Sentencing Law and Policy

"Should Sex Offenders Be Buried With Military Honors?"

The question in the title of this post is the headline of this piece at BuzzFeed. Here are excerpts:

On Halloween night of 2001, James Allen Selby broke into the home of a recent college graduate named Jenny, hid in a closet until she returned, then dragged her into the shower and raped her.  He was convicted of this and at least 10 other rapes and sexual assaults, including one of a nine-year-old girl. But after he committed suicide in prison, he was buried with full military honors at Fort Sill National Cemetery in Oklahoma.  Now victims, and some military advocates, want a ban on sex offenders in military cemeteries so criminals like Selby can never be honored like that again.

At a House hearing Wednesday, Rep. Vicky Hartzler (R-MO) told the story of a constituent who was sexually abused as a child by her father, a veteran who was later buried in a military cemetery.  Said Hartzler, "She asked that I help ensure no other child has to endure this injustice."  Hartzler has introduced the Hallowed Grounds Act, which would bar Tier III sex offenders — those who have committed crimes against children — from being buried in veterans' or national cemeteries.  She argued, "These offenders have surrendered their right to be honored by victimizing and oppressing others."

The bill has the support of a variety of military and veterans' groups.  Raymond Kelley, legislative director of the Veterans of Foreign Wars, said in the hearing that the Hallowed Grounds Act would be an appropriate extension of existing laws that bar those convicted of capital crimes (those punishable by death, such as murder) from military burial.  Thomas Murphy of the Veterans Benefits Administration also voiced support for the substance of the bill, though he had some logistical concerns about his implementation.

The Army is actually against the bill, but only because it doesn't go far enough. Kathryn Condon, Executive Director of Army National Cemeteries Program, said at the hearing that the Army couldn't support the bill as drafted because it failed to ban "the interment or memorialization of a person found by an appropriate federal authority to have committed a tier III sex offense, but not yet convicted."

But Richard Wright, a professor of criminal justice and author of the book Sex Offender Laws: Failed Policies, New Directions, says the bill is wrongheaded.  He says it's part of a trend in the last 20 to 25 years of "post-conviction laws" targeted specifically at Tier III offenders, but says these laws don't actually accomplish much.  Our criminal justice system, he says, now operates under the belief that "in order for the victim to get justice, something extra has to be done to the offender."  But in fact, offering extra help to the victim — counseling, for instance — is more beneficial to victims' healing processes than additional punishments for the criminal.

Ninth Circuit panel grants injunction to enable media to witness full Idaho execution

This AP article, headlined "Court rules for news groups in execution case," reports on a notable First Amendment ruling by a Ninth Circuit panel. Here are the basics:

A federal appeals court sided with The Associated Press and 16 other news organizations Friday in ruling that witnesses should have full viewing access to Idaho's upcoming execution. The 9th U.S. Circuit Court of Appeals issued the decision a day after hearing arguments in a lawsuit from the news groups seeking to change Idaho's protocol, saying it's unconstitutionally restrictive.

The case aims to strike down a portion of Idaho's regulations that prevent witnesses - including reporters acting as representatives of the public - from watching executions until after catheters have been inserted into the veins of death row inmates.

The lawsuit comes as lethal injections have drawn greater scrutiny, from whether the drugs are effective to whether the execution personnel are properly trained. It's unclear how the ruling will affect the scheduled execution next week of Idaho death row inmate Richard Leavitt.

A federal judge Tuesday denied a request from the news groups seeking to prevent Leavitt's execution without the changes. The news organizations appealed that ruling.

The 9th Circuit, during arguments Thursday, noted that the federal court had already ruled in a 2002 California case that every aspect of an execution should be open to witnesses, from the moment the condemned enters the death chamber to the final heartbeat....

"Nearly a decade ago, we held in the clearest possible terms that `the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber," the judges said in their ruling Friday. "The State of Idaho has had ample opportunity for the past decade to adopt an execution procedure that reflects this settled law."

The Ninth Circuit's full ruling is available at this link.

"Restoring Responsibility: Promoting Justice, Therapy and Reform Through Direct Brain Interventions"

The title of this post is the title of this piece now available via SSRN authored by Nicole A. Vincent. Here is the abstract:

Direct brain intervention based mental capacity restoration techniques -- for instance, psycho-active drugs -- are sometimes used in criminal cases to promote the aims of justice. For instance, they might be used to restore a person’s competence to stand trial in order to assess the degree of their responsibility for what they did, or to restore their competence for punishment so that we can hold them responsible for it.  Some also suggest that such interventions might be used for therapy or reform in criminal legal contexts -- i.e. to make non-responsible and irresponsible people more responsible.

However, I argue that such interventions may at least sometimes fail to promote these responsibility-related legal aims.  This is because responsibility hinges on other factors than just what mental capacities a person has -- in particular, it also hinges on such things as authenticity, personal identity, and mental capacity ownership -- and some ways of restoring mental capacity may adversely affect these other factors.  Put one way, my claim is that what might suffice for the restoration of competence need not necessarily suffice for the restoration of responsibility, or, put another way, that although responsibility indeed tracks mental capacity it may not always track restored mental capacities.

Proof of prohibition's failings?: teens now smoke pot more than tobacco

This AP piece, headlined "CDC: More US teens smoke marijuana than cigarettes," reports on new data that may prompt some to have new concerns about pot legalization efforts, but that reaffirms my view that pot prohibition may do more harm than good.  Here is the data:

A government survey shows more teens are now smoking pot than cigarettes.  The Centers for Disease Control and Prevention reported Thursday that 23 percent of high school students said they recently smoked marijuana, while 18 percent said they had puffed cigarettes.  The survey asked teens about a variety of risky behaviors.

For decades, the number of teens who smoke has been on the decline.  Marijuana use has fluctuated, and recently rose.  At times, pot and cigarette smoking were about the same level, but last year marked the first time marijuana use was clearly greater.

An earlier survey by the University of Michigan also found that pot smoking was higher.  A Michigan expert said teens today apparently see marijuana as less dangerous than cigarettes.

The key data point in this story in my view is the historic success our society has had in convincing teens that cigarette smoking is harmful without having to prohibit via the criminal law all adult access to tobacco.  In contrast, despite blanket prohibition of pot, teens apparently are coming to believe that some pot smoking is not that harmful.  The legalization of medical marijuana in many states likely is playing a significant role in these developments, but there would not need to be lots of (harmful? honest?) discussion and debate over whether marijuana has medicinal benefits if pot prohibition were not still the law of the land.

Interesting plea deal calling for high-profile defendant's forfeiture of intellectual property rights

This Boston Globe story, headlined "Plea deal may force Catherine Greig to forfeit intellectual property rights," reports on the unique terms of a plea deal in a unique federal sentencing case. Here are the specifics:

Federal prosecutors are asking a judge to order Catherine Greig, the girlfriend of notorious gangster James “Whitey” Bulger, to waive the right to profit from her story, which she agreed to do in March when she pleaded guilty to helping Bulger evade capture for 16 years.

In a Wednesday filing seeking the forfeiture order on Greig’s intellectual property rights, prosecutors also noted that she agreed to waive any claim to property seized from the apartment she shared with Bulger in Santa Monica, Calif., where the couple was apprehended in June 2011....

Bulger, 82, is scheduled to face trial in federal court in Boston in November on a sweeping racketeering indictment charging him the murders of 19 people.

Greig, 61, is scheduled to be sentenced on Tuesday in the same courthouse and faces up to 15 years in prison, but family members of some of Bulger’s alleged victims have said prosecutors warned them she could face as little as 32 months under federal sentencing guidelines.

I cannot recall hearing of any other plea deals involving this kind of forfeiture, though I understand completely why the feds are eager to preclude the defendant here from ever profiting from her high-profile criminal behaviors.  That said, I wonder if others think there might be First Amendment issues implicated here or other reasons to be concerned about a plea deal with these kinds of distinctive terms.

"Criminal Affirmance: Going Beyond the Deterrence Paradigm to Examine the Social Meaning of Declining Prosecution of Elite Crime"

The title of this post is the title of this new article authored by Mary Kreiner Ramirez available now via SSRN. Here is the abstract:

Recent financial scandals and the relative paucity of criminal prosecutions against elite actors that benefited from the crisis in response suggest a new reality in the criminal law system: some wrongful actors appear to be above the law and immune from criminal prosecution.  As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis.  This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors.  Their incumbency in power results in massive deadweight losses due to the distorted incentives they now face. Further, this undermines the legitimacy of the rule of law and encourages even more lawlessness among the entire population, as the declination of prosecution advertises the profitability of crime.

These considerations transcend deterrence as well as retribution as a traditional basis for criminal punishment.  Affirmance is far more costly and dangerous with respect to the crimes of powerful elites that control large organizations than can be accounted for under traditional notions of deterrence.  Few limits are placed on a prosecutor’s discretionary decision about whom to prosecute, and many factors against prosecution take hold, especially in resource-intensive white collar crime prosecutions.  This article asserts that prosecutors should not decline prosecution in these circumstances without considering its potential affirmance of crime. Otherwise, the profitability of crime promises massive future losses.

Sex offender barred from schools running for local Utah school board

As reported in this local article, headlined "Registered child sex offender runs for school board," a candidate for a school board in Utah is garnering a lot of extra attention for something he did two decades ago. Here are the details:

A convicted sex offender is hoping to be elected for a seat at the Granite School Board. Dick Wagner Jones, 67, of Holladay, committed his crime more than two decades ago and served five years in prison for it, with 10 years of parole.  And since his offense involved a minor, Jones will be on the Utah sex offender registry until 2015.

It would make for an unusual problem for the school district if he is elected since Jones’ criminal history bars him from being around schools. Granite Board of Education President Gayleen Gandy says there is not much she can say about the candidacy of Jones.  “To be honest, I don’t expect it will deflect a whole lot of attention. Anyone who’d like to run, can register as a candidate,” says Gandy....

If Jones is elected to the Granite School Board this fall, there are stipulations in the law that would allow him to visit schools for business.  However, Jones would need to have his visits approved beforehand and they would have to happen when no students are present. Granite School District officials say they are unable to comment on the candidacy of any individual regardless of the situation.

Could (and should) public disapproval impact sentencing appeal in Ravi case?

The question in the title of this post is prompted by this local story headlined "Poll: More than half of N.J. residents find Dharun Ravi sentencing too lenient."  Here are excerpts:

Just over half of New Jersey residents believe the 30-day jail sentence given to Dharun Ravi for spying on his gay roommate was "not tough enough," according to a Rutgers-Eagleton poll.  That view held consistent across the normal divides of politics, gender and race.

Another 39 percent found Ravi’s sentence of jail time plus probation, a fine and community service to be "the punishment he deserves," while just 7 percent called it "too tough."

"It suggests with all the discussion about bullying, people are taking this much more seriously than they did before — and that maybe the judge should’ve too," said poll director David Redlawsk.  The case — which triggered an impassioned national debate about bias laws, gay rights and sexual privacy in the internet era — was followed by an astonishing 97 percent of respondents....

The more people knew about the case, the more likely they were to say Ravi should have received a tougher sentence.  "Wow," said Stephen Russell, a University of Arizona expert in anti-gay bullying, when told of the results.  "It’s a bit of a surprise, because I might have imagined more people thinking the sentence was ‘too tough.’"...

The telephone poll of 1,191 adults was conducted May 31-June 4 just as Ravi apologized for his actions and surrendered to begin his jail term.  His apology was rejected by the parents of Tyler Clementi, the roommate who committed suicide shortly after learning Ravi had made his assignations with a male visitor the subject of dorm gossip.

Prosecutors are appealing the sentenced handed down by Superior Court Judge Glenn Berman, who deviated from state guidelines which mandated a lengthier prison term because he said he felt Ravi’s actions didn’t warrant going to prison with those convicted of murder, armed robbery and rape.

I am not sure if New Jersey sentencing law makes community sentiment a relevant consideration on appeal. I do know that, were this case in federal court, prosecutors could cite this poll as part of a claim that the short Ravi prison sentence was not sufficient "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense" as required by 3553(a).

Federal prosecutors urging 230-year sentence (!?!) for Ponzi schemer Allen Stanford

As reported in this new Bloomberg piece, headlined "Stanford Should Get 230-Year Term in Ponzi Scheme, U.S. Says," apparently federal prosecutors believe that only a sentence 10 times the remaining life expectancy of a Ponzi schemer is sufficient punishment. Here are the details:

Convicted Ponzi scheme operator R. Allen Stanford should be sentenced to the maximum allowable term of 230 years in prison, prosecutors argued in court papers.  Stanford, who the government said is seeking a sentence of "time served," is to be sentenced next week in U.S. District Court in Houston.

"Robert Allen Stanford is a ruthless predator responsible for one of the most egregious frauds in history," the Justice Department said in a 34-page filing.  "Displaying an audacity that only further illustrates his depravity, Stanford seeks a sentence of time served, brazenly arguing that there are no losses" and rehashing arguments rejected by the jury that convicted him in March.

Stanford, 62, was found guilty of defrauding more than 20,000 investors of $7 billion through the sale of what the government called bogus certificates of deposit at his Antigua- based Stanford International Bank Ltd.  A court-appointed receiver gathering the ex-billionaire's assets has located less than $500 million in cash and assets to use to repay investors.

Stanford's own sentencing recommendation was filed under seal.  Prosecutors said he asked U.S. District Judge David Hittner for leniency, in part because he is a first-time offender. Stanford also denied that investors suffered any losses while he was running Stanford Financial Group and "complains that he was stripped of all his assets," by the government, prosecutors said.

The recommended 230 years is at the top of the range of sentences for Stanford's crime under federal guidelines, the prosecutors said in the filing.  "Nothing speaks more eloquently of Stanford's character than his sentencing arguments in this case," the Justice Department lawyers wrote.  "After everything that he has done to so many innocent victims, Stanford does not show a hint of remorse for his misconduct, only the same arrogant, narcissistic behavior that led to it."

Stanford has been incarcerated as a flight risk since his indictment in June 2009. He was charged about three months after U.S. securities regulators seized his companies on suspicion they were a "massive" Ponzi scheme, in which late-arriving investors' funds were used to pay earlier investors.

Stanford's lawyers have requested a prison sentence of 31 to 44 months, prosecutors said.

Robert A. Scardino, one of Stanford's criminal-defense lawyers, said by phone that his side is "hoping for the best and preparing for the worst" at the June 14 sentencing. Scardino declined to comment further, citing a court order not to speak publicly about the case.

I understand completely why federal prosecutors are eager to huff and puff and demand a sentence in this high-profile case that can be measured in decades, not just in months.  But to request a sentence of 230 years for a man in his 60s is not just silly, it is truly preposterous in light of the mandate in federal law for judges to impose sentences that are "sufficient but not greater than necessary" to achieve congressional punishment purposes.

I would love for the sentencing judge in this case to request that federal prosecutors explain in writing just just why they believe that a sentence of, say, 75 years would be insufficient under these circumstances and why they think only a sentence more than three times that length is needed in this case.

"The Evolution of Unconstitutionality in Sex Offender Registration Laws"

The title of this post is the title of this new article authored by Catherine L. Carpenter and Amy E. Beverlin appearing in the May 2012 issue of the Hastings Law Journal. Here is the abstract:

More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.

This Article does not challenge the state’s legislative power to enact sex offender registration laws.  Instead, this Article posits that, even if sex offender registration schemes initially were constitutional, serially amended sex offender registration schemes — what this Article dubs super-registration schemes — are not.  Their emergence demands reexamination of the traditionally held assumptions that defined original registration laws as civil regulations.

Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear.  When combined with the second cause, a Supreme Court that has yet to signal much-needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose.  Ultimately, this Article is a cautionary tale of legislation that has become unmoored from its constitutional grounding because of its punitive effect and excessive reach.

Ohio Gov Kasich grants two-week execution reprieve for mentally ill murderer

As reported in this local article, which is headlined "Kasich grants 2-week reprieve to courthouse killer facing execution," there has been a surprising development before today's scheduled Ohio execution. Here is how the article starts:

A Cleveland man who gunned down his estranged wife and brother-in-law in a courthouse basement got a two-week reprieve from execution from Gov. John Kasich yesterday. Abdul Hamin Awkal, 53, was to be lethally injected at 10 a.m. today at the Southern Ohio Correctional Facility near Lucasville.

However, late yesterday afternoon, Kasich unexpectedly used his executive clemency power to postpone Awkal’s execution. He said in a statement that the time will allow Cuyahoga County Common Pleas Judge Stuart Friedman to hold a hearing to determine whether Awkal is mentally competent to be executed.

The reprieve was requested by Awkal’s attorneys, not by a court or judge. It was an “internal decision” made solely by Kasich’s office, a spokeswoman said. Just last week, Kasich denied clemency for Awkal without comment.

Awkal, 53, a native of Lebanon, was convicted of killing his estranged wife, Latife Awkal, and her brother Mahmoud Abdul-Aziz at Cuyahoga County Domestic Relations Court in 1992. His wife had gone there to file for divorce. Awkal chased Abdul-Aziz into a room and shot him, then shot his wife, police reports said.

Awkal’s attorneys argue that he is mentally unstable. He claims, among other things, that he has worked with the CIA in the war on terror and has helped guide U.S. war efforts in Afghanistan from his Death Row cell.

"Time Served: The High Cost, Low Return of Longer Prison Terms"

The title of this post is the title of this big new report from the Pew Center on the States.  This page provides this quick summary of the reports themes and findings:

The length of time served in prison has increased markedly over the last two decades, according to a new study by Pew’s Public Safety Performance Project. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.

Over the past 40 years, criminal justice policy in the U.S. was shaped by the belief that the best way to protect the public was to put more people in prison. Offenders, the reasoning went, should spend longer and longer time behind bars.

Consequently, offenders have been spending more time in prison. According to a new study by Pew’s Public Safety Performance Project, the length of time served in prison has increased markedly over the last two decades. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.

Those extended prison sentences came at a price: prisoners released from incarceration in 2009 cost states $23,300 per offender -- or a total of over $10 billion nationwide. More than half of that amount was for non-violent offenders.

The report, Time Served: The High Cost, Low Return of Longer Prison Terms, also found that time served for drug offenses and violent offenses grew at nearly the same pace from 1990 to 2009. Drug offenders served 36 percent longer in 2009 than those released in 1990, while violent offenders served 37 percent longer. Time served for inmates convicted of property crimes increased by 24 percent.

Almost all states increased length of stay over the last two decades, though that varied widely from state to state. In Florida, for example, where time served rose most rapidly, prison terms grew by 166 percent and cost an extra $1.4 billion in 2009.

A companion analysis Pew conducted in partnership with external researchers found that many non-violent offenders in Florida, Maryland and Michigan could have served significantly shorter prison terms with little or no public safety consequences.

The report also summarizes recent public opinion polling that shows strong support nationwide for reducing time served for non-violent offenders.

This press release from the Pew folks includes these additional details from the report:

Though almost all states increased length of stay over the last two decades, the overall change varied widely between states. Among 35 reporting states representing nearly 90 percent of 2009 prison releases, time served rose most rapidly in Florida, where terms grew by 166 percent and cost an extra $1.4 billion in 2009. Prison terms increased in Virginia by 91 percent, North Carolina (86 percent), Oklahoma (83 percent), Michigan (79 percent), and Georgia (75 percent). Eight states reduced their overall time served, including Illinois (25 percent) and South Dakota (24 percent).

Among prisoners released in 2009 from the reporting states, Michigan had the longest overall average time served, at 4.3 years, followed by Pennsylvania (3.8 years). South Dakota had the shortest average time served at 1.3 years, followed by Tennessee (1.9 years). The national average time served was 2.9 years.

NY Times debates "When to Punish, and When to Rehabilitate" for juve offenders

The Room for Debate section of the New York Times has this new set of pieces discussing punishments for juvenile offenders.  Here is the sections set up:

The Supreme Court is expected to rule this month on when, if ever, it is appropriate to sentence juvenile offenders to life without parole.  The arguments this spring showed the complexity of drawing the lines between child and adult, and between justice and cruelty.

When minors commit violent crimes, should they be treated differently from adults?  Is prison effective as a punishment and deterrent for juveniles, or does it harden a young person who might otherwise recover?

Here are the contribututions, with links via the commentary titles:

• "Prison Is Too Violent for Young Offenders" by Gary Scott, inmate, San Quentin

• "In Sentencing, Remember the Victims" by Jennifer Bishop-Jenkins, National Organization of Victims of Juvenile Lifers

• "Behind Bars, Teenagers Become Prey" by T.J. Parsell, writer and human rights activist

• "Adult Punishments Should Be an Option" by Charles Stimson, Heritage Foundation

• "Prison Does Not Make Good Citizens" by R. Daniel Okonkwo, D.C. Lawyers for Youth

• "The Race Factor" by Jennifer L. Eberhardt and Aneeta Rattan, Stanford University

• "Seeing Juveniles’ Maturity, and Immaturity" by Laurence Steinberg, adolescent brain researcher

• "Teenagers Too Often End Up in Solitary" by Amy Fettig, A.C.L.U.

• "The Cost of Prison, in Dollars and Lives" by Michael Jacobson, director, Vera Institute of Justice

Notable appeal for clemency from victims' family rejected by Mississippi Gov

As reported in this AP article, which is headlined "Mississippi Gov. Phil Bryant won't stop execution for 1990 slayings," a plea for mercy coming from parents of children killed by a condemned murderer did not convince Mississippi's Governor to grant clemency on the eve of the execution.  Here are the interesting details:

A Mississippi man who fatally stabbed four young nieces and nephews in a 1990 rampage faced scheduled execution Tuesday evening, despite the pleas of two sisters to spare the brother who murdered their children.

Henry "Curtis" Jackson Jr. was scheduled to die by injection at 7 p.m. EDT Tuesday. Jackson spent the day receiving relatives, including one of the sisters whose two children were kililed and who survived after being stabbed five times. The slain children ranged from 2 to 5 years old and were killed as Jackson allegedly was trying to steal his mother's safe while she was at church.

Late Tuesday afternoon, Gov. Phil Bryant declined to stop the execution. The mother of the slain children had asked Bryant to spare their brother.  "I have reviewed the facts of this case and the applicable law," Bryant said in a news release.  "There is no question that Mr. Jackson committed these heinous crimes, and there is no clear and convincing evidence that compels me to grant clemency."

But he said he was moved by the plea of the relatives.  "I am deeply touched by the requests for clemency by two of his sisters and his brother-in-law," Bryant said.  "One of these sisters was a stabbing victim, and both of the sisters are mothers of the murdered children.  However, as governor, I have the duty to see that justice is carried out and that the law is faithfully executed."

Corrections Commissioner Chris Epps said at a briefing Tuesday at the Mississippi State Penitentiary that Jackson acknowledged the crime and was talkative and writing letters after visiting with family.  "This is somewhat unusual in that we have family members who are also victims," Epps said.

Among Jackson's visitors at the penitentiary in Parchman were his children, his mother and a sister, Regina Jackson was stabbed five times and survived the attack that killed her two daughters and two nephews.

Regina Jackson met with the governor Monday to plead for her brother's life.  She also wrote Bryant a letter last month asking for a reprieve, saying she doesn't want her brother to get out of prison and that she "just can't take any more killing."

"As a mother who lost two babies, all I'm asking is that you not make me go through the killing of my brother," she wrote....

Regina Jackson told The Associated Press in a telephone interview as the execution date loomed that she has forgiven her brother over the years. "If they kill him, they're doing the same thing that he did. The dying is going to have to stop somewhere."

Another sister and her husband, Glenda and Andrew Kuyoro, also asked Bryant to spare Curtis Jackson in a letter dated May 15. The couple said they tried for years to understand why Jackson attacked his relatives, and they know their questions may never be answered, but that they surely won't if he dies.

"We are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don't put our family through this horrible execution," the Kuyoros wrote. "We are not asking you to take pity on Curtis, we're asking you to show US mercy. We have been through enough." Epps said Regina Jackson and the Kuyoros planned to witness the execution.

Jackson has said he doesn't remember stabbing the children, but testimony from his trial describ ed a horrific scene.  He cut the phone line before going in the house, according to the court record.  Once inside, he demanded money and attacked his sister.  One of the children tried to help, but he stabbed her, too.  Regina Jackson tried to fight him off with an iron rod, but he grabbed one of the children and used her as a shield.

UPDATE:  This local article reports on the completed execution of Jackson (and also notes that Mississippi's next execution is scheduled for next week).

Intriguing split Tenth Circuit opinion on plea bargains and the sentencing process

A split panel of the Tenth Circuit has an interesting debate in US v. Oakes, No. 11-6005 (10th Cir. June 5, 2012) (available here) over broken plea bargains and resentencings. Here is how the majority opinion starts:

Upon entering a plea agreement with the government, Defendant Marcus D. Oakes pleaded guilty in the United States District Court for the Western District of Oklahoma to one count of distributing cocaine base. At the sentencing hearing, however, the government breached its promise in the plea agreement not to oppose Defendant’s request that his sentence be concurrent with a prior federal sentence, and the district court sentenced him to 37 months’ imprisonment to run consecutively to the other sentence.  When the breach was brought to the court’s attention a few minutes later, the court struck from the record the improper part of the government’s argument but resentenced Defendant to the same consecutive sentence.

On appeal Defendant contends that the breach requires that his sentence be vacated and resentencing be set before a different judge.  We have jurisdiction under 28 U.S.C. § 1291 and affirm.  Defendant does not seek, and we would not order, that he be allowed to withdraw his plea.  Therefore, the sole remedy for the government’s breach is resentencing.  Ordinarily, we would order resentencing before another judge.  But a defendant can choose to be resentenced before the same judge, that choice can properly be made by defense counsel, and defense counsel made that choice below.  Hence, there is no further remedy available for Defendant on direct appeal.

And here is how the dissent by Judge Lucero gets going:

In the majority’s view, this case is about which judge may conduct a resentencing under Santobello, and whether defense counsel alone may elect to forgo judicial reassignment. In my view, the question presented is far more substantial.  This case requires us to decide if counsel can singlehandedly waive a defendant’s right to obtain the benefit of his constitutional plea bargain — a right that is inextricably intertwined with the rights waived at the time of entry of a guilty plea.  I consider it beyond dispute that the decision to hold the prosecution to its promise belongs to the defendant, not to the whim of counsel.

"A Proposed National Corrections College"

The title of this post is the title of this article available via SSRN authored by James Jacobs and Kerry Cooperman. Here is the abstract:

More than four decades ago, Chief Justice Warren E. Burger proposed the establishment of a National Corrections Academy.  He envisioned a training center for prison and jail personnel as prestigious, well-funded, and high-powered as the FBI Academy in Quantico, Virginia.  Although the National Institute of Corrections established a National Corrections Academy in 1982, this academy has remained extremely small (ten full-time program specialists) and modestly funded ($2.5 annual budget) given the size of this nation’s correctional infrastructure.

Today, at a cost of approximately $70 billion per year, more than half a million correctional employees in more than 5,000 correctional facilities across the U.S. house, feed, clothe, supervise, recreate, educate, and provide medical care to nearly 2.3 million inmates, and probation and parole officers supervise an additional 5 million people. Despite the cost and complexity of administering this massive correctional complex, there is no national institution to identify and prioritize correctional-leadership-development needs, evaluate best training practices, develop and disseminate quality curricula, conduct cutting-edge research, and deliver training to a significant number of high-level corrections leaders.

This article reprises Chief Justice Burger’s proposal, calling for the establishment of a National Corrections College that would be the nation’s “brain center” for correctional research, curriculum development, and leadership training.  As Justice Burger observed three decades ago, an investment in a full-fledged national-level correctional training and research center would “cost less in the long run” than the failure to make such investment.

Tipping lawyer gets record long insider trading sentence

As reported in this AP article, federal prosecutors notched another record white-collar sentence today in federal court in New Jersey.  Here are some of the notable sentencing details:

A former attorney who admitted feeding privileged information to two confederates over the course of a 17-year insider stock trading scheme was sentenced Monday to 12 years in prison, the longest sentence ever handed out for insider trading, and the trader who reaped more than $20 million in profits from the tips received a nine-year sentence, authorities said.

U.S. Attorney Paul Fishman said former attorney Matthew Kluger's sentence is the longest handed out for that crime.  The scheme was carried out from 1994 to 2011 and is believed to be the longest ever uncovered by law enforcement, though the crimes charged dated only to 2005....

The 51-year-old Kluger, of Oakton, Va., and former trader Garrett Bauer, 44, of New York, admitted last year they conspired with a third man, New York mortgage broker Kenneth Robinson, who acted as the middleman.  Robinson was arrested in 2011 and secretly recorded conversations with the other men, including one in which Bauer discussed lighting $175,000 on fire to erase his fingerprints, according to court documents.  Robinson, who pleaded guilty to his role in the scheme, is scheduled to be sentenced Tuesday.

Kluger admitted passing advance information on company mergers to Robinson, who would give it to Bauer.  The trio was estimated to have made $11 million on tech company Oracle's acquisition of Sun Microsystems.

Assistant U.S. Attorney Judith Germano told the judge that Kluger was the mastermind. "He had wealth, intelligence and family support," she said. "He abused it all. Why? Because he could."  Defense Attorney Alan Zegas argued for a shorter sentence for Kluger and said that Bauer realized the lion's share of the profits while Kluger took only a small fraction of the total and was not aware of many trades that Bauer made on his own.

U.S. District Judge Katharine Hayden rejected Zegas' argument and said that every one of more than 30 insider trades made by Bauer was based on information provided by Kluger, whom she characterized as "amoral" and "thuggish."  She compared the trio to drug dealers for the way they used throwaway cellphones and multiple ATM accounts to withdraw cash and exchange it in envelopes or bags.

Zegas said he would appeal the sentence. Kluger, who said in remarks to the court that he was "deeply, deeply sorry," insisted afterward that the sentence was too harsh.  Hedge fund billionaire Raj Rajaratnam was sentenced to 11 years in October after being convicted in the biggest insider trading case in U.S. history.  "I guess it's better to take $68 million and go to trial and be unwilling to accept responsibility for what you did," Kluger said, referring to Rajaratnam, who maintained that he traded only on publicly available information.

Defense attorney Michael Bachner attempted to persuade the judge to reduce Bauer's sentence by mentioning the numerous public speaking appearances Bauer has made since his arrest at business schools and law schools and the extensive work he has done with children's charities.

Intriguingly, based on other press reports, it appears that both of these sentences were imposed within the calculated applicable guideline ranges.

Serious talk of decriminalizing marijuana possession in New York

As reported in this Reuters article, "New York Governor Andrew Cuomo announced new legislation on Monday to decriminalize public possession of small amounts of marijuana, lowering the penalty from a misdemeanor to a non-criminal offense."  Here is more:

The measure — which strikes indirectly at the New York Police Department's controversial stop and frisk program — seeks to eliminate a nuance in state law that differentiates between public and private possession of the drug.

At present, first time offenders who are found to be carrying less than 25 grams of marijuana on their person are supposed to be issued a non-criminal violation ticket, similar to a traffic ticket, while those observed to be openly displaying a small amount of the drug — in an upturned palm, for instance — are often arrested on a misdemeanor criminal charge.

But critics of the NYPD's stop and frisk program say minority residents in high-crime areas are routinely arrested and charged criminally, following stops and searches by police that turn up small amounts of the drug in their pockets.   Those arrest records can turn up in background searches by landlords, employees and colleges, drug policy analysts said.

Misdemeanor marijuana arrests have skyrocketed in New York City in recent years, from about 2,000 a year in 1990 to more than 50,000 annually in 2010 and 2011.  Last year, police arrested 6,000 people in Manhattan alone for plain-view marijuana possession and they would have got a summons instead of being arrested under the proposed changes to the law, Manhattan District Attorney Cyrus Vance said....

New York Mayor Michael Bloomberg and NYPD Commissioner Ray Kelly both expressed support for Cuomo's plan Monday.  Last September, Kelly issued a department-wide directive to stop arresting people for possessing small amounts of marijuana, unless the drug was displayed in plain view.  But arrest rates did not drop significantly, according to drug policy analysts.

Mayor Bloomberg said in a statement on Monday morning that Cuomo's measure "strikes the right balance by ensuring that the NYPD will continue to have the tools it needs to maintain public safety — including making arrests for selling or smoking marijuana."...

In 2010 and 2011, marijuana possession arrests accounted for one in every seven arrests, more than for any other offense....  Misdemeanor marijuana arrests have hovered between about 29,000 and 52,000 every year since 1998, according to the New York State Division of Criminal Justice Services.

"Death of death penalty? Not in Hamilton County"

The title of this post is the headline of this effective Cincinnati Enquirer article reporting lots of interesting data about the administration of the death penalty in various counties in Ohio.  Here are excerpts:

As capital murder convictions and death sentences have been falling across Ohio and the country, an Enquirer analysis shows Prosecutor Joe Deters continues to unapologetically pursue the death penalty.

Deters is a major reason Ohio’s death row is disproportionately populated by Hamilton County murderers. Hamilton County has had 10 inmates executed and leads Ohio with 27 of its 147 death row inmates. Under Deters’ two separate terms as prosecutor -- he was Ohio Treasurer in between -- his office has sent about two dozen to death row.

But it’s not that Deters seeks the death penalty more than other big-city prosecutors.  The Enquirer analysis found the opposite: Since Ohio adopted the death penalty in 1981, Hamilton County has sought the death penalty far less than Cuyahoga and Franklin counties but won death sentences one-third of the time, more than seven times higher than Ohio’s two other large counties.

Deters seeks the ultimate punishment only when he believes proof of guilt is certain, he said. The differing ways local prosecutors handle capital cases leads to what one prominent critic has labeled a “death lottery.”  But even as Deters continues to press capital murder cases, the attack on the death penalty again is percolating....

Deters, though, notes Ohio law includes the death penalty, he swore an oath to uphold that law and he will do so even if others disagree with him for doing so.   “There are some crimes so bad you need to die for what you’ve done,” Deters said. “The evil and acts we are dealing with are so extreme.”...

Since Ohio reinstated the death penalty in 1981, Hamilton County grand juries have handed up 172 capital murder indictments through 2011.  Of those, prosecutors won death sentences in 61, or 35.5 percent, records from the Ohio Supreme Court and Ohio Attorney General show.

Despite Hamilton County’s reputation for aggressively seeking the death penalty, its 172 capital murder indictments are one-third of Franklin County’s 496 and one-eighth of Cuyahoga County’s 1,231 in the same 30-year span. Cuyahoga has won a death sentence in 5.1 percent of its capital murder indictments through 2011; Franklin County in 3.8 percent.

Those numbers mean Deters seeks the death penalty far less than his Ohio big-county counterparts but succeeds far more often. Hamilton County’s 35.3 percent rate is almost seven eight times higher than Cuyahoga and more than nine times higher than Franklin. “We’re being criticized for doing our jobs very well,” said Deters, Hamilton County’s prosecutor from 1992-1998 and again since 2005.

Deters’ indictment numbers are so low compared to the other large counties, he believes, because of his personal stance. “If we indict a death penalty, we don’t plea bargain,” Deters said. “If there is a proof (of guilt) problem at all, I’m not doing it. I’m not seeking the death penalty.”

That means the odds of a Hamilton County inmate indicted for capital murder being sent to death row are higher.  That’s a major reason why death penalty opponents believe the punishment is unfair -- and should be eliminated....

[Ohio Supreme Court Justice Paul] Pfeifer chaired the Senate Judiciary Committee that pushed to reinstate Ohio’s death penalty in 1981. But as he has presided over appeals cases involving the ultimate punishment since he was elected to the high court in 1992, he’s been so troubled by capital punishment that he now opposes it. “I think it just doesn’t work,” Pfeifer said.

Pfeifer’s biggest concern is the way he believes it’s indiscriminately applied. “I call it the death lottery,” he said, pointing squarely at Deters and Hamilton County. Because each county varies on when, why or if it seeks the death penalty, Pfeifer believes it’s not uniformly applied across the state but should be.

Deters agrees there are larger political issues revolving around capital punishment, especially for prosecutors who refuse to seek death penalties even though Ohio law allows capital punishment. “There’s no joy in this process,” Deters said. “You’re dealing with victims’ families who are just destroyed. You’re asking jurors to make what is probably the most important decision of their life. It’s a tough, tough law and I swore to uphold it.”

Death-penalty opponents can argue all they want, Deters said, but until the law changes, he will seek the death penalty when he thinks it appropriate. “If the politics were there to get rid of the death penalty, they’d get rid of it. It’s just not there,” Deters said.

Another week of SCOTUS waiting for sentencing fans

I had thought there was a reasonable possibility that the Supreme Court sometime this week might hand down one of the big sentencing cases still pending: Southern Union (Apprendi's application to fines); Jackson and Miller (mandatory LWOP for young juve murderers); Dorsey and Hill (the FSA's application to pipeline cases).  But, as detailed via this post at How Appealing, the Justices did not issue opinions in any of these cases this morning.  They Justices did grant cert and hand down one opinion on police practice issues, and Lyle Denniston reports here at SCOTUSblog that probably the most notable criminal justice decision was a cert denied in two high-profile federal convictions flowing from campaign donations in Alabama. 

According to the folks at SCOTUSblog, it appear that the Court will not hand down opinions again until next Monday.  So, it's another week of waiting for these sentencing rulings.  Fortunately, absent some dramatic or unexpected development (such as a order for reagument), I think we can reasonably expect to see opinions in all of these cases within the next three weeks.

Anyone yet eager to make predictions on the timing, outcomes, vote counts or opinion writers in these big sentencing cases.  At this moments I am inclined to guess we will get Southern Union next week, the juve LWOP cases the week of June 18, and the FSA pipeline cases the week of June 25.  In addition, I think the defendants are likely to previal in these cases by votes of 7-2, 5-4, and 6-3, with Justices Thomas, Kennedy and Sotomayor as principal opinion writers. 

But who really knows with this Court these days!?!?

Significant disparities in application of self-defense law in Florida

Expressions of concern about judges creating disparities in sentencing outcomes always prompt me to wonder about other kinds disparities created by other criminal justice participants. This lengthy new local article, headlined "Florida 'stand your ground' law yields some shocking outcomes depending on how law is applied," confirms my sense that the injustices potentially caused by sentencing disparities may pale in comparison to other kinds of criminal justice disparities.  Here is the start of a fascinating article that merits a full read:

Florida's "stand your ground" law has allowed drug dealers to avoid murder charges and gang members to walk free.  It has stymied prosecutors and confused judges.  It has also served its intended purpose, exonerating dozens of people who were deemed to be legitimately acting in self-defense. Among them: a woman who was choked and beaten by an irate tenant and a man who was threatened in his driveway by a felon.

Seven years since it was passed, Florida's "stand your ground" law is being invoked with unexpected frequency, in ways no one imagined, to free killers and violent attackers whose self-defense claims seem questionable at best.

Cases with similar facts show surprising — sometimes shocking — differences in outcomes.  If you claim "stand your ground" as the reason you shot someone, what happens to you can depend less on the merits of the case than on who you are, whom you kill and where your case is decided....

In the most comprehensive effort of its kind, the Tampa Bay Times has identified nearly 200 "stand your ground'' cases and their outcomes.  The Times identified cases through media reports, court records and dozens of interviews with prosecutors and defense attorneys across the state.

Among the findings:

• Those who invoke "stand your ground" to avoid prosecution have been extremely successful. Nearly 70 percent have gone free.

• Defendants claiming "stand your ground" are more likely to prevail if the victim is black. Seventy-three percent of those who killed a black person faced no penalty compared to 59 percent of those who killed a white.

• The number of cases is increasing, largely because defense attorneys are using "stand your ground" in ways state legislators never envisioned. The defense has been invoked in dozens of cases with minor or no injuries.  It has also been used by a self-described "vampire" in Pinellas County, a Miami man arrested with a single marijuana cigarette, a Fort Myers homeowner who shot a bear and a West Palm Beach jogger who beat a Jack Russell terrier.

• People often go free under "stand your ground" in cases that seem to make a mockery of what lawmakers intended.  One man killed two unarmed people and walked out of jail. Another shot a man as he lay on the ground.  Others went free after shooting their victims in the back.  In nearly a third of the cases the Times analyzed, defendants initiated the fight, shot an unarmed person or pursued their victim — and still went free.

• Similar cases can have opposite outcomes.  Depending on who decided their cases, some drug dealers claiming self-defense have gone to prison while others have been set free. The same holds true for killers who left a fight, only to arm themselves and return.  Shoot someone from your doorway?  Fire on a fleeing burglar?  Your case can swing on different interpretations of the law by prosecutors, judge or jury.

• A comprehensive analysis of "stand your ground" decisions is all but impossible.  When police and prosecutors decide not to press charges, they don't always keep records showing how they reached their decisions. And no one keeps track of how many "stand your ground" motions have been filed or their outcomes.

Claiming "stand your ground,'' people have used force to meet force outside an ice cream parlor, on a racquetball court and at a school bus stop.  Two-thirds of the defendants used guns, though weapons have included an ice pick, shovel and chair leg.  The oldest defendant was an 81-year-old man; the youngest, a 14-year-old Miami youth who shot someone trying to steal his Jet Ski.

Ed Griffith, a spokesman for the Miami-Dade State Attorney's Office, describes "stand your ground" as a "malleable" law being stretched to new limits daily.  "It's arising now in the oddest of places,'' he said.

That's unlikely to change any time soon, according to prosecutors and defense attorneys, who say the number and types of cases are sure to rise.   "If you're a defense counsel, you'd be crazy not to use it in any case where it could apply,'' said Zachary Weaver, a West Palm Beach lawyer.  "With the more publicity the law gets, the more individuals will get off.''

NY Times editorial supports jury findings for mandatory minimums

A few weeks ago, I noted and promoted in this post the remarkable opinion by US District Judge William Young in US v. Gurley, No. 10-10310 (D. Mass. May 17, 2012). I am consequently pleased to see that this past weekend the New York Times had this editorial about the case, headlined "A Jury Draws a Line." Here are excerpts:

Rodney Gurley faced a mandatory minimum sentence of 10 years in federal prison for possession of 28 or more grams of crack cocaine with an intent to distribute it because he had previously been convicted of a felony.

The police found 32 grams in the apartment where he was arrested, but a federal jury in Boston found that the amount of crack “properly attributable” to Mr. Gurley did not exceed 28 grams. Relying on the jury for guidance, Federal District Judge William Young sensibly imposed a sentence of 30 months.  That riled the Justice Department, which insisted it was entitled to have the judge, not the jury, decide factors in sentencing and that Mr. Gurley should have gotten the 10-year minimum.  The government has appealed the sentence to the United States Court of Appeals for the First Circuit....

Since federal mandatory minimum sentences were enacted in 1986 and prosecutors began to “run our federal criminal justice system,” as the judge said, much of the debate has focused on the reduction of judges’ power in sentencing.  The Booker case and others have restored some of it, but there remain excessive mandatory minimums, which Congress should rescind.

But Judge Young, like other judges and scholars, has campaigned to restore the jury’s constitutional role in sentencing to ensure that criminal laws are applied fairly.  The federal sentencing guidelines and mandatory minimums have substantially diminished that role.  In this case, Judge Young properly used it in imposing a sentence based on the jury’s finding about a critical fact.

"The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem"

The title of this post the title of this new paper available via SSRN authored by Lucian Dervan and Vanessa Edkins. Here is the abstract:

In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options.  If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison.  If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars.  Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board.  Both women decided the incentives were enticing and pleaded guilty.

That Taylor and the college student both pleaded guilty is not the only similarity between the cases.  Both were also innocent of the offenses for which they had been accused.  After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder.  As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence.  The study, conducted by the authors, involving dozens of college students, and taking place over several months, not only recreated the innocent defendant’s dilemma experienced by Taylor, but revealed that plea bargaining’s innocence problem is not isolated to an obscure and rare set of cases.

Strikingly, the authors’ study found that over half of the participants were willing to falsely admit guilt in return for a perceived benefit.  This finding not only brings finality to the long-standing debate regarding the possible extent of plea bargaining’s innocence problem, but also ignites a fundamental constitutional question regarding an institution the Supreme Court reluctantly approved of in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.

Taiwan struggling with death penalty administration

A helpful reader alerted me to this intriguing new BBC article concerning controversies over the operation of the death penalty in Taiwan.  The article is headlined "Death penalty dilemma dividing Taiwan," and here are excerpts:

In 1997 a Taiwanese soldier was executed for murder, despite there being no evidence against him.  The authorities last year admitted he was innocent and compensated his family, but legal experts warn a similar tragedy could happen again under the current judicial system.

Chiang Kuo-ching was convicted of raping and killing a five-year-old girl.  He was one of two soldiers who worked in the same building as the girl's mother, and had failed a lie detector test because he was scared.  He insisted he was innocent, but was executed at the age of 21.

After a long campaign by his parents, investigators reopened the case in 2010 and indicted a man with a history of sexual offences last year.  The government admitted Mr Chiang was tortured into confessing and late last year apologised to his family.

Despite this alarming case, Taiwan's judges continue to sentence defendants to death with no material evidence, such as fingerprints or DNA, experts say.  Instead, they rely mainly on confessions or co-defendants' statements, and routinely accept as evidence police interrogations that are not recorded or videotaped, even though the law requires recordings to prevent police torture, lawyers and others say.

"The problem is even though on paper judges are supposed to follow the principle of innocent until proven guilty, in practice many don't," said Lin Feng-cheng, head of Taiwan's Judicial Reform Foundation.  "They and the society want to quickly solve a case and bring justice to the victims' families," he said....

From 2006 to 2009, no executions were carried out, as the government tried to bring Taiwan closer to the international trend of abolishing the death penalty.   But the moratorium ended in 2010 after former Justice Minister Wang Ching-feng inadvertently drew attention to it, by publicly stating that she would not sign off on any executions.

Facing public pressure, President Ma Ying-jeou replaced Ms Wang with Tseng Yung-fu, who promptly ordered four people be executed, and another five last year.  Taiwan's judges — most of whom favour the death penalty — meanwhile sentenced 15 people to death at the Supreme Court level last year, the highest number in the past decade....

Taiwan's government says it wants to eventually abolish the death penalty, but not until it can convince the public.  Surveys show that more than 70% of the population favours it. "At present, the majority of the people in Taiwan are still opposed to the abolition of the death penalty and therefore we think it is inappropriate for the government to do away with the death penalty right now," said Chen Wen-chi, an adviser and spokeswoman for the Ministry of Justice....

There are 57 inmates currently on death row.  At least one of them, and four others sentenced to death but still undergoing appeals, were convicted with no material evidence, Lin Feng-cheng said.  "The mistakes made in Chiang Kuo-ching's case are typical of mistakes still made in Taiwan," said Mr Lin.  "We believe if we continue the death penalty, the risks are very high."