violence murders was roughly 25% lower than the overall death sentence rate. We also examined, through this study and earlier California studies, more general data on gender disparities in death sentencing and found substantial gender-of-defendant and gender-of-victim disparities.  Women guilty of capital murder are far less likely than men to be sentenced to death, and defendants who kill women are far more likely to be sentenced to death than defendants who kill men.  We argue that all of these findings are consistent with chivalric norms, and we conclude that, in the prosecutors' decisions to seek death and juries' decisions to impose it, chivalry appears to be alive and well.

Feds prosecuting active NY advocate of jury nullification

Today's New York Times has this really interesting article about a really notable federal prosecution of a really interesting proponent of jury nullification.  The piece is headlined "Jury Nullification Advocate Faces Indictment," and here are excerpts:

[I]t was not his silence that landed Mr. Heicklen, a retired Penn State University chemistry professor, in court; it was what he had been doing outside the federal courthouse at 500 Pearl Street.

Since 2009, Mr. Heicklen has stood there and at courthouse entrances elsewhere and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.

That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates the law against jury tampering. He is to appear in court on Friday for a conference in his case.

Mr. Heicklen insists that he never tries to influence specific jurors or cases, and instead gives his brochures to passers-by, hoping that jurors are among them. But he feels his message must be getting out, or the government would not have brought charges against him.

“If I weren’t having any effect, would they do this?” said Mr. Heicklen, whose former colleagues recall him as a talented and unconventional educator. “You don’t have to be a genius to figure this thing out.” Prosecutors declined to comment on his case, as did Sabrina Shroff, a lawyer who was assigned to assist Mr. Heicklen. (He is acting as his own lawyer.)

He said his activism on nullification dated back to just after he retired in the early 1990s, when he openly smoked marijuana in State College, Pa., to get arrested as a protest against marijuana laws. For this, he was arrested about five times. Mr. Heicklen has said that he otherwise does not smoke marijuana.

Around the same time, he learned about a group called the Fully Informed Jury Association, which urges jurors to nullify laws with which they disagree. Mr. Heicklen, of Teaneck, N.J., said he distributed the group’s materials as well as his own. “I don’t want them to nullify the murder laws,” he said. “I’m a big law-and-order guy when it comes to real crime.” But, he said, there were other laws he wanted to nullify, like drug and gambling laws.

“This is classic political advocacy,” said Christopher T. Dunn, associate legal director of the New York Civil Liberties Union. “Unless the government can show that he’s singling out jurors to influence a specific verdict, it’s squarely protected by the First Amendment, and they should dismiss the case.”

But Daniel C. Richman, a former prosecutor who teaches criminal law at Columbia, said there was an interest in ensuring the integrity of the jury process. “The government has to walk a fine First Amendment line bringing these charges,” he said, “but lawless jury behavior is certainly of concern to it, too.”

Mr. Heicklen says that when he stands outside the court, he holds a sign that reads “Jury Info” to draw people to him. “Sometimes they think I’m official,” he said. He answers questions and advises that jurors have the right to nullify.

Jessica A. Roth, a Cardozo law professor, said such activities could confuse and mislead jurors, since “the information he’s giving these people is likely to be in direct conflict with the instructions they will receive from a judge if they are jurors in a case.” Mr. Heicklen, a Cornell graduate, taught for more than 20 years at Penn State, where he was a faculty member known for his innovative methods, former colleagues said.... Barbara J. Garrison, who heads the Penn State chemistry department, called Mr. Heicklen “an enormously creative scientist” who “really liked to think outside the box and sometimes that meant that he ran counter to the establishment.”

About his earlier marijuana arrests, Ms. Garrison said, “He had his own way of doing it, but he was really fighting for people who were in jail that he didn’t think belonged in jail.”

Court records show Mr. Heicklen has been cited at least six times since October 2009 for distributing fliers without a permit at the entrance of the Manhattan federal courthouse. But the violations, which carry fines, do not depend on the content of his message. If convicted of the jury tampering charge, he could face a six-month sentence.

Thoughts, dear readers?

Prisoner serving life who murdered guard in Washington saying he should get death penalty

This local story out of Washington, which is headlined "Documents: Inmate wants death for killing correctional officer," provides an interesting bit of extra information about a high-profile murder case. Here are the details:

Byron Scherf, the inmate who has confessed to strangling Monroe correctional officer Jayme Biendl to death, wants the death penalty, according to court documents obtained by KOMO News.  "I took her life and I think I should forfeit mine," Scherf told authorities, according to the court documents.

He also said he believes prosecutors should try him for aggravated first-degree murder in Biendl's death and seek the death penalty.  "If I get a life sentence and she's dead, then there's no punishment attached to it because I already have a life sentence," Scherf told detectives on Feb. 9, according to the documents.

According to court records released earlier, Scherf admitted killing Biendl Jan. 29 at the prison chapel of the Monroe Correctional Complex in an interview with Monroe police detectives. Scherf told detectives that Biendl said something that made him angry as they were talking in the prison chapel.  "I got to the point where I knew I was going to kill her," he told detectives, according to a transcript of the interview.

Recent related post:

• Another capital classic: Washington prisoner serving LWOP suspected in guard murder

Local DA in Georgia makes pitch against sentencing guidelines and for more judicial discretion

Everyone familiar with sentencing debates in the federal system knows the usual terms of modern debates over sentencing guidelines and judicial discretion: federal prosecutors are typically arguing for the federal guidelines to have more bite, while defense attorneys are typically saying that federal judges need to be afforded ample discretion to fit punishments to the unique facets of individual cases and offenders.  Sophisticated observers also know that it is the relatively severity of the federal guidelines that in large part account for why federal prosecutors like them and federal defense attorneys like judges to have ample discretion to sentencing outside these guidelines.

Those long accustomed to this long-standing debate over federal sentencing dynamics should find especially interesting this local opinion piece from Georgia, headlined "D.A.’s Corner: Punishment must fit the crime."  In this piece, the local district attorney for the Griffin Judicial District, Scott Ballard, makes a pitch against sentencing guidelines for Georgia. Here are excerpts:

There is a movement underway to implement sentencing guidelines in Georgia.  Federal courts have used them for years.  They work like this.  Each crime carries a sentence that is almost set in stone.  The judge has the leeway to add a few months to the required sentence.  Or, if there is reason to reduce the sentence by a few months, that can be done, too.

Proponents argue that it is fairer.  They don’t like our current arrangement which gives the judge wide latitude to sentence.  For example, burglary can carry a sentence of from 1 to 20 years.

Here’s the problem.  Each crime is different.  Each criminal is different.  If we are to be fair, judges must be allowed to fit the punishment to the crime....  Sentencing guidelines won’t allow the wiggle-room that is necessary.

Here’s another problem with sentencing guidelines.  Criminals fear the unknown. Mandatory sentences work against us.  I know from negotiating with defense attorneys that drug dealers sent by Mexican cartels have factored the federal sentences into their deal.  They know exactly what the punishment will be if they are caught. It becomes just a risk of doing business.  You should see their disappointment when they learn that our judges aren’t boxed in like federal judges are.  The life sentence they could face with us wasn’t what they bargained for.

There is another reason sentencing guidelines are a bad idea.  The risk of a significantly tougher sentence after a trial induces defendants to plead guilty to a lesser sentence of a guaranteed length.  That reduces the cost of unnecessary trials and permits us to focus our energies on the cases that really require a trial.  We avoid backlogs and enjoy the benefits that come from the swift disposition of criminal cases.

With sentencing guidelines, the incentive to plead is decreased — the sentence will be similar whether the defendant admits guilt or forces a trial.  And if he forces a trial, a lengthy appeal is certain to follow.

Experienced federal sentencing practitioners surely know that this local DA is somewhat off when boldly asserting that mandatory sentencing schemes necessarily reduce incentives to plead guilty.  Nevertheless, it seems clear that this DA is uniquely concerned that any proposed guidelines in Georgia would be set at relatively lenient levels because of the state's prison crowding and budget problems.  With that backdrop, it is understandable that this DA fears a new legal regime for the state, and it is telling that we are hearing a prosecutor extol the virtues of giving judges very broad discretion at sentencing.

Two notable case notes in latest Harvard Law Review

The February 2011 issue of the Harvard Law Review includes brief notes on two significant federal circuit court rulings that have both gotten considerable attention on this blog:

Second Circuit Holds Within-Guidelines Child Pornography Sentence Procedurally and Substantively Unreasonable. — United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010)

En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to Be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc)

Breaking news on state killing: there is now an app for that!

I received via e-mail yesterday this notable news from the Death Penalty Information Center about being able to follow the death penalty while "on the go": 

The Death Penalty Information Center is pleased to offer a new mobile application for the iPhone, iPad, and iPod Touch.  This FREE application provides access to the most frequently used resources on DPIC's main website, including our Fact Sheet on the Death Penalty, our Execution Database, and the most recent death penalty news from around the country.  Click here to download the mobile application through iTunes. 

Users may also download the mobile application directly from the App Store on their mobile device by searching for "DPIC" or "Death Penalty Information Center."  Please let us know if you’d like us to add other resources.

This new post from the folks at the Houston Press, headlined "Death Penalty: Your Newest App," provides a fittingly cheeky review and follow-up on this latest new media development:

Have your Angry Birds gone postal?  You might need the newest app, from the Death Penalty Information Center....

DPIC is also asking people if they'd like other resources added to the app.

A last meals database?

A countdown clock for attorneys trying to file paperwork with Sharon Keller?

Up-to-date availability and pricing information on hard-to-get euthanizing drugs?

Let them know.

Though I am inclined to poke fun at the development of DPIC's app, I am also eager to seriously urge other leading resources on crime and punishment to consider the opportunity for using new media for information dissemination.  I really would love to see the US Sentencing Commission develop a sophisticated app to enable researchers and practitioners with easy and ready access to federal sentencing data.  Similarly, it would be great to have an app that assembles, organizes and effectively presents crime rates, recidivism statistics and corrections data for various jurisdictions.

Problems with kidney transplant plans for Mississippi sisters given early prison release

Regular readers likely recall the sentencing story from late last year, blogged here, concerning Mississippi Governor Haley Barbour's decision to grant early release from prison to two sisters serving unusually long sentences for armed robbery.  What made the story especially notable was Barbour's comments that he decided to suspend the sentences in light of the poor health of one sister, who requires regular dialysis, and that the other sister's release was contingent on her giving a kidney to her sibling.  This new ABC News story, headlined "Scott Sisters Must Lose Weight to Comply With Prison Release," provides the latest development in this high-profile case:

The Scott sisters who were released from a Mississippi prison last month on the condition that one donate a kidney to the other will have to wait until they lose weight before they can perform an organ transplant.

Their doctor told Jamie Scott -- who is 38, 5-feet tall and weighs 254 -- that she has to lose about 100 pounds before she can receive her sister's kidney.  Gladys -- who is 36, 4-feet-9 and weighs 185 -- has to lose about 40 pounds and quit smoking.

Though I have never aspired to be a TV executive, this story does inspire me to propose a new season of The Biggest Loser: Clemency Edition.  In addition to the Scott sisters, the 500-pound Dutch prisoner (remember him?) who claims he is subject to inhuman punishment because he is too big for a cell could also be on the show.  (And Governor Haley Barbour himself could probably benefit from spending a few weeks training with Jillian Michaels, especially if he wants to be in shape for a presidential run next year.)

"Judge tells Lindsay Lohan plea deal will mean jail"

The title of this post is the headline of this AP report on the latest development in the theft charges pending against Lindsay Lohan.  Here are the basics:

A judge told Lindsay Lohan on Wednesday he would sentence her to jail if she accepted a plea deal from prosecutors to avoid trial for allegedly stealing a $2,500 necklace from an upscale jewelry store.

Los Angeles Superior Court Judge Keith Schwartz tersely told the troubled starlet what she could expect if she pleaded guilty or no contest in the felony case. "If you plead in front of me, if this case is resolved in front of me, you are going to jail," Schwartz said. "Period."

But if she rejects the deal, and a judge determines there's enough evidence to order her to stand trial, she could be punished because she was still on probation for a 2007 drunken driving case when the necklace was stolen.  That could mean Lohan -- who has pleaded not guilty -- is sentenced to jail before the theft case is even tried....

Lohan told the judge she understood his comments, and left the courtroom clutching her mother's hand. She and her attorney didn't speak to reporters, but her father, Michael Lohan, told those gathered outside the courthouse that the case is being over-prosecuted. "I don't see Lindsay as a criminal," he said. "This is all a result of her addiction."

The necklace case has become the latest trouble for Lohan, who was sent to jail twice and rehab twice last year for violating her probation in the drunken driving case.  The troubled starlet seems to keep running into trouble -- she was cited for speeding around 9 p.m. Monday in West Hollywood, reportedly driving 59 mph in a 35 mph zone, said sheriff's spokesman Steve Whitmore.

The judge told Lohan that he was treating her as he would any other defendant, and that he wanted her to get the case resolved.  "I want you to get on with your life," Schwartz said.  Schwartz also said that he thought Lohan should receive psychological counseling as a condition of her probation if it is re-instated. 

As I have said before, though I am disinclined to invest too many blog posts (or brain cells) concerning LiLo's fate and future, I do think her case shine an interesting (and important?) spotlight on state sentencing policies and practices and the challenges posed by a low-level repeat offender who cannot seem to stay out of trouble.  

Though perhaps commentators feel differently, I suspect that relatively few persons really think that a short (or even long) period in jail is likely to significantly help Lohan get her life and behavior straightened out.  And yet, I fully understand Judge Schwartz's inclination to make perfectly clear that a guilty plea on this theft charge is not going to be "rewarded" with an alternative sentence. 

Recent related post:

• Should Lindsey Lohan's lawyer be talking up interest in a plea deal for her client?

Argument transcript in SCOTUS sentence modification case Freeman...

is now available at this link.  I hope to find time to read and comments on this transcript before too long.

UPDATE:  A too-quick review of the transcripts reveals that all the Justices (save, of course, the always silent Justice Thomas) seem very engaged (and perhaps metaphysically challenged) by the question of just whether and when a federal sentence is "based on" the sentencing guidelines.  Especially interesting is how the Justices work around to wondering collectively whether, now that Booker has made the guidelines merely advisory, any federal sentence imposed after Booker can or should be deemed "based on" the guidelines.

Even though the oral argument never discusses the rule of lenity, and even though the philosophical foundation for the rule of lenity might not be considered directly applicable in this specific setting, the Justices' interesting debate concerning the meaning and reach of the statutory term "based on" in 3582(c)(2) might well be sensibly resolved by the Court concluding, in essence, that an "interpretive tie" should goes to the criminal defendant in this little case. 

Border vigilante who engineered double murder sentenced to death in Arizona

As detailed in this CNN article, which is headlined "Jury decides on death penalty for woman who headed vigilante squad," a high-profile murder trial culminated in a high-profile death sentence yesterday in Arizona.  Here are the details:

Arizona jurors decided an anti-illegal immigration activist -- portrayed as the ringleader of a hit squad -- should receive the death penalty for the killings of a Latino man and his 9-year-old daughter, a court spokeswoman said Tuesday.  The Pima County jury's decision, which was unanimous, is binding....

Forde showed no emotion as the verdict was read, according to CNN Tucson affiliate KGUN.  Her attorney, Eric Larsen, said he "fully expected that this community valued human life greater than this jury did."

Juror Angela Thomas told KGUN, "We chose death because that's what seems fair. There's a little girl in this equation whose father won't be able to walk her down the aisle," she said.  Forde was convicted February 14 on eight counts, including two counts of murder for the shooting deaths of Raul Flores and his daughter, Brisenia, and the attempted murder of the child's mother, Gina Gonzales.

The vigilante attacks were in May 2009.  The child and her father were American-born U.S. citizens but were targeted by Forde and her hit squad. Her alleged accomplices, Albert Robert Gaxiola and Jason Eugene Bush, are scheduled to go on trial later this year.

During the trial, prosecutors portrayed Forde as the ringleader, saying she had planned the raid and the murders to steal weapons, money and drugs to finance a new anti-illegal immigration outfit.  The trio picked the Flores home, prosecutors said, because Gaxiola claimed they would find drugs there.  While Flores had a history of drug-related offenses, no drugs were found in the house.

Gina Gonzalez gave a victim impact statement last week. "I miss my husband, I miss my daughter, I miss my family, I miss my life ... and that's all because of a choice she made," Gonzales said of Forde, according to CNN Tucson affiliate KVOA.

The defense told the jury that Forde has a personality disorder caused by a childhood of abuse, abandonment and living in seven different households by the age of 5, according to KVOA.

SCOTUS considers crack sentence reduction authority and reverses another Ninth Circuit habeas decision

Today's Supreme Court action includes some criminal justice work that ought to interest sentencing fans.  This morning brings oral argument in Freeman v. US, which concerns eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) when as sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement (SCOTUSblog coverage here).  This new article in the Louisville Courier-Journal, headlined "US Supreme Court to consider Louisville man's crack-cocaine sentence," provides effective background on the case.

In addition, the Justices handed down a unanimous opinion in the habeas case Walker v. Martin (available here).  Here is how Justice Ginsburg's opinion for the Court starts and ends:

This case concerns California’s time limitation on applications for postconviction (habeas corpus) relief.  The question presented: Does California’s timeliness requirement qualify as an independent state ground adequate to bar habeas corpus relief in federal court?...

For the reasons stated, we find no inadequacy in California’s timeliness rule generally or as applied in Martin’s case.  The judgment of the United States Court of Appeals for the Ninth Circuit is therefore Reversed.

"Money is gone, but Proposition 36's drug-treatment mandate remains"

The title of this post is the headline of this very interesting piece from the Oakland Tribune concerning California drug sentencing laws and programs.  Here are excerpts:

County officials who administer the state's treatment-not-jail program for certain drug offenders are struggling with a lack of funding that's not likely to improve, but advocates say ignoring the mandate simply isn't an option.  Instead, officials are trying to figure out how they'll continue to provide the same treatment without the money to pay for it.

Enacted by 61 percent of voters in November 2000 as Proposition 36, the law says first- and second-time nonviolent, simple drug possession offenders must be given the opportunity to receive substance-abuse treatment instead of jail time.  That "must" isn't a suggestion; it would take another voter-approved ballot measure to undo it.

But Prop. 36 allocated $120 million per year for only five years, and as the state's budget crisis worsened, the Legislature and governor declined to ante up.  They set aside $108 million in 2008-09 but just $18 million in 2009-10, and then zeroed it out for this current fiscal year.  Gov. Jerry Brown's budget proposal includes no money for it in 2011-12.  A $45 million infusion of federal economic stimulus funds in 2009 is now all but gone, and the coffers are empty.

So, it's a mandate with no money, but a mandate nonetheless: Someone who's eligible and demands treatment can't just be sent to jail....

Santa Cruz County has announced it's "phasing out" Prop. 36 by no longer having two probation officers dedicated to monitoring participants.  But the Drug Policy Alliance, which essentially was Prop. 36's proponent, said that sort of language can be misleading: Any county's refusal to offer eligible defendants treatment instead of jail could invite lawsuits....

[T]he Drug Policy Alliance says Prop. 36 at its peak was helping 36,000 people a year, and a UCLA study said every $1 invested in Prop. 36 treatment saved the state between $2.50 and $4 in incarceration costs.  That's added up to $2 billion in savings, [said Margaret Dooley-Sammuli, the alliance's deputy state director], and that should've been enough to win more budget support.

"We wanted voters to see that the program they approved would have to prove itself over time and also wanted to allow legislators to expand funding once they saw that the program delivered on its promises," she said.  "Alas, the power of denial is strong among legislators and the self-interested, evidence-be-damned law enforcement lobby."

SCOTUS apparently still not interested in reconsidering Almendarez-Torres

A helpful reader highlighted to me that among the cases in which the Supreme Court denied cert this morning were Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117.  Those case are notable for Sixth Amendment fans because, as noted in this prior post, (1) the Justices had  called for a response from the government with respect to these two petitions, which urged reconsideration of the Almendarez-Torres prior conviction exception to Apprendi, and (2) the Court had thrice relisted these cases from its January cert conferences.

Based on the relists, the folks at SCOTUSblog were speculating that a cert grant was possible or that there might be at least a dissent from the denial of cert in the works.  But now it appears that the relists were just a lot of sound and fury, signifying nothing: both cases resulted in one-line cert denieds today and nothing more.  And so it goes.

"Conservatives must police bottom line on criminal justice"

The title of this post is the headline of this opinion piece authored by Grover Norquist, which appeared in the Orange County Register over the weekend. Here is how it starts and ends:

Conservatives pride themselves on relentlessly questioning government agencies: Is this program producing results? Do the results justify the cost?  Can the project be done less expensively? These are typical conservative questions about education, pensions, health care and dozens of other government functions —except one: criminal justice.

The size and cost of America's prisons has quadrupled in the past three decades.  In states like California, the annual cost of incarceration is around $50,000 per inmate. When looking for reasons why California is going bankrupt, just multiply that figure by the 170,000 inmates that live in the state.  Moreover, 34,000 California prisoners are serving life sentences as a result of the "three strikes" law, for which the state prison guards' union lobbied intensely.  Certainly, some violent criminals should be out after the first strike, but the law applies to many low-level, nonviolent offenders, too.

Criminal justice expenses continue to grow — even during a recession.  For instance, Delaware's Department of Corrections is seeking a 5 percent budget increase, while other agencies are desperately looking for ways to cut costs.  The costs of incarceration is worthwhile to the extent that it is the most cost-effective means of protecting the public; however, research indicates we have reached the point of diminishing returns.

Further, more prison spending provides less safety per dollar than other approaches. Texas recently cut incarceration rates by 8 percent, and the crime rate dropped by 6 percent.  If we move to New York, a 16 percent cut in the incarceration rate correlated with a 25 percent drop in crime.  These results are not anomalies.

In reality, prisons can make citizens less safe. When low-risk, nonviolent inmates mingle with career criminals, predators and gang leaders, they too often leave prison more dangerous than when they entered.  In some states, nonviolent offenders, such as drug users, shoplifters and bad-check writers, make up two-thirds of the prison population. Research shows, however, that public-safety outcomes improved when states focused on keeping the worst offenders in prison, but strengthened alternatives for lesser offenders.

Furthermore, lengthy prison stays pull people away from school, family obligations and religious institutions — all of the things that conservatives rightly emphasize as critical to good citizenship.  The problem in American criminal justice is clear, but so is the solution — and it requires conservative leadership....

We fight against big government, excess spending, unaccountability, and bureaucracy in nearly every other segment of spending.  With new Republican majorities nearly 20 state legislatures, now is the time to start fighting against an ineffective, big-government prison system and begin being tough on criminal justice's bottom line as well as crime.

Some recent and older related posts on the modern politics of sentencing issues:

• "Conservative Principles and Prison"
• "Conservatives latch onto prison reform"
• "Right on Crime: The Conservative Case for Reform" officially launches
• When and how will state GOP leaders start cutting expensive criminal justice programming?
• Examining the politics of crime and punishment in modern gubernatorial settings
• Do "mama grizzlies" have a particular approach to crime and punishment issues?
• "Pot and the GOP: Is the party of ‘Just Say No’ morphing into the party of ‘Just Say Grow’?"
• Why doesn't the new Liberty Central website say anything about mass incarceration or the drug war or any criminal justice issues?
• What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
• Will we invest in classrooms or cells in these tough times?

Virginia struggle with costs of sex offender civil commitment

The Washington Post has this lenthy new article on sex offender civil commitment headlined "Cost to keep sexual offenders in check is escalating for Virginia." Here are excerpts:

Virginia launched its program to keep sexual predators locked up once their prison sentences ended after learning that a serial child rapist who had kidnapped and brutalized a boy and then buried him alive might go free.

Now, nearly a decade later, state legislators are struggling with the escalating cost of the program that has kept hundreds of dangerous felons detained at the same time the state is facing growing needs in education, health care and transportation.

As of January, 252 sexual offenders had been indefinitely committed, costing taxpayers more than $100,000 per felon every year. That population is expected to more than double within five years, causing even the program's biggest supporters to question whether the state can afford to keep so many sexual predators locked up for so long....

Gov. Robert F. McDonnell (R) has proposed spending nearly $70 million over the next two years to temporarily house an overflow of sexual predators at a Petersburg facility while renovating a mothball prison in Southside Virginia. But legislators in his party are balking at the cost.

The Republican-controlled House of Delegates stripped most of the money out of the state budget, proposing instead that Virginia double bunk some offenders and ship others out of state. The Democratic-led Senate is backing the governor's plan. It is one of the biggest budget issues dividing the two chambers in the final days of Virginia's annual legislative session, which is scheduled to end Saturday....

Other states with commitment programs require that offenders have exhibited a pattern of sexually dangerous behavior before being committed, such as through multiple convictions, but in Virginia it only takes a single crime. A committee of corrections and mental health officials recommends candidates for commitment, and a judge makes the determination.... Those committed are held indefinitely, subject to annual reviews by doctors. Since the program began, 11 have been released.

Opponents say civil commitment programs - now in 20 states - could be used to keep violent criminals behind bars forever. "Certainly society has the right to protect themselves," said Fred Berlin, founder of the Johns Hopkins Sexual Disorders Clinic. "But I hope this is not a ruse, under the pretense of treatment, for permanent detention."

Virginia has expanded the crimes eligible for civil commitment from four to 28, and the number of offenders admitted to the program has soared, from one a month, to six to eight a month. The cost is expected to hit $32 million next year - more than 10 times what it was eight years ago. And it's still not enough. The 300-bed Burkeville facility built in 2008 will be full by this summer.

Big(?) criminal justice week ahead as SCOTUS gets back to work

The Supreme Court is back to work in earnest starting tomorrow morning, with these three criminal procedure case on tap for oral arguments Tuesday and Wednesday:

• US v. Tinklenberg, which concerns application of the the Speedy Trial Act (SCOTUSblog coverage here)
• Bond v. US, which concerns standing to challenge the constitutionality of a federal criminal statute on Tenth Amendment grounds (SCOTUSblog coverage here)
• Freeman v. US, which concerns eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) when as sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement (SCOTUSblog coverage here)

Based on the number of amicus briefs filed and the nature of the issue, I expect Bond will get the most media attention in the days ahead.  But hard-core sentencing fans are likely to be most interested in the Freeman case.  I wrote up a little preview of this case for the ABA, which can be accessed at this link.

In addition, according to the in-the-know folks at SCOTUSblog, the Court "expects to issue orders on Tuesday and opinions on both Tuesday and Wednesday."  A good number of the not-yet-decided SCOTUS cases that were argued in the Fall involve criminal justice issues, so I expect criminal law fans will have some new SCOTUS jurispudence to consider before the week is out.

UPDATE:  On Tuesday, Feb 22, SCOTUS did mostly civil stuff with orders and opinions (basics here from How Appealing).  Perhaps Wednesday will be the day for criminal justice opinions.

"How $31 of pot gave mom a 10-year-prison sentence"

The title of this post is the headline of this very interesting local sentencing story out of Oklahoma. Here are the details:

On Dec. 31, 2009, [25-year-old Patricia Marilyn] Spottedcrow and her mother, Delita Starr, 50, sold a “dime bag” of marijuana to a police informant at Starr's home in Kingfisher, court records state.  Starr handled the transaction and asked her 9-year-old grandson — Spottedcrow's son — for some dollar bills to make change for the $11 sale.  Two weeks later, the same informant returned and bought $20 of marijuana from Spottedcrow.

The two women were arrested for drug distribution and because Spottedcrow's children were in the home, an additional charge of possession of a dangerous substance in the presence of a minor was added.  “It just seemed like easy money,” said Spottedcrow, who says she is not a drug user but has smoked marijuana.  “I thought we could get some extra money.  I've lost everything because of it.”

The women were each offered plea deals of two years in prison.  But because neither had prior convictions and the drug amounts were low, they gambled and entered a guilty plea before a judge with no prior sentencing agreement.

Starr received a 30-year suspended sentence with no incarceration, but five years of drug and alcohol assessments.  Spottedcrow was sentenced to 10 years in prison for distribution and two years for possession, to run concurrently.  She will be up for parole in 2014....  In addition, Starr was fined $8,600 and Spottedcrow $2,740.  “Never in a million years did I think I'd be here 10 years,” Spottedcrow said of prison.  “We were under the impression we would get probation...."

Former Kingfisher County Judge Susie Pritchett, who retired in December, said the women were conducting “an extensive operation” and included children in the business.  “It was a way of life for them,” Pritchett said.  “Considering these circumstances, I thought it was lenient.  By not putting the grandmother in prison, she is able to help take care of the children.”

A presentencing investigative report prepared by the Department of Corrections rated Spottedcrow's risk of re-offending as “high” and recommended substance abuse treatment while incarcerated.  “It does not appear the defendant is aware that a problem exists or that she needs to make changes in her current behavior.”

Spottedcrow was unemployed and without a stable residence when arrested, the report states.  The family lost their Oklahoma City home for not paying bills.  “When she needed money … this is the avenue she chose rather than finding legitimate employment,” the report states.  “The defendant does not appear remorseful … and she makes justifications for her actions.”

Pritchett said on first drug offenses, sentences are usually suspended and may require treatment or random drug tests.  Only if there are other more serious circumstances is a first-time drug offender sent to prison, she said.  “When kids are involved, it's different,” Pritchett said.

“This was a drug sale.  When I look at someone in front of me, I'm thinking, ‘What is it going to take to rehabilitate this person?'  We look at their attitude and other factors.” When Spottedcrow was taken to jail after her sentencing, she had marijuana in her jacket.  She pleaded guilty to that additional charge Jan. 24 and was sentenced to two years in prison and fined nearly $1,300.  That sentence also will run concurrent with her other conviction....

Oklahoma's two prisons for women — the maximum-security Mabel Bassett in McLoud and minimum-security Eddie Warrior in Taft — housed 2,622 prisoners last year.  Of those, 48 percent are serving time for nonviolent drug offenses and 22 percent for other nonviolent offenses such as embezzlement and forgery.  Of the 1,393 women received by Oklahoma prisons last year, 78 percent were identified by DOC as minimal public safety threats.  Most nonviolent offenders are housed at Eddie Warrior, an open campus with a walking track and six dormitories.

Spottedcrow knows she will need to find a new job skill because her work in the health field won't be there because of her incarceration.  She would like to open a boutique. “Even though this seems like the worst thing … I've been blessed along the way,” she said. “It could have been worse.  I'm happy my kids are safe and, ultimately, I'm safe.  I'm thankful I still have a family.”

In a year, Spottedcrow will have a review and hopes to shorten her time in prison. “I'm already changed,” she said.  “This is a real eye-opener. I'm going to get out of here, be with my kids and live my life.”

There are soooooo many interesting elements to this story, I could imagine teaching an entire sentencing course with this case as the focal point.  Big ticket modern sentencing issues including the war on drugs, plea practices, the importance of presentence reports, state sentencing discretion and disparities, the purpose of imprisonment terms and parole practices are all in sharp relief in this little story, and all of these issues in this case are impacted (both obvious and not-so-obviously) by race, gender and socio-economic realities.  Amazing stuff.

Special issue of Criminology & Public Policy examines mass incarceration and targeted policing

I was pleased this weekend to discover that the February 2011 issue of Criminology & Public Policy is devoted to the idea that society would be well served to reallocate resources from mass incarceration to targeted policing.   Here is the start from the editor's introduction to the issue authored by Richard Rosenfeld:

Mass incarceration is the criminological issue of our time. A close contender is so-called hot-spots policing.  The former invites condemnation from most criminologists.  The latter inspires confidence that smart policing can reduce crime. In their provocative and important paper that is the focus of this special issue of Criminology & Public Policy, Steven Durlauf and Daniel Nagin (2011) bring the two issues together and propose that we might be able to achieve crime reductions by shortening prison sentences and using the cost savings to support more and better policing.  They rest their case squarely in a deterrence framework.  They argue that increasing the severity of punishment through marginal increases in the length of prison sentences has weak deterrent effects, at best; by the same logic, shortening prison sentences should not produce appreciable crime increases.  In contrast, increasing the perceived certainty of punishment can reduce crime without increasing imprisonment levels through targeted policing strategies that reduce criminal opportunities.  If the authors are right, this is a win-win strategy for crime control and criminal justice policy.

Durlauf and Nagin (2011) are careful to delimit scope of their analysis.  They do not examine the incapacitation effects of imprisonment or retribution as a goal of punishment.  They do not consider in any detail crime-reduction approaches that extend beyond the criminal justice system.  They acknowledge but do not thrash out the daunting political obstacles to shifting resources from state corrections budgets to local police departments.  They also acknowledge the limited, albeit promising, research base for the effectiveness of targeted enforcement and call for more and better research.  Nor do they claim originality for their assessment of the deterrent effects of imprisonment and policing.  The deterrence framework they invoke dates to Beccaria and Bentham.  Others have advocated smarter policing as a substitute for more incarceration (e.g., Weisburd, 2008).  Durlauf and Nagin’s (2011) contribution is to ground deterrence in the logic and methods of modern economics and draw out the research and policy implications of increasing the certainty and reducing the severity of punishment.  I believe they have succeeded admirably in achieving their objectives, especially if it is assumed that their overriding objective was to provoke thoughtful and informed discussion of their proposals by academic experts and policy professionals alike.  As former Attorney General Richard Thornburgh (2011) puts it in his reaction essay, Durlauf and Nagin’s analysis provides an ideal “jumping off point” for serious debate.

The 16 reaction essays in this issue are uniformly sympathetic to Durlauf and Nagin’s (2011) basic argument, even while many are critical of specific aspects of their evaluation of the deterrence literature and diagnosis of the trade-offs between reductions in imprisonment and enhancements in policing.  None proposes increasing incarceration or returning to policing as usual to promote public safety.  Yet most of the discussants would have liked the authors to deepen their analysis of the criminal justice system and extend their arguments beyond the stated objectives.

"State parole system called a 'sad mess'"

The title of this post is the headline of this local article discussing Massachusetts' parole system. Here are excerpts:

Two recent instances in which men paroled from multiple life sentences went on to re-offend has one member of the Governor's Council questioning whether Massachusetts needs to scrap the entire parole system.

Mary Ellen Manning, who represents the North Shore on the board that approves judicial and Parole Board appointments, said yesterday that the current system "is a sad mess" that ought to be replaced with something similar to the federal parole system.  And sentencing ought to be done within strict guidelines, she believes....

"There's too much discretion at both the sentencing level and at the parole level," said Manning. "There's a lack of uniformity in the way people are sentenced and paroled."...

She would like to see the current sentencing and parole system replaced with one that requires defendants to serve a sentence in full, followed by a period of supervised release, such as is done in the federal court system.  That way, a convicted offender would still be under supervision for a period of time, but there would be some consistency in the way people are sentenced.

Paul Gormley, a Marblehead lawyer, adjunct professor of criminal justice at North Shore Community College and a doctoral student in law and public policy at Northeastern University, said that the system still needs a certain amount of flexibility.  For one thing, the idea that parole is possible gives some inmates a greater incentive to behave in prison, as well as to participate in whatever rehabilitation programs are available, said Gormley.

Gormley concedes that there are defendants who "can game the system," but said that hard and fast rules about sentencing take away any ability to recognize someone who has made genuine efforts to redeem himself. "We can't say what anyone's going to be like, with any certainty, in the future," said Gormley.