Sentencing Law and Policy

Five years and $5 million in capital pre-trial time and expense for Washington mass killing

This remarkable newspaper account of pre-trial proceedings in a capital case in Washington state provides a stark reminder of certain realities that can make even a death penalty supporter inclined to conclude that the ultimate punishment is now often not worth the bother and expense to pursue.  The piece is headlined "Trial-prep costs for Carnation killings hit $4.9 million," and here is how it starts:

Nearly 4½ years after a family of six was killed in Carnation on Christmas Eve 2007, the cost of preparing for the trials of the two defendants has reached $4.9 million.

Michele Anderson, 33, and Joseph McEnroe, 33, who are accused of gunning down Anderson's family, are not expected to hear opening statements in their cases until next year. In the meantime, the costs keep mounting as trial preparation continues.

A million-dollar price tag for the prosecution and defense of defendants facing the death penalty isn't unusual, but the amount spent on the Carnation case is the largest in prepping for a potential death-penalty case since the prosecution of Green River killer Gary L. Ridgway, according to the King County Prosecutor's Office.

Between 2001, when Ridgway was identified as a suspect in the serial killings, and 2003, when he pleaded guilty to 48 counts of aggravated murder, the county spent nearly $12 million on the extensive investigation, as well as prosecution and defense, county officials said.

According to the King County Office of Public Defense, more than $2.2 million has been spent on the defense of Anderson and more than $2 million has been spent to defend McEnroe. The King County Prosecutor's Office said it has spent a combined $675,064 to prosecute both cases.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., was surprised at the sum. Dieter said the average cost for trial as well as post-conviction appeals for one death-penalty defendant is $3 million — compared to an average of about $1.1 million for the trial, appeals and incarceration for a murder defendant who is sentenced to life in prison.

"It's mammoth litigation," Dieter said. "The courts demand a more thorough investigation into the life history of the defendant. If you don't do that they're going to overturn the case [on appeal]." Dieter added, "It's death, you can't scrimp and save."

With Anderson and McEnroe being tried separately, the amount for each case could top the $3 million figure. Anderson and McEnroe, her former boyfriend, were arrested after members of her family were found slain in her parents' Carnation-area home. Killed were her parents, Wayne and Judy Anderson; her brother and his wife, Scott and Erica Anderson; and that couple's children, 5-year-old Olivia and 3-year-old Nathan.

Kathryn Ross, who is part of the three-lawyer team representing McEnroe, said, "There's nothing that's being done [by the defense] that's unnecessary."

"A lot more care has to be taken to make sure any decisions in a death-penalty case are accurate. It's called a higher degree of due process," she said.

I wonder how many new cops-on-the-beat (or scholarships for deserving students who could not afford to go to college) might have been funded with these Washington taxpayer monies if not spent on trying to figure out just how long these murderers will get to spend in prison before their lives come to an end.  Were I a taxpayer in Washington, I would find the money (mis)spent in this matter especially bothersome given the fact that Washington has only executed one murderer in the last decade.  Even if these two defendants eventually get sentenced to death, the odds seem still to indicate they are more likely to die in prison than to have death sentences actually carried out.

"Judge calls it quits after 31 years; sentencing too much to bear"

The title of this post is the headline of this lengthy new Washington Post article.  Here are excerpts:

Judges are loathe to discuss the emotional strain or joys of the job, lest they raise questions about their impartiality.  But [U.S. District Judge Ricardo] Urbina, a gray-haired jurist who took up Aikido in his 50s and meditates daily, is known for wearing his heart on his sleeve. And in a series of interviews, the judge spoke candidly about what he and most of his colleagues consider the most difficult and draining aspect of their work: sentencing, a gut-wrenching courtroom moment where a real life intersects with esoteric legal arguments and sentencing guidelines that never truly capture a case’s nuances.

For Urbina, sentencing has always been filled with stress and doubt — of agonizingly weighing the crime against the defendant’s past, of worrying about what message to send to the public and of feeling that he was never given the proper tools to rehabilitate offenders.  So, after 31 years on the local and D.C. federal bench, of sitting in judgment of scam artists, burglars, corrupt government officials and murderers, the judge retired last month, explaining that a prime reason he left a job he loved was that he had simply grown too fatigued of sentencing....

Urbina, who strangely has a reputation among prosecutors, defense lawyers and courthouse employees for being a bit prickly and quick-tempered, said there was no more important time for clarity than in the hours before sentencing.

Appointed to D.C. Superior Court in 1981 by President Ronald Reagan and then to the federal bench in 1994 by President Bill Clinton, the judge had sentenced hundreds of people to punishments ranging from life in prison to community service (he never presided over a death-penalty trial).

Urbina also imposed imaginative punishments — he ordered two men to write lengthy books about their deeds in the hopes it would help them better understand their crimes and allow others to learn from the experiences.  And he ordered most defendants to reappear in his courtroom every six months after their prison terms ended to check on their progress while on supervised release.

“I do not have a passion for punishment,” he said, a statement that helps explain why he is one of the more lenient sentencers on the D.C. federal bench, according to statistics. “If there is a way the court can contribute to the rehabilitation process, it is more likely the person will return to the mainstream.”

Protests in Egypt after sentencing of Mubarak and other former leaders

I never quite know how to react to sentencings in other nations of international figures, but this New York Times story indicates that Egyptian are not reacting especially well to the sentencing of its former leader.  This new piece is headlined "New Turmoil in Egypt Greets Mixed Verdict for Mubarak," and here are excepts:

An Egyptian judge on Saturday sentenced former President Hosni Mubarak to life in prison as an accessory in the killing of unarmed demonstrators during the protests that ended his 30 years of autocratic rule.

For many Egyptians, the conviction — the first of an Arab leader detained after last year’s uprisings — might have been one of the most important achievements so far of the revolution that stunned the world 16 months ago but has stuttered ever since. The country is still awaiting the ratification of a new constitution, the election of a new president and the hand-over of power by its interim military rulers.

Even that victory, however, appeared tenuous. Lawyers critical of Mr. Mubarak warned that the verdict was vulnerable to appeal. The judge, Ahmed Rafaat, seemed to leave an opening for reversal, stating that the prosecutors had presented no evidence that either Mr. Mubarak or his top aides had directly ordered the killing of protesters. Instead, the judge found that Mr. Mubarak was an “accessory to murder” because he had failed to stop the killing, a rationale that lawyers said would not meet the usual requirements for a murder conviction under Egyptian or international law.

The judge sentenced Mr. Mubarak’s feared former interior minister, Habib el-Adly, to the same penalty for the same reason. But he acquitted several lower-ranking officials in the chain of command responsible for the police, raising more questions about responsibility for the killings.

Mr. Rafaat also dismissed corruption charges against Mr. Mubarak and his deeply unpopular sons, Alaa and Gamal, on technical grounds. By late afternoon, thousands of protesters angry at the limits of the decision were pouring into the streets in Cairo, Alexandria, Suez and elsewhere.

Against a backdrop of military rule, in which the generals, prosecutors and judges were all appointed by Mr. Mubarak, the degree of judicial independence is impossible to know. Lawyers and political leaders called the decision political, and demonstrators denounced the ruling as a sham aimed at placating the street with a seemingly tough verdict that would collapse on appeal....

Mr. Mubarak, 84, was housed during the trial in a military hospital where he enjoyed visits from his family, according to news reports, and a daily swim. After the verdict, a helicopter flew him to a Cairo prison.

New civil rights suit goes after segregated isolation in California prisons

As reported in this recent Los Angeles Times article, headlined "Group sues California over isolation of some prison inmates," a new lawsuit is assailing California's use of solitary confinement in prison management. Here are the details:

California's practice of isolating prison inmates it suspects of gang affiliations and keeping them that way for years is being challenged in federal court by a national civil rights group. Inmate advocates say California is the only state that makes such extensive, harsh use of solitary confinement, which amounts to cruel and unusual punishment.

The inmates are segregated based on thin evidence and prevented from seeking parole, the advocates say, and their isolation leads to mental and medical problems. "It's beyond the pale for any civilized nation," said Jules Lobel, president of the New York-based Center for Constitutional Rights, which filed the lawsuit Thursday. "We as a society should not be sanctioning torture."

The lawsuit focuses on about 300 inmates who have been held in Pelican Bay State Prison's Security Housing Unit for more than a decade. Most are alone in their windowless cells, allowed out only to shower or exercise in a small concrete yard known as the "dog run." They're allowed one package a year and almost no phone calls, the lawsuit says, and the food is often rotten.

Prison officials said they were already examining their policies on how inmates are placed in the security unit, and a spokesman defended the practice as necessary to handle safety problems in a prison system rife with gangs.

"It's a place where people who pose a particular threat to staff and other inmates can be kept in the most secure way possible," said Jeffrey Callison at the California Department of Corrections and Rehabilitation.

The state's use of solitary confinement is one of the most controversial aspects of its troubled prison system. Thousands of inmates went on a hunger strike last year to protest conditions in solitary housing. Inmate advocates in March asked the United Nations to investigate whether such confinement constitutes torture.

Pelican Bay has 1,128 inmates in its Security Housing Unit. They are sent there through an administrative process that advocates described as severely flawed and lacking in due process. Only 66 are in the Security Housing Unit for behavioral problems; the rest have been confined because of gang affiliations, according to the state. One inmate is considered a member of the Mexican Mafia because he was caught with Aztec artwork, according to the lawsuit....

Ninety-one prisoners have been in the unit for more than two decades, according to the state. New rules under consideration would require assignment there to be based more on behavior in prison than on gang affiliation, Callison said.

Connecticut becomes 17th state to legalize medical marijuana

As reported in this Reuters article, a new law in the Nutmeg State now means that more than 1/3 of all US jurisdictions have now legalized the medical use of marijuana.  Here is the story on the latest:  

The state's Governor Dannel Malloy signed into law legislation allowing licensed physicians to certify an adult patient's use of marijuana for medical purposes, according to a statement from the governor's office.

The new law puts in place restrictions to prevent the kind of abuse that has plagued some of the 16 other states and the District of Columbia where pot is legal for medical use.

"For years, we've heard from so many patients with chronic diseases who undergo treatments like chemotherapy or radiation and are denied the palliative benefits that medical marijuana would provide," Governor Malloy said. "With careful regulation and safeguards, this law will allow a doctor and a patient to decide what is in that patient's best interest," he said.

Under the bill, patients and their caregivers must register with the Department of Consumer Protection. In addition, a doctor must certify there is a medical need for marijuana to be dispensed, including such debilitating conditions as cancer, glaucoma, HIV, AIDS, Parkinson's disease, multiple sclerosis or epilepsy.

A tip for would-be Virginia murderers: kill extra victims and cut deal to escape death penalty

The cynical title to this post is prompted by this new AP story, which is headlined "Virginia inmate escapes death sentence by admitting to another killing."  Here are the details:

An inmate whose death sentence was overturned will avoid the possibility of another one after brokering a deal in which he gets life in prison in exchange for admitting guilt in another killing.  A Prince William Circuit Court judge on Thursday approved the deal to spare Joshua Andrews, 30, who was sentenced to death in 2007 for a shooting spree that left two dead and three injured in Virginia and New York.

The Virginia Supreme Court overturned that sentence in 2010 because it said two of his four capital murder convictions constituted double jeopardy, the constitutional protection against being tried twice for the same crime.  Jurors convicted Andrews of killing more than one person as part of the same act and of killing more than one person within a three-year period.

In the deal, Andrews pleaded guilty to the 2001 murder of Clayton Kendall Breeding at a Woodbridge middle school parking lot.  A jury had acquitted Andrews of that murder in 2007, but he agreed to switch his plea to guilty in exchange for a guarantee that he would be sentenced to life instead of receiving the death penalty.

“From the commonwealth’s perspective, they can do something fairly remarkable, which is to undo a jury acquittal in a capital murder case and obtain a conviction in a case that would otherwise remain unsolved,” said University of Virginia law professor Matthew Engle, one of Andrews’ attorneys.  “And the deal is, they take the death penalty off the table. That’s what makes it possible for Josh to admit his guilt.”

Prosecutors said Andrews forced three men to undress and get into a bathtub in a Dumfries-area apartment during a robbery on Jan. 2, 2002, before shooting them.  Two of them died and another survived.  After that shooting, Andrews and another man fled to New York, where they robbed and shot a convenience store clerk in Queens and shot another man in the Bronx.  They were convicted of attempted murder in those shootings. Andrews was acquitted in three other deaths, including Breeding’s killing.

The Virginia Supreme Court said that the trial court erred by excluding from mitigating evidence a poem Andrews wrote and that it improperly excluded the testimony of a social work expert on how Andrews’ horrific childhood diminished his moral culpability.  At age 8, Andrews was pushed into a shed by some kids who set it on fire. He was horribly burned and disfigured, and kids taunted him by calling him “crispy critter” and “mummy.”  Also as a child, Andrews went to visit his father on death row in Texas.  Before his father could be executed, another inmate stabbed him to death....

The court upheld Andrews’ convictions, but sent his case back to Prince William for a new sentencing, which was scheduled for June.

This story confirms my fear that often the worst murderers can escape the death penalty even in states that try to apply the death penalty seriously if and when the murderer has information or something else of value to the state with which to bargain with prosecutors.  And, disconcertingly, those defendants responsible for only killing one person or involved in a felony-murder-type event with other more culpable participants often are those who lack information that might enable them to cut a deal to avoid death.

For this reason (and others), I have long thought that the operation of death penalty could be readily reformed for the better if every death penalty state had in a strong presumption against ever bringing capital charges against any defendant responsible for killing only one person and a strong presumption for bringing (and refusing to bargain away) capital charges against any defendant responsible for the murder of multiple innocent victims.

Second Circuit rejects Second Amendment attack on federal firearm possession statute

Thanks to a very helpful reader, I see that the Second Circuit has a notable new Second Amendment opinion in US v. Decastro, No. 10-3773 (2d Cir. June 1, 2012) (available here). Here is how the majority opinion (per Chief Judge Dennis Jacobs) gets started:

Following a bench trial on stipulated facts in the United States District Court for the Southern District of New York (Patterson, J.), Angel Decastro was convicted of transporting into his state of residence a firearm acquired in another state in violation of 18 U.S.C. § 922(a)(3).  Decastro appeals on the ground that § 922(a)(3) violates his Second Amendment right to keep and bear arms.  He argues: [1] that § 922(a)(3) is unconstitutional on its face; and [2] that, in combination with New York’s licensing scheme, the prohibition on the transportation into New York of a firearm purchased in another state made it virtually impossible for him to obtain a handgun for self-defense. For the following reasons, the judgment of the district court is affirmed.

Judge Hall concurs in a separate opinion in order to "enunciate how [he] reach[es] the determination that § 922(a)(3) does not impose a substantial burden on the exercise of Decastro’s Second Amendment right."

Until I have a chance to review this opinion more thoroughly, I cannot predict with confidence how strong supports of broad and potent Second Amendment rights might react to this ruling. But I can already predict that NYC Mayor Bloomberg, a very strong advocate of very strong gun control, is certain to be very pleased with this opinion (unless Chief Judge Jacobs happened to hand the opinion down in Manhattan while drinking a Big Gulp of Mountain Dew).

Ohio sentencing reforms already driving down state prison population (and recidivism rate?)

The mantra from one of my all-time favorite movies is "If you build it, they will come."  Now, based on a new article from my own Columbus Disptach, I am thinking about talking up a sentencing/prison policy mantra of "If you reform it, they will leave."  This article is headlined "Ohio prison population dropping: Sentencing revision seen as successful," and here are excerpts:

Ohio’s revised criminal-sentencing laws are making a difference after six months, diverting hundreds of inmates away from state prisons to less-expensive community programs.

From Oct. 1, 2011, when the new laws took effect, through the end of March this year, 26  percent fewer inmates were imprisoned for child-support-only violations and 180 fewer inmates came to prison for nonviolent fourth- and fifth-degree felonies.  As a result, the prison population dropped to 49,846, the lowest since November 2008. The number of prisoners had peaked at 51,278.

The recidivism rate — the number of offenders who return to prison within three years after being released — is at an all-time low, 31.2 percent. That compares with a national average near 50 percent.

Still, Ohio prisons director Gary C. Mohr said yesterday that he isn’t satisfied with the numbers. He had hoped to hit 49,168 inmates by July 1, but that won’t happen. “The impact has been slower than we anticipated,” he said.  But Mohr predicts House Bill 86, the much-debated criminal-sentencing overhaul, will show greater results in the coming year.

The provision expected to make the deepest impact has been delayed because of legal complications.  It would allow the Ohio Department of Rehabilitation and Correction to recommend in specific cases that inmates be released after serving 80 percent of their sentence.  The inmates must have a record of good behavior and be recommended by prison staff.   Cleanup language for the 80 percent provision is included in the omnibus budget review bill about to be signed by Gov. John Kasich.

Saving money is not the only reason the Kasich administration pushed for sentencing reform, but it’s an important one. It costs taxpayers $25,000 a year to house and feed each inmate in a state prison, compared with $5,000 a year for offenders in community corrections facilities.

Another change allows judges to issue what are called “risk-reduction” sentences. That means if inmates have a good record in prison and participate in programs, they qualify to get out early.  About 140 offenders have been sentenced under that provision since Oct. 1, Mohr said.

I am very pleased that, a mere six months after enactment, Ohio's sentencing reforms are already helping to ensure that my state taxpayer dollars are not being wasted on expensive prison space to warehouse non-violent offenders.  I am also intrigued to see that what strikes me as already a major state prison population reduction in only six months is still less than what Ohio's prison chief had expected by this point.

As the lats part of the title of this post reveals, I think it is a bit too early to assert that Ohio's sentencing reform from just last year itself fully accounts for the all-time low state recidivism rate.  Nevertheless, these numbers at the very least provide more encouraging evidence suggesting that we states can (and should be trying to) reduce the size of their prison populations without immediately producing a negative impact on public safety.

Federal district judge hears constitutional attack on Indiana sex offender Facebook ban

As reported in this new AP article, headlined "Judge hears fight to sex offenders' Facebook ban," one notable legal challenge to one of many bans on sex offender access to social media got a court hearing today in Indianapolis.  Here are the details:

A federal judge said Thursday she plans to rule within a month on the constitutionality of an Indiana law that bans registered sex offenders from using social networking websites where they could prey on children.

The American Civil Liberties Union of Indiana is heading the class-action suit on behalf of a man who served three years for child exploitation, along with other sex offenders who are restricted by the ban even though they are no longer on probation.  Federal judges have barred similar bans in Nebraska and Louisiana.  Similar restrictions remain in effect in New York, Illinois and North Carolina.

In a one-hour hearing at U.S. District Court in Indianapolis, Judge Tanya Walton Pratt questioned attorneys about convicted sex offenders' civil rights and whether the state law is outdated in the age of Facebook, LinkedIn and dozens of other social networking sites.

ACLU attorney Ken Falk argued that even though the 2008 law is only intended to protect children from online sexual predators, it also prevents sex offenders from using social media for political, business and religious activity such as using Facebook to follow the pope or comment on newspaper websites, posting a profile on LinkedIn or following presidential candidates on Twitter.

Falk said the law violates the rights of communication, receiving information and association, all of which the U.S. Supreme Court has ruled are guaranteed by the First Amendment.  He also argued that the ban was unnecessary because Indiana already has a law that makes it a crime to use the Internet to contact a child for the purposes of sexual gratification.

Indiana Deputy Attorney General David Arthur argued that the 2008 ban is limited only to social networking sites that allow access by children, and that Facebook, Twitter and similar sites aren't the only forms of communication. "We still have television. We still have radios. And believe it or not, people still talk face-to-face," he said. Arthur also said the ban doesn't apply to email or Internet message boards....

Courts have long allowed states to place restrictions on convicted sex offenders who have completed their sentences, controlling where many of them live and work and requiring them to register with police.  But Falk told Pratt that the social networking ban was far broader, restricting a wide swatch of constitutionally protected activities.

Arthur compared the social networking ban to laws barring sex offenders from school property and other places frequented by kids. Only in this case, he said, the place is virtual.

Similar social networking bans have been struck down in two other states. In February, U.S. District Judge Brian Jackson found that Louisiana's prohibition was too broad and "unreasonably restricts many ordinary activities that have become important to everyday life."

Louisiana lawmakers passed a new law this month that more narrowly defines which sites are prohibited. News and government sites, email services and online shopping are excluded from the new rules, as are photo-sharing and instant-messaging systems. The measure takes effect Aug. 1.

In Nebraska, a federal judge in 2009 blocked part of a law that included a social networking ban. A second legal challenge by an Omaha-area sex offender is set for trial in July.

Edwards jury gets Allen charge on five counts ... UPDATE: Acquitted on one count; mistrial on others

John Edwards has to be feeling pretty good about the jury's work today, as it seems a hung jury on most of the counts he is facing is now appearing even more likely.  This AP article provides the latest news:

The ninth day of deliberations in John Edwards' campaign fraud trial took a bizarre turn Thursday when the judge mistakenly believed the jurors had reached a verdict on all six counts. Instead, the jury told the judge they had a unanimous decision on only one charge, and the panel was sent back to the jury room for more talks....

The jury reached a verdict on one count of illegal campaign contributions involving Mellon, but their decision was not announced.  Edwards appeared happy and smiled at his family. His attorneys argued for a mistrial on the other counts and they asked for the verdict to be announced.

It was not read, and U.S. District Judge Catherine C. Eagles told the jurors to keep deliberating.  She apologized for calling them into the courtroom and then sending them back for more discussions.  "I was obviously under the impression you had reached a verdict on all six counts," Eagles said.

The judge read the jury the Allen Charge, encouraging them to reconsider their positions and deliberate further. But she said it's possible they may not be able to come to a unanimous decision on the other counts.   "If that's so, that's so," Eagles said....

The jury has made more news in recent days of the trial, as Eagles has closed the court to discuss unspecified issues with jurors.  Four alternate jurors began wearing matching colored shirts to court and one of them was said to be exchanging smiles with Edwards. Eagles told the alternates on Wednesday that they no longer needed to come to court during deliberations.

UPDATE:  As now reported in this CBS News piece, there will be not sentencing proceeding for John Edwards anytime soon (and maybe not at all): " After 9 days of deliberation, a jury has found John Edwards not guilty on one of six charges of campaign finance corruption brought against him. A mistrial has been declared on the other five counts."

I will be somewhat disappointed if the feds decide to spend the federal resources (borrowed from China, as candidate Mitt Romney likes to remind us) needed to pursue a retrial on all these counts, but I would not put it past them.

"California voters don't back marijuana legalization, poll finds"

The title of this post is the headline of this Los Angeles Times report on a new poll concerning California's pot perspectives.  Here are the details:

A majority of California voters remain opposed to legalizing marijuana, according to results of a new poll. Eighty percent of respondents said they support doctor-recommended use of marijuana to help deal with severe illness, a USC Dornsife/Los Angeles Times poll found. But only 46% said they support legalization of "general or recreational use by adults," while 50% said they oppose it.  Those against using pot were more adamant in their position, with 42% saying they felt "strongly" about it, compared with 33% for proponents.

The Bay Area was the only region of the state where a majority -- 55% -- favored legalization, compared with 41% in Southern California and 49% of voters in Los Angeles County.  There was a pronounced drop-off in support with age, with 58% support among those in their late teens and 20s, 51% for those between 50 and 64, and 28% of respondents older than 64.

As for political affiliation, 28% of Republican and 50% of Democratic respondents said they favored the idea of legalization.  Independents gave the idea a boost, with 60% saying they favored it.

The survey indicated opinions have not measurably changed since voters defeated the Proposition 19 legalization initiative in 2010 by similar margins.  And oddly, given the state's long role as a leader in marijuana decriminalization and cultivation, support for sanctioning its general use here appears to lag behind the sentiment in the rest of the country.

Dan Schnur, director of the Jesse M. Unruh Institute of Politics at USC, said the poll numbers suggest that California voters are concerned about the way the Compassionate Use Act, passed in 1996 to permit use of medical marijuana, has been carried out.  "They like the idea of providing marijuana for medical use, but they're worried that the law is being abused," he said.

The new poll of about 1,000 registered voters taken May 17-21 statewide indicated that many more voters used marijuana "recreationally" than the 3% who said they used it as medicine.  Just less than 38% said they had used pot for pleasure at least once in their lives -- and 9% said they had done so in the last year.  The questioners did not ask whether those who used the drug recreationally acquired it on the street or with a doctor's recommendation from a dispensary.  The poll's margin of error is 3.5 percentage points.

Some recent and older related posts on pot policies and politics: 

• Big win at polls for medical marijuana supporter in Oregon AG race
• State judge makes personal plea for right to use medical marijuana
• "Why I Want a Medical Marijuana Dispensary Near My Children's School"
• Latest polling indicates legalization of marijuana now has strong majority support
• Two notable new pieces on pot policy debates coming to mainstream politics
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
• Drug policy discussed by President Obama after YouTube questions
• "Bummer: Barack Obama turns out to be just another drug warrior"
• Is the time right for candidate Ron Paul to lead withdrawal from the "war on drugs"?
• New poll reports that large majority of Americans consider "War on Drugs" a failure

Connecticut litigation gearing up over status of those left on the row after death penalty repeals

This article from the Hartford Courant, headlined "Triple Murder Will Put Repeal Of State's Death Penalty Before The Supreme Court," reports on the developing rev up to litigation over the impact for those on death row of the repeal of the death penalty in Connecticut. Here is how the article starts:

Connecticut's death row inmates will look to the state's highest court to answer questions about whether their exclusion from the state's new death penalty repeal violates their rights.

The case of triple murderer Richard Roszkowski is the backdrop for defense attorneys' challenge of the provision in the landmark legislation that abolishes the death penalty for future capital crimes committed in Connecticut but allows executions for those who committed capital crimes before the repeal.

Roszkowski was convicted and sentenced to die in 2009 for killing his former girlfriend, her 9-year-old daughter and his former roommate in Bridgeport. However, because of an error in jury instructions, a judge dismissed his death sentence and ordered a new penalty phase, which was scheduled to start in June.

At what was supposed to be a routine pretrial hearing for Roszkowski at Superior Court on Wednesday, Michael Courtney, head of the state Public Defender's Office capital defense unit, said that his office would file a brief by Aug. 7, posing nine questions to the state Supreme Court that deal with the constitutionality of capital punishment and of the prospective provision of the new state law. The unit also would file a motion to preclude the death penalty in Roszkowski's case. "Our intention is to get this in front of the Supreme Court as soon as possible," Courtney said.

Local restrictions on sex offenders continue to grow and expand

This New York Times article, headlined "Public-Place Laws Tighten Rein on Sex Offenders," documents that we have still not yet reached a tipping point when it comes to post-sentencing restrictions on sex offenders. Here are excerpts:

Convicted sex offenders are barred from surfing at the famous pier in this Orange County city. In nearby Dana Point, they are prohibited from casting a fishing line in the harbor.

And if they wander into a public park in Mission Viejo, they could be shipped back to jail for six months, following the City Council’s vote this year to ban them from a host of places where children congregate. “We need to protect our kids,” the Orange County district attorney, Tony Rackauckas, had told the Mission Viejo City Council. “The danger is very real.”

Orange County finds itself at the enter of a new wave of laws restricting the movement of sex offenders. The county government and a dozen cities here have banned sex offenders from even setting foot in public parks, on beaches and at harbors, rendering almost half the parks in Orange County closed to them. Ten more cities are considering similar legislation.

And Orange County is far from alone. In recent years, communities around the country have gone beyond regulating where sex offenders can live and begun banning them outright from a growing list of public places.

From North Carolina to Washington State, communities have designated swimming pools, parks and school bus stops as “child safety zones,” off limits to some sex offenders. They are barred from libraries in half a dozen Massachusetts cities, and from all public facilities in tiny Huachuca City, Ariz. “Child safety zones are being passed more and more at the city and county level,” said Elizabeth Jeglic, a professor at John Jay College of Criminal Justice. “It’s becoming more and more restrictive. They’re not only limiting where sex offenders can live, but they’re limiting their movement as well.”

The proliferation of such restrictions reflects the continued concerns of parents and lawmakers about potential recidivism among sex offenders. But it has also increasingly raised questions about their effectiveness, as well as their fairness.

Opponents have dismissed “child safety zones” as unenforceable, saying they are designed to make politicians look tough on crime and drive sex offenders from the area, not make children safer. “These are cheap laws that can be passed to make people feel good,” said Charles P. Ewing, author of “Justice Perverted: Sex Offense Law, Psychology, and Public Policy.”...

Greg Bird was convicted of indecent exposure in 2001. Since then, Mr. Bird said, he has gotten married and turned his life around. But he now pauses at the idea of having children of his own, because he knows he could not even take them to the park to play catch. “Sometimes I wonder, is there any compassion?” Mr. Bird said. “I know I don’t deserve compassion. I broke the law. I get that. But these laws set people up to fail more.”

In some cities, law enforcement has done very little to enforce child safety zones. In Albuquerque, where some sex offenders have been banned from libraries since 2008, with some exceptions, the police have never even issued a trespass notice, a prerequisite to an arrest. Thus far, the parks bans here have led to just three convictions across the entire county.

Still, Mr. Rackauckas said he was satisfied that the laws were serving as a deterrent. “We’re not going to know how many kids were not molested or groomed for later sexual contact as a result of this law,” he said....

[O]nce one community has enacted “child safety zones,” they often spread quickly to nearby towns, as municipal governments fear becoming local havens for sex offenders. In Lake County, Fla., this year, county commissioners — surrounded by communities with tough laws on sex offenders — responded with some of the most restrictive measures anywhere, including a law prohibiting sex offenders from going within 300 feet of a park, school or playground.

Joe Carchio, a city councilman in Huntington Beach, where a park ban went into effect in December, said he felt bad for lower-level offenders whose convictions many years ago prevent them from taking their children to Little League games. Still, he wishes he could have made the restrictions even broader. “In a lot of ways, it is a feel-good law; it makes people feel safe,” Mr. Carchio said. “You make choices in this world, and I guess the choice that individual made is one that is going to follow him for the rest of his life.”

NJ prosecutors now say that Ravi should have received five years in webcam spying case

The New York Times has this fascination new report on some "post-game" (but in-court) comments by various players involved in the sentencing of Dharun Ravi, the former Rutgers student convicted of multiple crimes in the high-profile New Jersey webcam spying case.  The article is headlined "Judge Defends Sentence Imposed on Ex-Rutgers Student," and here are excerpts:

A judge on Wednesday offered a spirited defense of the sentence he imposed on Dharun Ravi, the former Rutgers University student convicted of using a webcam to spy on his roommate having sex with another man.  Mr. Ravi was convicted in March of all 15 charges against him, and sentenced last week to 30 days in jail, 300 hours of community service, three years’ probation and $10,000 to be paid to a fund that helps victims of bias crimes....

No matter how “unconscionable” Mr. Ravi’s conduct, Judge Glenn Berman said in a court hearing Wednesday, “I can’t find it in me to remand him to state prison that houses people convicted of offenses such as murder, armed robbery and rape. I don’t believe that that fits this case. I believe that he has to be punished, and he will be.”...

Prosecutors had been visibly angry when Judge Berman declared the sentence last week, and almost immediately appealed it, arguing that the convictions demanded more time behind bars.  But their memo before sentencing had not indicated how much time they wanted Mr. Ravi to serve, only that they did not believe he had to serve the maximum sentence of 10 years that was attached to the most serious charges, of bias intimidation.

On Wednesday, the lead prosecutor elaborated on that, telling Judge Berman that she thought a five-year sentence would have been appropriate.  The statutes governing bias crimes recommend 5 to 10 years in prison, but the presumption is of a seven-year sentence, and the law allows judges to depart from those guidelines if there are mitigating factors or if they believe a heavier sentence would be an injustice.

Mr. Ravi appeared in court to tell the judge that he would report to begin serving his sentence Thursday. That sentence has been on hold pending the appeal from the prosecution, and one from the defense, which has argued that it was denied evidence, including a suicide note, that could have helped Mr. Ravi at his trial.

While Mr. Ravi was not charged with causing Mr. Clementi’s suicide, many defenders argued that he was essentially — and unfairly — convicted of it.  Judge Berman received more than 100 letters and e-mails before sentencing, most of them arguing against a harsh punishment for Mr. Ravi. On Wednesday, he said that his in-box continued to fill up with complaints about the sentence he imposed.

He defended the sentence as the product of great consideration.  “It was anything but spontaneous,” he said.  Judge Berman noted that the punishment was harsher in some ways than what was recommended in a report by the corrections official who did the presentencing interview with Mr. Ravi.  That report recommended against any incarceration or fine.  It also recommended more extensive community service, and that Mr. Ravi tour schools to discuss his experience, and bias crimes.

But the judge, who last week lambasted Mr. Ravi for not once apologizing for what he had done, said he would not be an “appropriate” spokesman against bias, given that he had barely acknowledged any wrongdoing.  Mr. Ravi, 20, issued a statement late Tuesday to offer his first clear apology for his crimes, saying, “I accept responsibility for and regret my thoughtless, insensitive, immature, stupid and childish choices.”

While last week the judge reserved his harshest words for Mr. Ravi, on Wednesday he engaged in a tense exchange with Julia McClure, the first assistant prosecutor for Middlesex County, saying he would not comment on her appeal, but accusing her of “smirking” as he explained his reasoning for the sentencing.  Ms. McClure argued there were no mitigating factors against a harsher sentence for Mr. Ravi; the judge said if that were the case, then she should be recommending the standard seven years, not five.

In reaching his sentence, the judge said he started with the agreement the prosecution had made with Molly Wei, who had viewed the webcam with Mr. Ravi the first night he spied on Mr. Clementi and his boyfriend.  Ms. Wei was spared prosecution in an agreement to testify against Mr. Ravi, agreeing to three years’ probation and 300 hours of community service.

Believing that “consistency breeds fairness,” the judge said he gave Mr. Ravi community service and probation. “It wasn’t my deal; it was the state’s,” he said.  But because Mr. Ravi’s “involvement was more extensive,” he said, he had added to the sentence, ordering Mr. Ravi to undergo counseling in “alternate lifestyles.”  That phrase had angered gay rights advocates who believe it is derogatory; the judge said he took the language from the plea bargains the prosecution offered Mr. Ravi before he went to trial.

In addition, the judge said, because Mr. Ravi had been convicted of tampering with a witness (trying to get Ms. Wei to lie to the police) and with evidence (trying to cover up his Twitter and text messages) he sentenced him to 30 days in jail....

Over all, Judge Berman said the sentence “was fair, it was appropriate, and most of all, it was consistent.”  He argued that the legislature intended prison terms to be attached to bias crimes that were “assaultive or violent in nature,” not invasion of privacy.  “I also know his age,” Judge Berman added, calling it a mitigating factor.  “I believe justice compels me to deviate from the guidelines,” he said.  However, Judge Berman also said, “I admit that people can disagree with me.”

Recent related posts on Ravi case:

• "Ravi found guilty on 24 of 35 charges in webcam case"
• "Ravi media tour carries risks at sentencing, experts say"
• Dharun Ravi, Rutgers student convicted in webcam spying, seeking probation sentence
• New Jersey prosecutors request (some but not max) prison time for Dharun Ravi's webcam crimes
• Does six months in prison for Dharun Ravi seem about right in Rutgers webcam case?
• Dharun Ravi sentenced to only 30 days in jail in NJ webcam case

"Jury divided in Edwards corruption trial?"

The title of this post is the headline of this new Fox News report, which gets started this way:

As jury deliberations in the John Edwards trial continue well into their second week, legal analysts are beginning to wonder whether the panel has become deadlocked.

Judge Catherine Eagles extended Wednesday's deliberations by a half-hour and plans to do the same the next day in order to allow jurors to recess early Friday -- to attend high school graduations and other family events.  Jurors have provided Eagles with schedule requests through next week.

Kieran Shanahan, a former federal prosecutor who's been watching the trial, said that could be a signal from dissenting jurors to other members of the panel "that they're resolute in the position and they'll stay as long as necessary."

"Initially, it looked like the jury was just going to walk through each count," Shanahan said. "They asked for every document associated with each count. But we're now in day eight. And I think it suggests there's division as to guilt or innocence among the jurors."

I wonder if all the media awaiting an outcome from the jury have a pool going on the timing or the verdict.  Gosh knows I am ready for an outcome, and I have not had to hang around a federal courthouse for the last few weeks. 

I am still predicting a split verdict, but every day that goes by suggests that a hung jury may be in the cards.  Is it too early to speculate as to whether the feds would try to retry Edwards if no verdict is reached?

Seeking advice on (and cites to) thoughtful state Eighth Amendment rulings

In all likelihood, we still have a few more weeks to wait for Supreme Court rulings in in Jackson v. Hobbs and Miller v. Alabama, the two big pending Eighth Amendment cases concerning the constitutionality of states sentencing 14-year-old killers to life without the possibility of parole.  In part because I hope the coming rulings in Jackson and Miller might spark and provide a foundation for a new round of interesting constitutional litigation over extreme prison sentences (and not just for young offenders), I am interested in gathering information about the most interesting and thoughtful Eighth Amendment rulings coming from state courts in recent years (particularly in the wake of the Graham ruling).

I am aware of some leading recent state court Eighth Amendment rulings in states like California and Florida and Iowa, all of which had to swiftly and directly confront the import and impact of the Graham ruling for a number of juvenile offenders serving very long prison terms for nonhomicide offenses.  But I know I have seen a few interesting and thoughtful post-Graham rulings concerning limits on adult sentences imposed by the Eighth Amendment (and/or similar state constitutional provisions) from state supreme courts in Ohio and South Dakota and others states.  And I suspect there are (lots of?) notable rulings from lower state appellate courts (both affirming and reversing long prison sentences) that I have not seen.

Ergo this "bleg" for help from readers:  Can and will folks via the comments to this post (or via an e-mail) suggest examples with cites/links to what they consider the most interesting and thoughtful Eighth Amendment rulings coming from state courts in recent years?

For purposes of this bleg, I am most interested in non-capital cases and especially those rulings involving challenges to adult sentences.  But I am happy to hear about just about any recent significant state court rulings (for or against a defendant) that thoughtfully engage with modern Eighth Amendment doctrines and/or with comparable state constitutional provisions.  Thanks!

Former Liberian leader sentenced to 50 years for war crimes at ICC

As reported in this New York Times article, "Charles G. Taylor, the former president of Liberia and a once-powerful warlord, was sentenced on Wednesday to 50 years in prison over his role in atrocities committed in Sierre Leone during its civil war in the 1990s." Here is more:

The judge presiding over the sentencing in an international criminal court near The Hague said Mr. Taylor had been found guilty of “aiding and abetting, as well as planning, some of the most heinous and brutal crimes recorded in human history” and that the lengthy prison term underscored his position at the top of government during that period....

Mr. Taylor was the first head of state convicted by an international court since the Nuremberg trials after World War II.  Prosecutors had sought an even longer sentence of 80 years. If carried out, the term decided on Wednesday would likely mean the 64-year-old Mr. Taylor will spend the rest of his life behind bars.  Asked to stand as the sentence was read, he looked at the floor.

His legal team said it would immediately file an appeal. "The sentence is clearly excessive, clearly disproportionate to his circumstances, his age and his health and does not take into account the fact that he stepped down from office voluntarily," said Morris Anya, one of the lawyers representing Mr. Taylor.

The prosecution said it was considering its own appeal, both to lengthen the sentence and to broaden the responsibility attributed to Mr. Taylor for crimes committed under his leadership....

After more than a year of deliberations, the Special Court for Sierra Leone found Mr. Taylor guilty in late April of crimes against humanity and war crimes for his part in fomenting mass brutality that included murder, rape, the use of child soldiers, the mutilation of thousands of civilians, and the mining of diamonds to pay for guns and ammunition. Prosecutors have said that Mr. Taylor was motivated in these gruesome actions not by any ideology but rather by “pure avarice” and a thirst for power.

Florida courts struggling with how to apply Graham to multi-decade juve sentences

This new AP piece, headlined "Fla. justices asked to rule on juvenile sentences," reports on how state courts in the Sunshine State are still struggling through the impact and implications of the Supreme Court's Eighth Amendment ruling limiting juve LWOP sentences for nonhomicide offenses.  Here are the details:

A three-judge appellate panel on Tuesday asked the Florida Supreme Court to decide the constitutionality of a 70-year prison sentence for a teenager convicted of attempted first-degree murder in Jacksonville.  The Florida 1st District Court of Appeal panel certified the issue to the justices as a question of great public importance.

Meanwhile, the state is appealing a decision by another 1st District panel that reversed a Pensacola inmate's 80-year sentence for a pair of armed robberies committed when he was 17.

They are among several cases arising from a U.S. Supreme Court ruling last year, also in a Florida case, that sentencing juveniles to life in prison for non-homicide crimes is unconstitutionally cruel and unusual punishment.  The high court ruling came in the case of Terrance Graham, who was initially sentenced to life in prison.  The sentence was then reduced to 25 years in prison....

The state is appealing a 1st District ruling in April that reversed Antonio Demetrius Floyd's 80-year sentence.  A three-judge appellate panel ruled a sentence that long is the functional equivalent of life in prison.  Floyd originally received a life sentence but it was reduced after the U.S. Supreme Court ruling.

Tuesday's certification came in the case of Shimeek Grindine, who was 14 when he shot a man during a 2009 robbery attempt.  The appellate court previously affirmed Grindine's sentence in December on a 2-1 vote.  The dissenting judge, James R. Wolf, wrote that he was at a loss on how to apply the U.S. Supreme Court's ruling in the case of Graham, also from Jacksonville, because the Legislature abolished parole in Florida.

"Is a 60-year sentence lawful, but a 70-year sentence not?" Wolf asked. "Regardless, it is clear to me that appellant will spend most of his life in prison. This result would appear to violate the spirit, if not the letter, of the  Graham decision."

The Legislature this year considered but did not pass bills that would have addressed the issue. They would have let a judge reduce a sentence of 10 or more years for non-homicide crimes committed as a juvenile once an inmate was at least 25 years old.

"Frail and Elderly Prisoners: Do They Still Belong Behind Bars?"

The title of this post is the title of this new commentary at The Crime Report. The piece was authored by Jamie Fellner, who is the Senior Advisor to the US Program of Human Rights Watch and author of the report "Old Behind Bars: The Aging Prison Population in the United States."  Here are excerpts from the commentary:

As the US confronts a growing population of geriatric prisoners, it is time to reconsider whether they really need to be locked up.  Prison keeps dangerous people off the streets. But how many prisoners whose minds and bodies have been whittled away by age are dangerous?

According to prison statistics, hardly any.   In Ohio, 26.7 percent of former prisoners commit new crimes within three years of their release from prison.   But only 5.6 percent of those released between the ages of 65 and 69 — and 2.9 percent of those released between the ages of 70 and 74 — commit new crimes.  Of those released at age 75 or older, none revert to criminal behavior.

In New York, you can count on two hands the number of older prisoners who have gone on to commit violent crimes after release.  Of 1,511 prisoners aged 65 and older when released between 1995 and 2008, only 8 were returned to prison for committing a violent felony.  Among the released older prisoners were 469 who had originally been sent to prison because of a violent crime.  Only one has returned to prison because of a new crime of violence.

These statistics quantify what criminal justice professionals know from experience: as a group, released older prisoners are not likely to pose much of a risk to the public.  The risk is no doubt even less if the released prisoners are ill or infirm....

Wholly apart from the effects of age and infirmity, years in prison also leave older prisoners with little desire to pick up a gun or hit the streets looking for trouble even if they were physically able to do so.  They want to spend their remaining time on earth with family and friends.  They do not want to die behind bars.

Ensuring just deserts for those who harm others is a legitimate criminal justice goal.  But age and infirmity can change the calculus of when the time served is long enough.  At some point in a prisoner’s life, parole supervision and perhaps restrictions on movement (e.g. home confinement) may suffice as a cost-effective and sensible punishment.

Quiet SCOTUS return from the long weekend, except for murder defendant Lorenzo Johnson

I was expecting (or at least hoping for) some notable criminal justice Supreme Court action this morning as the Justices returned to action after the long weekend.  In addition to the three big sentencing issue still pending — Apprendi's application to fines, mandatory LWOP for young juve murderers, the FSA's application to pipeline cases — we still await a ruling in a long-pending Confrontation Clause case and in a pair of First Amendment cases with potential criminal justice implications.  In addition, the buzz from the folks at SCOTUSblog was that the Justices were reasonably likely to grant cert this morning on one of a number of cases concerning whether and when use of a Taser is excessive force under the Fourth Amendments.

But, as detailed via the always interesting SCOTUSblog live-blogging report, the only opinion in an argued case handed down this morning came in a bankruptcy case (yawn) and the only cert grant came in a case dealing with civil litigation under a federal debt collection statute (double yawn).  Cert was denied in the Taser cases, and it remains unclear whether any new big criminal justice cases will be added to the SCOTUS docket before the Justices head out for summer vacation in about a month.

That all said, there is at least one person (as well as his lawyers) who wish the Justices did even less on the criminal justice front this morning: Lorenzo Johnson.  That is because Mr. Johnson managed to convince the Third Circuit to reverse his state murder conviction via a habeas action.  But today the Supreme Court, via this per curiam opinion (which I suspect was authored by former Third Circuit judge and now Justice Samuel Alito), summarily reversed the Third Circuit's reversal.  Here is how the SCOTUS opinion starts in Coleman v. Johnson:

Respondent Lorenzo Johnson was convicted as an accomplice and co-conspirator in the murder of Taraja Williams, who was killed by a shotgun blast to the chest in the early morning hours of December 15, 1995, in Harrisburg, Pennsylvania.  After his conviction was affirmed in state court, Johnson exhausted his state remedies and sought a writ of habeas corpus in Federal District Court pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254.  The District Court denied habeas relief but the U.S. Court of Appeals for the Third Circuit reversed, holding that the evidence at trial was insufficient to support Johnson’s conviction under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979).

We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.  First, on direct appeal, “it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial.   A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U. S. 1, ___ (2011) (per curiam) (slip op., at 1).  And second, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency ofthe evidence challenge simply because the federal court disagrees with the state court.  The federal court instead may do so only if the state court decision was ‘objectively unreasonable.’” Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5)).

Because the Court of Appeals failed to afford due respect to the role of the jury and the state courts of Pennsylvania, we now grant certiorari and reverse the judgment below.

A year after Plata ruling, a "picture of success" fixing California's overcrowded prisons

Before the completion of the federal litigation that culminated in last year's Plata Supreme Court ruling, the iconic image of the California's persistently crowded prisons was a picture of hordes of men in orange prison garb atop triple-stacked bunk beds in a packed gymnasium that was never intended to house inmates.  Versions of this iconic image were even reprinted in the Supreme Court reporter as part of the majority opinion in Plata which affirmed the federal court order that California reduce its total prison population to prevent continuing constitutional violations of the inmates' Eighth Amendment rights.

Now, thanks to this new article from the San Diego Union-Tribune, which is headlined "Prison crowding eases as local jails house more inmates," we can see a new "picture" of what the Plata ruling has achieved through a photo showing all those bunk beds now empty. Here are excerpts from the article in which this new image of California's prison system appears:

Just a few months ago, California’s inmates were packed into double- and triple-stacked bunk beds in prison gymnasiums, classrooms and other areas never meant for housing. Now those beds are empty.

The prison population is declining, but not because there are fewer criminals. Instead, a new state law shifted the responsibility for some lower-level offenders to the county jails, which are filling up.

State officials have “taken the monkey off their back and put it on ours,” said Sheriff Bill Gore, whose department runs seven county jails. In the nearly eight months since the law took effect, Gore has used a number of strategies to ward off jail crowding, including early releases, but he insists the county is handling the load. He and other county officials have said that with proper funding the local authorities can do better than the state at rehabilitating criminals so they’re less likely to end up back behind bars. “We can’t warehouse these inmates,” Gore said.

At Donovan state prison in Otay Mesa, rows of graffiti-scarred bunks sit empty in one of the prison gyms, where more than 150 men once slept in an area the size of a basketball court. A couple of inmates likened the experience to “living in the crazy house.”

“It’s horrible. It’s violent. It’s crowded,” said David Dewrance, 50, who spent almost two years in a gym trying to rest and study for his correspondence courses. When space became available earlier this year, Dewrance was moved to a two-man cell in one of the housing units, which allowed him access to one of the preferred vocational programs. The Brooklyn, N.Y., native, imprisoned for second-degree murder, now works in the prison bakery.

Fellow inmate Jesus Yanez said he was housed in a gym at another prison before coming to Donovan five months ago to continue serving his sentence for assault with a deadly weapon causing great bodily injury. In an interview this month at the prison, he recalled trying to sleep, shower and keep his bunk clean while keeping watchful eye dozens of fellow inmates.

“I wouldn’t wish that on the worst person,” said Yanez, 40, whose head and arms are inked with tattoos, many of them evidence of his former gang life in Los Angeles. The cells, he said, are “100 percent better.”

Shortly after the state’s prison population had reached an all-time high in the summer of 2007, more than 19,600 inmates were sleeping in so-called nontraditional beds. All inmates were cleared out of Donovan’s gyms and day rooms at the beginning of this year. And in March, the state Department of Corrections and Rehabilitation announced it had stopped bunking inmates in gyms and day rooms at all California prisons.

“It’s a lot safer,” said Daniel Paramo, a 20-year corrections department veteran who became Donovan’s warden in July. The extra bunks, he said, “made it very difficult to manage the institution.”

As of this month, 3,573 prisoners were being held at Donovan, about 1,000 fewer than the facility housed at the same time last year, but it remains overcrowded. The prison is designed to hold 2,200 inmates with one man to each cell....

In January, the corrections department announced that the population of inmates housed in its 33 institutions had dropped by more than 11,000 inmates over six months. This month, the population was pegged at 122,305 — 153.6 percent of capacity — according to the most recent figures available.

“The population is going down,” said Dana Simas, a department spokeswoman, who acknowledged county officials’ frustrations over rising jail populations. “We never purported that it would be without a few bumps in the road,” Simas said.

Even with the recent inmate reductions, some doubt the state will meet the Supreme Court’s deadline.   Prison officials want the court to allow them to hold the inmate population at 144 percent of capacity — rather than the 137.5 percent as originally ordered — while maintaining constitutional standards for medical and dental care, Simas said. “Our conditions have vastly improved,” she said.

Of course, simply managing to move bodies out of a crowded gym hardly proves that the Plata decision was a perfect ruling or that all is now better in California's often dysfunctional criminal justice system.  But, at the very least, these pictures document that a constitutional ruling by the Supreme Court combined with a serious state effort to respect that ruling can quickly engineer some needed changes to a prison system that had for many years been stalled in a political and practical quagmire concerning overcrowding.

I am hopeful that there will be a number of serious and systematic efforts to take stock of what has followed from the Plata ruling in California.  I have little doubt that the demands on local facilities as a result of the urgent need to move bodies out of state facilities has created various new problems.  Still, this story confirms my gut instinct that, a year after the controversial Plata ruling, the 5-4 decision has produced a net gain for not only the inmates who were suffering Eighth Amendment violations, but also for the entire state of California.  At the very least, there seems to be limited evidence (or at least limited reporting of evidence) that the dire predictions of doom and California crime waves right after the Plata ruling (which appeared in the Plata dissents and on this blog) were a bit overstated and hyperbolic.

UPDATE:  I am intrigued and a bit surprised that oft-vocal "tough on crime" commentors like Bill Otis and federalist, who were quick to condemn the Plata ruling last year, have not yet had anything to say here about the opinion a year later when now it seems the opinion's benefits have been greater than its harms.   In that vein, I found notable this new Sacramento Bee commentary from a former California Assembly member titled "Fear mongers were wrong about prison system's 'realignment'." Here are excerpts:

A year ago we heard fear-mongering voices warning of dangerous criminals being released and counties too broke to provide jail space, parole officers or programming for realigned prisoners.

One year in, how's realignment actually working out? The number of people held in state prison has dropped by more than 25,000 in 16 months since Brown has been in office. The count of people on parole is down almost 30,000, and the number of people held in private out-of-state prisons is down 10 percent; all that without a spike in crime.

The crime rate continues to fall and putting fewer people in state prisons means saving tax dollars, and given the $15.7 billion gap forecast in the May revise those savings have never been needed more than they are now. CDCR estimates that it is saving $1.5 billion a year through realignment and will save another $2.2 billion a year by canceling $4.1 billion in new construction projects....

Corrections built prisons, but it was the Legislature that filled them with hundreds of laws that created new crimes and lengthened sentences. Serious sentencing and parole reforms are long overdue and communities, advocates, and other experts throughout the state have been providing ideas of where to start for decades.

An easy step could be to address the rapidly aging population by implementing a geriatric parole process, and expanding medical parole and compassionate release. Other options include passing legislation to decriminalize drug possession, or supporting the initiative to reform the "three strikes" law on the November ballot. We need only the political will to move away from sentencing and parole policies that have done more to bankrupt our state treasury than to secure safety in our neighborhoods.

Do we return to the course of expanding prisons and jails and expanding the percentage of our resources that go to filling them? Or do we take realignment as only a first step toward further downsizing, offering us the opportunity to use tax funds to invest in the well being of our residents now and in the future? I advocate for the latter.

"A Tough Judge’s Proposal for Fairer Sentencing"

The title of this post is the headline of this new Sidebar column by Adam Liptak now available via the New York Times. The piece does a terrific job reporting upon and providing context concerning US District Judge John Gleeson's fascinating Dossie opinion from earlier this year (which I blogged about here and here). The piece also makes (too) brief mention of US District Judge William Young's similarly themed (and similarly fascinating) opinion in Gurley from earlier this month (discussed here). Here are excerpts from the Liptak piece:

Judge John Gleeson hears cases where he used to prosecute them, in the federal courthouse in Brooklyn. There, in 1992, he led the team of prosecutors that put the Mafia boss John J. Gotti in prison for life. Judge Gleeson is not shy about meting out tough sentences.  “Most people, including me,” he wrote in a 2010 decision, “agree that the kingpins, masterminds and midlevel managers of drug trafficking enterprises deserve severe punishment.”

But he has lately been saying that his old employer, the Department of Justice, has stopped living up to its name when it comes to some small-time criminals.  Almost 20 years to the day after delivering his closing argument in the Gotti trial, Judge Gleeson considered the fate of Jamel Dossie, whom he called “a young, small-time, street-level drug dealer’s assistant.”

Mr. Dossie was an intermediary in four hand-to-hand crack sales, for which he made a total of about $140.  Two of the sales exceeded, barely, the 28-gram threshold that allows prosecutors to call for a mandatory five-year sentence.  “Just as baseball is a game of inches,” Judge Gleeson wrote, “our drug-offense mandatory minimum provisions create a deadly serious game of grams.”

It is a curious game, one in which a participant rather than the supposed umpire can have the last word, Judge William G. Young of Federal District Court in Boston wrote in a ruling in another case a couple of weeks ago.  “Prosecutors run our federal justice system today,” Judge Young wrote.  “Judges play a subordinate role — necessary yes, but subordinate nonetheless.  Defense counsel take what they can get.”

The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.  “We had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy and no judging,” he wrote. “The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time.”

The Dossiecase illustrates what some judges say is a common problem: Prosecutors’ insistence on mandatory minimum sentences for minor players in the drug trade has warped the criminal justice system and robbed judges of sentencing authority.... As for Mr. Dossie, the judge wrote, “no one could reasonably characterize him as a leader or manager of anything, let alone of a drug business.”

Judge Gleeson called on Attorney General Eric H. Holder Jr. to implement a new policy at the Department of Justice. “D.O.J. should seek mandatory minimum sentences,” the judge wrote, “only in the cases for which Congress intended them: in cases against leaders and managers of drug enterprises, not the low-level offenders like Dossie who constitute the bulk of the federal drug docket.”

About 74 percent of defendants charged with crimes involving crack cocaine faced a mandatory minimum sentence in the year that ended in September, according to statistics compiled by the United States Sentencing Commission.  But only 5 percent of them led or managed a drug business.

A Justice Department spokeswoman said the administration supported the judicious use of mandatory minimum sentencing laws for some serious crimes.  In a 2010 report, Lanny A. Breuer, an assistant attorney general, said mandatory minimum sentences “remove dangerous offenders from society, ensure just punishment and are an essential tool in gaining cooperation from members of violent street gangs and drug distribution networks.”

Paul G. Cassell, a former federal judge who is now a law professor at the University of Utah, said Judge Gleeson’s proposal to have the Justice Department limit its use of mandatory minimum sentences in drug cases to defendants who played a leadership role was “a brilliant package.”  It was, he said, administrable, fair and “doable in this political environment” because it requires no action from Congress.

Jamel Dossie, meanwhile, is serving what Judge Gleeson called an onerous and disproportionate sentence.  “The only reason for the five-year sentence imposed on Dossie,” Judge Gleeson wrote, “is that the law invoked by the prosecutor required it. It was not a just sentence.”

Some recent related posts:

• Former US Attorney, and now District Judge, makes pitch to AG Holder on mandatory minimum charging
• Former federal prosecutor urges "Mandatory minimums for kingpins only"
• "Sentencing Shift Gives New Leverage to Prosecutors"
• Judge Young's latest account of (and homage to) jury involvement in sentencing fact-finding 
• Oregon report indicates mandatory minimums transfer sentencing power to prosecutor
• Effective NY Times editorial assailing mandatory minimum sentencing laws
• "The Unchecked Charging Power of the Prosecutor"
• "20 Years Later, Mandatory Minimum Sentences Are Still Mindlessly Draconian"
• Highlighting how mandatory minimums produce sentencing disparity, not uniformity

A market challenge for sentencing reformers: imagining profitable uses for closed prisons

The title of this post is prompted by this fascinating new article from the New York Times, which is headlined "New York Has Some Prisons to Sell You." Here are the story basics:

One property, in the Hudson Valley, includes a 16-car garage, a piggery and hundreds of yards of lake frontage. Another offers 69 acres of waterfront land on the west shore of Staten Island, complete with a two-story gymnasium, a baseball diamond and an open-air pavilion.

Those seeking seclusion have an option, too: 20 acres adjoining state forest land in rural Schoharie County, perfect for hunting, trapping and fishing. The property comes with its own wastewater- and sewage-treatment plants, as well as a chapel and a carpentry shop.

The ideal buyer is someone who craves space to spread out, and who does not mind a property that has had thousands of guests over the years. And a fondness for “The Shawshank Redemption” would not hurt.

These real-estate listings come from an unpracticed seller, the State of New York. After cutting costs through traditional means like freezing wages of state workers and consolidating government offices, Gov. Andrew M. Cuomo is embarking on a less conventional effort: trying to sell New York’s old prisons.

The state has a glut of vacant correctional facilities because of lower crime rates, new programs that allow early release for nonviolent offenders and the dismantling of its strict drug laws. The situation in New York reflects changing national attitudes toward criminal justice policy: the number of state prisoners nationwide declined in 2009 and 2010 for the first times in at least three decades, according to the federal Bureau of Justice Statistics.

Mr. Cuomo’s predecessor, Gov. David A. Paterson, closed three prisons as he confronted budget problems. Mr. Cuomo declared in his first address to the State Legislature that prisons were “not an employment program,” and proceeded to shut seven of the state’s remaining 67 correctional facilities, removing 3,800 beds.

These closings reflect a sharp reversal. After New York adopted mandatory drug sentences in 1973, the state’s prison population soared from 13,437 to a peak of 71,472 in 1999, prompting a boom in prison construction, much of it during the tenure of Gov. Mario M. Cuomo, the current governor’s father. But since then, the number of inmates in state facilities has fallen nearly a quarter, to about 55,000, leaving thousands of empty beds....

Last year, Mr. Cuomo formed a facility closure team, composed of agency commissioners, that meets weekly to go property by property to find more that can be sold. “Instead of spending millions maintaining facilities we don’t need,” said Howard B. Glaser, director of state operations, “the governor’s approach saves taxpayers millions and opens up transformative economic development and investment opportunities in communities across the state.”

Among the facilities the team is considering selling are 23 state-owned residences set aside for prison superintendents. Some are quite lavish: one in Auburn, to be auctioned this summer, is an 8,850-square-foot brick mansion with eight bedrooms, six bathrooms, an attached gazebo and a barn-size garage....

But the prisons are by far the largest, and most challenging to sell, of the properties on the market. Some of them would be quite expensive to maintain or demolish, and many are in rural areas where real estate is inexpensive and undeveloped land is plentiful.

“It’s a building that’s just sitting there,” said Harold Vroman, chairman of the board of supervisors in Schoharie County, where Mr. Cuomo shut down a 100-bed minimum-security prison last year. “Who wants to buy a jail, you know?”

Other states offer some encouraging examples. In Massachusetts, the old Charles Street Jail in Boston was transformed into the Liberty Hotel, which opened in 2007 and embraces its history — among the offerings at one of its bars, Alibi, is a $12 blueberry mojito called the Jailbait. And three years ago in New Jersey, the cells were removed from a former county jail in Newark and the building was converted into government office space.

But those buildings were jails, which are often smaller, grander and more centrally located than prisons. “Those ones, like old courthouses, have a future life,” said Elizabeth Minnis, chairwoman of the American Institute of Architects’ advisory group for correctional facilities, courthouses and law-enforcement buildings. “But the stuff out in the middle of nowhere, it probably has nothing. You’re going to have to just try to get it off your books. It’s almost worth paying somebody to take it off your hands or give it away for free, because it becomes a liability.”

Consider the Oneida Correctional Facility, a 998-bed medium-security prison in Rome that closed last October. It shares utilities with a rather unattractive neighbor: another state prison. “The only possible thing that you could use this for would be for government or military,” said Fred Macchia, a commercial real-estate broker in Rome. “You couldn’t make it into a hotel. You couldn’t make it into an apartment complex. You’re talking millions of dollars to renovate. Who’s going to do it? The state’s not going to do it — they’re trying to get rid of it.”

All three prisons closed by Mr. Paterson are vacant. One was mentioned as a possible test site for hydraulic fracturing, the much-debated method of extracting natural gas. Another, Camp Gabriels — a minimum-security prison in Brighton, in the Adirondacks, that was originally built as a sanitarium for tuberculosis patients — has twice been put up for auction, first with a minimum price of $950,000, and then with a $750,000 minimum. No one bid either time.

“The state, when they closed the prison, it didn’t seem like they had much of a plan,” said Brian McDonnell, a member of the town board in Brighton. “You get the impression that they just walked away and threw the keys in the river and said, ‘Well, move along.’ ”

Cuomo administration officials said they were more optimistic about the prisons they shut down last year. They are reviewing proposals for a new retail development to replace the former Arthur Kill Correctional Facility on Staten Island, and for a manufacturing plant at Camp Georgetown, a shuttered 262-bed prison in central New York.

In the Hudson Valley, local officials have taken the lead in trying to find a new use for the former Mid-Orange Correctional Facility in Warwick. They want to split the 736-bed prison property into smaller parcels, and several manufacturers have expressed interest in moving to the site. Other ideas for reuse included a wildlife sanctuary, a solar power facility and a Greek-style yogurt plant.

Michael Sweeton, the Warwick town supervisor, said local officials feared that if they did not come up with ideas for the prison, the state would “get some knucklehead guy to pick it up for what he thinks is a song” and let the property fall into disrepair. “We didn’t want them to think that we were just going to sit on our hands and let this play out,” Mr. Sweeton said. “We looked at it as a great opportunity.”

As advocate continue to urge sentencing and prison reforms in states around the nation, they would do well to help jurisdiction figure out how to make better use of the extra prisons and related space that get freed up by effective reforms like those in New York.  I share the view that closed prisons could and should become a great opportunity not only for states and local communities, but also for some clever private developers and/or industries.  Indeed, given that there are already (too) many private corporations and organizations profiting directly from the growing the size and scope of incarceration nation, long-term reform efforts could and would benefit from having some number of private corporations and organizations profiting directly from shrinking the size and scope of incarceration nation.

I am pleased to see from the New York Times article that various folks are thinking about various ways to make good use of shuttered prisons and related property.  But I suspect and hope that readers of this blog might be able to brainstorm on other market possibilities.  Especially as I gear up for The Memorial Tournament this week here in Ohio while also watching The French Open, I am thinking maybe some of the prison properties could be converted into unusual golf and tennis resorts.  Any other clever ideas, dear readers?

Dharun Ravi as example of (rare?) defendant aided at sentencing by letter campaign

At various times in various settings, many practitioners have on this blog shared their views concerning the potential virtues and vices, as well as the potential impact, of having crime victims or supporters of a defendant or others sending letters directly to a judge before sentencing (see recent posts here and here and here, for example).  This new AP article, which is headlined "Letters to judge in Rutgers gay roommate's suicide asked for leniency," reports on one high-profile case in which letters written to the judge may have had a significant sentencing impact:

The letters came from a man who was once beaten with a baseball bat in a racially motivated attack, the widow of a Minnesota judge, a group representing lesbian, gay and transgender people from South Asia, a gay member of the Navy, and the father of a woman who committed suicide, among others.

There were more than 100 in all, and nearly all had the same theme: telling the judge it would be unjust to put former Rutgers student Dharun Ravi in prison for using a webcam to see roommate Tyler Clementi kissing another man in 2010, just days before Clementi killed himself.

"I learned a lot about bias crimes and bullying through this case," said a writer named Louise. "The bullying and bias acts occurred when the legal system and media got involved.  Ravi is not to blame for the hardships endured by the gay community nor should he be tied to the whipping post because of it.  If Tyler was not gay, this would have been just a prank gone wrong and no one would have rushed to incarcerate."

Ravi, now 20, was convicted in March of 15 criminal counts. Soon after, the letters began pouring into Superior Court Judge Glenn Berman's chambers making requests for how to handle sentencing.  Last week, Berman said Ravi would have to serve 30 days in jail. Because the sentence is less than a year, it decreases the chances that immigration authorities will seek to have Ravi deported to India, where he was born and remains a citizen. Prosecutors said they would appeal the sentence as too light.

Before delivering the sentence, Berman held up a folder, inches thick, of the letters he had received.  Later, he quoted one of them, calling Clementi's suicide the "pink elephant" in the case.

Some of the letters came through an orchestrated effort. More than 30 of those in the file opened by the judge included a pre-printed plea with space for personal additions. Sandeep Sharma, a friend of Ravi's family and an organizer of the letters, said he thinks the letters were one factor in the relatively light sentence. "It had probably some influence," Sharma said. "I think the judge himself did not believe that this case belonged to the criminal court system to begin with."

The Ravi case is, of course, unique in many ways.  Nevertheless, I think there is an important lesson here for sentencing advocates, especially on the defense side: letter from crime victims urging leniency may be especially potent and influential on judges.

Recent related posts on Ravi case:

• "Ravi found guilty on 24 of 35 charges in webcam case"
• "Ravi media tour carries risks at sentencing, experts say"
• Dharun Ravi, Rutgers student convicted in webcam spying, seeking probation sentence
• New Jersey prosecutors request (some but not max) prison time for Dharun Ravi's webcam crimes
• Does six months in prison for Dharun Ravi seem about right in Rutgers webcam case?
• Dharun Ravi sentenced to only 30 days in jail in NJ webcam case

Commentary calls for "cleaning house" at DOJ's Office of the Pardon Attorney

Julie Stewart of Families Against Mandatory Minimums and former Maryland Governor Robert Ehrlich have this notable commentary on The Hill's Congress blog under the headline "Cleaning house at OPA: A Congressional investigation is needed." Here are excerpts:

On the surface, Presidents Bush and Obama have shown little interest in exercising their extraordinary presidential authority to issue pardons and commute sentences. Many of us who support a robust exercise of executive clemency have been disappointed and disturbed by this inaction.  But thanks to Monday’s Washington Post-ProPublica story, we now know that a significant part of the problem stems from a grossly inept Office of Pardon Attorney (OPA) at the U.S. Justice Department. Congress must investigate this vitally important taxpayer-funded office immediately....

The Post-ProPublica story revealed [various] problems that help to explain why Presidents Bush and Obama have commuted a miserly twelve federal sentences over the past dozen years.  For example, the OPA is not taking seriously its responsibility to fully review and give advice on the thousands of petitions it handles.  A former OPA staffer recalled that most denial recommendations are simply long lists of applicants’ names, sent to the White House with no explanation of the most basic facts, such as the individuals’ crimes, rehabilitation, or special circumstances....

Our Constitution gives the president exclusive power “to grant reprieves and pardons.” This awesome authority is important to our criminal justice system.  Presidents can help to ensure that all individuals receive the justice they deserve and, in some cases, the mercy they have earned.  But it is Congress that created and funds the OPA.  If the OPA is withholding or misrepresenting critical information in a manner that frustrates the president’s constitutional responsibility, Congress must act.  Taxpayers should not be forced to subsidize a government office that is abusing its power, nor should applicants for executive clemency face a deck that was stacked in secret.  Congress must investigate.

Related posts concerning federal clemency practices:

• "Presidential Pardons Heavily Favor Whites"
• Investigation reveals (shockingly?!?!) that politicians and politics impact federal pardons
• DOJ audit of federal clemency process with sound and fury signifying nothing
• Updated numbers on President Obama's disgraceful clemency record
• Noting President Obama's (still) stingy clemency record
• ProPublica reveals more ugliness in federal clemency process
• Public policy groups urge Senate Judiciary Committee to investigate US Pardon Attorney Office

"2 South Dakota brothers, 1 fate: Siblings go to execution chamber for separate crimes"

The title of this post is the headline of this (sad? instructive?) AP article.  Here are excerpts for the start of the piece:

Rodney Berget lives in a single cell on South Dakota’s death row, rarely leaving the tiny room where he awaits execution for bludgeoning a prison guard to death with a pipe during an attempted escape.

For Berget’s immediate family, his fate is somewhat familiar. He is the second member of the clan to be sentenced to death.  His older brother was convicted in 1987 of killing a man for his car. Roger Berget spent 13 years on Oklahoma’s death row until his execution in 2000 at age 39....

The Bergets are not the first pair of siblings to be condemned. Record books reveal at least three cases of brothers who conspired to commit crimes and both got the death penalty. But these two stand out because their crimes were separated by more than 600 miles and 25 years....

The siblings’ journey from the poverty of their South Dakota childhood to stormy, crime-ridden adult lives shows the far-reaching effects of a damaged upbringing — and the years of havoc wrought by two men who developed what the courts called a wanton disregard for human life.

Rodney Berget is scheduled to die later this year, potentially ending the odyssey that began when the two boys were born into a family that already had four kids.  A former prison principal described Rodney as a “throwaway kid” who never had a chance at a productive life.  A lawyer for Roger recalled him as an “ugly duckling” with little family support.