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March 5, 2011

Is the death penalty the only real matter in doubt in the Loughner prosecution?

The question in the title of this post is prompted by this new CBS News piece headlined "Expert: Only question is will Loughner get death." Here are excerpts from the interesting piece:

Federal prosecutors on Friday announced new charges against the suspect in the attempted assassination of Congresswoman Gabrielle Giffords, accusing him of killing six people and wounding 13 others who were exercising the fundamental American "right to meet freely, openly and peaceably with their member of Congress."...

The indictment charged Loughner in the murders of U.S. District Judge John Roll and Giffords aide Gabe Zimmerman, and with causing the deaths of four others who were not federal employees, including a 9-year-old girl.  Loughner also was charged with causing the death of a participant at a federally provided activity; injuring a participant at a federally provided activity; and using a gun in a crime of violence....

Federal prosecutors haven't yet said whether they will seek the death penalty against Loughner. But legal experts believe it's a virtual certainty.  And one expert, former federal prosecutor Sunny Hostin, told "Early Show on Saturday Morning" co-anchor Russ Mitchell, "He's going to be convicted. It's a question of whether or not he will be put to death."

Loughner will likely face state charges in the attack, as well, but will be tried in federal court before any prosecution begins on state charges.  Federal and county prosecutors said federal law requires state prosecutions to be suspended while a federal case is pending....

Hostin called the new indictment "really novel."  She explained, ""Typically, federal prosecutors have to have a federal hook.  We know, initially, they were charging him because judge Roll was a federal judge who was killed.  He was being charged with that murder.  He was also being charged, of course, with the maiming of the congresswoman. That was the federal hook.  This time, 49-count indictment, 28 pages, they are charging for the assault and murders of the civilians.  And the way they are doing that is they're basically claiming the fact that they were attending this sort of 'Congress on the Corner' made that corner ... almost congressional ground. It was a federally-protected activity."

"I will say this: There's no question that he did this. So many witnesses. Why bring that sort of novel count, that novel legal argument here? (It) makes me a little uncomfortable. This is certainly going to be an issue on appeal." Hostin added, "Many people are saying that it's because they want justice for the families. They don't want the state to be involved at this point. They want the federal government to get justice for those families."

Thanks to the Arizona Republic, we can all access the superceding indictment in the Loughner case at this link.

March 5, 2011 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (9) | TrackBack

"Louisiana child molester undergoes castration for parole"

The title of this post is the headline of this notable local story about an offender willing to go to great lengths to facilitate release from prison.  Here are the details:

A convicted child molester has undergone surgical castration to win release from prison on parole.  Francis Phillip Tullier, who had faced hundreds of molestation counts involving young girls, pleaded guilty to three counts in 1999 and was sentenced to 27 years in prison.  He is now 78.

His lawyer, Nathan Fisher, said that under the agreement Tullier could only be eligible for parole once he underwent castration.  A sheriff's investigator said Tullier agreed to have the surgery at his own expense.  It was done Thursday after years of delays while Tullier was treated for various medical issues -- and after a judge told Tullier he would not be released without having it done.

The Advocatenewspaper in Baton Rouge reported Tullier is due for release next week.  He will live in nearby Iberville Parish and must register as a sex offender.

Tullier had been accused by police of more than 6,000 counts of molestation and was facing a trial on 500 counts in 1999.  Fisher said his client, 67 at the time, certainly would have died in prison if convicted on all or most of the counts. 

Louisiana law had no provision in 1999 for sentencing someone to castration, Fisher told The Associated Press on Friday.  He said he offered what he now calls a "creative sentencing" option that included physical castration.... Tullier tried to win parole without undergoing the operation [but he was told] in a hearing last fall that he would be imprisoned until 2024 if he didn't have the surgery.

Castration is now a sentencing option for people convicted of aggravated rape, forcible rape, second-degree sexual battery, aggravated incest, aggravated crime against nature and molestation of a juvenile when the victim is under age 13.

A 2008 law provides that a judge can sentence the offender to receive injections of a drug that suppresses sex drive by reducing testosterone.  That law allows offenders to choose physical castration to avoid the drug's side effects, provided the offender signs an affidavit and the judge agrees.

In January, Pam LaBorde, spokeswoman for the state Department of Public Safety and Corrections, said she could not find records of any inmate ordered to undergo castration as a part of his sentence under the new law.

I have heard of budget cuts leading to prison releases, but never this kind of cut... (cue rimshot).  I suppose it is fitting that this offender is getting off early by giving up his ability to get off... (cue rimshot).  I know, of course, that a case like this is no laughing matter.  Still, I welcome comical as well as serious comments on this cutting-edge (cue rimshot) sentencing story.

March 5, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

March 4, 2011

Third Circuit thoughtfully considers and rejects as-applied Second Amendment challenge to § 922(g)(1)

The Third Circuit today has handed down a very interesting opinion in US v. Barton, No. 09-2211 (3d Cir. Mar. 4, 2011) (available here), concerning a Second Amendment challenge to the federal crime of felon-in-possession under 18 U.S.C § 922(g)(1). Here is just one of the many interesting passages from the opinion:

To raise a successful as-applied challenge, Barton must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections.  For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.  The North Carolina Supreme Court did just that in Britt v. State, 681 S.E.2d 320 (N.C. 2009), finding that a felon convicted in 1979 of one count of possession of a controlled substance with intent to distribute had a constitutional right to keep and bear arms, at least as that right is understood under the North Carolina Constitution. Id. at 323.

Unlike the defendant in Britt, Barton fails to develop the factual basis for his as-applied challenge. Barton does not argue that his predicate offenses make him no more likely than the typical citizen to commit a crime of violence, nor could he have done so persuasively in light of the facts of his case.  Courts have held in a number of contexts that offenses relating to drug trafficking and receiving stolen weapons are closely related to violent crime....  Moreover, the record indicates that Barton has not been rehabilitated, as he recently admitted to selling a firearm with an obliterated serial number to a confidential police informant.  Because Barton has failed to demonstrate that his circumstances place him outside the intended scope of § 922(g)(1), we find no error in the District Court’s dismissal of his as-applied challenge.

March 4, 2011 in Second Amendment issues, Who Sentences | Permalink | Comments (2) | TrackBack

Is Pepper starting to add spice to federal sentencing proceedings?

The significant ruling by the Supreme Court this week in Pepper (basics here) has already impacted a on-going federal sentencing articles and projects of mine, and I am wondering if and how the Pepperruling is impacting on-going federal sentencing proceedings.  I suspect more than a few litigants with pending sentencing appeals are filing letters of supplemental authority based on Pepper, and perhaps some district courts have already referenced the ruling in sentencing decisions.  (Recall that there are, on average, more than 300 federal sentencings taking place every day in federal courts around the nation.)

I hope readers might use the comments to this post to report on any early impact from Pepper, and I also hope anyone who come across a sentencing opinion that has some Pepper added will send it my way.

Related posts on the Pepper ruling by the Supreme Court:

March 4, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3) | TrackBack

Budget woes might get in way of California's plans for "Cadillac" death row

This interesting new Bloomberg piece, headlined "California's 'Cadillac' Death Row Complex Target in Budget Talks," spotlights an interesting on-going debate about costs for the state with the largest death row in the nation.  Here are excerpts:

California is set to begin construction of a new death row, already the biggest in the U.S., at a cost to taxpayers of as much as $1 billion, even though it may reach capacity in as little as three years.  Contracts for the unit at San Quentin prison may be awarded in weeks. The complex would replace cells there dating as far back as 1927.  The project, at 540,000 square feet (50,000 square meters), would be about the size of the Connecticut Convention Center in Hartford.

Governor Jerry Brown, a Democrat, is negotiating with lawmakers to plug a $25.4 billion deficit over the next 15 months through a combination of tax extensions and spending cuts.  With services for the poor, sick and elderly threatened, some lawmakers say it’s not the time to spend money on 768 new cells.

“It’s a Cadillac death row,” said Assemblyman Jared Huffman, a Democrat from Marin County, where the prison is located, about 10 miles north of the Golden Gate . “Even if you were to somehow try to justify this huge expense by saying this is the solution to our condemned-inmate needs, it’s a three-year solution and then you are left right where we are now.”  While inmates now live one to a cell, the prison system plans to double-bunk, to make room for 1,152 men. Opponents say that might violate prisoners’ rights....

Executions have been blocked since 2006 by a federal judge over concerns that California’s lethal injection procedures and equipment were tantamount to cruel and unusual punishment.  Last month, U.S. District Judge Jeremy Fogel toured San Quentin’s new death chamber, built for almost $900,000.  He has yet to rule on its fitness.

The death-row complex, estimated by the prison system to cost $270 million, is to be financed with bonds. The interest on the bonds over 25 years may bring the cost to taxpayers to $1 billion, according to Huffman and Senator Mark Leno, a Democrat from San Francisco and chairman of the Budget Committee.

California has 713 inmates awaiting execution, the corrections department said yesterday. By comparison, Florida ranked second, with 398, and Texas was third at 337...  About 700 condemned men are confined at San Quentin, north of San Francisco, in facilities built to hold 554, according to the Corrections Department’s website. (Nineteen women face execution and are held in Chowchilla, a prison in the Central Valley.)  On average, the men are likely to spend 17 years in the aging cell blocks, according to the prison system....

Brown’s predecessor, Arnold Schwarzenegger, approved a $64 million loan from the general fund in August to begin construction on the new death row.  That money is to be repaid by the sale of prison construction bonds.  When lawmakers in 2003 approved the new San Quentin complex, it was expected to cost $220 million.  That ballooned 62 percent to $356 million on delays caused in part by opposition from state and local officials....

Putting two inmates in each cell would provide enough capacity for death row until 2035, according to the state auditor. If the state can’t double-up, the complex would be full by 2014.  The state’s existing death-row buildings include two cell blocks built in 1927 and 1934 and a three-story concrete “adjustment center” where newly sentenced and the most- dangerous condemned inmates are confined....

 Since 1978, when California reinstated capital punishment, 53 condemned inmates have died from natural causes while on death row. Eighteen committed suicide and 13 were executed. Six died from other causes.

March 4, 2011 in Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

March 3, 2011

The high costs created by very sick prisoners in California

The Los Angeles Times has this interesting report, headlined "Despite medical parole law, hospitalized prisoners are costing California taxpayers millions," highlighting the high health-care costs for an especially sick portion of the California prison population.   Here are excerpts:

A degenerative nerve disease has left 57-year-old California inmate Edward Ortiz semi-paralyzed in a private Bay Area hospital for the last year. The breathing tube in his throat tethers him to a ventilator at one end of the bed; steel bracelets shackle his ankles to safety rails at the other.

Still, California taxpayers are shelling out roughly $800,000 a year to prevent his escape. The guards watching Ortiz one day last week said department policy requires one corrections officer at the foot of his bed around the clock and another guard at the door.  A sergeant also has to be there, to supervise.  "Some of this is ridiculous, but you can't argue with policy," said Corrections Officer Allan Roper as he stared down at the unconscious Ortiz, a convicted child molester who requires medical attention beyond the prison system's capabilities.

Authorities have identified 25 "permanently medically incapacitated" inmates being treated at outside hospitals who are candidates for parole because they no longer pose a threat to the public.  Californians will pay more than $50 million to treat them this year, between $19 million and $21 million of that for guards' salaries, benefits and overtime, according to data from the federal receiver who oversees California prison healthcare.  The final amount will depend on how many of the guards are paid overtime.

In September, then-Gov. Arnold Schwarzenegger signed a "medical parole" law designed to spare taxpayers the cost of guarding inmates like Ortiz and dozens of others who officials say are incapacitated. Some are in comas, others paraplegic.  If the prisoners were released from custody, the medical costs would shift to their families if they could afford to pay, or to other government programs if they could not.  The expense of guarding the patients would be eliminated.

But the California Department of Corrections and Rehabilitation has yet to schedule a parole hearing for even one such inmate.  "It's maddening," said State Sen. Mark Leno (D- San Francisco), who sponsored the bill that Schwarzenegger signed.  "We have school districts on the verge of closing" because of the state's budget crisis.  "We don't have millions of dollars to squander on this kind of nonsense."

Terri McDonald, chief deputy secretary of adult operations for California prisons, said her department had been working with the receiver, appointed in 2005 after a federal court found that healthcare in the state's prisons was tantamount to "cruel and unusual" punishment, to draft regulations to implement the new law.  Despite those efforts, McDonald would not predict when the first sick inmate might get a parole hearing.  "These are complex public-safety regulations," she said.

Nancy Kincaid, spokeswoman for receiver J. Clark Kelso, said Kelso is "anxious to have these regulations in place so we can maximize savings."  Leno said he introduced the medical parole law to address concerns about the existing statute that allows "compassionate release" of prisoners who are permanently incapacitated or terminally ill with less than six months' life expectancy.

Compassionate release has the same legal effect as completion of a prison sentence, meaning the former inmate can't be sent back to prison unless he is convicted of another crime.

Opponents of that system pointed to the notorious case of the Lockerbie bomber, the Libyan terrorist who blew up a Pan Am flight in 1988, killing 270, but was released from a Scottish prison in 2009 when doctors thought prostate cancer would kill him in less than three months.  He was still alive a few days ago, according to published reports.   An inmate freed on medical parole in California, however, would be sent back to prison if his physical condition improved enough that he could pose a reasonable threat to public safety.

Partly because of the concern that an inmate could cheat justice by outliving a prison doctor's prognosis, the odds have not favored inmates petitioning for compassionate release.  Seventy percent of the 1,157 prisoners determined by doctors to qualify between 1991 and 2010 were rejected for compassionate release, often because top prison administrators or sentencing judges believed they could still pose a threat.

Although some able-bodied inmates have tried to escape while on outside medical appointments, corrections department officials could not cite any who had succeeded. Reducing the guard on such patients, even the most incapacitated, invites risk, said prison spokesman Oscar Hidalgo.  "And we are not in the business of taking risks with public safety," Hidalgo said.

March 3, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

"Gov. Beshear signs bill aimed at lowering Kentucky prison population"

The title of this post is the headline of this local article from Kentucky, which starts this way:

In a bipartisan flourish, Gov. Steve Beshear on Thursday signed into law a measure aimed at reversing the fast-rise in Kentucky’s prison population by steering more nonviolent drug offenders into treatment as a less costly alternative to being locked up.

Beshear hailed the bill’s overarching goal of reducing prison costs, which consume heaping amounts of state tax dollars that he said could be put into education, children’s health care and job creation.  “It enables the state to continue to be tough on crime but at the same time to be smarter about it,” the Democratic governor said at a bill-signing ceremony that drew leaders from all three branches of government.

At least momentarily, bipartisan teamwork was in fashion. Beshear was flanked by top Democratic and Republican lawmakers — including Senate President David Williams, a Republican who wants his job.

The bill is touted as a far-reaching way to lower prison headcounts, reduce the frequency of repeat drug offenses and improve public safety.  It seeks to make a big dent in Kentucky’s illegal drug scourge.  It updates Kentucky’s drug laws by reducing prison time for low-risk, nonviolent drug criminals caught with small amounts of drugs.  More of them would get treatment and alternative sentencing instead of prison time.  The bill preserves tough sentences for violent offenders and serious drug criminals.

Williams, R-Burkesville, said the measure offers the chance to “make a real difference in people’s lives.  To give them a second, or third chance even, as far as the ability to rehabilitate.”  Legislative leaders said the bill overcame tough odds to reach the governor’s desk.  It may be the biggest accomplishment of this year’s legislative session, which has a handful of working days left.

March 3, 2011 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (4) | TrackBack

Ninth Circuit rejects effort to get review of BOP decisions about RDAP under the APA

Though the alphabet soup of abbreviations in the title of this post may only make sense to some federal sentencing practitioners, all sentencing fans ought to be somewhat intrigued by the little ruling today by the Ninth Circuit in Reeb v. Thomas, No. 09-35815 (9th Cir. Mar. 3, 2011) (available here), which gets started this way:

This case requires us to decide whether a district court has subject matter jurisdiction to review the Bureau of Prisons’ (“BOP”) individualized residential drug abuse program (“RDAP”) determinations, a question of first impression in this Circuit.  The existence of subject matter jurisdiction is a question of law reviewed de novo.  Puri v. Gonzales, 464 F.3d 1038, 1040 (9th Cir. 2006).  Because we hold that 18 U.S.C. § 3625 precludes judicial review under the Administrative Procedure Act (“APA”) of the BOP’s individualized RDAP determinations made pursuant to 18 U.S.C. § 3621, we vacate and remand to the district court.

March 3, 2011 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

Former Chair of US Sentencing Commission urging "presumptive guideline" Booker fix

Federal district judge William K. Sessions III, who served on the US Sentencing Commission for more than a decade and who was its Chair through the end of last year, has authored an important new paper about the present and future of post-Booker sentencing law and policy.  This paper, now available here via SSRN, is titled, "At the Crossroads of the Three Branches: the U.S. Sentencing Commission's Attempts to Achieve Sentencing Reform in the Midst of Inter-Branch Power Struggles." Here is the abstract:

During the past quarter-century, federal sentencing policy has been impacted by struggles among the three branches of government, with each branch possessing a legitimate stake in formulating the policy but at times exerting inordinate influence at the expense of the other branches.  The United States Sentencing Commission has faced -- and will continue to face -- enormous challenges in its mission to serve as the neutral expert at the intersection of the three branches regarding federal sentencing policy.

In the same manner in which the Commission has had to adjust to dramatic changes in the past (such as the PROTECT Act and the Supreme Court’s decision in Booker v. United States), I envision that additional changes will occur in the foreseeable future and the Commission will yet again be forced to adjust.  In particular, I predict that, despite allowing the “advisory” guidelines system created by Court to exist for over six years to date, Congress eventually will retool the current system because of growing sentencing disparities -- both inter-judge disparities and demographic disparities, the same type which caused bipartisan support for the Sentencing Reform Act of 1984.  With this in mind, and as a consequence of its unique vantage point of being at the crossroads of the three branches of government, the Sentencing Commission must assume a leadership role in developing an improved federal sentencing scheme that recognizes the legitimate interests of each branch.

I urge the Commission, working together with Congress and executive branch, to reformulate the guidelines in a manner that helps reduce unwarranted disparities while, at the same time, remove the main obstacle that has hindered lasting achievement of the aspirations of the SRA: the undue complexity and rigidity of the guidelines system, which have resulted in large part from congressional directives and draconian mandatory minimum statutes and which have caused increasing numbers of judges to resist (and, after Booker, in some cases entirely reject) substantial portions of the current guidelines. The Commission should streamline individual guidelines (primarily by reducing the amount of numeric aggravating factors in Chapters Two and Three) and also simplify the Sentencing Table in Chapter Five of the Guidelines Manual to provide for fewer and broader sentencing ranges.  To reduce unwarranted sentencing disparities, Congress should make the guidelines presumptive (rather than advisory) and provide for meaningful appellate review to generally keep sentences within the presumptive ranges (which also would make mandatory minimum statutory penalties unnecessary).  Finally, in order to comply with the Court’s decisions in Blakely v. Washington and later Booker, juries would be required to find aggravating facts that raise the “ceilings” of guideline ranges. Yet broader ranges and fewer aggravating factors likely would make such jury findings a relatively uncommon event.

Such a presumptive guideline system subject to meaningful appellate review would meet Congress’s and the executive branch’s valid desire to minimize disparate sentences being imposed on similarly situated defendants who committed similar offenses.  At the same time, however, broader sentencing ranges and fewer mandatory aggravating factors would allow sentencing judges to better account for individual offender and offense characteristics, thereby allowing judges to carry out their traditional role in determining fair and just sentences.

My proposed system would not be perfect; no sentencing system ever will come close to being perfect.  But it would be a genuine compromise that would provide something meaningful to all three branches.  At the very least, my proposal is intended to advance the dialogue regarding changes that are clearly needed.

I have heard a bit of buzz from some fans of the current post-Booker federal sentencing status quo that they were troubled to see the former USSC Chair actively urging a legislative Booker fix.  But especially in the wake of the federal sentencing ruling by the Supreme Court yesterday in Pepper (basics here), it is understandable that Judge Sessions and perhaps many others continue to be concerned that the broad discretion that Booker jurisprudence now affords sentencing judges could, in the words of this article, hinder what some consider the "lasting achievement of the aspirations of the SRA."    

March 3, 2011 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (15) | TrackBack

The latest news on the (soon-to-end) uncertainty of the death penalty in Illinois

The AP has this lengthy new story about the death penalty in the Prairie State, which is headlined "Ill. governor mulls bill to abolish death penalty."  Here are snippets:

Nearly a decade after a former governor dramatically cleared the state's death row, Gov. Pat Quinn will return Illinois to the center of the nation's death penalty debate in coming days when he decides whether to abolish executions in the state for good.

Quinn, who faces a March 18 deadline, has said his decision will be based on his conscience. But he has spent two months consulting with prosecutors, murder victims' families, death penalty opponents and religious leaders — including retired Anglican Archbishop Desmond Tutu of South Africa and Sister Helen Prejean, the inspiration for the movie "Dead Man Walking" — as he weigh his options.

Personally, the Chicago Democrat brings a mixed record to the decision: Raised a Roman Catholic, he says he supports the death penalty when properly implemented. But he has upheld Illinois' moratorium on executions since taking office and holds many liberal views. He supports abortion rights and recently signed a bill legalizing civil unions for gay couples in Illinois....

While he has kept his deliberations close to the vest, some would be surprised if Quinn didn't take advantage of this chance to leave his mark on history by signing legislation ending capital punishment. He could take action on the bill as early as this week. "I will be very startled and disappointed if he doesn't sign it," said Dr. Quentin Young, a longtime friend of Quinn's who worked with him in the past on advocating for universal health care....

In 2009, New Mexico became the most recent state to repeal the death penalty, although new Republican Gov. Susana Martinez, a longtime prosecutor, wants to reinstate it. Illinois currently does not carry out executions because of an 11-year-old moratorium.

"I've heard from many, many people of good faith and good conscience on both sides of the issue. And I've tried to be very meticulous and writing down notes and studying those notes and books and e-mails. They've really spoken from the heart. I've been very proud of the people of Illinois," Quinn said Wednesday in Springfield.

The moratorium was imposed in 2000 by then-Republican Gov. George Ryan after the death sentences of 13 men were overturned. Ryan called the state's capital punishment system "haunted by the demon of error" and cleared death row shortly before leaving office in 2003 by commuting the sentences of 167 condemned inmates to life in prison.

Illinois Attorney General Lisa Madigan, prosecutors and some victims' families have appealed directly to Quinn to veto the bill lawmakers passed in January. They contend new safeguards, including videotaped interrogations and easier access to DNA evidence, have since been put in place to prevent innocent people from being executed. Death penalty opponents have long argued there's no guarantee that won't happen....

As Quinn mulls his decision, one factor he has to consider is what to do with the 15 people already on death row.  Currently, offenders can still be sentenced to death although Illinois isn't carrying out executions because of the moratorium. 

Some recent related posts:

March 3, 2011 in Death Penalty Reforms, Who Sentences | Permalink | Comments (2) | TrackBack

New Jersey report finds recidivists driving up prison costs

This lengthy local article, headlined "Repeat offenders in N.J. prison system are draining state budget, report finds," highlights that concerns about state spending and budgets in New Jersey is getting focused on corrections.  Here are excerpts:

New Jersey’s prison system is a revolving door for criminals that drains the state budget by jailing the same people over and over again, according to a high-level review being conducted for the Christie administration.

A draft copy of the report, obtained by The Star-Ledger, says the state’s patchwork system is in dire need of reform to reduce the number of ex-offenders returning to prison. And it says the best way to do that is to connect former inmates with jobs so they don’t return to crime.

The report’s conclusions are the result of a broad, months-long review involving several state departments and the Manhattan Institute, a conservative New York City-based think tank with a progressive reputation on prison issues.  "Exorbitant criminal justice spending persists, incarceration lingers at a high rate, and the same individuals cycle between the criminal justice system and New Jersey communities," the report says....  "(Employment) provides individuals with the funding to pay for necessities and, equally important, dignity and hope," it says.

The high rate of former inmates returning to prison is a problem that has dogged criminal justice and social service organizations around the country, and the report says New Jersey needs to restructure its approach.  Under its recommendations, the governor’s office would coordinate all of the state’s efforts, from job training to drug treatment to law enforcement.  The Parole Board, which already supervises about 60 percent of inmates leaving prison, would be the lead agency.

The report has not yet been presented to Gov. Chris Christie, two sources said. Spokesman Michael Drewniak declined comment.  If Christie endorses the recommendations, it would be the former federal prosecutor’s first major foray into criminal justice policy since taking office.  Prison reform efforts nationwide have garnered support across the political spectrum, from conservatives seeking to cut the cost of incarceration to liberals hoping for social change....

The review has involved a cross-section of state officials and even a former governor: James E. McGreevey, who volunteers with inmates and remains active on prison issues. "Everyone in our nation — conservative Republicans, liberal Democrats, evangelical Christians, agnostics — understands our prison system doesn’t work," McGreevey said. Newark has been running its own program to reduce recidivism for the past two years.

The program’s director, Ingrid Johnson, said 829 out of 1,394 participants were placed in jobs, with a job retention rate of 71 percent.  Only 7 percent of all participants have been arrested again. Johnson said people with steady work are less likely to commit new crimes. "Employment provides hope and direction," she said.

Prison reform may hold some appeal for Christie, who has pledged to cut spending.  It costs an average of $48,000 a year to keep an inmate locked up in state prison. "The situation is unsustainable," the report says.

March 3, 2011 in Offender Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (9) | TrackBack

March 2, 2011

Will Pepper prompt many more federal sentencing judges to focus on post-offense rehabilitation?

The significant federal sentencing ruling by the Supreme Court today in Pepper (basics here) is only technically concerned with whether district judges are permitted to consider evidence of a defendant's post-sentencing rehabilitation at a re-sentencing following an appellate reversal of a defendant's original sentence.  But in the course of saying that district judges do have authority to consider this kind of evidence, Justice Sotomayor' opinion for the Court highlights reasons why any evidence of a defendant's rehabilitation is a critically important concern for an initial sentencing decision in which a district judge is seeking to comply with the statutory instructions of  18 U.S.C. §3553(a)

Consider in this context these passages (with some cites omitted) from the Pepper opinion:

[E]vidence of postsentencing rehabilitation may be highly relevant to several of the §3553(a) factors that Congress has expressly instructed district courts to consider at sentencing.  For example, evidence of postsentencing rehabilitation may plainly be relevant to “the history and characteristics of the defendant.” §3553(a)(1).  Such evidence may also be pertinent to “the need for thesentence imposed” to serve the general purposes of sentencing set forth in §3553(a)(2) — in particular, to “afford adequate deterrence to criminal conduct,” “protect the public from further crimes of the defendant,” and “provide the defendant with needed educational or vocational train-ing . . . or other correctional treatment in the most effective manner.” §§3553(a)(2)(B)–(D).... Postsentencing rehabilitation may also critically inform a sentencing judge’s overarching duty under §3553(a) to “impose a sentence sufficient, but not greater than necessary” to comply with the sentencing purposes set forth in §3553(a)(2)....

Pepper’s postsentencing conduct also sheds light on thelikelihood that he will engage in future criminal conduct, a central factor that district courts must assess when imposing sentence.  See §§3553(a)(2)(B)–(C); Gall, 552 U.S., at 59 (“Gall’s self-motivated rehabilitation ... lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts” (citing §§3553(a)(2)(B)–(C))).  As recognized by Pepper’s probation officer, Pepper’s steady employment, as well as his successful completion of a 500-hour drug treatment program and his drug-free condition, also suggest a diminished need for “educational or vocational training ... or other correctional treatment.” §3553(a)(2)(D).  Finally, Pepper’s exemplary postsentencing conduct may be taken as the most accurate indicator of “his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.”  Ashe, 302 U.S., at 55. Accordingly, evidence of Pepper’s postsentencing rehabilitation bears directly on the District Court’s overarching duty to “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing. §3553(a).

As the question in the title of this post is designed to highlight, one could readily replace the word "postsentencing" in these passages with the word "post-offense" without any loss of meaning.  All the substantive reasons why the Court says sentencing judges should be concerned with postsentencing rehabilitation apply with equal force — and maybe with even greater force — to post-offense rehabilitation.  (Indeed, the cite/quote from the Gall opinion in this context, a case concerning only post-offense rehabilitation, reinforces the point that a majority of Justices views these considerations comparably.)

Since Booker (and even before Booker), it has been common for federal defense attorneys to stress evidence of a defendant's post-offense rehabilitation before an initial sentencing.  And since Booker (and especially since Gall), some (many?) federal district judges have been inclined to give some (or even considerable) weight to such evidence.  But I have always sensed that some (many?)  federal district judges have been unwilling to give too much (or even any) weight to such evidence.  I am certain Pepper will prompt defense attorneys to be even more aggressive when presenting and making arguments based on post-offense rehabilitation.  But, as my post title suggests, I am less sure if Pepper will lead many more federal sentencing judges to focus on such evidence when discharging, as Pepper puts it, their "overarching duty to 'impose a sentence sufficient, but not greater than necessary' to serve the purposes of sentencing.  §3553(a)."

Related posts on the Pepper ruling by the Supreme Court:

March 2, 2011 in Booker in district courts, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

"Are Sexual Offense Laws Too Harsh? And Do They Work?"

EwingJusticePerverted The questions in the title of this post comes from the heading of this new press release via the Univesity of Buffalo as part of a promotion for a new book by one of its law faculty.  Here are some of the interesting details:

University at Buffalo Law School Professor Charles Patrick Ewing has added to his series of critically acclaimed books on some of the most unsavory but attention-grabbing aspects of the law, this time with a book questioning the legal logic and effectiveness of the country's increasingly harsh sex offense laws.

In "Justice Perverted," Ewing examines what he calls "radically reshaped" laws dealing with the country's sex offenders.  These laws include ordering sex offenders to register with authorities, punishment for people possessing child pornography that "dwarfs" sentences for more violent crimes, including murder, and a federal law that requires a minimum 10-year prison sentence for those using the Internet to lure minors for sex.

All these dramatic changes in sex offender laws have come about at least partly from input from the fields of psychology, psychiatry and the social sciences, according to Ewing, whose extensive writing credits include several books on forensic psychology, which is the application of psychological principles and methods to legal issues, and how they play out in the courtroom.  And Ewing's research and experience in many trials -- both nationally notorious as well as obscure -- conclude that enforcement and administration of many of these significantly more restrictive sex offense laws rely heavily the opinions of mental-health professionals....

"All of these laws are purportedly designed to enhance public safety by reducing the incidence of sexual offending," says Ewing, whose work in forensic psychology has involved using psychology to understand legal issues such as insanity, competence to stand trial and future danger.  "Not only is there no evidence that these laws have had their intended effect, but there is some evidence that some of them may in fact lead to an increased threat to society.

"The economic costs of these laws are staggering and seem indefensible at a time when other valued government programs are being cut to avoid fiscal disaster," says Ewing. "There can be little doubt that sexual offenses bring great harm to individuals and society or that we should do all that we can reasonably do to prevent them from occurring. The question is what is reasonable.  It is neither reasonable nor responsible to spend billions of taxpayers' dollars on laws with no proven value."

The questions Ewing takes on in "Justice Perverted" go beyond the arcane procedures of the nation's courtrooms to issues of justice and fair treatment of all parties. Are experts capable of providing effective treatment for sex offenders, Ewing asks, for example, treatment that actually reduces the likelihood that an identified sex offender will repeat a similar offense?

March 2, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

"Prosecutors to pursue dealth penalty in abortion doctor case"

The title of this post is the headline of this CNN article discussing a high-profile prosecution in a very disturbing case from Pennsylvania.  Here are details:

Philadelphia prosecutors say they will seek the death penalty against abortion doctor Kermit Gosnell, who is charged with murder after allegedly performing illegal late-term abortions at a dirty facility.

Authorities allege that some of the infants were born alive and then killed with scissors, which were used to cut their spinal cords. Dr. Gosnell, 69, faces eight counts of murder, which include seven babies and one 41-year-old woman. Karnamaya Mongar died November 20, 2009 after overdosing on anesthetics prescribed by the doctor, according to Philadelphia District Attorney Seth Williams.

Gosnell's attorney, William Brennan, has stressed that his client should be "presumed innocent."

Earlier this month, Pennsylvania Gov. Tom Corbett fired a half-dozen employees and announced changes in two departments, calling state oversight of an abortion clinic where the deaths occurred "despicable." The Department of Health and the Department of State have primary oversight over such clinics. "This doesn't even rise to the level of government run amok. It was government not running at all. To call this unacceptable doesn't say enough. It's despicable," Corbett said....

District Attorney Williams earlier called the facility "a house of horrors" that performed "botched and illegal abortions" and was full of containers of fetuses' body parts. Six other defendants face charges. All had some role at the Women's Medical Society clinic, which was run by Gosnell and served mostly low-income minority women, Williams said.

A grand jury investigation determined that health and licensing officials had received repeated reports about Gosnell's practices for two decades, but taken no action -- even after learning that women died during routine abortions -- Williams has said.

March 2, 2011 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (0) | TrackBack

SCOTUS opinion in Pepper shows how/when/why courts can reject the FSG

I am quickly working my way through the majority opinion of the Supreme Court in Pepper (basics here), and I am consistently impressed with how Justice Sotomayor's opinion is weaving its way through a range of post-Booker issues and various other aspects of modern federal sentencing law and practice.  Of particular note is a section highlighting the appropriateness of rejecting a policy statement within in the federal sentencing guidelines after Booker.  This section is set up with this important point that I suspect will become a central part of many future defense sentencing memos:

[O]ur post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views.  That is particularly true where, as here, the Commission’s views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted.

March 2, 2011 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1) | TrackBack

SCOTUS rules in Pepper, again stressing sentencing discretion after Booker

The Supreme Court handed down its biggest federal sentencing case of the Term to date, ruling in the Peppercase about the consideration of post-sentencing rehabilitation at a federal resentencing proceeding.  The full opinion is available at this link, and here are the (no-so-simple) basics of the ruling in terms of how the Justices voted:

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and GINSBURG, JJ., joined, and in which BREYER and ALITO, JJ., joined as to Part III.  BREYER, J., filed an opinion concurring in part and concurring in the judgment.  ALITO, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part.  THOMAS, J., filed a dissenting opinion.  KAGAN, J., took no part in the consideration or decision of the case.

Here is the key paragraph from the start of the opinion for the Court by Justice Sotomayor: 

We hold that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.  Separately, we affirm the Court of Appeals’ ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s prior sentencing.

The ultimate outcome here is not too surprising, but there seems to be a lot of "there there" in this opinion.  (For example, the first part of the opinion of the Court stresses the old 1949 Williams ruling and repeats over and over that federal judges even after modern sentencing reforms have broad discretion to consider all factors relating to the defendants.)  Blog posts will follow with some quick thoughts and perhaps some deeper thoughts in the hours and days ahead.

March 2, 2011 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

March 1, 2011

"Beyond Rehabilitation: A New Theory of Indeterminate Sentencing"

The title of this post is the title of this great looking new piece by Professor Michael M. O'Hear. here is the abstract:

Indeterminate sentencing -- that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board -- fell into disrepute among theorists and policymakers in the last three decades of the twentieth century.  This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970’s.  In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release.  Yet, sentencing remained indeterminate most places to varying degrees, and now parole and similar mechanisms are staging an unexpected comeback.  However, despite its perseverance and apparent resurgence, indeterminate sentencing has lacked any clear theoretical foundation since the demise of the rehabilitative paradigm.  Indeed, indeterminate sentencing is commonly thought to conflict with retributivism, the dominant approach to punishment theory today.  The lack of a clear theoretical foundation has likely contributed in recent decades to the ad hoc expansion and contraction of parole in response to short-term political and fiscal pressures.

In the hope of bringing greater stability and coherence to what seems once again an increasingly important aspect of our penal practices, this Article proposes a new normative model for indeterminate sentencing that is grounded in a retributive, communicative theory of punishment.  In essence, the model conceives of delayed release within the indeterminate range as a retributive response to persistent, willful violations of prison rules. T he Article explores the implications of this model for prison and parole administration and for punishment theory.

March 1, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

New ACS piece on the right to counsel and public defender workloads

Continuing its strong coverage of indigent defense issues, the American Constitution Society has released another issue brief on this critcal topic. The document is avaiable via this ACS page, and here is a description:

ACS is pleased to distribute “When Excessive Public Defender Workloads Violate the Sixth Amendment Right to Counsel Without a Showing of Prejudice,” an Issue Brief by Laurence A. Benner, Professor of Law and Managing Director of Criminal Justice Programs at California Western School of Law.  This paper is part of a series of Issue Briefs that ACS is publishing focused on ideas for a role that the federal government can play in helping improve indigent defense systems around the country . This series builds on the interest in pursuing reform expressed by Attorney General Eric Holder, Congress, and other federal policymakers to address the crisis in indigent defense that has existed since the Supreme Court’s 1963 decision in Gideon v. Wainwright, the landmark case establishing the right to counsel for indigent defendants.

In his Issue Brief, Professor Benner explains how, by focusing on the absence of counsel at a critical stage of proceedings, rather than on the ineffectiveness of counsel, a set of claims could be considered outside of the analysis required by Strickland v. Washington. Strickland’s two-pronged test requires that ineffective assistance of counsel claims demonstrate that counsel’s deficient performance be both professionally unreasonable and prejudicial.  As Professor Benner explains, his litigation strategy avoids the prejudice prong:

As Gideon v. Wainwright and its progeny established, the Sixth Amendment guarantees the assistance of counsel at each critical stage of the proceedings against an accused.  The strategy outlined here is premised upon the argument that the period between arraignment and trial — the investigatory stage — is a critical stage at which the accused is entitled to counsel’s assistance.  In sum, the argument is that because excessive caseloads make it impossible for defense counsel to conduct a reasonable investigation into factual innocence and/or mitigating circumstances relevant to punishment, this inability to provide “core” assistance of counsel renders counsel constructively absent at a critical stage of the proceedings.

The author describes how the aforementioned litigation strategy could be incorporated into the federal government’s response to the indigent defense crisis via legislation such as the Justice for All Reauthorization Act, which would, among other things, create a federal cause of action for equitable and declaratory relief to address patterns of deprivations of Sixth Amendment rights.

March 1, 2011 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Three more Ohio execution dates set by state supreme court

As detailed in this local article, the "Ohio Supreme Court today set three new execution dates, bringing the total scheduled this year to 10."  Here are more of the details:

If all 10 are carried out, it would be the most in Ohio since 1949 when 15 men died in the electric chair.  Executions, which are now done by lethal injection, are scheduled monthly through November.  New execution dates were set for:

  • Reginald Brooks, of Cuyahoga County, who murdered his three sons, ages 17, 15 and 11, in their home on March 6, 1982.  Execution date: Nov. 15, 2011.
  • Charles Lorraine, of Trumbull County, who killed an elderly couple in their home on May 6, 1986.  Execution date: Jan. 18, 2012.
  • Michael Webb, of Clermont County, who set the family home on fire, killing his three-year-old son on Nov. 21, 1990.  Execution date: Feb. 22, 2012.

Ohio's eight executions in 2010 were second in the nation to Texas.

Though 10 would mark a modern record for the number of executions in a single year for Ohio, the state would need to go at an even a faster yearly execution pace if it wanted to carry out all the death sentences of the 156 persons now on the state's death row before the end of the year 2025.

March 1, 2011 in Death Penalty Reforms, Who Sentences | Permalink | Comments (22) | TrackBack

"Juvenile Incarceration and the Pains of Imprisonment"

The title of this post is the title of this interesting-looking new article by Professors Jeffrey Fagan and Aaron Kupchik, which is now available via SSRN.  Here is the abstract:

As a result of the movement to criminalize youth crime in the 1980s and 1990s, large numbers of incarcerated youth serve their sentences in adult correctional facilities.  In an effort to understand the ramifications of this practice, prior research studies have compared the correctional experiences of youth in juvenile and adult facilities.  Yet this research tends to minimize the pains of imprisonment for youth in juvenile facilities, based on the contrast to adult facilities and the toxic conditions of confinement within them.

In the following article, we contribute to this literature by analyzing data from interviews with 188 young men incarcerated in juvenile and adult facilities across two states.  Our results show that although inmates in adult facilities (surprisingly) give better reports than youth in juvenile facilities on several measures (including criminal activity and victimization), they also fare much worse on other measures.  Importantly, the inmates in adult facilities report substantially and significantly greater rates of PTSD and mental illness symptoms, and are much more likely to be afraid for their safety, compared to those in juvenile facilities.  Based on these results, we argue that incarceration should be used only as a last resort for juveniles, regardless of institutional auspice, but that when it is deemed necessary, juvenile correctional facilities represent the lesser of two evils.

March 1, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Are death penalty fans pleased or disappointed when a death row defendant dies of natural causes?

The question in the title of this post is prompted by this local news item from California, headlined "Hammer murderer is latest to die naturally on Death Row." Here is the background:

You'd think the biggest cause of death on California's Death Row would be execution.  After all, that's what the 712 prisoners on the row are there for, right?  Turns out it doesn't work that way.

Robber-murderer Richard Ray Parson on Monday became the latest example illustrating that natural causes, not execution, are the leading cause of death on Death Row.  Since the death penalty was reinstated in 1978, California has executed 13 prisoners, while 53 have died of disease, old age or other natural reasons.  Another 18 have committed suicide.

Executions have been on hiatus in the state since 2006 while a federal judge assesses whether the lethal injection method is humane.  The last person to die on the injection gurney was Clarence Ray Allen, 76, in January 2006.

Parson, 67, was sent to Death Row from Sacramento County in 1996 for robbing and killing Theresa Schmiedt two years earlier.  Schmiedt, a 59-year-old nurse, was beaten to death with a hammer in her Sacramento apartment.  Parson stole her purse, prosecutors said.

Parson died Monday morning at a hospital, said the state Department of Corrections and Rehabilitation. It gave no further information.

I could imagine some death penalty fans pleased by this kind of news: another convicted murderer no longer is on the planet and the state no longer has to pay the expenses for keeping this killer alive or for litigating any of his claims that his death sentence is illegal or otherwise flawed.  And yet, I could also imaging death penalty fans feeling some disappointment because this news means another murderer escaped the formal punishment of death and in essence served a life without parole sentence.

Some related posts:

March 1, 2011 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (16) | TrackBack

"You Can Have Sex With Them; Just Don't Photograph Them"

The title of this post is the headline of this notable commentary by Radley Balko at Reason, which carried the sub-heading "A former cop's 15-year prison sentence illustrates the absurdity of federal child porn laws." Here is how it gets started:

In the spring and summer of 2006, Eric Rinehart, at the time a 34-year-old police officer in the small town of Middletown, Indiana, began consensual sexual relationships with two young women, ages 16 and 17.  One of the women had contacted Rinehart through his MySpace page.  He had known the other one, the daughter of a man who was involved in training police officers, for most of her life.  Rinehart was going through a divorce at the time.  The relationships came to the attention of local authorities, and then federal authorities, when one of the girls mentioned it to a guidance counselor.

Whatever you might think of Rinehart's judgment or ethics, his relationships with the girls weren't illegal.  The age of consent in Indiana is 16.  That is also the age of consent in federal territories.  Rinehart got into legal trouble because one of the girls mentioned to him that she had posed for sexually provocative photos for a previous boyfriend and offered to do the same for Rinehart.  Rinehart lent her his camera, which she returned with the promised photos.  Rinehart and both girls then took additional photos and at least one video, which he downloaded to his computer.

In 2007 Rinehart was convicted on two federal charges of producing child pornography. U.S. District Court Judge David Hamilton, who now serves on the U.S. Court of Appeals for the 7th Circuit, reluctantly sentenced Rinehart to 15 years in prison.  Thanks to mandatory minimum sentences, Hamilton wrote, his hands were tied.  There is no parole in the federal prison system.  So barring an unlikely grant of clemency from the president, Rinehart, who is serving his time at a medium-security prison in Pennsylvania, will have to complete at least 85 percent of his term (assuming time off for good behavior), or nearly 13 years.

Hamilton was not permitted to consider any mitigating factors in sentencing Rinehart.  It did not matter that Rinehart's sexual relationships with the two girls were legal.  Nor did it matter that the photos for which he was convicted never went beyond his computer. Rinehart had no prior criminal history, and there was no evidence he had ever possessed or searched for child pornography on his computer.  There was also no evidence that he abused his position as a police officer to lure the two women into sex.  His crime was producing for his own use explicit images of two physically mature women with whom he was legally having sex. (Both women also could have legally married Rinehart without their parents' consent, although it's unclear whether federal law would have permitted a prosecution of Rinehart for photographing his own wife.)

"You can certainly conceive of acts of producing actual child pornography, the kind that does real harm to children, for which a 15-year sentence would be appropriate," says Mary Price, general counsel for the criminal justice reform group Families Against Mandatory Minimums.  "But this is a single-factor trigger, so it gets applied in cases like this one, where the sentence really doesn't fit the culpability."

March 1, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

February 28, 2011

Washington Post editorial on "Repeat offenders" and best practices

This morning's Washington Post includes this interesting editorial headlined "Repeat offenders."  Here are excerpts:

The numbers are staggering.  Some 5.1 million individuals are out on probation or parole. If national trends hold up, roughly 40 percent of them will be returned to prison for a future offense.  Yet many of the approaches relied on by state and local corrections officials to keep prisoners from committing new offenses are not just ineffective but counterproductive.

Take, for instance, community supervision of inmates deemed at low risk of reoffending. When these parolees are sentenced to halfway houses and other relatively rigid forms of community supervision, their tendency to commit new offenses increases.  That is because they often are forced to spend a significant part of their day at the facility -- time that would be better spent with family, obtaining skills or seeking employment.  Forcing low-risk individuals to spend time in close quarters with more hardened offenders often works to undermine a smooth and crime-free reintegration into society at large.  Placing high-risk offenders in more structured residential programs, on the other hand, reduces their chances of recidivism.

Consider also that drug treatment programs in prison tend to be less effective than those conducted when the offender has been released.  And putting the onus on offenders to travel to often-distant corrections offices to check in with supervisors undermines compliance and positive reintegration, especially compared with success rates when parole and probation officers are stationed in neighborhoods with a high concentration of released offenders.

These observations are contained in a recently released report that grew out of congressional hearings led by Rep. Frank R. Wolf (R-Va.) and then-Rep. Allan B. Mollohan (D-W.Va.). Just as helpful as pointing out commonly made mistakes are the cutting-edge practices identified in the report....  Not every new approach will work throughout the country.  But there are plenty of good ideas, many of which could be tailored to the specific needs of jurisdictions.  The report, in other words, should be required reading.

February 28, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (8) | TrackBack

Second Circuit affirms conviction and sentence of creator of morphed child porn

The Second Circuit today handed down an interesting and notable child porn ruling in US v. Hotaling, No. 09-3935 (2d Cir. Feb. 28, 2011) (available here), which gets started this way:

Defendant-Appellant, John Hotaling, appeals from a judgment of the United States District Court for the Northern District of New York (Mordue, J.) of conviction for violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(C) and imposition of a sentence based on a specific offense characteristic sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(4).  The district court concluded that the statute prohibiting possession of child pornography was not unconstitutionally overbroad as applied to defendant, nor unconstitutionally vague, and also applied a sentence enhancement on the basis of a photograph depicting sadistic or masochistic imagery.  United States v. Hotaling, 599 F. Supp. 2d 306, 322 (N.D.N.Y. 2008).  We conclude that the district court was correct in holding that child pornography created by digitally altering sexually explicit photographs of adults to display the face of a child is not protected expressive speech under the First Amendment.  We also conclude that the application of the sentence enhancement based on a photograph that has been modified to portray a partially nude minor, restrained by handcuffs, a dog collar and leash, tied to a dresser was proper.  Accordingly, we affirm.

February 28, 2011 in Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

"A Critical Appraisal of the Department of Justice’s New Approach to Medical Marijuana"

The title of this post is the title of this new paper by Rob Mikos now available via SSRN.  Here is the abstract:

The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP).

In a nutshell, it suggests that early enthusiasm for the NEP is misguided; on close inspection, the NEP represents at most a very modest change in federal policy.  First, the NEP won’t necessarily stop federal agents from pursuing criminal prosecutions of marijuana dispensaries. In a twist of irony, the non-enforcement policy itself is not enforceable.  It doesn’t create any legal rights a court could invoke to dismiss a criminal case. And the DOJ itself will have a difficult time ensuring that federal prosecutors comply with the agency’s stated policy. Second, even assuming the NEP would block criminal prosecutions, federal law could still obstruct state medical marijuana programs by imposing -- or enabling others to impose -- a wide range of civil and private sanctions on medical marijuana users and their suppliers.  The problem is the NEP doesn’t repeal the federal ban on marijuana.  Marijuana technically remains illegal under federal law, and the possession, cultivation, or distribution of the drug trigger a host of civil sanctions not addressed by the NEP. For example, the Department of Housing and Urban Development (HUD) can deny federal housing subsidies to medical marijuana users, and pharmaceutical companies could potentially bring civil RICO actions against marijuana dispensaries. What is more, the federal ban arguably preempts states from shielding marijuana users and dispensaries from sanctions imposed by private parties.  For example, employers can likely skirt liability under state law for discriminating against employees who use marijuana for medical purposes.  Metaphorically, the federal ban is a hydra, only one head of which has been severed by the NEP (and one that could too easily be regrown). The labor of ending federal prohibition is not yet complete.

February 28, 2011 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

SCOTUS limits reach of confrontation clause in Michigan v. Bryant

Because the Sixth Amendment's Confrontation Clause has been held not to apply at sentencing, today's SCOTUS ruling about the reach of the clause today in Michigan v. Bryantis not technically an issue of sentencing law and policy.  Nevertheless, the authors of today's opinions -- Justice Sotomayor for the Court, Justice Thomas with a separate concurrence, and Justices Scalia and Ginsburg in dissent (and Justice Kagan not participating) -- and the opinion itself are likely of great interest to all criminal justice participants.  Here is how the opinion for the Court gets started:

At respondent Richard Bryant’s trial, the court admitted statements that the victim, Anthony Covington, made to police officers who discovered him mortally wounded in a gas station parking lot.  A jury convicted Bryant of, inter alia, second-degree murder. 483 Mich. 132, 137, 768 N.W.2d 65, 67–68 (2009).  On appeal, the Supreme Court of Michigan held that the Sixth Amendment’s Confrontation Clause, as explained in our decisions in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), rendered Covington’s statements inadmissible testimonial hearsay, and the court reversed Bryant’s conviction.  483 Mich., at 157, 768 N.W.2d, at 79.  We granted the State’s petition for a writ of certiorari to consider whether the Confrontation Clause barred the admission at trial of Covington’s statements to the police.  We hold that the circumstances of the interaction between Covington and the police objectively indicate that the “primary purpose of the interrogation” was “to enable police assistance to meet an ongoing emergency.”  Davis, 547 U.S., at 822.  Therefore, Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant’s trial did not violate the Confrontation Clause. We vacate the judgment of the Supreme Court of Michigan and remand.

UPDATE:  Over at The Volokh Conspiracy here, Orin Kerr has this post on the Bryant decision titled "Michigan v. Bryant and the Future of the Confrontation Clause."

February 28, 2011 in Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

SCOTUS to finally consider whether "cocaine base" means more than crack

The Supreme Court this morning is hearing a sentencing case, DePierre v. United States, in which the Justices seem finally willing to resolve a long-debated issue of whether Congress was only referencing crack or other versions of cocaine when it used the term "cocaine base" in federal sentencing statutes. SCOTUSblog has a preview here, which starts this way:

The Controlled Substances Act, 21 U.S.C. § 841(b)(1), distinguishes between “coca leaves,” “cocaine, [and] its salts” on the one hand, and “cocaine base” on the other.  As originally passed in 1986, the Act mandated the same minimum ten-year sentence for offenses involving either fifty grams of cocaine base or five kilograms of cocaine in other forms.  (It was recently amended to raise the trigger to 280 grams of cocaine base.)  On Monday the Court will hear argument in DePierre v. United States (No. 09-1533), which presents the narrow statutory question of just what Congress meant by “cocaine base.” Six circuits have held that this language encompasses all chemically basic forms of processed cocaine, while four have ruled that it refers only to crack cocaine.

February 28, 2011 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Sentencing memo for former federal judge urges probation and stresses mental health issues

This local article, headlined "Atlanta Fed Judge Busted With Drugs and Stripper Suffered Depression and Brain Damage, Sentencing Memorandum Says," reviews some notable sentencing arguments being made by a high-profile criminal defendant.  Here are details:

Ex-Federal Judge Jack Camp is hoping to stay out of prison, hoping a judge considers his sentencing memorandum that focuses on his mental health and problems in life on March 11.

In a memo filed in federal court in Atlanta on Friday, Camp’s attorney William Taylor of Washington writes that Camp has suffered from acute depression, brain-damaging from a bicycle accident and personal family tragedy that may have contributed to him getting busted for buying cocaine for a stripper he was having an affair with.

“They do not excuse his conduct,” his attorney wrote.”  They do help explain, however, how in May of 2010 a lonely man in the twilight of his life became entangled with a seductive prostitute more than willing to take advantage of his needs and of his misguided impulse to be her friend and protector.”

The memo notes that Camp entered a psychiatric hospital after his arrest last year.  The physician in charge of his evaluation and treatment, Dr. Miles Quaytman talked to the probation office....

On Nov. 19, Camp, who was on senior status, pleaded guilty to aiding a felon in possessing illegal drugs, possessing illegal drugs and giving his government issued lap top to the stripper he was having an affair with.  He has resigned as a federal judge, which is lifetime presidential appointment.  Camp bought drugs for the stripper, who was cooperating with authorities.

The papers also noted that Dr. Qaytman found that Camp suffered serious head injury in a bicycling accident in 2000 and he has no memory of that.  “In addition to his mood cycling disorder and the physical damage to the brain, Mr. Camp has faced a number of difficult and stressful personal challenges,” the sentencing memorandum said.

Plus, he had prostrate cancer, his mother has dementia and his sister has stage four colon cancer.  The document asked that he be sentenced to probation and community service. “No one can assess precisely how these features of his personal mental health and the sorrows and stress of his life interacted,” the filing said.

These kinds of offender-based sentencing arguments for leniency are not at all uncommon, especially since Booker made the guidelines advisory. But I believe that former Judge Camp was known for being not especially influenced by these types of arguments when he was the one doing the sentencing. But now that the sentencing tables have turned...

Related prior posts (which generated lots of notable comments):

February 28, 2011 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (11) | TrackBack

February 27, 2011

Interesting debate in Nevada over preparation of presentence reports

Rarely does the preparation of presentence reports garner much attention from the media or the legal academy.  For that reason and others, I found really notable this new piece from Nevada headlined "Judges criticize plan on pre-sentence reports."  Here is how the piece begins:

Judges across Nevada have banded together against a plan by Gov. Brian Sandoval, himself a former judge, to make the counties responsible for producing pre-sentence investigation reports on felons -- reports used to determine whether an offender is a threat to the community or safe enough to be released.

Calling the idea "potentially dangerous," the judges say counties can't afford to take over the job of writing these reports, called PSIs, and they would likely disappear, leaving judges without the critical information they need to decide whether an offender should remain behind bars or be let out.

"Sentencing in felony cases would be impossible without the presentence report," said Washoe District Judge Brent Adams.  "Every single trial judge in Nevada opposes this idea.  As a former judge, the governor is well aware of the critical nature of those reports because he relied upon them in every sentencing he did as a federal judge."

"It's dangerous in my mind," added District Judge Andrew Puccinelli of Elko, who, as president of the Nevada District Judge's Association, has written letters to lawmakers on behalf of all of the state's judges blasting the plan.  "I'm not aware of any judge who was contacted by anybody on this."

Heidi Gansert, Sandoval's chief of staff, said the reports are important tools, but said "it's a matter of funding."  Under the governor's proposal, the Division of Parole and Probation would eliminate 77 positions and save $10.4 million over the biennium by moving the investigations to the district courts and ultimately the counties.

"We're streamlining.  We're in the process of prioritizing how we're spending," Gansert said.  "We agree the investigations are important and we recognize it will be difficult for the counties, but we believe the counties should be funding the costs."

Bernard Curtis, director of the Division of Parole and Probation, agreed.  "Everybody's broke.  The state is broke," he said.  "We're not saying the system should go away.  We're not saying it won't be done. Just not by P&P."

But Washoe District Chief Judge Connie Steinheimer said the money simply isn't there at the court or county level.  "I don't know how we could do it," she said.  "We've got a $15 million budget (for the Washoe District Court).  How are we supposed to add another $2 million?"

February 27, 2011 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack