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August 18, 2012

Intriguing jury sentence in Texas for female teacher having group sex with (adult) students

There are so many intriguing elements to this local sentencing story out of Texas, I am not sure which part most merits commentary.  Here are the basics:

A former Kennedale High School teacher was sentenced to five years in prison Friday evening after Tarrant County prosecutors asked jurors to show moral outrage that she treated students like a "buffet of possible sexual partners."

Earlier Friday, the jury of seven men and five women deliberated less than an hour before convicting Brittni Colleps, 28, of 16 felony counts of improper relationship between an educator and student.   According to testimony, Colleps, a married mother of three, had sex with five male students, four of them 18 and one 19, several times at her Arlington home in spring 2011.  The jury was shown sexually explicit text messages and watched a cellphone video of Colleps having group sex with four of the students.

In the sentencing phase, her family, her attorneys and one of the students asked for the minimum sentence of probation, saying Colleps has been punished enough.  She needed to be home with her children -- girls ages 8 and 6 and a boy age 5 -- all of whom have acute asthma and allergies, they said....

Prosecutors asked for the maximum of 20 years on each count and a $10,000 fine.  "You don't have a crime captured on videotape very often, and that is what you have here," prosecutor Elizabeth Beach said.

She was graphic in reminding jurors of the sexual encounters.  The students did not wear condoms on the night the video was made, Beach said.  She described the amount of body fluids and possible diseases exchanged during the night as "staggering and it is disgusting. It's completely disgusting."...

The jury deliberated the sentence for a little less than three hours.  Although Colleps was technically given five years on each of 16 counts, the sentences will run concurrently.

Defense attorney Lex Johnston said Colleps must serve a year to 2.5 years before she is eligible for parole. Johnston, who worked with Cynthia Fitch, said:  "I think the jury will probably regret what they did. Nothing we can do about it.  The jury spoke.  We have some legal issues to work on later on down the road and we'll see what happens." He said the sentence sends the message that Texas is "too conservative for our own good." The Supreme Court will eventually tell Texas to back out of people's lives and bedrooms, he said.

"These were not boys. These were not children. These were grown men who connived, conspired, worked with each other to be with this woman whose husband was away serving the military," Johnston said.

Beach and co-prosecutor Tim Rodgers called the verdict "very fair." Prosecutors never offered Colleps a plea bargain because, Beach said, "we wanted a Tarrant County jury to evaluate and as the moral conscience of the community say this is what we think of this kind of behavior and we got a very clear message from the jury."...

Christopher Colleps was serving in the military outside the area when the crimes occurred. Frequently breaking into tears, he acknowledged that he and his wife, who have been married for nine years, had engaged in group sex with another adult couple while living in Louisiana.

The last year has been "pretty rough," he said, but he will stand by his wife. "I feel like what she did was morally and ethically wrong. I feel like she has hurt me and my children, but I feel that's between me and her and God."...

According to a news release from the Tarrant County district attorney's office, at least five cases of improper relationship between an educator and a student have been prosecuted in Tarrant County since the law was enacted in 2003.

I find two aspects of prosecutorial discretion especially notable here:  (1) though it appears no offense facts were really in dispute, prosecutors apparently did not want to pursue any plea deal because they wanted a jury to send a message via sentencing; and (2) the prosecutors asked the jury to send a message through the most severe possible prison term of 20 years imprisonment.

I am generally supportive of decision (1) by the prosecutors here, especially because it seems hard to predict ex ante just what community sentiment might be on whether and how much to punish this teacher for group sex with her (adult) students.  But I am generally critical of decision (2) by the prosecutors here, especially because a 20-year term would likely mean this offender would be in prison for much of the prime of her life (and her kids' entire childhoods) despite posing little or no real risk to the community. 

I suspect prosecutors in this case requested a 20-year term not because they considered such a long term necessary, but rather because they wanted to push the jury to impose some significant prison time.  But I always find very troublesome such an inflationary approach to sentencing advocacy coming from prosecutors, especially in a case like this in which we are dealing with consentual sexual encounters among adults.

August 18, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (55) | TrackBack

Wrongful federal gun convictions finally getting undone in North Carolina

As reported in this AP piece, a "federal judge has overturned the conviction of a North Carolina man sent to prison after he was wrongly charged as a felon for possessing firearms, the first of what could be thousands of inmates with similar convictions set aside."  This is the aftermath of the story blogged here and well covered by USA Today concerning many persons serving federal time for gun possession crimes that are no longer crimes in the wake of an important recent Fourth Circuit ruling.  Here is more:

Senior U.S. District Judge James Fox on Thursday overturned the 2009 firearms conviction Terrell McCullum of Elizabethtown, N.C., declaring him innocent.  McCullum, 26, had already been released from prison in July after serving his full sentence, but he was still on probation.

Federal gun cases from North Carolina came under scrutiny after a U.S. Appeals Court ruled last year that prosecutors had been misapplying the law when it came to defining who is a felon.  Even while conceding the affected inmates were "legally innocent" of the crimes for which they were convicted, federal prosecutors still argued in court for keeping McCullum and those like him behind bars.

That changed Monday, when the government dropped its opposition to releasing those improperly convicted of firearms possession when it was not illegal for them to have guns. "After careful consideration, the Department of Justice has decided to take a litigating position designed to accelerate relief for defendants in these cases who, by virtue of a subsequent court decision, are no longer guilty of a federal crime," said Justice Department spokeswoman Adora Andy.  "We are working with the court, the probation office and the federal public defenders to ensure that these matters are addressed as effectively and quickly as possible."

Andy said prosecutors haven't yet determined exactly how many people currently in prison could eventually be released.  Reviews by federal public defenders in North Carolina and the USA Today newspaper identified more than 60 inmates whose circumstances are similar to McCullum, several of whom already have appeals pending.

A preliminary review conducted by the American Civil Liberties Union of North Carolina found more than 3,000 federal prisoners that are potentially innocent or entitled to reduced sentences.  "This is an encouraging first step, but much more has to be done to obtain justice for those who were wrongly incarcerated," said Chris Brook, Legal Director of the ACLU of North Carolina Legal Foundation.  "We continue to urge the Justice Department to take a proactive stance toward identifying and assisting all those who may be unjustly languishing in prison."

Related post:

August 18, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

New poll numbers (and polling techniques) surrounding California DP repeal initiative

This local California story, headlined "Poll says death penalty support rises after mass shootings," has interesting poll data and interesting debates concerning the poll data on California's death penalty repeal initiative.  Here are details:

According to one set of polls, support for California’s death penalty has risen — and support for an initiative to repeal it has plummeted – since the mass killings at a theater in Colorado.

A survey by the California Business Roundtable and the Pepperdine School of Public Policy, released on July 19, found that 45.5 percent of the respondents favored Proposition 34 and 46.7 percent opposed it — a statistical tie, since the difference was within the poll’s margin of error. Prop. 34 on the November ballot would abolish the death penalty and replace it with life in prison without the possibility of parole.

A day after the poll came out, a gunman killed 12 people and wounded 58 at a theater in Aurora, Colo. On Aug. 5, another gunman killed six and wounded three at a Sikh temple in Oak Creek, Wis., before being shot by a police officer. The gunman, white supremacist Wade Michael Page, then took his own life.

The first Business Roundtable-Pepperdine poll after the Aurora massacre was released Aug. 2. It found 35.9 percent of respondents in favor of Prop. 34 and 55.7 percent opposed. The latest poll, released Thursday, found 38.2 percent in favor and 52.2 percent opposed. The polling organization said its sample for that survey consisted of 811 Californians, contacted between Sunday and Wednesday, who described themselves as likely voters. The margin of error was 3.4 percent.

It’s impossible to say how much the results were affected by the mass shootings or by other events, like Jared Lee Loughner’s negotiated guilty plea Aug. 7 to serve a life term for the January 2011 shootings in Tucson that killed six people and wounded 13, including Congresswoman Gabrielle Giffords. It certainly seems plausible that news of a mass murder would evoke an emotional response and support for greater punishment.

The director of the Yes-on-34 campaign isn’t buying it. Natasha Minsker called the Business Roundtable-Pepperdine polling “very unreliable” and noted that it was conducted online, in contrast to the standard method of questioning a selected group of respondents over the telephone.

It’s hard to keep tabs on the people who take part in an Internet poll, Minsker said, and this one seems particularly questionable: It showed Prop. 34 doing better in conservative San Diego County than in the liberal Bay Area. She said phone polls by her campaign organization, and private polls she’s aware of, show Prop. 34 leading, though she didn’t give precise numbers.

But the director of the Business Roundtable poll said online surveys, though relatively new, are at least as reliable as telephone polls. Chris Condon, research director for a company called M4 Strategies, said respondents are chosen carefully to reflect the demographics of California’s voting population and checked to make sure they’re who they say they are. They’re also paid a small sum as an incentive. Condon said he’s compared some past results with phone polling on the same issues and found they were pretty close. Although the online surveys obviously leave out anyone who lacks a computer, Condon said phone polls likewise omit people without land lines, and also have to rely on the pollster’s oral description of each ballot measure. Participants in the online polls, Condon said, see the measure’s title and summary and can open a link to the ballot arguments. “In a sense, we’re closer to how people vote,” he said....

Whatever the method, Mitch Zak, spokesman for the No-on-34 campaign, said the latest poll “highlights what folks have known all along: Californians strongly support the death penalty.”

August 18, 2012 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (17) | TrackBack

August 17, 2012

More on victims' perspectives and advocacy after SCOTUS Miller ruling

Today's Los Angeles Times has this interesting new piece headlined "Ruling on juvenile killers reopens wounds for victims' families: A Supreme Court decision that juvenile murderers with life sentences should have a chance at parole stirs old memories for relatives of victims; Some are preparing to fight back."  Here are excerpts:

Jose Vasquez remembers the night police officers came to his house and said his sister Tayde was dead. He remembers too the mornings escorting his mother to the trial in Long Beach, and their relief when the young killer was given life in prison with no parole.

Now, after 20 years, the Supreme Court has ruled that juvenile murderers with mandatory life sentences should have a chance at parole, a decision that has led many states to debate comparable legislation. On Thursday, the California Assembly passed a measure that someday could set free youthful offenders like Elizabeth Lozano, who was 16 when 13-year-old Tayde Vasquez was shot in the head.

For Tayde's family, that is like the knock at the door again. Preparing to fight back, they returned to the courthouse this summer, collecting old records and transcripts, and seeking out prosecutors.  They also have written prison officials asking to be told whether Lozano files a legal appeal, wins a parole hearing, escapes or dies. They are determined to keep her inside the California state prison in Chowchilla. "It's like it's all coming back again," Vasquez said.  "It's like a ghost hunting us down."...

In the United States, about 2,000 inmates are serving life with no parole for juvenile murder.  In California, there are 300 such offenders.  To get parole under the bill, likely to pass next week in the state Senate, they would first have to serve 25 years and then convince authorities that they regretted their past actions, have stayed out of trouble in prison and could be productive in society.

That is a very high bar.  Yet Lozano, now 37, has by all appearances turned her life around. She has excelled in academics, led prison fellowships and won accolades from the prison administration.

For the Vasquez family, that is not good enough.  Nor does it persuade victims' advocates like Maggie Elvey, whose husband was killed in 1993 by two youths in San Diego County. She said opponents would consider a lawsuit to stop enforcement if the bill became law. "You do it, that's it," she said of a life sentence.  "That's what you get."

Jennifer Bishop-Jenkins, whose pregnant sister and her husband were killed in 1990 by a 17-year-old in the Chicago suburb of Winnetka, worried that the court ruling would be emotionally devastating for her if she had to once more fight against a killer's release. After so many years, she said, case files might be missing, memories may have faded and witnesses long ago may have died.  "Everything we would need to arm ourselves might be lost," she said.  "Our ability to fight a parole hearing would be severely compromised."

Some states have found ways to get around the court's ruling. In Iowa, Republican Gov. Terry Branstad last month commuted sentences of life with no parole for all 38 juvenile murderers in his state, but he then made them eligible for parole only after they served 60 years.  A killer at age 15 would be 75 before he saw a parole board.

Some related recent posts on Miller and its impact on victims:

August 17, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (5) | TrackBack

I guess Jim Carrey's Cable Guy would have gotten an life sentence

10870531_detThe quirky title of this post is a riff on the quirky case that resulted in the the rejection of a sentencing appeal by a unanimous Seventh Circuit panel today in US v. Lemke, No. 11-2662 (7th Cir. Aug. 17, 2012) (available here). Here are snippets from the start and body of the short Lemke opinion:

Taking an unfortunate frame from the 1996 movie The Cable Guy, Brian Lemke met a woman while working as a serviceman in her home, pursued her, and eventually left threatening telephone messages for her.  Indicted for violating 18 U.S.C. § 875(c), which prohibits transmitting threatening communications in interstate commerce, Lemke was convicted by a jury and sentenced to 24 months’ imprisonment.  He now appeals only his sentence, which he complains is unreasonable and excessive....

Lemke was charged with two counts of knowingly transmitting in interstate commerce a communication containing a threat to injure the person of another, in violation of 18 U.S.C. § 875(c).  He was convicted of both counts following a jury trial.  The district court set the offense level at 20 with a criminal history category of I for a sentencing range of 33 to 41 months.  It then exercised its discretion to choose a below-guidelines sentence, and imposed a term of 24 months’ imprisonment.  Lemke thinks that the sentence should have been lower yet, and so he has brought this appeal....

Lemke has placed all of his cards on his argument that his 24-month sentence is substantively unreasonable.  He insists that he was provoked ... to send a threatening message, but that he would never do such a thing again.  He asserts that probation would be a sufficiently humiliating punishment because he is an upstanding citizen in his community.  The problem is that these points at best suggest that the district court might also have selected a lesser sentence; they say nothing about whether the sentence the court imposed is unreasonable.  From the standpoint of the appellate court, the actual sentence is entitled to a presumption of reasonableness, and so it was Lemke’s difficult burden to point to some reason to think that this sentence was entirely out of bounds.  For what it is worth, we find it, if anything, to be lenient; it is certainly not unreasonably high. The government reminds us that Lemke’s actions were “disturbing and frightening,” particularly because he continued to scare his victims even after being warned by the FBI; investigators found maps of his victims’ locations in Lemke’s house; and he resisted arrest.  The district court considered these arguments and gave Lemke a below- guidelines sentence.

I have left out the offense details from this excerpt, and the specifics of how Brian Lemke stalked and threatened multiple persons readily explains why the Seventh Circuit reached the conclusion that he was ultimately lucky to get a judge who decided a two-year federal prison term was sufficient.  And yet, I still come away from this case troubled that the social response to this troubled fellow is two years in the federal pen rather than some intense therapy and close supervision in the community. 

Like the Cable Guy, it would seems that Brian Lemke is a disturbed individual who may in fact be a real risk to at some point be violent to others.  But I have no real confidence that sending him to the federal pen for the next few years is going to reduce the risk that he ultimately snaps and does something horrific.  Indeed, I fear his incarceration could ultimately increase his likelihood of recidivism.  And, most critically, I think we all should be troubled that the federal sentencing system, while it has created elaborate set of opaque guidelines designed to help a district judge decide how to sentence Brian Lemke, has no formal or even informal mechanism to examine critically just what this offender's risk profile looks like and what kind of criminal justice response would have the best chance to reduce the risk of future threats or violence by him.

August 17, 2012 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (13) | TrackBack

Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?

The question in the title of this post is prompted by this recent op-ed in the Washington Times authored by Alan Mollohan and David Keene.  The piece is headlined "Left and right agree on criminal justice reforms; Congress should move with bipartisan consensus," and here are excerpts:

While Americans seem to be sharply divided along partisan lines when it comes to important domestic policy issues — take health care, immigration or the national debt, for example — in at least one area of national importance, conservatives and liberals are increasingly united: criminal justice reform.

With only 5 percent of the world’s population, America incarcerates 25 percent of the world’s jail and prison population, imprisoning individuals at a rate five times higher than comparable Western, industrialized nations.  During the upcoming fiscal year, the federal government would spend nearly $7 billion, a nearly $300 million increase from this year, under the president’s budget proposal to house prisoners and very little, comparatively, on investments to curb the deluge of prisoners entering the system.

Policymakers and opinion leaders from both sides of the aisle recognize that this rate of incarceration is not sustainable or wise and are increasingly rallying around the same common-sense solutions to improve public safety while saving money.  Prominent conservative leaders such as former Florida Gov. Jeb Bush, former Reagan administration Attorney General Edwin Meese III, and President of Americans for Tax Reform Grover Norquist all have called for an overhaul of the criminal justice regime.

Despite the growing bipartisan consensus in support of criminal justice reform, the federal government has done little in recent years to address the pressing issues of growing incarceration rates, prison overcrowding and recidivism....  The Senate Judiciary Committee recently held a hearing to address rising prison costs.  It’s promising that Congress is talking about the issues, but the time for talk is over — it is time for Congress to act, and it should look to states for the road map.

In several states, legislators have crossed the aisle to build consensus and enact reforms on a bipartisan basis, easily outpacing the federal government.  In tough-on-crime Texas, the Republican chairman of the state House Corrections Committee worked with the Democratic chairman of the Senate Criminal Justice Committee to shepherd through legislation in 2007 that increased drug treatment capacity and expanded diversion from prison for nonviolent, low-level offenders.  Similarly, the Georgia legislature unanimously passed a bill this year that diverts low-level offenders away from prison and, when appropriate, into drug treatment, reserving prison for dangerous offenders.  States such as Kansas, South Carolina and Ohio have enacted similar legislation.

Bipartisan reforms at the state level have proved to be socially and economically beneficial.... Instead of throwing good money after bad, Congress should follow the example of these states and take steps to curb federal prison population growth. Congress can start with proven solutions that reduce recidivism and give prisoners a second chance. One example is increasing the number of days that a prisoner can earn off his sentence for good behavior, called “good time credit.”  Congress also should implement programming within prisons that would increase the likelihood of prisoners’ success after release, such as more drug treatment programming, educational opportunities and vocational training, all of which have proved to be effective at reducing recidivism....

Congress also should consider who is incarcerated in federal prisons. Sensible people agree that violent criminals belong behind bars, but the reverse is often true as well — many low-level, nonviolent offenders do not belong behind bars.  The increased use of diversion programs, probation and other prison alternatives, all of which many states have successfully employed, should be systematically implemented by the federal government.

At a time when almost every issue seems to bitterly divide Democrats and Republicans, reforming our flawed criminal justice policies has produced consensus rather than division across our nation.  Congress ought to take advantage of this political consensus to develop and enact practical yet effective solutions and embrace criminal justice reform.

I am very supportive of the themes and the specific recommendations in this op-ed.  But, as even the most casual reader of this blog's comments likely knows, there still seems good reason to question the assertion that proposals to reform "our flawed criminal justice policies" tend to produce "consensus rather than division across our nation." 

Most critically, while a good number of prominent conservative leaders formerly in power have signed joined the Right on Crime movement, we are still waiting for a prominent conservative leader currently in power (other than perhaps Ron Paul) to champion these issues and causes.  Indeed, the Obama Justice Department lately been urging Congress to increase federal good-time credit and to create earned-time programming in an effort to reduce the size and growth of the federal prison population.  My understanding is that Republicans now in power in the House of Representatives will not even allow the most modest of proposed federal reforms to move forward.

As I have said more than a few times on this blog, I think it could be politically shrewd as well as inspiring if any conservative leaders now on the campaign train would start talking up these issues.  In particular, given Mitt Romney's selection of House budget guru Paul Ryan as his Republican ticket running mate, there could and should be some serious discussion of the costs and benefits of the federal prison population (which, according to the latest BOP weekly population report (available here),  now has 218, 261 federal prisoners).

A few recent related posts:

August 17, 2012 in Who Sentences | Permalink | Comments (9) | TrackBack

August 16, 2012

California Supreme Court unanimously applies Graham to lengthy term-of-years sentence

The California Supreme Court issued a significant ruling today concerning application of the US Supreme Court's Eighth Amendment Graham ruling within the state. The lead opinion in People v. Caballero, No. S190647 (Cal. Aug. 18, 2012) (available here), starts and ends this way:

In Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011] (Graham), the high court held that the Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide offenses to life imprisonment without the possibility of parole. (Id. at p. ___ [130 S.Ct. at p. 2030].) We must determine here whether a 110-year-to-life sentence imposed on a juvenile convicted of nonhomicide offenses contravenes Graham's mandate against cruel and unusual punishment under the Eighth Amendment. We conclude it does....

Consistent with the high court's holding in Graham, supra, 560 U.S. ___ [130 S.Ct. 2011], we conclude that sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment.  Although proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future.  Under Graham's nonhomicide ruling, the sentencing court must consider all mitigating circumstances attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board.  The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison “based on demonstrated maturity and rehabilitation.” (Id. at p. ___ [130 S.Ct. at p. 2030].)  Defendants who were sentenced for crimes they committed as juveniles who seek to modify life without parole or equivalent defacto sentences already imposed may file petitions for a writ of habeas corpus in the trial court in order to allow the court to weigh the mitigating evidence in determining the extent of incarceration required before parole hearings.  Because every case will be different, we will not provide trial courts with a precise time frame for setting these future parole hearings in a nonhomicide case.  However, the sentence must not violate the defendant's Eighth Amendment rights and must provide him or her a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” under Graham's mandate.

August 16, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

New (curious? useful? suspect?) study on hypotheticals sentencing results and neurobiological evidence

This new New York Times article, headlined "Brain Evidence Sways Sentencing in Study of Judges," provides a lengthy discussion of this newly published research in Science exploring the (hypothetical) sentencing impact of brain science evidence when presented to judges.  Here are excerpts from the Times article, with one particular aspect of the study highlighted for dicussion:

Judges who learned that a convicted assailant was genetically predisposed to violence imposed lighter sentences in a hypothetical case than they otherwise would have, researchers reported on Thursday, in the most rigorous study to date of how behavioral biology can sway judicial decisions.

The findings, published in the journal Science, are likely to accelerate the use of brain science in legal proceedings, experts said, and to intensify a long-running debate about its relevance. Courts have increasingly admitted such evidence — brain scans, mostly, as well as genetic analyses — though many experts say the science is still too primitive to inform legal decisions.  Defense lawyers now commonly introduce brain scans of convicted clients as mitigating evidence in appeals of death sentences, experts said.

Previous studies of how such evidence affects legal decisions are scarce and their results mixed....  The new experiment focused on sentencing by judges, not jury verdicts.  It found that neurobiological evidence reduced judges’ sentences by an average of about 7 percent for a fictional defendant convicted of battery and identified as a psychopath.

“What’s path-breaking about this paper is that it both isolates, as well as one can, the effects of biological testimony on outcomes and it also does this within a sample of the real-world decision makers, the judges themselves,” said Owen D. Jones, a professor of law at Vanderbilt University and director of the MacArthur Foundation Research Network on Law and Neuroscience.  “This moves our understanding forward considerably.”

Dr. Jones and other experts cautioned that the effect might not apply broadly to other kinds of criminal defendants.  It may also play out differently in jury trials.  But they said that the findings were convincing and plausible.

In the study, three researchers at the University of Utah tracked down 181 state judges from 19 states who agreed to read a fictional case file and assign a sentence to an offender, “Jonathan Donahue,” convicted of beating a restaurant manager senseless with the butt of a gun.  All of the judges learned in their files that Mr. Donahue had been identified as a psychopath based on a standard interview — that is, he had a history of aggressive acts without showing empathy.

The case files distributed to the judges were identical, except that half included testimony from a scientist described as “a neurobiologist and renowned expert on the causes of psychopathy,” who said that the defendant had inherited a gene linked to violent, aggressive behavior.  This testimony described how the gene variant altered the development of brain areas that generate and manage emotion....

The judges who read this testimony gave Mr. Donahue sentences that ranged from one to 41 years in prison, a number that varied with state guidelines.  But the average was 13 years — a full year less than the average sentence issued by the judges who had not seen the testimony about genetics and the brain.

In interviews about their decisions, the judges said that a crime of aggravated battery like this one normally carried a sentence of nine years, on average, and 15 years if the defendant was identified as a psychopath, the researchers found.  “But then those who read about the biological mechanism subtracted a year, as if to say, ‘This guy is really dangerous and scary, and we should treat him as such, but the biological evidence suggests that we can’t hold him as responsible for the behavior,’ ” said James Tabery, an assistant professor of philosophy at Utah. He wrote the study with Lisa G. Aspinwall, a psychologist, and Teneille R. Brown, an associate professor in the university’s school of law....

This mixed result — added punishment for the defendant’s being identified as a psychopath, tempered by empathy for his having a possible genetic predisposition — provides a good illustration of what legal researchers call the double-edged sword of biobehavioral evidence.  On one hand, a biological predisposition suggests that a person is likely to be dangerous in the future and should get a longer sentence; on the other, it implies a lower threshold of responsibility. The evidence could cut either way, depending on the judge....

The Supreme Court has been fairly inclusive in what it considers relevant to sentencing, said Dr. Brown, of the Utah law school, so the likelihood is that courts will see much more neurobiological evidence in the future, not less. And the interpretation of that evidence is, like much else, subject to cultural trends as well as to the law. “Our study found that this evidence went in favor of the defense,” Dr. Brown said, “but you can imagine the exact same evidence used for different purposes, shifting back to the prosecution.”

The researchers involved in this study (as well as the reports now about it) are obviously focused on the impact that case-file testimony about genetics and the brain had on the average sentencing outcome.  But I am much more intrigued, and much more troubled, by some other findings in this study based on what is highlighted above.  Specifically, I find most telling and most notable that the proposed sentences for this hypothetical case of aggravated battery ranged from 1 to 41 years and that simply adding the (unscientific?) label "psychopath" apparently increased sentences over 60%. 

Most importantly, I think it is critical to consider this study and all its findings with a large grain of salt.  According to this discussion of the research in Science, the studied "sentencings" were not only of a hypothetical denfendant on a paper record, but the entire study was "web-based."  Though we may be able to learn something about judges' sentencing instincts from these kinds of faux, web-based inquiries, the absence of a real defendant and real lawyers making real arguments in an effort to impact a real sentence makes me cautious about drawing many real-world conclusions from this study.

August 16, 2012 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

"What is the fairest way for Pa. to deal with juvenile lifers petitioning for resentencing?"

The question in the title of this post comes from this local piece from Pennsylvania.  Along with this companion piece, which is headlined "Pennsylvania is battleground for implementing Supreme Court ruling on young lifers," the report does a nice job spotlighting the challenges facing the Keystone State in the wake of the Supreme Court's work in Miller.  Here is an excerpt from the piece which sets out some additional questions concerning which I am interested in comments:

Pennsylvania has more prisoners who were sentenced to life without parole as minors than any other state — about 500 — and the least amount of time to deal with the flood of resentencing petitions.  Under existing state law, those prisoners have 60 days to re-open their cases, while some states have as long as a year.

If the decision is to work retroactively, which is not at all clear yet, it could mean a lot of potential resentencing hearings and a lot of unhappiness dredged up for the families of murder victims.  What is the fairest way of dealing with this?

Iowa's Gov. Terry Branstad sidestepped the issue in July by commuting the life sentences of 38 juvenile offenders and making them eligible for parole after 60 years.  The action seems to be an attempt to protect victims' families, who would be forced to sit through parole hearings if lifers are granted new sentences.  He eliminated that possibility and, in going against the spirit of the Supreme Court decision, sparked criticism and legal challenges.

Do you think individual prisoners should be entitled to a resentencing hearing, or is this an unfair burden on Pennsylvania's legal system?

Speaking of unfair — should victims' families be forced to reopen old wounds with more legal proceedings?

Would you support a blanket solution like Branstad's (which, as far as we know, is not on the table in Pa.), or do you think his disregard for individual cases was unfair?

August 16, 2012 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (8) | TrackBack

Texas eager to (and right to) brag about its "smart on crime" parole reforms

Texas paroleThis new Houston Chronicle piece, headlined "Texas says rise in paroles gives state bragging rights: Officials say reforms are 'smart on crime' and save money," provides a lengthy report on the successes Texas officials can and should claim have flowed from its recent criminal justice reform efforts. Here is how the interesting piece starts and ends:

Texas continues a steady march away from its Old West image of being tough on crime to one that state leaders now call "smart on crime" and even fiscally "right on crime." Nothing makes that more apparent than the Texas Board of Pardons and Parole's newly released bragging rights: More prisoners were paroled this past fiscal year than any other year in the past decade, and fewer parolees are being sent back.

The board's report this week boasts 24,342 offenders were approved for parole from Sept. 1, 2010, to Aug. 31, 2011. This represents 31 percent of all who applied and an approval rate that is six percentage points higher than 10 years ago.

At the same time, the number carted back to prison this past fiscal year after their parole was revoked plummeted by 44 percent from a high of 11,374 in 2004.

Instead of fearing accusations of appearing too lenient, state authorities are smiling. "We are pleased with our continuing increase in granting parole," said Rissie Owens, chairwoman of the state's pardons and parole board. "The use of our parole guidelines to assess the likelihood of a successful parole outcome has been cited as a national model for its positive impact on returning more offenders to productive lives."

The Association of Paroling Authorities International has praised Texas' system which many other states are copying, said board spokesman Harry Battson....

The parole department's report showed the highest release rate occurred in one of the worst crime categories: violent aggravated sexual assaults. Nearly 42 percent of those candidates considered for parole were released in the last fiscal year.

However, Battson, the parole department spokesman, stressed that the actual number of violent sex offenders released is relatively small and they are nearing the end of their sentences. This category accounted for 1,849 of the 24,342 released.

The data give positive feedback that even though more parolees are being released, they are committing fewer crimes. The number of new crimes dropped 3 percent last year compared to the previous year.

August 16, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

New lethal injection drug means more delays for Missouri execution plans

As reported in this local article, headlined "Missouri execution dates postponed because of suit over new drug," litigation over lethal injection protocols is slowing down the machinery of death yet again in the Show Me State. Here are the basics:

Twenty-one men on death row — including six who may be next in line to die — say in a lawsuit that Missouri’s new lethal injection drug is unconstitutionally cruel and could force them to spend their final moments screaming in pain.

The latest challenge to the state’s long-troubled injection protocol caused the Missouri Supreme Court on Tuesday to postpone the setting of execution dates for the six, saying it would be premature with the case pending....

Some others states with the death penalty also have switched to using a single drug, but none uses propofol.... The suit was filed in June after news leaked out the month before about the Department of Corrections’ change.

"It’s an excuse to delay and, from their perspective, someday hopefully abolish the death penalty," St. Louis County Prosecuting Attorney Robert McCulloch told the Post-Dispatch in an interview Monday, before the Supreme Court announcement. "And its a specious argument."

But Rick Sindel, a lawyer representing four of the plaintiffs, said the state’s own expert admitted in court that propofol could cause "excruciating pain."... He complained that the Department of Corrections and attorney general’s office "surreptitiously" hatched the plan without regard for pain....

The inmates’ chief argument is that propofol would cause the "unprecedented, substantial likelihood of foreseeable infliction of excruciating pain," violating their rights with cruel and unusual suffering. Sindel said that 60 to 70 percent of medical patients receiving propofol report pain. For some, "pain is excruciating, causing them to cry out and struggle vigorously," or "scream at the top of their lungs," the suit alleges.

Plantiniffs’ lawyers also have raised issues about the legality of non-doctors using lidocaine, letting corrections Director George Lombardi select the execution method and effectively changing the punishment for crimes after the fact.

Many of those claims have been rejected in court before, the attorney general’s office argued in court filings.... "Plaintiffs seem to contend that despite propofol’s general acceptance and widespread use, the means of execution must have zero pain and zero risk of pain," they continued. "Plaintiffs offer no alternative to propofol that satisfies these criteria."

August 16, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (19) | TrackBack

August 15, 2012

Alabama judge gives rapist 624-year sentence, consecutive to prior 100-year term!

It is hard to resist blogging about sentencing rulings that involve prison terms so silly and extreme that they seem to undermine, rather than ensure, respect for the law.  This local story from Alabama, headlined "Dothan man gets 624 years in rape, sodomy case," seems to be an example of such a ruling. Here are the basics:

A Dothan man told the court he believed he didn’t receive a fair trial just before he received a 624-year prison sentence Tuesday for the repeated rape and sodomy of a woman during a kidnapping.

Mark Anthony Beecham, 25, testified on his behalf at his sentencing hearing held before Circuit Court Judge Kevin Moulton. Moments before Moulton announced the sentence, Beecham said he and his attorney, Thomas Smith, were not given enough time, two months, to prepare for trial on his eight felony charges.... “I believe I was denied a fair proceeding,” Beecham said.

Moulton then sentenced Beecham to the prison term. Beecham received a 99-year prison sentence for the following six felony convictions: first-degree kidnapping, two counts of first-degree rape and three counts of first-degree sodomy.  He also received a 20-year sentence for a felony first-degree theft of property offense and a 10-year sentence for felony first-degree bail jumping....

Assistant Houston County District Attorney Banks Smith asked the court for the maximum sentence. “This is one of the rare cases where we get to see the face of evil,” Smith said. “He’s a serial rapist.”

Attorney Thomas Smith asked the court to consider his client’s young age at the time of the offenses -- he was 19 years old -- and how he had no prior felony convictions before the offenses.

James Thornton, an associate pastor at Northview Christian Church, testified on behalf of Beecham. “I consider him to be a believer as most of us are, but we all have flaws,” Thornton said.  “I believe redemption is available to all of us should we choose it.”...

Houston County Circuit Court Judge Jerry White has already sentenced Beecham to a 100-year prison term for the rape and sodomy of another woman during the burglary of her home.  Moulton ordered the 624-year prison term to run consecutive with any other sentence he was already serving for a total of 724 years in prison.

Beecham has also already been convicted of sexual battery and kidnapping in Florida, where he received a 20-year prison sentence.

August 15, 2012 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (25) | TrackBack

Divided Fourth Circuit decides sex offender restrictions are not "custody" for habeas purposes

A Fourth Circuit panel has a fascinating set of opinions concerning a fascinting habeas issue in Wilson v. Flaherty, No. 11-6919 (4th Cir. Aug. 15, 2012) (available here).  Here are the players and their roles in this ruling: "Judge Niemeyer wrote the opinion, in which Judge Davis joined. Judge Davis wrote a separate concurring opinion. Judge Wynn wrote a dissenting opinion."  And here is how the majority opinion starts:

Five years after Eric Wilson fully served his sentence for a Virginia state rape conviction, he filed this habeas corpus petition under 28 U.S.C. § 2254, challenging his conviction. To satisfy § 2254’s jurisdictional requirement that he be "in custody" at the time he filed his petition, see 28 U.S.C. § 2254(a) (granting jurisdiction to the district courts to entertain "an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" (emphasis added)), Wilson alleged that the sex offender registration requirements of Virginia and Texas law impose sufficiently substantial restraints on his liberty so as to amount to custody.

The district court dismissed Wilson’s petition for lack of jurisdiction, holding that because Wilson had fully served the sentence for his rape conviction, he was no longer "in custody," as required by § 2254(a).

We affirm.  While it appears that Wilson has mounted a serious constitutional challenge to his conviction, in which he vigorously asserts his innocence, we conclude that the sex offender registration requirements of Virginia and Texas are collateral consequences of his conviction that are independently imposed on him because of his status as a convicted sex offender and not as part of his sentence.  We also note that the sex offender registration requirements and related consequences do not impose sufficiently substantial restraints on Wilson’s liberty so as to justify a finding that he is in the custody of state officials.

August 15, 2012 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (25) | TrackBack

Former DA of LA says California "can no longer afford" its death penalty system

Gil Garcetti, the former Los Angeles district attorney, has this new op-ed headlined "End death penalty for dollars and sense."  Here are excerpts:

My office sought the death penalty in dozens of cases when I was the Los Angeles County district attorney for eight years, and chief deputy district attorney for four.  The cases had horrific and compelling facts; I had no problem seeking death sentences.  But though I never was squeamish, I now fully support Proposition 34 to replace the death penalty with life in prison with no possibility of parole.  Here's why.

California's death penalty is broken beyond repair, hideously expensive, and inevitably carries the risk of executing an innocent person.  The hundreds of millions of dollars we throw away on this broken system would be much better spent on solving and preventing crime and investing in our kids' schools.

I have no qualms with the death penalty in theory.  I do, however, object to the way it is carried out in practice.  We condemn murderers to Death Row with the hope of delivering severe punishment for their crimes.

Yet the reality is that these criminals enjoy special status.  Fan mail, private cells, their own personal television and other special privileges are not what I envisioned when I sought the death penalty as district attorney.  I am sure that is not what family members of victims envisioned either.

What's more, the costs of this dysfunctional system are staggering.  There's special housing, legal teams and a double trial process, among other costs.  The Office of the Legislative Analyst in California found that replacing it with life in prison without parole could save us $130 million every year.

We are on track to spend $1 billion on this broken system over the next five years.  All for what?  Most inmates die of old age.  We need to stop the waste wherever we can.  We need that money for police and teachers, not a Death Row that exists in name only....

Let me be clear: I am no less adamant about punishing heinous killers now.  Proposition 34 is tough justice.  Convicted murderers and rapists will remain in prison until they die, with no hope of ever getting out, and will have to work and pay restitution for their crimes.

The time is now to invest our scarce resources where they can do the most good. Fighting crime and funding education are sound investments.  We can no longer afford to prop up a system that works only in theory while it robs us of precious tax dollars.  California is ready for justice that works for everyone.

UPDATE:  Thanks to Kent's comment, I see now this companion op-ed authored by Stephen Wagstaffe, the San Mateo County DA, and Marc Klaas, father of 12-year-old Polly Klaas who was murdered by Richard Allen Davis. The piece is headlined "Ending death penalty would fuel crime," and it begins this way:

Should California preserve the death penalty for vicious murderers?  

That's the real question for voters considering Proposition 34.  It's not about saving money or preventing the execution of innocent people.  Those are political statements by special interests who have consistently fought against capital punishment.  Prop. 34 is their latest effort, complete with a catchy name and slick sales pitch.

We oppose Prop. 34 from the perspective of a father forced to bury his 12-year-old little girl after she was raped and murdered, and a district attorney who has taken an oath to defend and protect innocent citizens.

Should it pass, Prop. 34 would embolden violent criminals.  Make no mistake; criminals will take advantage of leniency and act brazenly without fear of consequences.

August 15, 2012 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (22) | TrackBack

Fascinating story of cowboy fun and games for prisoners in Angola

0802_prison_slateBecause so many of the stories about sentencing and corrections in Louisiana are depressing, I am very pleased a helpful reader alerted me to this interesting new piece up at CNN.  The piece is headlined "When the Game Means Freedom," and it is part of a series called "Gaming Reality." Here are extended excerpts which explain why this piece (and gaming culture) should be of interest to sentencing fans:

On October 20 in a small town in Louisiana, there will be a rodeo, complete with the prerequisite boots, bulls and Marlboro-man doppelgangers. But this particular rodeo will take place not at a fairgrounds, but at the Louisiana State Penitentiary, also known as "Angola."  The riders are untrained inmates who have earned the right to participate -- and feel up to 6 seconds of freedom atop an angry bull -- in a highly calculated and wildly effective prison reward system....

Burl Cain [is] Angola warden..., [and] in 2004 Cain was charged with giving a makeover to America's largest and bloodiest maximum-security prison, home to 5,300 violent offenders. It was a Goliath-sized task.  Angola was stained with a long history of gang violence and one particularly gruesome incident back in the 1950s when prisoners cut their Achilles tendons to protest poor lockdown treatment....

Cain's play-by-play at Angola reads like a deck of game-mechanics cards.  To change behavior, he introduced a progression system that was notched with "appointments" -- challenges inmates had to conquer to in order to get a reward.  Rise to the challenge and you could earn the right to own a pet, to take a job, even the freedom to roam the grounds.

To reach the highest level, known at Angola as becoming a Trustee, can take up to 10 years.  It's not an easy game, but it's one that the majority of its players are highly motivated to play.  Today, Angola is a thriving prison environment that has successfully "rehabbed" many hardened criminals into productive Trustees.  Prisoners have a sense of ownership, achievement, status and some healthy envy -- not to mention an award-winning prison newspaper.

Of course, this is not a new concept.  Prisons have long used incentive systems to motivate inmates.  But Cain's implementation is unique.  His approach has flourished because he evaluated his target audience and recognized that the traditional reward system was broken.  Cain realized that his audience -- many of them men facing life or double-life sentences -- might not be motivated by standard rewards like additional phone time, longer visitation hours or upgraded quarters.

But they would be motivated by an incentive that offered them meaning -- something they could be proud of.  Cain believed the opportunity to be a champion could infuse meaning and pride back into the prison experience while motivating inmates to be better men. Which brings us back to the rodeo.

At a certain point in the climb to Trustee status, inmates earn the opportunity to participate in the Angola Rodeo, held each spring and fall in an arena that holds more than 7,500.  The day consists of 11 events, including bull riding.  The beast in question is a 2,000-pound Brahma bull, and most times the inmate rider has never been on the back of a bull before.  All is not fair in prisons and rodeos....

It's not as unprofessional as it might sound.  Seasoned rodeo clowns are always present in the arena to distract angry animals, and a team of emergency medical personnel is waiting in the wings.  Still, the whole enterprise is speared with controversy, for obvious reasons. Precautions aside, inexperienced inmates are facing off with agitated, unpredictable animals in a costly, injury-ridden event.  Change the name and tweak the specifics, and the Angola Rodeo could easily become the plot of the next bestselling dystopian thriller. "The Hunger Games," anyone?

And yet, the rodeo is a powerful motivator for inmates, for two reasons.  The first is pride. Prisoners are willing to face serious injury for the chance to be cheered on by thousands of onlookers.  The event represents both an earned right and a true challenge to overcome.

The second, overarching incentive is meaning.  It's huge.  It's the reason why we as people respond to games and game-like scenarios.  Games, especially those with powerful incentive systems, lead us up a ladder and allow us to grasp at something intangible.  Much like the Greeks filled stone stadiums to watch gladiators, people are tuning in to the new reality TV show, "Louisiana Lockdown," to see Angola's prisoners succeed or fail. Audiences aren't just responding to the rodeo itself, they're responding to the game mechanics that are driving the inmates' right to participate in the rodeo.

It's a testament to how more people are embracing gamification, which applies game-design thinking to real-life situations to make them more fun and engaging.  You don't need an app or a product or a business to use game mechanics.  You just need a person or a group of people with a behavior that you'd like to change....

Angola is living proof that game mechanics have come a long way from motivating us to water virtual crops in FarmVille.  As inmates become Trustees and take their shot at fleeting glory atop rampaging bulls, game mechanics are becoming a commonplace, mainstream approach to solving even the most intractable of problems.

August 15, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

August 14, 2012

"Reality-Challenged Philosophies of Punishment"

The title of this post is the title of this notable new article by the always terrifically interesting Professor Robert Weisberg.  This piece is now available via SSRN, and here is the abstract:

This paper, derived from the 2012 Barrock Lecture delivered at Marquette University Law School, explores the radical disconnection between the contemporary jurisprudence of punishment in the American academy and the raw facts of American imprisonment, the condition generally decried as “mass incarceration.”  Most obviously, retributivism, which has been the dominant purported rationale for American punishment over the last 40 years and also the dominant force modern philosophical debates about the purposes of punishment, pays virtually no heed to the anomaly that we have the highest imprisonment rate in the nation’s history and arguably the highest in the world.  More specifically, while relying on assumptions about moral desert and proportionate penalty, retributivism ignores that our system takes its heaviest toll on, and arguably worsens the social and economic condition of, poor minority men of limited education, and that it imposes a lifetime economic penalty far behind the loss of liberty and income during the time of incarceration.

Thus, I pose the general question of in what sense philosophies of punishment should be “accountable” for the facts of the real world.  Did academic retributivism influence the rise of political retributivism as a force behind our increased reliance on prison?  Can retributivism justify the arguably disproportionate penalties imposed on prisoners, once we take lifetime economic disruption and wider metastatic effects into account?  Or should retributivists criticize modern imprisonment precisely because it does not survive retributivist scrutiny, or, in light of those facts, does it need to revise its notions of desert and penalty?  In addition, I ask whether deterrence theory or incapacitation theory can explain or justify the state of imprisonment, and whether rehabilitation is a meaningful concept in a world where the experience of imprisonment probably does nothing to reduce future crime except by incapacitating inmates until they are too old to be dangerous.  Overall, I argue that philosophies of punishment must engage in some dialectical self-scrutiny at a time of our incarceration anomaly.

August 14, 2012 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

"A Moral Defense of Plea Bargaining"

The title of this post is the title of this piece available via SSRN from Michael Young. Here is the abstract:

This paper argues that the critics' best case fairly stated against plea bargaining fails in its own terms to show that plea bargaining is necessarily unjust or injustice-tending. Critically, this paper argues against plea-bargaining's critics without resorting to the typical pro-plea-bargaining arguments about efficiency or the value of choice. Plea-bargaining may be efficient as a means of deterring crime and saving prosecutorial resources, but, even if so, that fact would not redeem plea-bargaining if it were, as the critics claim, unjust. Or, plea-bargaining may realize the defendant's rational choice, but where it is sensible to ask whether those very choices should be in the first place thrust upon the defendant, an appeal to choice in this way begs rather than answers the moral question raised by the critic. If it is to be answered at all, the moral case against plea bargaining must be answered in the terms of the critics' real moral concern without resort to the usual poor arguments, and this paper provides that better moral answer by focusing on several key critical arguments.

Specifically, this paper offers original arguments challenging the critical claims that plea bargaining leads to the conviction of too many innocents (the "innocence problem"); that it is necessarily coercive or tending towards coercion; and that it inequitably leads to the unlike treatment of like cases (the "trial penalty" problem).

August 14, 2012 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

New USSC report provides data on federal sentencing realities

The US Sentencing Commission recently published this interesting and effective little document titled simply "Overview of Federal Criminal Cases, Fiscal Year 2010." Here are one of many passages that should interest federal sentencing data junkies:

Until fiscal year 2009, drug offenses had been the most common federal crime during the 20 years for which the Commission has released sentencing data.  In fiscal year 2010, 25,043 offenders were convicted of a drug crime, the majority involving the manufacture, sale, or transportation of a drug.  Of these, 1,025 offenders were convicted of an offense involving simple possession of a drug.

Offenses involving cocaine, in either powder form or base (crack) form, were the most common drug crimes, accounting for 43.6 percent of the offenders sentenced under the Chapter Two drug guidelines.  These cases were almost evenly split between offenses involving crack cocaine (20.1%) and offenses involving powder cocaine (23.5%).

Marijuana cases were the next most common, representing 26.0 percent of all drug crimes.  In fact, marijuana cases were more prevalent than either crack cocaine or powder cocaine cases.  Drug offenses involving methamphetamine represented 17.7 percent of all drug crimes.  Heroin cases were the least common of the major drug offenses, accounting for 6.7 percent of all drug crimes.

August 14, 2012 in Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0) | TrackBack

"Entrenchment and/or Destabilization? Reflections on (Another) Two Decades of Constitutional Regulation of Capital Punishment"

The title of this post is the title of this latest and greatest must-read piece about the state and future of the US death penalty coming from Professors Carol Steiker and Jordan Steiker. Here is the abstract:

In this article, we revisit our 1995 analysis of the U.S. Supreme Court’s death penalty jurisprudence (Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 357) in light of the steep decline in death sentences and executions over the past decade.  Our consideration of the causes of this precipitous and unexpected turnaround leads us to the surprising conclusion that the same regulatory reforms of the modern (post-1976) era that we earlier described as legitimating and entrenching the practice of capital punishment have also contributed to its recent destabilization.

We contrast the effects of the death penalty reforms of prior generations -- such as narrowing the scope of death-eligible crimes, making death sentences discretionary rather than mandatory, privatizing and centralizing executions, and improving execution methods -- with the reforms of the modern era of constitutional regulation.  The reforms of the modern era have vastly increased the regulation and cost of the death penalty, required the professionalization of the capital litigation bar, led to lengthy periods of time between sentencing and execution, increased the focus on mitigation in capital trials, and contributed to the proliferation of life-without-parole as an alternative to the death sentence.  We argue that the current regime represents a fundamental break with past modes of regulating capital punishment in ways that render the current American death penalty unstable, indeed precarious.  We explore the implications of these insights for two broader debates -- the first about the relationship between reform and abolition, and the second about the causes of American “exceptionalism” with regard to capital punishment.

August 14, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (2) | TrackBack

Interesting report on marketing technology to a confined consumer

Businessweek has this notable new piece discussing some private companies' shrewd efforts to tailor technology products to inmate populations. The piece is headlined "The Apple of the U.S. Prison System," and here are excerpts:

The surge [in US prison populations in recent decades] has been good for a constellation of corrections contractors, including JPay, which handles money transfers, e-mail communications, and video visitations for more than 1.4 million inmates in hundreds of prisons across about 35 states. So good that the decade-old business last year expanded into selling inmates its own line of “prison-proof” MP3 players — what it dubs the JP3. “We’re looking for products that an inmate would want to buy and a corrections facility would accept,” says founder and Chief Executive Officer Ryan Shapiro, 35.  “Music was a no-brainer because inmates don’t have enough music and they all love music.”

Shapiro is aiming to make JPay, a 200-employee Miami business that became profitable in 2006, the Apple (AAPL) of the U.S. penal system. To understand why he thinks Apple or another tech behemoth can’t easily snuff him out, here’s a quick review of prison rules: Corrections facilities generally forbid devices that can be turned into weapons, be used to communicate freely with the outside, or conceal contraband.  Hand a violent prisoner an iPad and the risks become fairly clear.

Shapiro says JPay’s player, which retails for around $40 at kiosks the company installs in common areas inside prisons, is virtually indestructible. Inmates use it to browse a library of more than 10 million songs, “just like on iTunes,” and download them for $1.99 a pop. The three most popular artists are Usher, Tre Songz, and Kenny Chesney.  “We take outside applications, redevelop them for prisons specifically, and then deploy them,” Shapiro explains. “The prison doesn’t pay for any of [our services]; it’s the end user who pays.”

JPay didn’t pioneer its new line of business. Keefe Group, a St. Louis-based supplier of food and personal-care products to prison commissaries, launched its own music download service for prisoners in 2009.  While the 37-year-old company didn’t respond to interview requests, a press release posted on the company’s website says it sold more than 1 million downloads in just over a year.  On its own website, a rival correctional facilities supplier, Union Supply Group, headquartered in Rancho Dominguez, Calif., says it started selling digital music to offenders in 2003 and has available more than 5 million tracks “approved” by correctional partners. Shapiro won’t say what JPay has sold or how much it scores in annual revenue but asserts that the company is “way in front of [Keefe] when it comes to money transfer or the media business.”

Shapiro, who holds a bachelor’s degree in economics from the University of Colorado, Boulder, learned about the inconveniences of transferring money to a prisoner’s account when a friend’s mother was sentenced for embezzling.  He says inmates “understand you have to charge in order to be able provide a service … Look at our Facebook (FB)page. Look at how many times someone says: ‘I love JPay.’”

Next up for the business: a mini tablet it plans to start selling by yearend called the JP4. “It’s got an e-mail application, music, e-books — it’s got anything you can imagine,” says Shapiro.  “Think about education, think about games; it’s endless where we could go.  We think it’s as big, if not bigger, than the money-transfer business.”

August 14, 2012 in Prisons and prisoners, Technocorrections, Who Sentences | Permalink | Comments (0) | TrackBack

Arkansas voters likely to have opportunity to vote on medical marijuana in 2012

This AP article, which is headlined "Ark. medical marijuana group submits signatures," reports on another state ballot initiative likely to give voters a direct opportunity to participate in pot policy reform. Here are the details:

Backers of an initiative that would legalize the use of medical marijuana in Arkansas submitted more than 74,000 additional signatures Monday to the secretary of state's office, though only about a quarter of them need to be valid to get the issue on the November ballot.

The group Arkansans for Compassionate Care was given time to gather more signatures after it submitted 65,413 names on July 5. Only 36,495 names from that batch were certified as being from registered voters, leaving organizers shy of the required 62,507 verified names.

The group's treasurer, Melissa Fults, said organizers learned more about the process after submitting its first batch of signatures. This time, she said, they made sure that volunteers and paid canvassers asked people when and where they last voted before asking them to sign the petition to help ensure the signees were registered voters. "I don't think there's much of a chance we won't" make the Nov. 6 ballot, Fults said....

Fults, of Hensley, said the group wants to convince voters that marijuana is the most appropriate treatment for some illnesses. So does Emily Williams, who said marijuana enabled her to cope with chemotherapy when she was being treated for lymphoma.

Williams, who spoke during a news conference at the Capitol with Faults' group, said she experienced constant nausea and vomiting. She said her doctor wouldn't prescribe marijuana but told her he didn't see the harm because other anti-nausea medications weren't working. "You hurt all over. Everything is just kind of black," the 55-year-old Fayetteville resident said.

Katherine Reynolds of Bella Vista said using marijuana helped her through breast cancer treatment and bone marrow transplants, explaining that it enabled her eat after hospital treatments. She said it was a necessary treatment and thought it absurd that she could be arrested for it. "If I didn't have that, I wouldn't be here talking to you," Reynolds said.

But the measure has drawn a tepid response from politicians. Gov. Mike Beebe and Attorney General Dustin McDaniel, both Democrats, have said they won't actively oppose the measure but that they probably won't vote for it. Spokesmen for Beebe and McDaniel said Monday that their positions have not changed.

The conservative Arkansas Family Council opposes the measure, arguing that marijuana is an illegal drug under federal law, which trumps state law. The group's director, Jerry Cox, didn't immediately return a message seeking comment Monday.

August 14, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1) | TrackBack

August 13, 2012

"The New Civil Death: Rethinking Punishment in the Era of Mass Conviction"

The title of this post is the title of this important new piece now up on SSRN authored by Gabriel ("Jack") Chin. Here is the abstract:

Most people convicted of felonies are not sentenced to prison; a majority receive straight probation, or probation with a jail term.  However, this hardly means that the conviction is inconsequential.  Tens of thousands of federal, state, and local laws, regulations, and ordinances restrict the civil rights, employment, eligibility for public benefits, residence and other aspects of the status of convicted persons.

Accordingly, for many, the most serious and long-lasting effects of conviction flow from the status of being convicted and the concomitant lifetime subjection to collateral consequences.  However, courts generally treat collateral consequences as non-punitive civil regulations, and therefore not subject to constitutional limitations on criminal punishment.

This treatment of collateral consequences is surprising.  In cases like Weems v. United States and Trop v. Dulles, the Supreme Court understood systematic loss of status not only to be punishment, but to be cruel and unusual punishment.

Further, collateral consequences have practically revived the traditional punishment of civil death.  Civil death deprived offenders of civil rights, such as the right to sue, and other aspects of legal status.  Most civil death statutes were repealed in the Twentieth Century, but its equivalent has been reproduced through systematic collateral consequences. Instead of losing rights immediately, convicted people now hold their rights at sufferance, subject to limitation and restriction at the discretion of the government.

The new civil death, loss of equal legal status and susceptibility to a network of collateral consequences, should be understood as constitutional punishment.  In the era of the regulatory state, collateral consequences may now be more significant than was civil death in past decades.  The actions of judges, defense attorneys, and prosecutors should attend to what is really at stake in criminal prosecutions.

August 13, 2012 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Interesting reports on post-Miller challenges in Alabama

These two recent stories coming from Alabama newspapers provide interesting perspectives on how two counties are trying to figure out just what the Supreme Court's Miller ruling means for sentencing law and procedures in the Yellowhammer State:

Though it will surely be many months (and probably many years) until all the details are sorted through, it will be real interesting to take stock of what ends up happening (procedurally and substantively) to the roughly 2,500 juvenile defendants who were serving LWOP sentences (and others facing such sentences) at the time of the Miller ruling.

August 13, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

California facing crunch time in prison population reduction plans

This new article in the Los Angeles Times, which is headlined "California unlikely to meet prison crowding reduction requirement," reports on the difficult corrections issues facing the Golden State a year after Plata.  Here are the details:

California's progress in relieving its teeming prisons has slowed so much that it probably won't comply with a court-ordered population reduction, and judges have raised the prospect of letting some inmates out early.

Three federal jurists have given the state until Friday to come up with a schedule for identifying prisoners "unlikely to reoffend or who might otherwise be candidates for early release" and to detail other ways to hasten the emptying of double-bunked cells. In the interim, the judges have ordered California to "take all steps necessary" to meet their existing deadline for population cuts.

A recent flurry of legal motions that provoked the judges' Aug. 3 order shines the first light on shortcomings in California's plan for fixing its prison system — one so overburdened, with healthcare so poor, that the U.S. Supreme Courtsaid incarceration there was tantamount to "cruel and unusual punishment."

In May 2011, the high court gave California two years to comply with the three judges' determination that prisons should not be overcrowded by more than 137.5%. State officials concede they are unlikely to reach that target by the June 2013 deadline and have told the judges they intend to ask for a new cap of 145%. That would mean about 118,000 prisoners, which is about 6,000 more than the court wants, in quarters built for 81,500.

The officials say they can comply with the spirit of the order — improved medical care and humane living conditions — if not the letter. "Reducing the inmate population is not the goal of the court," said corrections agency spokesman Bill Sessa. "It is a means to an end, which is providing better healthcare that was compromised by overcrowding." He said the goal of improved healthcare would be achieved next year, when the state opens a new 1,700-bed prison hospital in Stockton to house critically ill and long-term-care patients, which will also further reduce crowding.

Since October, Gov. Jerry Brown's realignment program has diverted tens of thousands of low-level felons to county jails and probation programs rather than put them in state lockups. A Times analysis of prison population reports and projections for the last year shows the number of inmates fell faster than analysts predicted but then leveled off.

August 13, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0) | TrackBack

"Death and Rehabilitation"

The title of this post is the title of this notable and timely new piece by Professor Meghan Ryan.  Here is the abstract:

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences.  This raises the question of whether and how rehabilitation applies in the capital context.  Courts and scholars have long concluded that it does not — that death is completely irrelevant to rehabilitation.  Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters.  Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death spurs rehabilitation.

Courts’ and scholars’ conclusion that death is irrelevant to rehabilitation likely stems from changes in our understanding of rehabilitation.  While it was once understood as referring to an offender’s character transformation, references to rehabilitation now often focus on offenders’ direct impacts on society.  This has the effect, though, of distracting from the humanness of the worst offenders and consequently not providing them with true opportunities to transform their characters — a denial which challenges the Eighth Amendment’s focus on respecting the human dignity of the condemned.

August 13, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

August 12, 2012

Texas continues to lower its (still high) incarceration rates

TexasToday's Austin Amerincan-Statesman has this lengthy story discussing trends in Texas's prison population levels.  Here are extended excerpts:

In July, Texas' prison system posted its lowest head count in five years, even as the state's overall population continued to grow at a fast clip.

Instead of 156,500 prisoners behind bars in Texas' 111 state prisons a year ago, the lockups now hold just over 154,000 — a drop of about 2,500, according to state statistics. Texas, which historically has had one of the highest incarceration rates per capita of the 50 states, is now in fourth place, down from second two years ago.

Whether the declining prison population is the start of a long-term decrease or a short-lived dip is a matter of debate that will be settled only by time. Still, experts say, prison population declines are occurring in other states, too.

"It's real. It's happening, not only in Texas, but around the country," said Tony Fabelo, an Austin-based criminal justice consultant who coached Texas officials during the 1990s as the state tripled the size of its prison system and is now advising other states on how to decrease their prison populations. "The challenge is to sustain the outcomes to see how far you can go in downsizing prisons. I have my doubts, but it's an interesting time for criminal justice," Fabelo said.

Instead of sending more and more lawbreakers to prison, judges in Texas and other states are increasingly sentencing them to alternative treatment and rehabilitation programs that have proven more effective — and that cost much less. For taxpayers, that could mean safer communities and fewer expensive prisons to operate. For criminals, that could mean more effective programs to help them escape drug and other addictions and become law-abiding citizens again.

A decrease in crime rates, changes in demographics and an aging state population also have a role in emptying Texas' prison beds, experts say.

Not since the early 1990s, when then-Gov. Ann Richards, a Democrat, shook up the historical punishment culture of Texas prisons by opening new drug-treatment prisons focusing on rehabilitation, has such a dramatic trend emerged, some experts say. Only this time, conservative Republicans are driving the reforms that began in 2007, as fiscal conservatism gained the upper hand over tough-on-crime policies.

National prison rates

"Policies in various states are finally catching up with what we know works," said Marc Levin, director at the Austin-based Center for Effective Justice and a leader in the national Right on Crime campaign, which promotes community-justice solutions. "For most nonviolent offenders, community-based initiatives are much cheaper and have much better outcomes," Levin said. "In this time of tight budgets and programs that work, this is the conservative thing to do."...

More reforms are expected when the Legislature convenes next year, with proposals to change drug sentencing to provide more treatment rather than prison time and a push to fund a 2011 law that allows Texas counties to limit the number of felons they send to state prisons in exchange for more state funding for local corrections programs.

"We're definitely going to be looking at what works and what doesn't — and we know that treatment and rehabilitation and community justice programs work," said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, an architect of many of the reforms. "Prisons should be reserved for the worst of the worst, the violent criminals, murderers, child molesters we should definitely be afraid of. We have a lot of other inmates in there that could probably be housed someplace else, at less cost," Whitmire said....

Despite the enthusiasm in Texas and nationally for community-based alternatives to prison, there are limits [in part because] alternatives to prison don't work for everybody. Sharon Padilla's family highlights that dilemma.

The 34-year-old former Austinite, now living and working in Houston, served three years in Texas prisons for cocaine possession, after flunking out three times on probation with several stints in jail. "I went through programs one after the other, but nothing took," Padilla said. "Prison didn't do much, except it got me off the street.  Drug court got in my business big time, and I had to get my head straight. But it took myself to want to do it."

August 12, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1) | TrackBack

"Trends in Juvenile Justice State Legislation: 2001-2011"

The title of this post is the title of this notable report from the National Conference of State Legislatures.  Here are excerpts from the start and end:

Two main goals drive the nation’s juvenile justice system: protecting both public safety and the welfare and rehabilitation of young offenders who break the law.  State juvenile justice policies require balancing these interests, while also preserving the rights of juveniles.

A rise in serious juvenile crime in the late 1980s and early 1990s led to state laws that moved away from the traditional emphasis on rehabilitation in the juvenile justice system toward tougher, more punitive treatment of youth, including adult handling.  During the past decade, juvenile crime rates have declined, and state legislatures are reexamining juvenile justice policies and rebalancing approaches to juvenile crime and delinquency....

States are not complacent about juvenile crime and remain interested in providing public safety, improved juvenile justice systems and positive results for youth.  The legislative trends evidenced during the past decade reflect a new understanding of adolescent development and the value of cost-benefit analysis of existing data-driven research. Investing in community-based alternatives to incarceration and evidence-based intervention programs, as well as multi-system coordination and cross-systems collaboration are among the examples of how states now are better serving youth and addressing and preventing juvenile crime.

August 12, 2012 in Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3) | TrackBack