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November 17, 2012

"Neuroscience, PTSD, and Sentencing Mitigation"

The title of this post is the title of this notable new article by Professor Betsy Grey just published in the October 2012 issue of the Cardozo Law Review. Here is how the piece's introduction starts and ends:

Recent years have seen an increasing acceptance of a link between Post Traumatic Stress Disorder (PTSD) and criminal behavior, both in the general populace and in the criminal justice system. The link appears to be most widely accepted in the case of military combat veterans.  Lawyers and scholars have called for use of PTSD related to military service both as a defense to criminal charges and as an argument for reducing the sentences of convicted military veterans.  Courts are generally more hospitable to military veteran PTSD claims at sentencing than as a defense at trial....

This Article proceeds in four parts.  Part I discusses the anxiety disorder of PTSD, highlighting legislative and judicial developments, as well as the federal sentencing guidelines, concerning the use of PTSD in criminal sentencing proceedings involving veterans and battered women.  It looks at these two areas against a backdrop in which courts generally hesitate to give weight to PTSD mitigating evidence.  In Part II, this Article reviews different theoretical justifications of mitigation use in sentencing and how those justifications apply in the context of PTSD.  Part III examines advances in neuroscience research that have begun to shed light on the biological basis of the harm suffered when an individual is exposed to extreme stress and explores whether those advances justify changes in our thinking about PTSD mitigation.  In conclusion, the Article suggests that advances in neuroscience research may cause lawmakers and judges to clarify policies on the use of PTSD in sentencing and proposes other limiting principles that should be considered.  In our efforts to recognize PTSD as a mitigating factor, we should identify whether we are concerned with the source of the traumatic event (e.g., from one’s military or combat service), or simply that the defendant has manifested PTSD symptoms.  Addressing this question may lead to a more principled and consistent approach to the use of this evidence in sentencing.

November 17, 2012 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

"Oklahoma Judge Sentences Teen to Church for 10 Years"

The title of this post is the headline of this local sentencing story which reveals that the separation of church and state apparently does not apply to some sentencings.  Here are the (inspired? revealed? prophetic? spiritual?) details:

Anybody who knows Oklahoma District Court Judge Mike Norman probably yawned at the news that he’d sentenced a teen offender to attend church as part of his probation arrangement, and that the judge’s pastor was in the courtroom at the time. Not only had he handed down such a sentence before, but he’d required one man to bring the church program back with him when he reported to court.

“The Lord works in many ways,” Norman, 69, told ABC News today. “I’ve done a little bit of this kind of thing before, but never on such a serious charge.”

Norman sentenced Tyler Alred, 17, Tuesday after he pleaded guilty to first-degree manslaughter in August for killing friend and passenger John Luke Dum in a car crash. Dum died on impact in December after Alred crashed his Chevrolet pickup truck, ejecting Dum. Alred was 16 at the time of the crash and had been drinking prior to the deadly accident. Oklahoma Highway Patrol issued a Breathalyzer at the time, and although Alred was under the state’s legal alcohol limit, he had been drinking underage.

The judge could have sent Alred to jail but, instead, taking into account his clean criminal and school records, sentenced him to wear a drug and alcohol bracelet, participate in counseling groups and attend a church of his choosing – weekly. He must also graduate from high school. To avoid jail time, Norman gave Alred a maximum 10-year deferred sentence....

“It’s not going to be automatic, I guarantee you,” Norman said of the church sentence on future manslaughter charges. “There are a lot of people who say I can’t do what I did. They’re telling me I can’t legally sentence someone to church.”

Alred’s lawyer is not among the critics. “I usually represent outlaws and criminals,” defense attorney Donn Baker told the Muskogee Phoenix. “This is a kid that made a mistake. I think he’s worth saving.”

In the courtroom this week, an emotional scene between the victim’s family and Alred played out after statements from Dum’s mother, father and two sisters were read during the sentencing. Dum’s father and Alred stood up in court, turned toward each other and embraced one another. “At that moment, it sure became a reality to me that I would sentence this boy to church” to help set him on the right path, Norman, a member of First Baptist Church in Muskogee, said. “There’s nothing I can do to make this up to the family.

“I told my preacher I thought I led more people to Jesus than he had but, then again, more of my people have amnesia. They soon forget once they get out of jail.”

After completing the rest of the requirements in his sentence, Alred will have the charge removed from his record. “Only time will tell if we’ve saved Tyler Alred’s life,” the judge said.

November 17, 2012 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

November 16, 2012

Michigan appeals court decides Miller is not retroactive to final juve murder cases

As reported in this local article, which is headlined "Appeals Court: No resentencing for Michigan juvenile lifers, but state law is 'unconstitutional'," an intermediate appellate court has now issued a lengthy ruling on Miller's import and impact in the state up north. Here are the basics from the press report:

The Michigan Court of Appeals today denied a resentencing request for Raymond Carp, 21, who is serving a mandatory term of life in prison without the possibility of parole for a first-degree murder conviction when he was 16....

The ruling invalidated strict sentencing laws in Michigan and other states that treat violent offenders as adults, giving hope to hundreds of inmates serving life terms without hope of parole for crimes they committed as kids.

But the three-judge appeals court panel that heard arguments in the Carp case said today that the Supreme Court decision does not apply retroactively to offenders who already have exhausted the direct appeals process. The high court decision "is procedural and not substantive in nature and does not compromise a watershed ruling," they wrote in a 41-page published opinion.

Michigan is home to more than 350 juvenile lifers, one of the highest totals in the nation, and today's ruling may be appealed to the state Supreme Court.

The appeals court made a point to instruct judges in pending cases that Michigan's current law denying parole is "unconstitutional" when applied to juveniles and urged legislators to revise state statutes to comply with the Supreme Court ruling.

The full opinion in Michigan v. Carp, No. 307758 (Mich. Ct. App. Nov. 15, 2012), is available at this link; it runs 41-pages with nearly 200 footnotes.  Here are the unanimous opinion's final paragraphs:

The United States Supreme Court has, through a series of recent decisions culminating in Miller, indicated that juveniles are subject to different treatment than adults for purposes of sentencing under the Eighth Amendment.  Specifically, we hold that in Michigan a sentencing court must consider, at the time of sentencing, characteristics associated with youth as identified in Miller when determining whether to sentence a juvenile convicted of a homicide offense to life in prison with or without the eligibility for parole.  While Miller does not serve to “foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

While Miller is applicable to those cases currently pending or on direct review, we find that in accordance with Teague and Michigan law that it (1) is not to be applied retroactively to cases on collateral review, such as Carp’s, because the decision is procedural and not substantive in nature and (2) does not comprise a watershed ruling. We urge our Legislature to address with all possible expediency the issues encompassed by and resulting from Miller and that necessitate the revision of our current statutory sentencing scheme for juveniles.

In the interim, as guidance for our trial courts for those cases currently in process or on remand following direct appellate review, we find that MCL 791.234(6)(a) is unconstitutional as currently written and applied to juvenile homicide offenders. When sentencing a juvenile, defined now as an individual below 18 years of age, for a homicide offense, the sentencing court must, at the time of sentencing, evaluate and review those characteristics of youth and the circumstances of the offense as delineated in Miller and this opinion in determining whether following the imposition of a life sentence the juvenile is to be deemed eligible or not eligible for parole.  We further hold that the Parole Board must respect the sentencing court’s decision by also providing a meaningful determination and review when parole eligibility arises.

November 16, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

"Americans Voting Smarter About Crime, Justice At Polls"

The title of this post is the headline of this lengthy commentary by Radley Balko at The Huffington Post. Here are excerpts, which close with an especially interesting quote about folks inside the Obama Administration being surprised by some of the election day criminal justice outcomes:

A headline from the Denver Post this week read: "Colorado Drug Force Disbanding." Another from the Seattle Times announced, "220 Marijuana Cases Dismissed In King, Pierce Counties." Just 15 or 20 years ago, headlines like these were unimaginable. But marijuana legalization didn't just win in Washington and Coloardo, it won big.

In Colorado, it outpolled President Barack Obama.  In Washington, Obama beat pot by less than half a percentage point.  Medical marijuana also won in Massachusetts, and nearly won in Arkansas.  (Legalization of pot lost in Oregon, but drug law reformers contend that was due to a poorly written ballot initiative that would basically have made the state a vendor.)

But it wasn't just pot. In California, voters reined in the state's infamous "Three Strikes and You're Out" law, passing a measure that now requires the third offense to be a serious or violent felony before the automatic life sentence kicks in.  The results don't negate the law, but they do take some of the teeth out of it.  And the margin -- the reform passed by more than a 2-to-1 margin -- has significant symbolic value.  Three Strikes was arguably the most high-profile and highly touted of the get-tough-on-crime policies of the 1980s and 1990s. It epitomized the slogan-based approach to criminal justice policy that politicians tended to take during the prison boom.

Eric Sterling served on the House Subcommittee on Crime in the 1980s.  Today, as president of the Criminal Justice Policy Foundation, he works to reform many of the laws he helped create. Sterling is encouraged by what he saw last week. "I definitely think we're seeing a shift in the public opinion," he says. "This election was really a game changing event."...

But Julie Stewart, president of the criminal justice reform group Families Against Mandatory Minimums, remains skeptical. "I think it’s too early and too easy to say that the electorate has moved away from its love affair with punishment," Stewart says.  "While it’s refreshing to know that voters in the initiative states understand that reforms were necessary and good, I hear from prisoners every day who are being sentenced to decades behind bars for nonviolent drug offenses.  We still have a very long way to go to reach the tipping point that will significantly change our national affection for over-punishment."

Another reason for putting too much emphasis on the election results: Even if the public mood has shifted, Congress is usually way behind.... Politicians at the state and local level have been more willing to embrace reform.  Both Stewart and Sterling say that's because they have no choice. "Governors need to balance budgets," Sterling says....

Stewart says the right will also need to come on board before there's any major changes to the federal system. "I don’t think significant reform could ever happen without conservative leadership," she says. "The crack cocaine sentencing reforms of 2010 would not have happened without Sen. Jeff Sessions (R-Ala.) support...."

The one thing the 2012 results may do at the federal level is begin to convince some politicians that advocating reform is no longer political suicide.  "This year’s initiatives in California, Colorado and Washington do indicate a changed public perception about punishment and marijuana in those states," Stewart says. "That should give legislators the freedom, if they choose to exercise it, to ease their tough-on-crime positions and not have to worry about surviving the next election."

Sterling agrees. "I think it could give some cover to political leaders who already thought these things but were afraid to say them.  My contacts close to the Obama administration say they were really taken aback by the results in those states.  They didn't expect the vote to be as lopsided as it was. I think they really don't know what to do right now. But when medical marijuana first passed in California 16 years ago, you saw (Clinton Drug Czar) Barry McCaffrey preparing his counterattack within hours.  I haven't heard of anything like that in the works this time around.  I think that's a good sign."

November 16, 2012 in Campaign 2012 and sentencing issues , Criminal justice in the Obama Administration, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (9) | TrackBack

Reform advice for Prez Obama's second term at The Crime Report

The folks at The Crime Report have recently posted this group of terrific commentaries with post-election advice for President Obama:

November 16, 2012 in Campaign 2012 and sentencing issues , Criminal justice in the Obama Administration, Recommended reading | Permalink | Comments (0) | TrackBack

November 15, 2012

Notable post-Miller resentencing outcome in Florida case

The Sun-Sentinel has this interesting report on a notable juve murder resentencing resulting from the Supreme Court's Miller ruling.  This piece is headlined "Judge reduces life sentence to 40 years in homeless-beating case," and here are excerpts:

A Broward judge on Thursday reduced the life sentence of a teen sent to prison for clubbing to death a sleeping homeless man to 40 years.  Thomas Daugherty was the youngest of three Broward teens to go to prison for Norris Gaynor's death and the only one to get a life sentence.

An appellate court has said that Daugherty, now 23, was entitled to a new sentencing hearing in light of a recent U.S. Supreme Court ruling that says judges must scrutinize whether juvenile offenders are amenable to reform before ruling that they can never go free.

Broward Circuit Judge Cynthia Imperato reduced the sentence she imposed in October 2008 after weighing Daugherty's remorse, commitment to bettering himself behind bars, hours of testimony detailing his broken childhood and the strong words of the dead man’s sister. “Your story is clearly heartbreaking,” Imperato said. “But we have someone who is dead, someone who was just sleeping on a bench, a homeless person who was beaten to death like a dog. I can't get beyond all that.”...

Daugherty ... was 17 when he and two friends, fueled on Xanax, marijuana and vodka, committed a trio of pre-dawn attacks against homeless Fort Lauderdale men in January 2006.  One of the beatings was captured on surveillance tape at Florida Atlantic University's downtown Fort Lauderdale campus.

The graphic footage showed Daugherty repeatedly walloping a diminutive and defenseless man with a baseball bat, and catapulted the case into the national spotlight. The victim seen in the videotape, Jacques Pierre, survived.  Norris Gaynor, 45, did not. His skull was split open as he slept on a park bench.  A third victim also survived.

Daugherty told the judge he abhors the aimless, drugged out person he was back then and while incarcerated has sought “to get as far away from that person that I was.”

“I hate who I was,” Daugherty tearfully said. “I hate everything about that person. I hate that video. I don't remember doing that to Mr. Pierrre, but I hate that person.”

In 2008, a Broward jury convicted Daugherty and Brian Hooks, also of Plantation, of second-degree murder and attempted murder for the unprovoked attacks. 

William "Billy" Ammons, now 25, took a plea deal in exchange for his testimony and is serving a 15-year sentence at a state prison near Jacksonville.  Hooks, now 25, is serving his 30-year sentence at a state prison in Martin County.

Daugherty's sentencing guidelines called for nearly 30 years in prison.  Prosecutors suggested 40.  Broward Circuit Judge Cynthia Imperato imposed life.

Daugherty returned to Imperato's courtroom at 10 a.m. Thursday as a result of a September ruling from the Fourth District Court of Appeal in West Palm Beach. The state appellate court's decision hinged on a June ruling by the U.S. Supreme Court that judges must consider immaturity and failure to appreciate risks and consequences before concluding that a juvenile offender can never go free....

At sentencing, Imperato told Daugherty she believed his remorse was genuine and that she understood that he had "a horrible and unfortunate upbringing" as the product of a broken home, exposed to drug abuse, neglect and abandonment but she still felt his acts showed "a total disregard for human life." The appellate court ruling did not prohibit Imperato from again imposing a life sentence.

In addition to finding notable that the defendant here got his sentenced cut down to 40 years, I also find it interesting that the defendant here still is getting the longest sentence among his his co-conspirators even as the youngest of three Broward teens convicted of his crimes. He also is now getting, only thanks to the SCOTUS Miller ruling, the sentence that had been requested by prosecutors initially.

November 15, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Is the BP federal plea deal concerning 2010 Deepwater Horizon disaster worthy of celebratation (or criticism)?

The question in the title of this post is prompted by this press release from the Justice Department, which carries this heading: "BP Exploration and Production Inc. Agrees to Plead Guilty to Felony Manslaughter, Environmental Crimes and Obstruction of Congress Surrounding Deepwater Horizon Incident."  Here are excerpts from the press release:

BP Exploration and Production Inc. (BP) has agreed to plead guilty to felony manslaughter, environmental crimes and obstruction of Congress and pay a record $4 billion in criminal fines and penalties for its conduct leading to the 2010 Deepwater Horizon disaster that killed 11 people and caused the largest environmental disaster in U.S. history, Attorney General Eric Holder announced today.  The 14-count information, filed today in U.S. District Court in the Eastern District of Louisiana, charges BP with 11 counts of felony manslaughter, one count of felony obstruction of Congress, and violations of the Clean Water and Migratory Bird Treaty Acts.

BP has signed a guilty plea agreement with the government, also filed today, admitting to its criminal conduct.  As part of its guilty plea, BP has agreed, subject to the Court’s approval, to pay $4 billion in criminal fines and penalties -- the largest criminal resolution in United States history.

“The $4 billion in penalties and fines is the single largest criminal resolution in the history of the United States and constitutes a major achievement toward fulfilling a promise that the Justice Department made nearly two years ago to respond to the consequences of this epic environmental disaster and seek justice on behalf of its victims,” said Attorney General Holder.  “We specifically structured this resolution to ensure that more than half of the proceeds directly benefit the Gulf Coast region so that residents can continue to recover and rebuild.”

“The explosion of the rig was a disaster that resulted from BP’s culture of privileging profit over prudence,” said Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division. “We hope that BP's acknowledgment of its misconduct -- through its agreement to plead guilty to 11 counts of felony manslaughter -- brings some measure of justice to the family members of the people who died onboard the rig.”...

In addition to the resolution of charges against BP, Robert M. Kaluza, 62, of Henderson, Nev., and Donald J. Vidrine, 65, of Lafayette, La. -- the highest-ranking BP supervisors onboard the Deepwater Horizon on April 20, 2010 -- are alleged to have engaged in negligent and grossly negligent conduct in a 23-count indictment charging violations of the federal involuntary manslaughter and seaman’s manslaughter statutes and the Clean Water Act. David I. Rainey, 58, of Houston -- a former BP executive who served as a Deputy Incident Commander and BP’s second-highest ranking representative at Unified Command during the spill response -- is charged with obstruction of Congress and making false statements to law enforcement officials.  A grand jury in the Eastern District of Louisiana returned the indictments against Kaluza, Vidrine and Rainey, which were unsealed today....

The information charging BP further details that the company, through senior executive Rainey, obstructed an inquiry by the U.S. Congress into the amount of oil being discharged into the Gulf while the spill was ongoing.  As part of its plea agreement, BP has admitted that, through Rainey, it withheld documents and provided false and misleading information in response to the U.S. House of Representatives’ request for flow-rate information....

The criminal resolution is structured such that more than half of the proceeds will directly benefit the Gulf region. Pursuant to an order presented to the Court, approximately $2.4 billion of the $4.0 billion criminal recovery is dedicated to acquiring, restoring, preserving and conserving -- in consultation with appropriate state and other resource managers -- the marine and coastal environments, ecosystems and bird and wildlife habitat in the Gulf of Mexico and bordering states harmed by the Deepwater Horizon oil spill.  This portion of the criminal recovery will also be directed to significant barrier island restoration and/or river diversion off the coast of Louisiana to further benefit and improve coastal wetlands affected by the oil spill.  An additional $350 million will be used to fund improved oil spill prevention and response efforts in the Gulf through research, development, education and training.

In addition to the historic $4 billion in criminal fines and penalties, BP has agreed as part of its guilty plea to retain a process safety and risk management monitor and an independent auditor, who will oversee BP’s process safety, risk management and drilling equipment maintenance with respect to deepwater drilling in the Gulf of Mexico.  BP is also required to retain an ethics monitor to improve BP’s code of conduct for the purpose of seeking to ensure BP’s future candor with the United States government....

Today, the SEC simultaneously resolved civil securities fraud charges with BP in a $525 million settlement.  The Justice Department also acknowledges and expresses its appreciation for the significant assistance provided by the SEC’s Division of Enforcement.

November 15, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

2013 Law & Society Association CrimProf Shadow Conference

L&sIt is my pleasure to promote the efforts of Professors Carissa Byrne Hessick and Dan Markel to give criminal law professors an extra special reason to participate the Law and Society Annual Conference. Here is the pitch via Professor Hessick:

The LSA conference will be taking place from May 30 to June 2 at the Boston Sheridan in Boston, MA. Some background and the call for participation can be found here.

For the last few years, criminal law and criminal procedure professors have used the LSA conference to host a shadow conferences on criminal justice topics. This year Dan Markel (Florida State) and I will once again organize both paper panels and book panels with a criminal justice theme.

The paper panels will cover a range of subjects. Those panels are designed to match up people working in similar areas. Past panels have covered topics such as substantive criminal law, investigative criminal procedure; adjudicative criminal procedure; punishment theory; race, class, and gender themes in criminal justice; white collar issues; privacy and criminal law; juvenile justice, and sex crimes. We will do our best to match you up with other people working in relatively similar areas so that there are more synergies among panelists than would likely result if you were to submit a paper proposal directly to the LSA people. In addition, by participating in a paper panel, you'll receive the feedback of other panelists (we ask all paper presenters to circulate their drafts in advance to the other panelists with the understanding that all panelists give each other feedback). This is a great way to have more in-depth connections with scholars working in your area.

In addition to paper panels, we are also open to organizing a sessions on book manuscripts. If you are working on a book manuscript and would like to have a few people give you feedback in advance of publication, let us know, and let us know who you might be interested in reading that manuscript and discussing it at LSA. If you are interested in an author-meets readers panel for an already published book, let us know about that too.

We would also like to identify people who are interested in serving as moderators or discussants for our various panels. So if you plan to attend the conference and you are not necessarily interested in presenting your own work, please consider contacting us to volunteer to serve as a moderator or discussant.

In sum, if you're interested in participating in this shadow conference, there will be a variety of opportunities for you to present your own work or serve as a discussant or moderator of book or paper panels. Please note LSA has a stringent participation policy. Generally you are limited to only ONE participation as a paper presenter OR a roundtable participant for the entire conference. If you plan on being involved with the shadow conference, you must let us know if you are contemplating any other participation with the LSA conference so we can make sure you will not jeopardize our panel formation efforts. We will assume that, unless you tell us otherwise, you are using your "one substantive participation" with us. But if you are slated for something else, but still want to be a moderator or discussant, let us know, as we might be able to work that out with the LSA folks.

If you would like to participate in the Shadow Conference in Boston: By November 19th, please send an email to me and Dan with the subject line “LSA 2013 CrimProf Shadow Conference.” That email should include: (a) an expression of interest; (b) an indication of whether you would like to participate in a book or paper panel; (c) a description of your topic (an abstract would be preferable); (d) whether you are also available to serve as a moderator or discussant; (e) any limitations on the dates of your availability during the LSA; (f) if necessary, a heads up if you are contemplating participation on another LSA panel.

Shortly after November 19, we will get back to you all with a list of folks who will be your co-panelists. You'll have to each register with LSA but we will assign a panel organizer who will oversee the logistics and ensure things go smoothly. In other words, Dan and I basically serve as matchmakers for the panels, and we also do some interfacing with LSA's Judy Rose to make sure the panels will not conflict with each other.

Please do not sign up to participate in the shadow conference unless you will definitely attend the LSA conference. (The LSA folks get kind of annoyed with us if our participants drop out. And each time a panelist drops out, it raises the possibility that LSA will force us to cancel the panel.)

Feel free to contact me and Dan with any questions.

November 15, 2012 in Who Sentences | Permalink | Comments (1) | TrackBack

"Utah’s death penalty costs $1.6M more per inmate"

The title of this post is the headline of this new piece from the Salt Lake Tribune.  Here are excerpts:

Craig Watson said he didn’t know if "closure" was the proper word. But as he witnessed the 2010 execution of Ronnie Lee Gardner, who killed Watson’s cousin Melvyn J. Otterstrom at a bar in 1984, a feeling of peace came over him: It was, finally, over.

As Utah lawmakers weigh the cost of executing men like Gardner versus keeping them in prison for life, Watson asked them on Wednesday to remember there are some things that no amount of money can touch — a message also shared by Barbara Noriega, whose mother and sister were killed by another man now on Utah’s death row.  "With the death sentence, there are no recurring offenders and we can go on with our lives," Watson said, his voice breaking at times as he addressed the Law Enforcement and Criminal Justice Interim Committee.

Rep. Steve Handy, R-Layton, asked for the analysis, the first study to examine what the capital punishment option costs the state and local governments.  Handy has not proposed any legislation and said Wednesday he is "under no illusion that people in Utah want to change the present law."  But Handy said the comparative costs of life without parole and the death penalty — which a legislative fiscal analyst pegged "unofficially" at an added $1.6 million per inmate from trial to execution — should be understood....

It is a topic of discussion in other states as well. New Jersey, New Mexico, Illinois and Connecticut all did away with the option in recent years.  A year ago, Oregon Gov. John Kitzhaber put a moratorium on executions and ordered a review of that state’s capital punishment law.  On Nov. 6, voters in California, where more than 700 inmates sit on death row, rejected a proposition that would have repealed the state’s death penalty; proponents argued for doing away with the option based on its costs.

Lawmakers may get some insight into Utahns’ views of capital punishment from a survey being conducted by students at Utah Valley University under the direction of Sandy McGunigall-Smith, an associate professor of legal studies. The survey will be sent to 6,000 people randomly selected in Ogden, West Valley City, Kamas, Saratoga Springs, Alpine and Taylorsville....

Ralph Dellapiana, a defense attorney and death penalty project director for Utahns for Alternatives to the Death Penalty, said the cost estimates fall short of capturing the full expense of the dozen or so aggravated murder cases filed each year in which the death penalty is an option.  Such cases require thousands of hours of extensive, multi-generational social histories of the offender, for example, costs that would not be incurred if the penalty were replaced with a life without parole alternative.  The cost analysis also doesn’t include expenses incurred in cases that are prosecuted as capital offenses but that end up in plea deals or acquittals, as occurred recently with Curtis Allgier, who shot and killed corrections officer Stephen Anderson during a 2007 escape attempt.

November 15, 2012 in Death Penalty Reforms, Who Sentences | Permalink | Comments (11) | TrackBack

November 14, 2012

Brewing "Miller fix" for juvenile murder sentencing in Michigan

As reported in this new local piece, headlined "Juvenile lifers: Michigan lawmakers quietly propose new sentencing hearings, possibility of parole," legislators in a state up north are getting to work on a response to the Supreme Court's Miller ruling making mandatory LWOP unconstitutional for juve murderers.  Here are the details:

A bipartisan group of state lawmakers has quietly introduced a series of bills that would redefine the way juvenile murder convicts are sentenced in Michigan and provide current inmates with a chance at parole.

The U.S. Supreme Court in June ruled that sentencing minors to life in prison without the possibility of parole is an unconstitutional form of cruel and unusual punishment, prompting calls for legislative action in Michigan and other states with mandatory sentencing guidelines that apply to juvenile offenders.

House Bills 6013-6019 were introduced last week during the opening days of the state Legislature's lame-duck session, which may be busy, and will need to be reintroduced if they are not passed by the end of the year.  "Similar packages of legislation have been introduced before but in the wake of the U.S. Supreme Court decision on Miller v. Alabama in June, now is the time to address mandatory sentences here in Michigan," state Rep. Mark Meadows, D-Lansing, said in a statement Tuesday.

Michigan is home to more than 350 inmates serving mandatory life sentences without parole for serious crimes they committed as minors.

HB 6014, sponsored by Rep. Joe Haveman, R-Holland, would give the state parole board jurisdiction over juvenile lifers who already have served at least 15 years for crimes they committed before age 16 or at least 20 years for crimes they committed between ages 16 and 18.  The bill directs the parole board to consider mitigating circumstances -- including accomplices, emotional state, family life and prior criminal records -- in determining whether the offender should be granted release....

Supreme Court Justice Elena Kagan, in a written opinion for the 5-4 majority, did not explicitly state whether the high court ruling applies to offenders already serving mandatory sentence.  Reformers believe it does and some states have accepted that position.  Michigan Attorney General Bill Schuette argues it is not retroactive.

The Michigan Court of Appeals heard arguments for resentencing last month and may still decide the retroactivity issue.  But Appeals Court Judge Michael J. Talbot expressed a reluctance to legislate from the bench, urging lawmakers to rework state laws in anticipation of pending and future cases.

HB 6015, also sponsored by Haveman, allows prosecuting attorneys in future cases to request a post-trial hearing to determine whether juvenile offenders convicted of serious crimes should be sentenced to life without the possibility of parole or life with the possibility of parole.  The legislation also allows prosecuting attorneys or prisoners currently serving mandatory terms to request similar resentencing hearings, at which judges must consider mitigating factors.

November 14, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

Seventh Circuit (per Judge Posner) talks through challenging child porn restitution issues

The Seventh Circuit has a lengthy and intricate child pornography sentencing opinion today in US v. Laraneta, No. 12-1302 (7th Cir. Nov. 15, 2012) (available here). The opinion is authored by Judge Posner and discusses at length the various complicated legal and practical issues that arise when victims of child pornography offenses seeks restitution at the sentencing of those who possess and distribute their images.  Here is the final paragraph from the lengthy unanimous panel opinion:

To summarize: The defendant’s prison sentence is affirmed.  The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases.  The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images.  The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.

November 14, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

More on the "conservative push for prison reform"

PrisonpopProviding an effective follow-up the great Washington Monthly feature article on the topic (blogged here), Dylan Matthews has this commentary at the Washington Post headlined "The conservative push for prison reform." Here are excerpts:

Traditionally, prison reform has been a liberal issue, associated with civil rights activists troubled by the extreme racial disparities in the U.S. criminal justice system, and with drug decriminalization advocates who emphasize the high cost of drug prohibition. But without much notice, that picture has begun to change. These days, the right is leading the charge to reduce the U.S. prison population.

According to John Hopkins’s David Dagan and Steve Teles, writing in the Washington Monthly, the change is not primarily due to economic constraints. The change started in the early 2000s, with major conservative-led reforms passing in Texas in 2007, when times were flush, and states weren’t facing draconian budget cuts of the kind they’ve been forced to implement recently.

Nor is this a case of corporate cronyism. The American Legislative Exchange Council (ALEC), which drafts model legislation for conservative state legislatures and is a newfound supporter of prison reform, does not receive support from any prison privatization companies, and has renounced its previous support for privatization measures.

Instead, the change has come about due to an alliance between libertarians, who are as skeptical of the prison system as they are of all uses of state power, and religious conservatives....

Federally, the two big accomplishments are the Prison Rape Elimination Act of 2003 and the Second Chance Act of 2007, both signed into law by George W. Bush with substantial Republican support in Congress. The former lead to the Obama administration issuing new standards which advocates argue could dramatically reduce sexual assaults in prisons, and the latter provides funding for programs intended to reduce recidivism.

But the biggest changes are coming at the state level. Marc Levin, a fellow at the Texas Public Policy Foundation who has become many conservative legislators’ point person on prison issues, is a big advocate of expanding probation, house arrest, and parole as alternatives to prison. His group, Right on Crime, has garnered support from the likes of Newt Gingrich, Jeb Bush and Ralph Reed. ALEC has abandoned its previous support for mandatory minimum sentences and now offers five model bills designed to reduce prison populations and increase the use of alternative penalties.

Dagan and Teles have the full story, which is worth reading in full.  But the movement, along with budget constraints, contributes to the fact that the U.S. prisoner population has declined for two years in a row, the first such decline since 1972.

November 14, 2012 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1) | TrackBack

November 13, 2012

Texas jury has broad sentencing discretion after felony murder conviction for day care fire

No doubt because jury sentencing in non-capital cases remains a relative rarity, one does not often hear complaints about the sentencing discretion sometimes possessed by some sentencing juries in some states.  But, as reported in this local article headlined "Jurors convict Jessica Tata of murder in day care fire," a notable verdict today in a notable felony murder case now gives a Texas jury notably broad sentencing discretion.  Here are the details:

Day care operator Jessica Tata stood emotionless Tuesday as a judge announced she was responsible for the deaths of four toddlers last year, but members of the children's families slumped in their seats in the courtroom gallery, softly sobbing.

Four weeks before, the mothers and fathers of the dead and injured children testified they trusted Tata and felt betrayed. On Tuesday, they praised a jury's decision to convict her of felony murder....

Tuesday's verdict, after six hours of deliberations, was a disappointment to Tata and her defense team but not a surprise.  "The jury has spoken. We accept their verdict and move on to the next phase of the trial," said Mike DeGeurin, Tata's lawyer....

Prosecutors said a pot of oil that Tata left on a hot burner started the fire after she left the children alone to go shopping.  Assistant Harris County District Attorney Steve Baldassano noted that arson investigators found a package of chicken nuggets near the stove.

DeGeurin told jurors in closing arguments Monday that the stove was actually off and a recently repaired refrigerator started the fire because a safety switch had been removed.

After the verdict, the trial moved to the punishment phase.  Prosecutors, who will try to convince the jury that Tata should be sentenced to life in prison, said she set two fires at Taylor High School in Katy as a freshman in retaliation for being disciplined....

DeGeurin is expected to call Tata's mother, sister and brother during the punishment phase, which could last two more weeks.

The jury will have a wide range of punishment, from five years to life in prison, after convicting her of felony murder, a charge that means Tata committed a felony that resulted in a death. The jurors did not have to decide which felony, only that she was guilty of murder.

November 13, 2012 in Offense Characteristics, Who Sentences | Permalink | Comments (1) | TrackBack

Recent editorials and opinion pieces on state control on pot policy

Below is a round up of some recent editorials and commentaries that discuss the import and possible impact of the recent passage of marijuana legalization initiatives in Colorado and Washington.  Most (though not all) of these pieces are supportive of state effort to experiment in this arena:

November 13, 2012 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (14) | TrackBack

"The Conservative War on Prisons"

1211-dagan-teles_hiliteThe title of this post is the headline of this terrific feature article by David Dagan and Steven Teles appearing in the latest issue of Washington Monthly.  The sub-heading provides insights into the many themes of the important piece: "Right-wing operatives have decided that prisons are a lot like schools: hugely expensive, inefficient, and in need of root-and-branch reform. Is this how progress will happen in a hyper-polarized world?"  Here is how this new must-read article gets started:

American streets are much safer today than they were thirty years ago, and until recently most conservatives had a simple explanation: more prison beds equal less crime.  This argument was a fulcrum of Republican politics for decades, boosting candidates from Richard Nixon to George H. W. Bush and scores more in the states.  Once elected, these Republicans (and their Democratic imitators) built prisons on a scale that now exceeds such formidable police states as Russia and Iran, with 3 percent of the American population behind bars or on parole and probation.

Now that crime and the fear of victimization are down, we might expect Republicans to take a victory lap, casting safer streets as a vindication of their hard line.  Instead, more and more conservatives are clambering down from the prison ramparts.  Take Newt Gingrich, who made a promise of more incarceration an item of his 1994 Contract with America.  Seventeen years later, he had changed his tune.  “There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential,” Gingrich wrote in 2011.  “The criminal-justice system is broken, and conservatives must lead the way in fixing it.”

None of Gingrich’s rivals in the vicious Republican presidential primary exploited these statements.  If anything, his position is approaching party orthodoxy.  The 2012 Republican platform declares, “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.”  What’s more, a rogue’s gallery of conservative crime warriors have joined Gingrich’s call for Americans to rethink their incarceration reflex.  They include Ed Meese, Asa Hutchinson, William Bennett — even the now-infamous American Legislative Exchange Council.  Most importantly, more than a dozen states have launched serious criminal justice reform efforts in recent years, with conservatives often in the lead.

Skeptics might conclude that conservatives are only rethinking criminal justice because lockups have become too expensive.  But whether prison costs too much depends on what you think of incarceration’s benefits.  Change is coming to criminal justice because an alliance of evangelicals and libertarians have put those benefits on trial.  Discovering that the nation’s prison growth is morally objectionable by their own, conservative standards, they are beginning to attack it — and may succeed where liberals, working the issue on their own, have, so far, failed.

This will do more than simply put the nation on a path to a more rational and humane correctional system.  It will also provide an example of how bipartisan policy breakthroughs are still possible in our polarized age.  The expert-driven, center-out model of policy change that think-tank moderates and foundation check-writers hold dear is on the brink of extinction.  If it is to be replaced by anything, it will be through efforts to persuade strong partisans to rethink the meaning of their ideological commitments, and thus to become open to information they would otherwise ignore.  Bipartisan agreement will result from the intersection of separate ideological tracks — not an appeal to cross them.  This approach will not work for all issues.  But in an environment in which the center has almost completely evaporated, and in which voters seem unwilling to grant either party a decisive political majority, it may be the only way in which our policy gridlock can be broken.

Long-time readers know I have been talking about the prospects of a "new right" on crime and punishment issues all the way back in January 2005 when I asked in this post, "Is there a 'new right' on criminal sentencing issues?".  As some may also recall, in this 2008 Harvard Law & Policy Review piece, I wrote that "progressives can and should be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration."  I am so very pleased to see that more and more folks are highlighting and stressing the broader political and social importance of these developments.

A few of my (too?) many recent and older related posts: 

November 13, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (13) | TrackBack

Justices spar over execution stay in capital case out of Texas

As reported this morning over at SCOTUSblog, in this morning's Supreme Court "orders list there is an interesting exchange of opinions on a stay of execution -- a dissent by 3 judges from the grant of a stay, and a response by 2."  This debate, which concern a stay granted back in October, appears in the last five pages at the end of this orders list

Justice Sotomayor's statement in support of the stay, which was joined by Justice Ginsburg, runs only two paragraphs.  Justice Scalia's dissent from the stay, which is joined by Justices Alito and Thomas, runs a full three pages and concludes with these sentences: "Haynes has already outlived the policeman whom he shot in the head by 14 years. I cannot join the Court’s further postponement of the State’s execution of its lawful judgment."

November 13, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (29) | TrackBack

Reviewing Florida's struggles to deal with SCOTUS Miller ruling

The Miami Herald has this notable new article headlined "State courts struggle with Supreme Court ruling on young killers." Here are excerpts:

Five months ago, the U.S. Supreme Court banned mandatory sentences of life in prison without the possibility of parole for juveniles convicted of murder. But since the Miller v. Alabama decision, Florida courts have struggled to apply the ruling — and two Miami-Dade cases may help settle key lingering legal questions.

Does the ruling apply to past cases? A Miami appeals court, ruling on a South Miami-Dade killer convicted in 2000, doesn’t think so. That decision, which affects at least 180 cases statewide, is likely bound for higher courts.

When a judge last month gave convicted killer Benito Santiago 60 years in prison — making him the first South Florida juvenile sentenced after Miller — prosecutors immediately vowed to appeal, saying the sentence was illegal....

The Supreme Court never explicitly said Miller should apply to past convictions for juveniles. Florida has at least 180 defendants who could be eligible for new sentences under the Miller case, according to Barry University’s Juvenile Life Without Parole Defense Resource Center.  At least 50 in Miami-Dade may be eligible, according to the Miami-Dade Public Defender’s Office.  So far, none have been resentenced.

Within days of the Miller decision, defendants across the state began asking courts to get new sentencing hearings.  Some prosecutors assumed the decision would be retroactive.

In Tallahassee, the Attorney General’s Office even agreed that “relief is appropriate” in the 2008 case of then 17-year-old Jose Gonzalez, who stabbed a man to death during a robbery, according to court documents.

In the case of Drewery Geter, he was 16 when he raped and slit the throat of nurse Helen Barker in front of her young son in 2000. After the Miller decision, convicted killer Drewery Geter asked Miami-Dade’s Third District Court of Appeals to toss his murder sentence for raping and slitting the throat of nurse Helen Barker in front of her young son when Geter was 16 years old.

But the court in September ruled Geter couldn’t get a new sentence because judges considering youth during sentencing was merely “evolutionary” and a “procedural change.” The court also ruled that applying Miller retroactively “would undoubtedly open the floodgates” of long-ago convicted killers seeking new sentences....

The Miami appeals court’s decision surprised legal observers — because Geter represented himself. The court did not ask lawyers on either side to lay out their arguments. “Everybody was shocked and dismayed,” said Ilona Prieto Vila, director of Barry’s resource center. “It kind of came out of the blue. You have a right to counsel in Florida and there was a lot of confusion about what happened and why he did not have an attorney.”

Immediately, hearings for new sentences halted in trial courts around Florida. A Tallahassee appeals court, in the Gonzalez case, last month agreed with the Geter decision. Legal observers believe the “retroactivity” issue will be settled in higher courts....

Higher courts, at least in Florida, and possibly the Legislature itself will likely also have to settle the question of the proper sentence for juveniles convicted after the Miller decision. Santiago’s was the first South Florida murder case to go to sentencing after the Miller decision. He was 17 when he used an AK-47 to mow down a man and woman in Liberty City in 2006. Their young daughter identified the killer because of his distinct face cross tattoos. Miami-Dade jurors in August convicted him of two counts of first-degree murder....

Venzer did not let him off easy: 60 years. Miami-Dade prosecutors say they will appeal. The reason: According to the Florida Prosecuting Attorneys Association, first-degree murder sentences now must “revert” back to before the sentencing laws were changed in 1994. That means youths convicted of first-degree murder should get an automatic life sentence — but with the chance for parole after 25 years.

The state long ago effectively abolished the parole system, but a commission still exists to examine longtime inmates eligible for release because their cases date back to the early 1980s or before. “The parole commission was never eliminated,” said Pensacola State Attorney William Eddins, the head of the prosecutors’ association. “The commission will just have some more cases is what it amounts to.”

Critics, including the Public Defender’s Office, say courts don’t have the authority to “enact a new, hybrid statute.”

Though not mentioned in this article, another good example of Florida's struggles with Miller is reflected in another appellate decision just last week in Washington v. Florida, No. 1D11-2314 (Fla. 1st Dist. App. Nov. 5, 2012) (available here). The majority opinion in this case just remands a juve murder case for resentencing, and the concurrring opinion gets started this way: 

I concur in the majority's decision to remand for resentencing pursuant to the dictates of Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012).  I disagree, however, with the majority’s decision not to determine which are the appropriate sentencing alternatives available to this trial judge.  The failure to reach this difficult issue gives no guidance to this trial judge or the numerous other judges facing sentencing or resentencing decisions in similar circumstances, and it deprives the supreme court of the benefit of our thoughts on an issue which will ultimately reach that court.

November 13, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

November 12, 2012

New Hampshire giving lots of — too much? — attention to condemned murderer

This new local AP piece, headlined "Day-long hearing set in death sentence appeal," notes the notable extra attention being given to a convicted murderers appeal in the Granite State.  Here are some details:

New Hampshire’s only death-row inmate will have his day in court — all day — when the state Supreme Court hears arguments pertaining to his sentence.  Michael Addison was sentenced to death for gunning down 35-year-old Manchester Police Officer Michael Briggs in 2006, when Briggs tried to arrest him on robbery charges.

The justices in Addison’s case will be deliberating the death penalty for the first time in more than 50 years — deciding, among other things, whether Addison’s sentence is just or was a product of passion or prejudice.

The justices will hear arguments in the case beginning Wednesday morning, holding four blocks of hearings, scheduled to end at 3 p.m.  Court observers say the daylong hearing on Addison’s conviction for killing a Manchester police officer and death sentence is unprecedented.  A typical hearing before the justices lasts half an hour....

Former Chief Justice John Broderick, now dean of the University of New Hampshire School of Law, said the court, on occasion, has granted more time for arguments, citing the Claremont school funding cases as examples.  "But an entire day? I don’t know of another case where that’s happened," Broderick told The Associated Press.

Attorneys for Addison have raised 22 issues, with everything from the constitutionality of New Hampshire’s death penalty statute to the political ambitions of former attorney general and now-U.S. Sen. Kelly Ayotte, in their appeal.

Addison’s lawyers want the court to vacate his death sentence and order a new sentencing hearing.  They stress that jurors determined Addison shot Briggs to evade arrest but rejected the state’s argument that he shot Briggs with the intention of killing him.

Before Addison’s case could reach this point, the Supreme Court first had to fashion the method it would use in weighing the fairness of his death penalty.  Addison’s lawyers argued his case should be compared to all other death penalty cases in this state and others, to test whether racial bias or other factors influenced his sentence. Addison is black; Briggs was white.

The only other New Hampshire capital case in decades to reach the penalty phase was that of John Brooks — a wealthy white man convicted of plotting and paying for the killing of a handyman he suspected of stealing from him.  A jury spared him a death sentence in 2008 — the same year Addison was sentenced to die.

But the court ruled in October 2010 that it would compare his death sentence to cases nationwide in which a police officer was killed in the line of duty.  The court stressed, in its 41-page ruling, that comparison cases do not have to precisely mirror the details of Addison’s case....

New Hampshire law requires the reversal of any death penalty imposed "under the influence of passion, prejudice or any other arbitrary factor." That law dates to the 1970s, when the U.S. Supreme Court ruled the death penalty unconstitutional in 1972 — prompting states to redraft their capital punishment laws to include stricter standards and procedures....

Five lawyers from the Attorney General’s office will be representing the state Wednesday — matched by five representing Addison.

The last line in this excerpted press report is what prompts my (misguided?) mini-query in the title of this post.  I find it mostly amusing that the New Hampshire Supreme Court has to commit an entire day of argument just to sort through potential sentencing issues in this unique state capital case.  But I find it mostly annoying that there are ten lawyers — five on each side, all of whom I suspect are top-flight legal minds and all of whom are funded by limited state tax dollars — who are now needed to sort out whether a guilty murderer should rot in prison for decades under a death sentence or just rot in prison under an LWOP sentence.

Long-time readers have long heard me rail about the excessive attention and resources that get devoted to condemned murderers by courts and other public and private entities.  If resources legal resources were not so limited and so relatively expensive — for criminal defendants charged with lesser crimes, not to mention all other citizens with various potential civil legal needs — I suppose I would not be too troubled with condemned cop-killer Michael Addison sucking up all this state-funded legal help.  But just weeks ago, the Chief Justice of the New Hampshire Supreme Court gave this big lecture titled "Addressing Unmet Legal Needs in NH," which includes this account of who else could benefit from legal help in the Granite State (with emphasis in original):

Here in New Hampshire, the most recent estimates are that there are nearly 150,000 low income residents with legal needs, but we were able to provide low cost legal services in only about 8,400 cases — just six percent of the need.  Who are these fellow citizens who make up the population eligible for legal assistance?  They are a family of four with an income below $44,000 or a single individual making under $21,000.  The majority are women; many are senior citizens.  Many are disabled, uninsured, under-employed or just out of work.  They need the legal system to try to solve problems that involve the issues of day-to-day existence — family problems, housing needs, consumer issues, a financial crisis, denial of benefits such as social security or food stamps.  They arrive in court, on their own, unable to navigate the system.  Basic rights are at stake — a place to live, custody of a child — but there are scarce resources to provide any legal help at all.  A 2011 survey of our court employees confirmed that the “self-represented population” continues to grow.  Seventy-four percent of our employees said the number of pro se litigants has increased over time, and continues to increase.  These employees report that as many as 70 percent of the litigants they encounter in the courthouse are self-represented.

Sadly, the (surely unintended) message in these legal realities is that the easiest way for low-income person to get a whole phalanx of lawyers to become concerned with his plight is to kill a cop.  Though I am not eager to question the commitments or judgment of any of the lawyers involved in the Addison case, I am eager to raise questions about how we allocate scarce state-funded legal resources in our nation and its states.

November 12, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

"Latin American leaders call for review of policy after 2 US states vote to legalize marijuana"

The title of this post is the headline of this new AP piece, which gets started this way:

A group of Latin American leaders declared Monday that votes by two U.S. states to legalize marijuana have important implications for efforts to quash drug smuggling, offering the first government reaction from a region increasingly frustrated with the U.S.-backed war on drugs.

The declaration by the leaders of Mexico, Belize, Honduras and Costa Rica did not explicitly say they were considering weakening their governments’ efforts against marijuana smuggling, but it strongly implied the votes last week in Colorado and Washington would make enforcement of marijuana bans more difficult.

The four called for the Organization of American States to study the impact of the Colorado and Washington votes and said the United Nations’ General Assembly should hold a special session on the prohibition of drugs by 2015 at the latest.

Last week, the most influential adviser to Mexico’s president-elect, who takes office Dec. 1, questioned how the country will enforce a ban on growing and smuggling a drug that is now legal under some U.S. state laws.  The Obama administration has yet to make clear how strongly it will enforce a federal ban on marijuana that is not affected by the Colorado and Washington votes.

Recent related posts:

November 12, 2012 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1) | TrackBack

TRAC documents "striking judge-to-judge differences" in federal criminal caseloads

This new release from the Transactional Records Access Clearinghouse (TRAC) reports on new research that "has found wide variations in the criminal caseloads of individual federal district court judges, in some instances even among the judges serving in the same courthouse."  I doubt many federal practitioners will be surprised by this story, though some of the data is truly "striking":

TRAC's latest judge-by-judge analysis — using newly updated sentencing records on over 400,000 defendants — followed the criminal caseloads of 909 federal district court judges for the past 70 months.... Among the 909 district court judges whose records were examined, however, about half had not actively served during the entire 70-month study period. Thus, in the interest of better comparability, this report focuses on the 430 judges who had actively served for the entire 70 months....

[E]ven when the analysis was limited to the active judges who had served for the entire study period, the data disclosed surprising workload variations.  In ninety separate courthouses there were two or more active judges, allowing for a comparison of the variation in caseloads within the courthouse.  Among these ninety, there were four courthouses where the criminal caseload for one or more of the judges serving in them was twice the caseload of their colleague(s)....

There was also enormous variation in the volume of criminal cases a judge was required to handle that depended upon the courthouse at which the judge served.  While on average active judges sentenced 615 defendants during the study period, this average caseload level varied from a low of 147 criminal defendants in the District of Columbia federal court to a high of 7,020 in the Las Cruces, New Mexico district courthouse.

November 12, 2012 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10) | TrackBack

Ohio finally gets its execution protocol in order (and praised)

As reported in this local article, headlined "Judge praises execution policies; Ruling that allows next Ohio death to proceed also commends state protocol," the Buckeye state now is getting kudos for its lethal injection administration.  Here is how the article starts:

A federal judge who has skewered Ohio over the way it carries out executions heaped unusually warm praise on the system and the state prisons director in a recent ruling.  The comments by U.S. District Judge Gregory Frost raise the possibility that successful challenges focusing on the process of putting inmates to death in the state could be coming to an end.

Frost has delayed executions over such challenges, though he has also let some proceed when it appeared as if the state had fixed problems.  Frost’s most recent ruling last week declined to stop the execution of Brett Hartman, scheduled to die Tuesday for stabbing an Akron woman to death in 1997.

The ruling doesn’t mean that problems in carrying out executions that might crop up in the future couldn’t spur new challenges.  Though Ohio executions generally go as smoothly as such procedures can, it has had some notable exceptions.  The best-known of those was the botched attempt in 2009 to execute Rommel Broom, whose execution was halted after two hours during which he was jabbed with IV needles 18 times.  Broom is back on Death Row fighting a second attempt to put him to death.

Also looming for the state: the expiration next year of its execution-drug supply. New lawsuits will inevitably follow any attempt to switch to a new drug.

In his ruling last Monday, Frost said prisons director Gary Mohr has created a command system with himself as lead enforcer that finally seems able to stop major changes to the state’s written execution policy. “Mohr in particular warrants credit for demonstrating significant, continuing leadership in this new approach,” Frost wrote.  “More than one witness testified that Mohr’s increased management of the execution process represents a sea change in director involvement.”

At another point, Frost said that everyone at the April 18 execution of Mark Wiles seemed to understand that there can be no deviations from policy, and any potential changes must go up the chain of command to Mohr.  Contrast that with Frost’s comments in July 2011 that stopped the execution of Kenneth Smith: “ It is the policy of the state of Ohio that the state follows its written execution protocol, except when it does not. This is nonsense.”

UPDATE:  Kent at Crime & Consequences provides this link to the latest opinion from Judge Frost in this litigation, and he this commentary:

The opinion is quite long but worth reading for anyone involved in this type of litigation. Frost recounts his earlier criticisms of the state officials, but he hammers the inmate's lawyers as well for playing games.

November 12, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6) | TrackBack

November 11, 2012

"Exclusion and Control in the Carceral State"

The title of this post is the title of apaper by Professor Sharon Dolovich, which is now available here via SSRN.  Here is the abstract:

Theorists of punishment typically construe the criminal justice system as the means to achieve retribution or to deter or otherwise prevent crime. But a close look at the way the American penal system actually operates makes clear the poor fit between these more conventional explanations and the realities of American penal practice. Taking actual practice as its starting point, this essay argues instead that the animating mission of the American carceral project is the exclusion and control of those people officially labeled as criminals. It maps the contours of exclusion and control, exploring how this institution operates, the ideological discourse that justifies it, and the resulting normative framework that has successfully made a set of practices that might otherwise seem both inhumane and self-defeating appear instead perennially necessary and appropriate.

Appreciating the “cognitive conventions” by which current penal practices are rendered at once logical and legitimate proves to shed light on a number of mystifying features of the Americanpenal landscape, including why LWOP and supermax have proliferated so widely; why sentences are so often grossly disproportionate to the offense; why, given the multiple complex causes of crime, the state persists in responding to criminal conduct by locking up the actors; why prison conditions are so harsh; why recidivism is so high; why extremely long sentences are so frequently imposed even for relatively non-serious crimes; and even why the people we incarcerate are disproportionately African-American. Without claiming to provide comprehensive answers to these vexing questions, this essay offers a framework that helps to explain these striking aspects of the American carceral system. This framework takes as its starting point the practical demands incarceration imposes on the state itself: the exclusion and control of the people sentenced to prison. But as will be shown, in the American context, efforts to make sense of this way of responding to antisocial behavior quickly lead beyond practicalities to a moral economy on which the incarcerated lose not only their liberty but also their full moral status as fellow human beings and fellow citizens. What happens to them is thus no longer a matter for public concern. And as a consequence of this collective indifference, penal practices that may otherwise seem counterproductive, unnecessarily harsh, and even cruel become comprehensible and even inevitable.

Part II of this essay sketches the structure of the American carceral system, exposing both its dependence on the logic of exclusion and control and the moral economy that drives it. Part III explores the self-defeating nature of current carceral practices — the way the combination of prison conditions and postcarceral burdens ensures that many people who have done time will return to society more prone to criminal activity than previously. Part IV considers the question of how such an evidently self-defeating system has been able to sustain itself, and locates the answer in the radically individualist ideology, pervasive in the criminal context, that construes all criminal conduct as exclusively the product of the offender’s free will. Part V illustrates the way this individualist discourse constructs criminal offenders as not just unrepentant evildoers but also sub-human — a process referred to as “making monsters” — and examines the work this normative reframing does both to vindicate the penal strategy of exclusion and control and to justify the arguably inhumane treatment of prisoners. Part VI explores the way that perceiving criminal offenders as moral monsters makes it difficult to distinguish the relatively few individuals who are genuinely congenitally violent and dangerous from the vast majority who are not; through this ideological (re)construction, all people who persist in committing crimes, even nonviolent offenders, can come to seem appropriate targets for extended and even permanent exclusion. Part VII considers the racial implications of exclusion and control, in particular the way the cultural construction of African Americans as “incorrigible” may explain why members of this group are overrepresented as targets of the American carceral system. Part VIII shifts the focus to the prison itself, where the self-defeating logic of exclusion and control has reappeared behind bars in the form of the supermax prison. Finally, the Conclusion considers how the destructive and self-defeating dynamic of exclusion and control may be disrupted. It argues that a political strategy emphasizing the financial costs of incarceration is bound to fail unless it also generates an ideological reorientation towards recognizing the people the state incarcerates as fellow human beings and fellow citizens, entitled to respect and consideration as such.

November 11, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack