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February 11, 2012

"Death Is Not So Different After All: Graham v. Florida and the Court’s 'Kids Are Different' Eighth Amendment Jurisprudence"

The title of this post is the title of this timely article by Professor Mary Berkheiser which was recently posted on SSRN. The piece is timely not only because next month the Supreme Court is scheduled to hear oral argument on two follow-up Graham cases, Jackson and Miller, but also in light of the heated blog discussion earlier this week over the sentencing of a 15-year-old thrill killer in Missouri.   Here is the article's abstract:

In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles.  Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time of their crimes.

That categorical exclusion is itself a momentous development, and it will impact directly the lives of the 129 juvenile offenders whose sentences for non-homicides have relegated them to prison with no prospect of ever being freed.  Of even greater import for the thousands of juvenile offenders whose sentences Graham does not impact directly, however, is the legal reasoning the Court used in striking down juvenile life without parole for non-homicides.  The Court employed an analytical approach previously reserved exclusively for death penalty cases, and it did so without fanfare or elaboration.  With Graham, the Court unceremoniously dismantled the wall that has separated its “death is different” jurisprudence from non-capital sentencing review since 1972.  In its place, the Court fortified an expansive “kids are different” jurisprudence that traces its roots to Thompson v. Oklahoma and is now firmly planted with the Court’s rulings in Roper and Graham.  Just as Graham crossed the rigid divide between the Court’s death and non-death cases, it places the Court’s categorical approach to sentencing, formerly the exclusive province of the death penalty, within reach of all juveniles serving adult sentences.

February 11, 2012 in Jackson and Miller Eighth Amendment cases, Offender Characteristics | Permalink | Comments (6) | TrackBack

Marijuana legalization advocate getting warm reception at CPAC

I am pleased and intriguied to see this new article from New York magazine headlined "Cowboy Cop Makes the Conservative Case for Marijuana Legalization at CPAC." Here is how it gets started:

Wearing a giant fat suit or a Captain America costume is one way to get attention at CPAC. Wearing a cowboy hat and a T-shirt that reads "COPS SAY LEGALIZE POT. ASK ME WHY" is another.

Howard Wooldridge is a retired police detective who now lobbies Capitol Hill for his group "Citizens Opposing Prohibition" — the prohibition on marijuana.  He made the New York Times in October of 2005 for riding a horse for seven months from Los Angeles to Times Square as a way to bring publicity to the absurdity of anti-marijuana laws. This weekend he's pleading his case at CPAC, and it's going better than you might expect.

"The reactions have been almost 100 percent in favor of what I'm doing," Wooldridge, who claims he hasn't smoked marijuana in thirty years, tells me.  "I've had about three people in the last two days out of about 200 who do not like it."  Particularly with this conservative crowd, Wooldridge debates his naysayers in terms of conservative principles.  "Personal freedom, personal responsibility, and limited government are what conservatives believe in," he says.  "And that's what I believe in. And thats what we should do with marijuana policy. I say, 'Give me a conservative reason to keep it going,' and they dont have any."

Progress is slow for Wooldridge, but rewarding. He's been coming to CPAC for the past six years, and says that four or five people have approached him over the past couple of days to tell them that, after mulling over his arguments from past CPACs, they now oppose marijuana prohibition as well. "I know from the feedback I'm getting that I'm making small gains every time I come here," he says.  "If nothing else, I create a bone that people chew on after they leave."

February 11, 2012 in Elections and sentencing issues in political debates, Pot Prohibition Issues | Permalink | Comments (29) | TrackBack

February 10, 2012

"The Best Places to Go to Prison"

Best-place-prisons-yanktonThe title of this post is the headline of this interesting slideshow from the folks at CNBC.  As this brief description of the slideshow reveals, the headline should really have the word "federal" somewhere as the list only reflects federal facilities:

Ever wonder what prison life is like for high-profile white-collar criminals like Bernie Madoff, or how Martha Stewart got through her time in prison?

The prison experience all depends on where you wind up, according to Alan Ellis, a criminal defense attorney and co-author the “Federal Prison Guidebook.” Ellis, who specializes in defending federal white-collar criminals, has made a career of bargaining to get his clients the lowest possible sentences and get them into the best prisons possible.

The worst federal criminals wind up behind bars in U.S. penitentiaries. But there are also medium-, low-, and minimum-security prisons. Of those minimum-security facilities, known as federal prison camps, some are adjacent to higher-security prisons and others stand alone. It’s the stand-alone ones that Ellis believes are most preferable. “The staff is less stressed out,” he said. “As I like to say, happy staff makes happy inmates.”

Federal prison camps also have limited or no fencing, and “zero” violence. Ellis cautioned, however, that these are no country-club — or “Club Fed” — facilities. The inmates are still in prison and away from their loved ones. It’s not just the camp accommodations that made Ellis’ list. For the low- to medium-security inmate, there are choice assignments, as well.

So where are the best places to do time? Click ahead to see the names Ellis believes should be on every federal inmate’s wish-list, in no particular order.

I have reprinted here what struck me as the most appealing looking of the facilities that made this list, and here is the CNBC description of FPC Yankton:

Number of prisoners: 868

Location: Yankton, S.D.

This stand-alone federal prison camp is in downtown Yankton, S.D., and was once a college campus. Inmates have the opportunity to leave the prison site and go into the community by volunteering for local nonprofits, such as Habitat for Humanity. The inmate and charity must be approved, and the prisoner is supervised by a representative from the organization.

Those who stay inside the prison camp may play sports, take art lessons, or play any of the instruments in the music room. There is also a library with hundreds of books.

February 10, 2012 in Prisons and prisoners | Permalink | Comments (10) | TrackBack

A judicious perspective on recent federal racial sentencing disparity research

I am extremely plesed and grateful to have received this morning an e-mail from Judge Richard G. Kopf, Senior United States District Judge for the District of Nebraska, with the following comments about some recent posting on this blog (which he kindly gave me permission to post here [with my links inserted]):

Several quick observations about the racial disparity study mentioned in your post entitled “Don’t Blame Judges for Racial Disparity.”  I have now had a chance to read “Racial Disparity in Charging.”

* Kudos to Professors Rehavi and Starr for their hard and good work.

* It would have been helpful to provide data summaries showing raw numbers.

* The significance of this study is modest from a policy perspective because, as the authors indicate, 80% of black men in the study never faced a statutory minimum. (See page 22 the download from SSRN.)  Since we have no idea of the absolute numbers involved of the black men who are said to be impacted, it is very hard gauge whether a policy maker should care.

* The study appears not have included drug and child pornography cases. (Id.)  If so, the missing data is a large impediment to making sensible generalizations.  Such an omission, if true, also calls into question most, if not all, of the statistical conclusions drawn from the study if one is concerned with the whole universe of criminal cases in the federal system.  For example, recognizing that drugs and child pornography comprise a large and high profile segment of the federal criminal universe, one might suppose that black male defendants may face more mandatory minimums charges in drug cases, but one might also suppose that white males face more mandatory minimums in kiddie porn cases.  In any event, one does not know.

* The charging of a mandatory minimum is frequently ameliorated after sentencing by virtue of a Rule 35(b) motion by the government.  So far as I can tell, the study does not try to grapple with that fact.  In some districts with heavy criminal caseloads (like Nebraska), a Rule 35(b) motion, rather than a motion prior to sentencing, is the norm. Studies that don’t address that issue or assume that Rule 35(b) motions will be filed in the same proportion as departure motions prior to sentencing may be quite misleading.

Some recent related posts:

February 10, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (29) | TrackBack

Another Utah condemned selects firing squad for execution method

As reported in this local article, headlined "State will accept firing squad request in Archuleta execution," Utah is on a path to conducting another execution by firing squad in the months ahead. Here are the basics:

Utah death row inmate Michael Archuleta has chosen the firing squad to carry out his April 5 death sentence for a 1988 murder. Utah Attorney General Mark Shurtleff says the state won’t oppose it.

Archuleta was sentenced to death for the Nov. 22, 1988, murder of Southern Utah University student Gordon Ray Church, 28. At his original conviction he chose lethal injection, but changed his mind and opted for the firing squad in 1994. Even though the state did away with the firing squad in 2004, Shurtleff says Archuleta made his choice before the law changed, so it will stand.

“The courts have held that the method of execution is the choice, if there is a choice … of the condemned person,” Shurtleff said. Archuleta can change his mind and say he no longer wants the firing squad, but if he insists on the firing squad, Shurtleff says the state won’t oppose it and that’s how he’d be executed.

There are four other death row inmates who opted for the firing squad before the law changed. The firing squad is comprised of five volunteer, POST-certified officers. Each carries a .30-caliber rifle. Four of the rifles are loaded with live rounds, the other with a blank. It gives shooters a way to rationalize and cope with the assignment. Their identities are kept anonymous — partly for their privacy, and also for their protection....

Convicted killer Ronnie Lee Gardner was the last person executed in Utah by firing squad. Gardner had been on Utah's death row since October 1985 and was executed on June 18, 2010. He was the third person executed by firing squad in Utah — or anywhere else in the U.S. — since the death penalty was reinstated in 1976.

February 10, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (4) | TrackBack

Veterans courts getting lots of attention in Florida

The growth of veterans courts to deal with criminal offending by former servicepersons is one of the most intriguing structural criminal justice developments in recent years.  This recent local article from Florida, headlined "Veterans Court headed to Broward County," spotlights how this innovation is developing in the Sunshine State.  Here are excerpts (which include some interesting data):

Led by [Chief Judge Peter] Weinstein, the 17th Judicial Circuit Court of Florida is forming a Veteran’s Court division in Broward, designed to provide rehabilitative services to veterans facing criminal charges. The hope, much like drug courts, is that vets can avoid jail or prison through comprehensive, court-monitored programs that address the underlying issues, which are often related to post traumatic stress disorders.

The opening is part of a larger movement to help vets across Florida. Legislation that would allow the establishment of separate courts for veterans was unanimously passed in House Appropriations Committee. The chief judge in each judicial circuit would be allowed — but not required — to create a vet court. Two similar bills are making their way through the Senate.

“We just wanted to make sure the state was aligned so we can open vet courts if needed for vets here and those soldiers returning. We need to recognize the stress of the battlefield and help them rather than lock them up in jail and throw away the key. We want to make sure they get the assistance they need without letting them off the hook,’’ says Rep. Darren Soto, D-Kissimmee. “The vet courts already in Palm Beach and Miami-Dade counties would serve as models.’’

With its planned Broward opening this year, South Florida will have three courts available to the region’s nearly 287,000 veterans along with the thousands of whom are expected to return from Iraq and Afghanistan as the United States continues its military pullouts. “These soldiers are coming home to rebuild their lives and some will have difficulties. Often the horrors of what they saw at war can end up playing a heavy role in their conduct," said Weinstein. “They served this country and we want to treat them with respect and get them the help they need. We have tremendous resources to help to put them back on the right track. We want this to be a therapeutic court."...

“So many soldiers come home strengthened by their service and ready to re-engage in their communities and others will struggle. The sad fact is that we know the courts are often an entry point in the system, but once there, we want to make sure the soldiers receive the services they earned and need," says Chris Deutsch, spokesman for the National Association of Drug Court Professionals, a membership training and advocacy organization for drug and vet courts.

So far, there are 88 vet courts — the first opened in Buffalo four years ago — and more than 100 in the planning stages.

Veterans, while no more likely to be arrested than those in the general population, account for nine out of every 100 prisoners in United States jails and prisons, according to a 2008 report of The Center for Mental Health Services’ National Gains Center. Up to 20 percent of Iraq and Afghanistan wars veterans suffer from post-traumatic stress disorder, according to the U.S. Department of Veteran Affairs....

Weinstein stressed the court is not designed to offer preferential treatment to vets or deprive them of their due process; rather, it’s intended to guide them into existing Veteran Administration substance-abuse and mental-health programs. Those charged with crimes will gather in court on a designated day where they can meet with representatives from the VA to access benefits and be placed in the appropriate rehabilitative programs, which typically lasting at least a year....

In November, 2010 Circuit Court Judge Ted Booras, a former Marine, began presiding over vet court in Palm Beach County, home to 115,000 vets, the largest population in Florida. Between November and last October, he heard 281 cases ranging from cocaine possession to petty theft to traffic violations.

Of those cases, 187 were misdemeanors; 94 were felonies. A total of 201 veterans were referred to the court; of that amount, 193 were engaged or re-engaged with VA and 53 successfully completed the court requirements. And the cost of pretrial incarceration was reduced by 73 percent because many of the vets did not end up in jail. Another 43 were referred back to the criminal division.

A similar veteran’s track opened in March as part of the Miami-Dade Drug Court after Judge Deborah White-Labora visited a vet court in Anaheim, Calif., three years ago. “At first I was very skeptical on how or why they should be treated differently. Once I got there, I saw about 10 vets walk in and they were very serious about getting help," she recalled. “I learned about what was out there to help them and I was impressed and knew we should try to open something here."

February 10, 2012 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

February 9, 2012

"Don't Blame Judges for Racial Disparity"

The title of this post is the headline of this new commentary appearing at The Huffington Post authored by Julie Stewart, the President of Families Against Mandatory Minimums (FAMM). Here is how it starts:

It's almost too much to bear.  After decades of defending some of the most racially discriminatory mandatory minimum sentencing laws ever written, some lawmakers on Capitol Hill and their allies are now saying concern about racial disparity is motivating them to "fix" the federal sentencing guidelines. A new comprehensive report out of the University of Michigan makes clear that these legislative efforts are as misguided, as their proponents' stated concerns are transparently disingenuous.

In 2010, the U.S. Sentencing Commission analyzed recent sentencing data and concluded that the disparity in sentences received by blacks and whites was growing -- particularly after mandatory guidelines became advisory. The Commission warned against using its data to conclude judges were exercising discretion in a racially biased manner. And its warning seemed well-advised when a more rigorous, follow-up study by the University of Pennsylvania contradicted key Sentencing Commission's findings.

Undeterred, those seeking to restore mandatory guidelines insist that judges are to blame for unwarranted racial disparity in sentences.  They seek to pass legislation to reverse the effect of the Supreme Court's decision in United States v. Booker, which held that the federal sentencing guidelines should advise judges, but not bind them.  Thus, to the well-worn charge that federal judges (half of whom, inconveniently, were appointed by Republican presidents and approved overwhelmingly by Republican senators) are soft on crime, we now hear that some of these judges are racists, too.

Mandatory sentencing guidelines, just like mandatory minimum sentencing laws, transfer discretion from judges to prosecutors. Prosecutors, already the most powerful players in the criminal justice system, get to choose not only who to charge and what crimes to charge, but they also get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree. If this extraordinary concentration of power in the hands of one group of federal officials does not convince the public to reject a restoration of mandatory guidelines, the findings of this comprehensive new study should.

"Racial Disparity in Federal Criminal Charging and its Sentencing Consequences" is the understated title of the incredibly important and timely study conducted by Sonja Starr, a law professor from the University of Michigan, and M. Marit Rehavi, an economics professor from the University of British Columbia. The study, the first of its kind, looked at 58,000 federal criminal cases -- at every step where discretion and bias might arise, from arrest through sentencing -- in order to determine the impact of decisions made by prosecutors (rather than judges) on racial disparity in sentence lengths.

In particular, the study focused on how whites and blacks arrested for the same offense were ultimately sentenced. The researchers found significant black-white disparities in the overall severity of initial charges, but saw the most dramatic differences when they examined charges carrying mandatory minimum sentences. Black men were on average more than twice as likely be charged by prosecutors with a crime that carried a mandatory minimum sentence as were white men, even after holding other factors constant.

Those initial charging differences led inexorably to sentencing differences. The gap in sentence lengths between black and white offenders is largely explained by differences in criminal records and in the arrest offense. When you control for those two factors, and others such as gender, age, and district, however, the difference between sentences narrows to almost 10 percent on average. Because 10 percent is still a significant disparity, the authors looked for its cause(s). They found that the gap was caused by differences in the severity of the initial charge. Further, they found that this disparity was largely a result of the prosecutors' decisions to file mandatory minimum charges against blacks more often than against whites, even when the conduct was the same and the mandatory minimum bearing charges could have been filed against whites.

Some recent related posts:

February 9, 2012 in Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (33) | TrackBack

Which elected official(s) should Ohio voters hold accountable for the legal mess with its execution process?

The question in the title of this post is my reaction to this new piece in Cleveland Plain Dealer, which is headlined "U.S. Supreme Court's decision brings execution of prisoners in Ohio to halt."  First, he are some notable parts of this latest press review of where legal story stands:

A U.S. Supreme Court decision on Wednesday has effectively put executions on hold in Ohio.

Until Ohio revises its lethal injection procedures to the satisfaction of a federal judge on the case, no more inmates will be executed, Ohio Attorney General Mike DeWine acknowledged.   "I can't predict what is going to happen," said DeWine, whose office represents Gov. John Kasich and the Ohio Department of Rehabilitation and Correction. "The next scheduled execution is for April, and so that's a little ways off, and we'll just see what happens between now and then."

Kasich and DRC had appealed two federal court rulings that had blocked the scheduled Jan. 18 execution of a Trumbull County double murderer.  But the Supreme Court, without explanation, declined to hear the case, letting the lower court rulings stand.   That means the stay of execution granted to Charles Lorraine by a district judge and upheld by a federal appeals panel will remain in place.  Lorraine is one of about a dozen death row inmates suing the state, claiming Ohio's lethal injection procedures are unconstitutional.

With that case pending, Ohio had continued to execute inmates.  But Lorraine successfully argued that the question of whether the procedures are unconstitutional could have merit and he should be allowed to live long enough to participate in a trial.  The court rulings to this point involve only Lorraine's request to stave off execution and not on whether Ohio's execution process passes constitutional muster.

"The evidence we've presented makes it substantially likely that Lorraine would win at trial," said the inmate's attorney Allen Bohnert, a federal assistant public defender.  "So as a result of that and some other factors, fairness says he should be able to participate in that trial which would be impossible, obviously, if he had been executed on Jan. 18." Bohnert said that Kasich should make a moratorium on executions official in view of the ruling.

The original order was issued by U.S. District Judge Gregory Frost of the Southern District of Ohio. Frost has handled several cases questioning Ohio's death penalty procedures in recent years and ordered changes.  He didn't hide his frustration with the state for how it has handled this issue.  "Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms," Frost wrote in his scathing Jan. 11, 2012 ruling in favor of Lorraine....

The state appealed to the U.S. Sixth Circuit Court of Appeals, saying that none of the items -- which it called "deviations" -- noted by Frost would mean Ohio's procedures are unlawful, so Lorraine's execution should be carried out....  The appeals court backed Frost.

DeWine said DRC was already revising its execution procedures even before the Supreme Court was asked to review Lorraine's case. And while the state was making changes, DeWine said he still sought to carry out Lorraine's execution because he didn't agree with Frost's ruling. "We believe that the discrepancies cited by Judge Frost do not rise to a constitutional violation," DeWine said.

DeWine said when DRC completes its revision of the procedures he will present them to Frost, who must sign off on them before executions can resume.

Anyone not readily convinced by the court rulings in this on-going litigation or not really concerned about the execution process might be inclined just to blame federal judges for this legal mess.  But, besides the fact that Judge Frost and the Sixth Circuit (not to mention the Roberts Court) do not have reputations as radical judicial activists, there is nothing the voters in the state of Ohio can do about these appointed jurists.  Moreover, their rulings seem principally responsive to the ugly realities of how Ohio is administering executions and how poorly the state is responding to legal complains by death row defendants.  After all, none of this legal mess would not have happened absent Ohio's "dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms."

Against this backdrop, I am genuinely interested and eager to hear from readers who should Ohio voters seek to hold accountable for this legal mess, which not only is delaying the achievement of justice for society and victims, but also is surely costing the taxpayers a pretty penny?  (For the record, none of these execution protocol issues have yet been discussed or even raised by the Ohio Joint Task Force currently studying the death penalty on which I have the honor of serving.)

Notably, a lot of these problems seem to be festering during the prior (Democratic) Ohio administration of Gov. Ted Strickland and AG Richard Cordray.  But those folks were shown the door by Ohio voters in 2010, and now it is Gov. John Kasich and AG Mike DeWine in charge.  Are they the ones to be held accountable?  Should elected members of the Ohio General Assembly be faulted for not having hearings and trying to help clean up this mess?  

Tellingly, the Plain Dealer has this companion piece which is headlined "Should Ohio consider putting a permanent hold on the death penalty? A Closer Look."   That is, of course, a key substantive question lurking behind all that is on-going in the state.   But this post is intended to explore whether and how the political process can and should respond to these sorts of death penalty administration problems.

Some related posts concerning Ohio's recent lethal injection litigation: 

February 9, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (36) | TrackBack

"Are America's Prison Towns Doomed?"

The title of this post is the headline of this interesting piece via The Altantic.  Here is a brief excerpt:

[M]uch like the real estate market crash of the last ten years, the belief that the incarceration market was recession-proof and could only rise is being proved wrong. Declining crime rates are leaving more prisons empty. There isn't enough crime to keep the prison industry afloat as it currently stands.

To save money, more states are moving their prisoners back to state-run facilities when space is available. Without prisoners, the private companies managing the facilities are leaving. And the small towns who bet on an ever-growing incarceration rate are left further in debt with few sources of capital.

February 9, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

February 8, 2012

Sentencing for lovers: Florida judge orders date night with flowers, seafood dinner, bowling instead of jail

Heart bookThanks to Joe Palazzolo and this post at the Wall Street Journal Law Blog, I learned about a remarkable (and appealing story) out of Florida involving a creating sentencing.  This local article, headlined "Flowers, dinner, bowling -- and counseling -- ordered by Broward judge in domestic case," provides the details:

A marital spat that began when a Plantation man didn’t wish his wife a happy birthday and then escalated into a domestic violence charge, resulted in an unusual bond court ruling by a perceptive judge.   Instead of setting bond or keeping Joseph Bray locked up, he ordered him to treat his spouse to dinner, a bowling date and then to undergo marriage counseling.

“He’s going to stop by somewhere and he’s going to get some flowers,” Judge John “Jay” Hurley said during the first appearance hearing. “And then he’s going to go home, pick up his wife, get dressed, take her to Red Lobster. And then after they have Red Lobster, they’re going to go bowling.”

Hurley emphasized that he would not have ordered such whimsical conditions for Bray, 47, if his domestic violence charge was more serious, or if his wife appeared to be injured or in danger of being harmed. “It was a minor incident, in the court’s opinion,” he said. “The court would not normally do that if the court felt there was some violence but this is very, very minor and the court felt that that was a better resolution than other alternatives.”...

A woman who identified herself as Bray’s wife attended the hearing and explained that the couple’s argument started on Monday after her husband didn’t acknowledge her birthday. Hurley asked her is she was hurt or in any fear of her husband. After she said she wasn’t, and Hurley confirmed that Bray had no prior arrests, the judge continued his questioning with a lighter tone.

“Do you have something you like to go to?” he asked. “Is there a restaurant you like to go to?” The woman answered that she enjoyed bowling and eating at Red Lobster. And so the judge made his decision accordingly. “Flowers, birthday card, Red Lobster, bowling,” Hurley said. He also ordered that the couple begin seeing a marriage counselor within a week.

Everyone must watch the linked video of the proceedings (available here) before commenting or coming to judgment on this matter.  Watching that video makes obvious why the judge is described as "perceptive" in the local news account and provides a good example of why I am often a fan of creative sentencing.  That said, I have a feeling there will be somebody (perhaps a reader of this blog or some public policy group) that will not be entirely pleased with how this matter was adjudicated.  Still, with Valentine's Day only days away, I cannot help but have a warm feeling about this sentencing story.

UPDATE:  A reader in the comments has rightly noted that this proceeding was a bond hearing, not a sentencing.  That importance technicality does not diminish my appreciation and affinity for judges who creatively pursue alternatives to incarceration in the right settings.

February 8, 2012 in Criminal Sentences Alternatives | Permalink | Comments (12) | TrackBack

Two big public hearings on tap for US Sentencing Commission next week

As reported on its website and in official notices here and here, the US Sentencing Commission has planned two full-day public hearings for next week in DC.

The first day of hearings, slated for February 15 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing." The second day of hearings, slated for February 16 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses on federal sentencing options pursuant to United States v. Booker."

I have the great honor and privilege of being one of the invited witnesses for the second day of these hearings, and I hope to post my written testimony once I finish writing it.  I also expect the USSC will post the submitted written testimony of other witnesses before long, too.  In the meantime, readers are welcome (and, in fact, encouraged) to make predictions about what various witnesses are likely to say to the Commission on these topics and what member os the USSC might say in response.

February 8, 2012 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

US Supreme Court refuses to vacate execution stay in Ohio

As reported in this Reuters article, this morning the US Supreme Court "refused to lift a stay of execution for Ohio convicted killer Charles Lorraine because the state failed to follow agreed-upon reforms for procedures on how it carries out the death penalty." Here is the full text of the SCOTUS one-sentence order:

The application to vacate the stay of execution of sentence of death entered by the United States District Court for the Southern District of Ohio on January 11, 2012, presented to Justice Kagan and by her referred to the Court is denied.

As SCOTUS-watchers know, this decision does not mean the Justices fully subscribe to all the novel rulings of District Judge Greg Frost in this on-going saga over Ohio's lethal injection protocol difficulties, it just means the Court did not think the it appropriate to vacate the stay imposed by Judge Frost and upheld by a Sixth Circuit panel.  Indeed, because defendant Lorraine stressed to the Justices that the death warrant had expired even before Ohio sought to vacate the stay of execution, it is quite possible the Court simply concluded that the passage of time served to moot the application.

What will happen next if the big question going forward.  It seems that, in order to get its machinery of death operational again, Ohio is going to yet again have to convince Judge Frost that it will actually follow the execution protocol that it keeps claiming it will follow.  In light of the litigation record, this may prove much harder for the state of Ohio than it probably should. 

Some related posts concerning Ohio's recent lethal injection litigation: 

February 8, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (30) | TrackBack

Two diverse state prison stories provide would-be reformers "follow-the-money" lessons

Two new state prison reform media reports (both of which I saw thanks the to my daily read of The Crime Report) provide still more evidence that modern state stories concerning proposed or enacted prison reforms — and views about their benefits or success — is more about budget realities than any other concern or criteria.  The stories, linked below, come from two very different states with different on-going debates, and yet the headlines highlight the recurring theme:

"Debate on Florida private prisons hinges on cost":

As state lawmakers consider a massive expansion of prison privatization, one number dominates the debate: 7 percent.  That’s how much savings the legislation requires of private prison operators compared to state-run prisons.  “I believe in it,” says Senate President Mike Haridopolos, R-Merritt Island. “It’s incumbent upon me to find the best deal for the taxpayer.”

But that number is subjective and the state’s own analysts warn against comparing prison costs because no two prisons are alike and it’s difficult to make precise cost comparisons between public and private prisons.  “You can make something look like a savings on paper,” says Sen. Paula Dockery, R-Lakeland.  “We’re not saving money.  Absolutely not.”

Privatization has polarized the Legislature into two camps: one sees outsourcing as a proven way to cut costs; the other views it as a risky undertaking riddled with hidden costs.

"State inmates' return to Pa. boosts county economies":

In early 2010, in an effort to ease the burden of the state's prison system, Gov. Ed Rendell announced that Pennsylvania would contract with Michigan and Virginia to move 2,000 low-risk inmates to facilities in those states.

Over the ensuing months, Pennsylvania sent millions of dollars out of state, at the same time taking criticism from advocacy groups that such a move interfered with family visitation, which in turn, interferes with successful reintegration into the community. "Ninety percent of our inmates will return home someday, and helping them maintain family support is vital to their successful return into society," said Janet Kelly, a spokeswoman with Gov. Tom Corbett's office.

That's why, she said, in combination with the idea that when possible Pennsylvania's money should stay local, Mr. Corbett early in his administration declared that those inmates should be returned and housed, instead, in county facilities.

February 8, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

"Pain, Love, and Voice: The Role of Domestic Violence Victims in Sentencing"

The title of this post is the headline of this new piece from Hadar Dancig-Rosenberg and Dana Pugach, which in now available via SSRN. Here is the abstract:

Should the victim of a domestic crime be entitled to express her views and concerns when her violent spouse is being sentenced, even if her request is for leniency?  This may well be the most difficult question for supporters of victims' rights, who are accustomed to relate to victims who ask for severe sentences for their assailants.  This question is affected by the complicated conflicting interests at the sentencing stage.  The harm suffered by the victim of an offense is pitched against the personal profile of the assailant and the public interest.

This article seeks not only to confront this issue but also to suggest a progressive resolution model, based on firm ground.  At the base is a unique interpretation and application of an expressive theory of criminal justice.  It is then supported by a complex feminist view and psycho-social research that will be used to highlight the flexibility required of any suggested solution.  This uniqueness will be explained by the characteristic dynamics of a violent relationship and the inherent differences between the women being discussed and the abstract category of 'classic (female) victims' asking for harsh sentences to be imposed on their attackers.

The article not only challenges sentencing theorists and supporters of 'classical' criminal law theory but also certain feminist theories, as it analyzes these issues from the perspective of conflicting theories, paternalism versus autonomy, and asserts their inadequacy in this case.  The authors call for the adoption of a complex feminist view instead of the dichotomous understanding of the autonomy-paternalism tension.  This argument necessitates a resolution-sensitive model that recognizes the variety of situations reflecting the actions of women living in the shadow of violence and functioning from a position of partial autonomy.  A development of a multi-dimensional model that recognizes the plurality of female typology is essential in order to best serve this multifaceted victims' rights theory.  The article then translates the theory into practice and suggests using Victim Reports as a means of empowering the women, hearing their authentic voices, enriching the Criminal Justice System and, potentially, even advancing the study of violence.

Though this piece provides a distinctively gendered perspective on victims' rights at sentencing, I believe it taps into some important broader themes.  Just as every criminal offender has distinct and dynamic characteristics than will be effected by various punishment options in distinct and dynamic ways, so too do victims often have distinct and dynamic characteristics that call for sophisticated and nuanced sentencing laws and practices in order to best serve their diverse interests in different cases.

February 8, 2012 in Procedure and Proof at Sentencing, Race, Class, and Gender, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

February 7, 2012

You be the judge: what sentence would you impose on 15-year-old child killer?

A state sentencing proceeding in Missouri is (justifiably?) garnering lots of attention because the teenage defendant's crime was so brutal and senseless.  This new AP article about the sentencing hearing, headlined "Prosecutors: Prozac no defense for Mo. teen killer," provides many of the basics:

Prosecutors trying to debunk a key defense theory about why a Missouri teenager killed a 9-year-old neighbor girl relied on the testimony Tuesday from a psychiatrist who said an antidepressant drug played no role in the teen's decision to murder.

Dr. Anthony Rothschild was the main prosecution witness in the second day of the sentencing hearing for Alyssa Bustamante, who has pleaded guilty to second-degree murder and armed criminal action in the death of Elizabeth Olten in a small town just west of Jefferson City.

The young girl was stabbed, strangled and had her throat cut before being buried in a grave that Bustamante admitted she dug before the October 2009 murder. Bustamante, who recently turned 18, was 15 at the time of the crimes and is being sentenced as an adult. She faces a possible sentence of 10 years to life with possibility of parole.

Bustamante's defense attorneys have attempted to build a case that her troubled childhood and the increased dosage of the antidepressant Prozac heightened her mood swings and made her more prone to violence in the weeks leading up to Elizabeth's murder.

But Rothschild said it was "nonsense" to try to suggest that Bustamante was taking too much Prozac, which he said had been proven to decrease hostility and anger in people who like Bustamante suffer from major depression and a borderline personality disorder....

Also during testimony Monday, Bustamante's grandmother described how the teen had tried to commit suicide on Labor Day 2007 by swallowing a large bottle of Tylenol pills and slicing herself hundreds of times _ even carving the words "hate" and "pain" into her arms. On Tuesday, defense witnesses recounted Bustamante's long history with cutting herself, which was first noticed at the start of her eighth grade year in the Jefferson City school district....

Prosecutors have emphasized the deliberate nature of Bustamante's actions and downplayed any impact from Prozac. They noted that Bustamante dug a hole for a potential grave several days in advance, and on the evening of the killing, sent her younger sister to lure Elizabeth outside with an invitation to play.

They cited Bustamante's written words against her to urge a long prison sentence. In a journal entry on the night of the killing, Bustamante described the slaying of Elizabeth with a sense of exhilaration, using texting-style acronyms.  "I strangled them and slit their throat and stabbed them now they're dead," Bustamante wrote in her journal, which was read in court by a handwriting expert. "I don't know how to feel atm. It was ahmazing.  As soon as you get over the `ohmygawd I can't do this' feeling, it's pretty enjoyable.  I'm kinda nervous and shaky though right now. Kay, I gotta go to church now...lol."

Deeply disturbed seems like an insufficient adjective to describe this defendant.  But, of course, the state sentencing judge here does not need to conjure up a proper adjective for the defendant, he needs to impose a sentence in accord with Missouri law.  A quick look at Missouri's applicable sentencing statute seems merely to instruct the judge here to "decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly."  In light of this vague instruction, I wonder what readers of this blog would select as a sentence in this horrific case.

UPDATE:  This new piece reports on the sentencing outcome in this case:

A central Missouri teenager who confessed to strangling, cutting and stabbing a 9-year-old girl because she wanted to know how it felt to kill someone was sentenced Wednesday to life in prison with the possibility of parole.

Alyssa Bustamante, 18, pleaded guilty in January to second-degree murder and armed criminal action in the October 2009 slaying of Elizabeth Olten in St. Martins, a small rural town west of Jefferson City.  Bustamante had been charged with first-degree murder and by pleading guilty to the lesser charges she avoided a trial and the possibility of spending her life in an adult prison with no chance of release.

February 7, 2012 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (73) | TrackBack

Highlighting how mandatory minimums produce sentencing disparity, not uniformity

This is often claims that mandatory minimum sentencing laws provides a means to limit the impact of judicial sentencing discretion and thereby ensure greater sentencing consistency. Serious student of sentencing policies and practices know, however, that these laws mostly just shift discretion to prosecutors at the charging and bargaining stages and thus can often produce much greater (though often also much more hidden) disparities than judicial sentencing discretion.

This lengthy article appearing in today's Philadelphia Inquirer does a very nice job discussing these realities. The piece is headlined "'Mandatory minimum' laws can mean grossly disparate sentences for gun crimes," and here are excerpts:

Laid off from his job, [Leroy] Smith went to his computer, copied out a list of 7-Eleven stores in and around Philadelphia, grabbed a gun, and started sticking them up.  The clerks and customers were terrified.  Smith fired his revolver once, by accident, and almost shot himself in the leg.

Police caught the former Marine eight weeks after his crimes had started in June 2007. Within hours, he confessed to a dozen robberies that netted him an unimpressive $2,510, plus cigarettes, chips, and soft drinks.

Then Smith made his really, really big mistake.  In 2009, he rejected a plea bargain to serve 25 years and went to trial.  A federal jury convicted him of 10 robberies.

Because Smith had been charged under a "mandatory minimum" law, the judge could not weigh the trial testimony or consider that Smith had no previous convictions.  Automatic penalties written by Congress kicked in.  So Smith was sentenced to two centuries, three decades, and two years.  The 232-year sentence was 10 times the average 2009 federal sentence for murder.

Critics call such extreme disparities a "trial tax," and say it amounts to a penalty for exercising the right to trial by jury.  "He needs to be punished," defense attorney Christopher D. Warren said in court, "but based on my experience, he hasn't done anything which requires him to die in a federal prison."...

The case of the former nightclub bouncer, 41, now in a maximum-security prison in Colorado, is one of an increasingly controversial group of federal cases involving laws that impose mandatory prison terms required by Congress.  Federal prosecutors in Philadelphia make aggressive use of the laws.

Legal scholars and critics say mandatory penalties mean that those prosecutors -- not judges -- end up determining how much prison time a defendant receives by deciding what charges are filed and what deal is offered before a trial.

Smith was arrested by local police and initially charged in state courts, where a conviction would likely have meant a 10- or 20-year sentence. Then the U.S. Attorney's Office picked up his case, charging him under a federal statute that makes it a crime to brandish or use a gun while committing another "crime of violence." That includes armed robberies in which no one is shot or injured.  Legal insiders refer to the law as "924c," its section in the federal criminal code....

Federal prosecution of what are typically state crimes stepped up more than a decade ago in reaction to drug and violent crimes that seem to overwhelm local courts. "I do not think of it as a trial penalty," said U.S. Attorney Zane D. Memeger, who runs the team of 120 federal prosecutors in the Eastern District of Pennsylvania.  Defendants are given a choice, he said, to plead and cooperate, or risk trial and a stiff sentence. "You have to make a decision. It's not my fault if you make a bad decision," Memeger said.  Critics "are not living in these communities where gunfire is rampant," he said....

Congress increased the severity of mandatory minimum sentences in the 1980s and 1990s. One of the few studies to analyze the effect of mandatory-minimum laws was released in October by the U.S. Sentencing Commission.  Its 2010 data showed Philadelphia leading the nation in convictions under the 924c law.  There were pleas or guilty verdicts against 134 defendants. Twenty were convicted of multiple counts, meaning they faced the tough 25-year add-on sentences.  Defendants who pleaded guilty in exchange for having all 924c charges dropped were not counted.

The power of prosecutorial discretion was demonstrated in two other area armed-robbery cases.  In August, three codefendants in a string of eight robberies pleaded guilty and received sentences ranging from three to 18 years.  A fourth man, Devon Brinkley, 24, of Philadelphia, went to trial, was convicted, and was sentenced to 107 years. Defense attorney Vernon Z. Chestnut called the sentence "so disproportionate to the actual crimes that it is shocking to the conscience."

In another area case, two men were indicted by federal prosecutors in 14 armed robberies in Philadelphia at the same time as LaRue Smith was robbing 7-Elevens.  Christopher Sanders, then 22, and Theodore Kelly, then 29, opened negotiations with federal prosecutors.  Details of their case are unavailable because much of their plea agreements and other documents are under seal, an increasingly common practice when plea bargains are involved.  Prosecutors typically say they agree to such stipulations to protect cooperating witnesses.

What is public knowledge is that the two men received the benefit of cooperation. In Sanders' case, prosecutors dropped nine counts of the mandatory-minimum gun law, saving him from a 207-year mandatory sentence.  Instead, he got 20 years.  Kelly's sentence is not recorded in the public court record. Three counts under the gun law were dropped, and the federal Bureau of Prisons says he is due to be released in 2017.

Federal rules say that there should be similar penalties for similar crimes and that prison time should be no longer than necessary for fair punishment.  But that theory runs up against the messy reality of the nation's justice system.  Nationwide, only about 3 percent of federal defendants go to trial, and lawyers acknowledge the justice system would grind to a halt if that figure increased significantly.

Memeger, who took office in 2010, would not talk about individual cases ... [but] has little sympathy for defendants who commit violent crimes and then reject a deal from the government. "You have the ability to make an informed choice, and you blew it. Whose fault is that? Not the government's," he said....

Lifetime incarceration for crimes committed by inmates in their 20s and 30s means that taxpayers will be paying for housing, meals, and medical care for inmates in their 50s, 60s, and 70s and older.  That group will include Brinkley, the stickup artist with the 107-year sentence he received after rejecting a deal to serve 30 years.  His first trial ended in a mistrial, there was a hung jury in the second, and he was convicted in the third.

LaRue Smith, the 7-Eleven robber, admitted the crimes but tried to convince the jury that federal prosecutors had no right to try him for what are ordinarily considered state crimes. Higher courts have long rejected that argument.  At a 2009 hearing, then-U.S. District Judge Bruce W. Kauffman said he was "stunned" by Smith's decision to admit his guilt and insist on a trial.

Christopher Warren, Smith's attorney, said Smith's attitude toward a plea, combined with a long sentence, was not uncommon. "I have encountered this attitude a lot," Warren said. "They think that a 25-year (plea-bargain sentence), their life is effectively over," and go to trial, hoping lightning will strike.

"The reason for not taking it," Smith wrote in an e-mail from prison, "was the fact that I had not murdered or even attempted to murder anyone. . . . and the fact that I was a "FIRST-TIME-OFFENDER."... At his trial, Smith said he only robbed enough stores to pay his rent and provide for his fiancée and young son.

During cross-examination, Assistant U.S. Attorney Michelle Rotella asked Smith if he had the same concern for his victims.  "Did you ask your first victim, the one where you came around the counter and shoved the gun in his stomach . . . if he had kids or a family?"  No, Smith admitted.

Some recent related posts: 

February 7, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (17) | TrackBack

"Legal Recreational Marijuana: Not So Far Out"

The title of this post is the headline of this new Time magazine piece by Adam Cohen.  Here is how it starts and concludes:

The drive to legalize marijuana has long been a fringe cause, associated with hard-core libertarians and college-age stoners.  But it could go mainstream in a big way in this November’s election, when Washington could become the first state to legalize recreational pot use.  If it does — or if voters in any of several other states do — this year could be a turning point in the nation’s treatment of marijuana.

The idea that a majority of voters could support legalizing marijuana may seem far out — but the polls say otherwise.  In many states, the prolegalization and antilegalization camps are roughly equal in size.  In a poll of Washington state voters released last month, supporters of the legalization referendum outnumbered opponents: 48% vs. 45%.  And Washington probably won’t be the only state voting on marijuana this year.  In Colorado, supporters last week fell about 3,000 signatures short of getting a legalization measure on the ballot — but the law gave them 15 days to collect the rest, and it seems likely they will. Activists are also collecting signatures in other states, including California, Michigan and Montana....

It is hard to handicap this year’s voting, but one possibility is this: marijuana legalization could lose in Washington and Colorado in November, but recreational use could nonetheless be headed toward legalization in many states in the not-too-distant future. Support for legalization has been rising steadily, from just 12% in 1970 to 31% in 2001 to 50% today, with young people (ages 18-29) the most in favor (62%) and older people (ages 50-64) the least (49%).

In strictly political terms, this is a powerful combination: fast-growing support and solid majorities among the young, who represent where the electorate is headed.  (Support for gay marriage polls similarly — which is why it is becoming law in more states.)  In a few years, the national discussion may well turn from whether to legalize marijuana to how to do it in the most prudent way.

February 7, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences | Permalink | Comments (6) | TrackBack

Is the crime rate just shifting, not really declining?

The question in the title of this post is prompted by this provacative new piece by Christopher Glazek, sent my way by a kind reader, appearing in the magazine n+1.  The piece is titled, "Raise the Crime Rate," and here is an excerpt:

According to government statistics, Americans are safer today than at any time in the last forty years.  In 1990, there were 2,245 homicides in New York City.  In 2010, there were 536, only 123 of which involved people who didn’t already know each other. The fear, once common, that walking around city parks late at night could get you mugged or murdered has been relegated to grandmothers; random murders, with few exceptions, simply don’t happen anymore.

When it comes to rape, the numbers look even better: from 1980 to 2005, the estimated number of sexual assaults in the US fell by 85 percent.  Scholars attribute this stunning collapse to various factors, including advances in gender equality, the abortion of unwanted children, and the spread of internet pornography.

It shouldn’t surprise us that the country was more dangerous in 1990, at the height of the crack epidemic, than in 2006, at the height of the real estate bubble.  What’s strange is that crime has continued to fall during the recession.  On May 23, in what has become an annual ritual, the New York Times celebrated the latest such finding: in 2010, as America’s army of unemployed grew to 14 million, violent crime fell for the fourth year in a row, sinking to a level not seen since the early ’70s.  This seemed odd.  Crime and unemployment were supposed to rise in tandem — progressives have been harping on this point for centuries. Where had all the criminals gone?

Statistics are notoriously slippery, but the figures that suggest that violence has been disappearing in the United States contain a blind spot so large that to cite them uncritically, as the major papers do, is to collude in an epic con.  Uncounted in the official tallies are the hundreds of thousands of crimes that take place in the country’s prison system, a vast and growing residential network whose forsaken tenants increasingly bear the brunt of America’s propensity for anger and violence.

Crime has not fallen in the United States — it’s been shifted.  Just as Wall Street connived with regulators to transfer financial risk from spendthrift banks to careless home buyers, so have federal, state, and local legislatures succeeded in rerouting criminal risk away from urban centers and concentrating it in a proliferating web of hyperhells.  The statistics touting the country’s crime-reduction miracle, when juxtaposed with those documenting the quantity of rape and assault that takes place each year within the correctional system, are exposed as not merely a lie, or even a damn lie — but as the single most shameful lie in American life.

From 1980 to 2007, the number of prisoners held in the United States quadrupled to 2.3 million, with an additional 5 million on probation or parole.  What Ayn Rand once called the “freest, noblest country in the history of the world” is now the most incarcerated, and the second-most incarcerated country in history, just barely edged out by Stalin’s Soviet Union.  We’re used to hearing about the widening chasm between the haves and have-nots; we’re less accustomed to contemplating a more fundamental gap: the abyss that separates the fortunate majority, who control their own bodies, from the luckless minority, whose bodies are controlled, and defiled, by the state.

The rest of this commentary does an effective job discussing various problems of mass incarceration and the so-called "prison-industrial complex," but the claim that crime has merely shifted from outside to inside the prison walls is misguided both statistically and normatively.  We have literally thousands fewer murders outside the prison walls each year now compared to two decades ago, and there are usually only a handful of murders in prison each year.  The rape story is much more complicated and the notion of a mere crime shift here is a bit more plausible.  But, critically, unless sent to prison based on a wrongful conviction, those enduring crime within prison walls are not properly described as a "luckless minority."  Bad luck can often play some role in whether, when and how one gets sent to prison for a crime, but the average citizen can entirely avoid this luck by avoiding any serious criminal wrongdoing.

These concerns notwithstanding, this commentary still makes for an interesting read and it concludes with these sentiment which I consider very sound in many respects:  

If ever there were a time to launch a coordinated assault on the prison-industrial complex, the time is now.  Budgets are strained, voters are angry, and crime is low.  The Tea Party is in the midst of convincing everyone that government is the enemy — and so it is, in the field of criminal justice.

Popular resentment against an authoritarian state shouldn’t be denied or pooh-poohed — it should be seized and marshaled toward progressive ends.  The prison crisis was created by centrists.  Limited reforms and immoral moderation will not end the crisis.  Prisoners and ex-cons, the most abused population in United States, will have to rely on political extremists, on both the left and the right, to turn the page on what will one day be recalled as one of American history’s darkest chapters.

February 7, 2012 in National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (11) | TrackBack

February 6, 2012

Eleventh Circuit affirms life sentences, but vacates restitution award, for child porn ring

The Eleventh Circuit has a very lengthy opinion today in US v. McGarity, No. 09-12070 (11th Cir. Feb. 6, 2012) (available here), which eventually gets around to affirming life sentences given to participants in a massive kiddie porn ring. Here is the literary start to the opinion:

If “[a]ll the world’s a stage” as Shakespeare wrote, this case demonstrates just how much the dimensions of that stage are shrinking with the advent of the internet, at least in regards to child pornography.  We are concerned here with the fruits of a cooperative, multi-national criminal investigation directed at tracking a sprawling international child pornography ring, comprised of as many as 64 known individuals sharing more than 400,000 images and 1,000 videos of child pornography across at least six countries. Ultimately, a joint task force arrested fourteen members of the ring and charged them with offenses relating to child pornography, although we have before us only the appeals of the following seven defendants...

This opinion would not be all that blog-worthy but for a lengthy discussion of all the issues surrounding child porn restitution awards under federal law which start on page 97 of the opinion.  Here is a key paragraph from that discussion:

[W]e make two findings here: 1) we affirm our holding in McDaniel that end-user defendants may proximately cause injuries to the victims of sexual child abuse; and 2) for proximate cause to exist, there must be a causal connection between the actions of the end-user and the harm suffered by the victim.  The first finding has by now been adequately discussed.  As to the second finding, any other result would undermine the express wording of § 2259.  Proximate cause is required by the specific language of the statute. Since the role of the judiciary is to “apply the text, not to improve upon it,” Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 126 (1989), we apply the statute as written, with its requirement of proximate cause.  Any other result would turn 108 restitution for possession of child pornography into strict liability.  We, like most of our sister circuits to consider the issue, decline such an interpretation.

February 6, 2012 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (17) | TrackBack

Governing magazine discusses new criminal justice perspectives from the right

GOV-february-2012-coverThe February 2012 issue of Governing magazine has a cover story and an additional article focused on the new "smart on crime" approaches being adopted by a number of right-leaning states and politicians.  Here are the (lengthy) titles and subheadings of the pieces, along with links and the openning paragraphs:

How Game Theory is Reinventing Crime Fighting: Elected officials across the nation from both political parties have begun to examine ways to replace a tough corrections policy with a smart one.

Three years ago, a group of conservative legislators from California slipped off to Texas.  Among the purposes of their visit was to learn more about a new approach to controlling crime.  The strategy involved investing in community corrections, not new prisons.  The somewhat surprising thing was that the plan had been developed in Texas, with strong support from conservatives.  Texas, after all, is a state that prides itself on being tough on crime. It executes more inmates than any other state and incarcerates the highest percentage of its population of any big state.

For two decades starting in 1985, Texas had built prisons with gusto, increasing by 300 percent the number of inmate beds.  But in 2007, when Gov. Rick Perry produced a budget that asked the Legislature to appropriate $523 million in additional funding for three new prisons -- with more prisons to follow -- legislators balked.  Instead, lawmakers decided to invest $240 million in diversion and treatment.  By all accounts, this approach has been working.  There have been declines in ongoing crime.  Parole violations have plummeted. Prison overcrowding has eased.

Conservatives Question the War on Drugs: Some surprising political figures like New Jersey Gov. Chris Christie have started questioning how effective U.S. drug policy is.

Before he became governor of New Jersey, Chris Christie made his name as a prosecutor. That’s one reason why it was such a surprise when he added his voice to the chorus of those who say the war on drugs has failed.

Christie is expanding his state’s drug court program, offering treatment and counseling to more nonviolent offenders, rather than prison sentences.  “I don’t believe that the only weapon we [should] use against the drug problem is incarceration,” he has said.  “I just don’t think it’s worked.”

Christie’s not alone in questioning longstanding drug policies.  Despite strong interdiction and high arrest rates, the availability of drugs never seems to decline.  Last year, an international commission that included figures such as former United Nations chief Kofi Annan and former Secretary of State George Shultz called for legalization and regulation as a way to reduce violence.

February 6, 2012 in Criminal Sentences Alternatives, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0) | TrackBack

A Fourth Amendment perspective on the virtues of reasonableness review

One of the most interesting and disappointing aspects of the post-Booker sentencing world has been the struggles that federal appellate courts have had giving sensible content to reasonableness review of sentences under the Sentencing Reform Act.  For this reason (and others), I always find intriguing any modern thoughtful discussion of the forms of reasonableness review of police practices under the Fourth Amendment.

My OSU colleague Professor Peter Swire has this very timely piece on this very topic now appearing in the Stanford Law Review Online. The piece is headlined "A Reasonableness Approach to Searches After the Jones GPS Tracking Case," and here is how it starts:  

In the oral argument this fall in United States v. Jones, several Supreme Court Justices struggled with the government’s view that it can place Global Positioning System (GPS) tracking devices on cars without a warrant or other Fourth Amendment limit.  Chief Justice Roberts asked: “You think there would also not be a search if you put a GPS device on all of [the Justices’] cars, monitored our movements for a month?” (The lawyer for the government said yes.)  Justice Breyer remarked: “[I]f you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” He added: “[I]f you win, you suddenly produce what sounds like 1984 . . . .”

Perhaps not surprisingly in light of these questions, on January 23, the Supreme Court voted unanimously that, given the circumstances presented in the case, a search had indeed occurred.  The Justices split badly, however, on their reasoning.  Five Justices held that it was the physical attachment of the device to the car that constituted a search under the Fourth Amendment.  Four Justices concurred in the judgment, finding instead that it was a search because it violated the defendant’s reasonable expectation of privacy.

The split in the Court revealed ongoing uncertainty about the broader questions raised in the Jones argument — particularly regarding how “to prevent the police or the government from monitoring 24 hours a day.”  Jones could be decided narrowly because the case involved a physical intrusion of a defendant’s car.  Much of modern surveillance, however, occurs without any similar type of physical intrusion.  The unanswered questions from the Jones argument thus suggest that the Court is seeking a new, as-yet unarticulated way to constrain police and government discretion to conduct unprecedented surveillance.

The proposal here is that the answer lies in addressing what the Supreme Court in Delaware v. Prouse called “standardless and unconstrained discretion,” and what Justice Sotomayor called “unfettered discretion” in her concurrence in Jones.  Supreme Court precedent contains powerful methods for limiting this sort of discretion, primarily in the second step of Fourth Amendment analysis.  The first step, and the focus of the dueling opinions in Jones, concerns the definition of what constitutes a “search or seizure.”  The second step, once a “search or seizure” exists, is to define its reasonableness.  The thesis here is that the reasonableness doctrine offers the best opportunity to respond to the Justices’ concern about unconstrained discretion in high-tech searches.  Longstanding precedents under this doctrine require “minimization” of intrusive surveillance and procedural checks against standardless or discriminatory surveillance.

February 6, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

NY Times editorial on "Race and Death Penalty Juries"

Today's New York Times has this new editorial discussing racial issues in the operation of the death penalty.  Here are excerpts:

North Carolina courageously passed the Racial Justice Act in 2009, making it the first state in the country to give death row inmates a chance to have their sentences changed to life without parole based on proof that race played a significant role in determining punishment.

A state court is now hearing the first challenge to a death sentence under that law. Marcus Robinson, who has been on death row since 1994, must prove that state prosecutors discriminated against blacks in selecting juries, affecting the outcomes of cases, including his. His lawyers presented a notable study by researchers at Michigan State University showing this kind of bias....

Under a 1986 Supreme Court case, it is unconstitutional for a prosecutor to strike any potential juror on the basis of race, ethnicity or gender. But the court allowed dismissals of jurors for other reasons — like their attitude toward the death penalty or even their demeanor. Prosecutors often use these reasons as pretexts to eliminate blacks from juries. North Carolina’s Racial Justice Act expressly allows consideration of a pattern across many cases. The study found a regular pattern of state prosecutors intentionally discriminating against potential jurors because of race, even though a judge had ruled that the potential jurors could be counted on to render a fair verdict and sentence in a death penalty case.

This bias is not news in North Carolina. Since colonial times into recent decades, racial prejudice has been a huge factor in the imposition of death sentences in the state. The Racial Justice Act, a response to that terrible history, uses statistical studies in regulating the death penalty, as the Supreme Court said legislatures could properly do in a 1987 case. Opponents of the law are battling to repeal it and have scheduled a hearing on it this week. The evidence of gross racial bias presented in Mr. Robinson’s case calls for commuting his sentence — but also for abolishing the death penalty in North Carolina.

February 6, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (7) | TrackBack

February 5, 2012

"Prison beats jail for viewing the Super Bowl"

The title of this post is the headline of this Super Sunday commentary coming out of North Carolina.  This piece, which seems like a fitting post before I head into game mode for the afternoon, is authored by Myron Pitts and here are excerpts:

So what's today's big game like for people in the big house? Well, it appears an inmate would be better off in the state pen than in the Cumberland County Jail, if he wants to watch the 46th Super Bowl, which airs at 6:30 p.m.

County jail inmates get about 30 minutes of TV time, says Debbie Tanna, spokeswoman for the Cumberland County Sheriff's Office, which runs the facility. She does not believe that the schedule is adjusted for the Super Bowl, a game that, along with the million-dollar commercials, can stretch more than four hours.

A co-worker of mine, who often plays the sad sack, said, "Knowing my luck, I'd probably get my 30 minutes during half time." (It's Madonna this year, by the way.)

For state prisoners, depending on where they are locked up and their individual circumstances, they might be able to watch the whole game, says Keith Acree, spokesman for the N.C. Department of Correction.

"TV schedules are decided prison-by-prison from the inmates," he said. A committee of inmates haggle over and recommend what shows are broadcast on TVs in the common areas. For male prisoners, Acree said, this usually means "guy" programming, like sports.

There are 36,604 male inmates in North Carolina prisons and 2,613 female inmates, so it's safe to say most prison TVs in the state are serving up a steady diet of sports action.

"TV is a privilege; not every inmate has it," Acree noted. "Those who have the freedom to be in the common areas probably have access to it for the game."

I know it bothers some people that prisoners are allowed to watch TV, but I couldn't care less. I figure they're pretty bored, and TV probably helps maintain order. TV has a pacifying effect, as you can learn from any parent of a young child who has been enraptured by a cartoon....

I also wondered about kinds of TVs available in lockup, and from my limited research, it sounds like they're not necessarily top-of-the-line. I hope this makes people who don't think inmates should have TVs feel a little better.

Acree said the TVs in state prison are paid for out of an inmate welfare fund, which comprises profits from the prison canteen, where inmates buy snacks and sundries, and proceeds from the phone system they use to call out. The TVs are pretty basic and "not extravagant," Acree said.

February 5, 2012 in Prisons and prisoners, Television | Permalink | Comments (1) | TrackBack

Justice Scalia bemoans "nickel and dime" criminal cases in federal courts

This AP article reporting on a speech at an ABA event reveals that I am not the only one who thinks the federal criminal docket has gotten way too big.  The piece is headlined "Scalia: Routine criminal cases clog federal courts," and here is how it begins:

The federal courts have become increasingly flooded with "nickel and dime" criminal cases that are better off resolved in state courts, U.S. Supreme Court Justice Antonin Scalia said Saturday. Scalia told an American Bar Association meeting in New Orleans that he's worried that the nation's highest court is becoming a "court of criminal appeals."

"This is probably true not just of my court, but of all the federal courts in general. A much higher percentage of what we do is criminal law, and I think that's probably regrettable," he said. "I think there's too much routine criminal stuff that has been pouring into the federal courts that should have been left to the state courts."

Scalia said civil dockets in some federal jurisdictions are lagging behind because criminal cases take precedence. He attributed the trend to lawmakers enacting new criminal statutes and bogging down the federal courts with "nickel and dime criminal cases that didn't used to be there."

"This stuff is just pouring into the federal courts. That's not what the federal courts were set up for," he said.

Given that the Justices take up less than a few dozen federal criminal appeals each Term, whereas some federal circuit courts have to resolve hundreds of federal criminal appeals each month, I do not think we should feel too sorry for the Justices or worry too much about the Supreme Court becoming a "court of criminal appeals."  Indeed, a few decades ago when the Court regularly resolved around 150 cases on the merits each Term instead of the modern norm of about half that many, the Court regularly decided on the merits many more criminal appeals each year that it does now.  But there surely now are many, many more petitions for cert in criminal cases these days.

Even though I suspect that Justice Scalia's complaints are mostly a function of his disinterest in most federal criminal matters — especially all the technical statutory drug cases and Armed Career Criminal Act cases the Court has taken up in recent Terms — I still think he is spot-on when lamenting that "too much routine criminal stuff ... has been pouring into the federal courts that should have been left to the state courts."

February 5, 2012 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6) | TrackBack