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April 13, 2013

Florida (finally!!) carries out sentence for child killer who murdered during Carter Administration

As reported in this AP article, "Florida executed one of the longest-serving inmates on its death row Wednesday evening, 32 years after he kidnapped and murdered a 10-year-old girl who was riding her bike to school after a dentist put on her braces."  Here is more of the story:

Larry Eugene Mann was put to death by lethal injection for kidnapping and murdering Elisa Vera Nelson on Nov. 4, 1980.  Melissa Sellers, a spokeswoman for Gov. Rick Scott's office, said Mann was pronounced dead at 7:19 p.m. at the Florida State Prison in Starke.  He was 59.

The death sentence was carried out more than an hour after the U.S. Supreme Court denied Mann's latest appeal.  The condemned man answered "Uh, no sir," when asked if he had any last words before the procedure began.  There were 28 witnesses to the execution, including media and corrections personnel, and a group of Elisa's relatives sat in the front row wearing buttons with her photo on them.

Afterward, Elisa's family was joined by a group of friends and family as her brother, Jeff Nelson, read a statement describing his sister as a "bright, funny, caring, beautiful little girl" who loved to play baseball and pretend to be a school teacher.  He said she was a Girl Scout who would take in stray pets and donated money she earned to charity.  She was a cheerleader who loved to dance and sing.

Then he described in horrifying detail how she died, saying Mann abducted her less than 100 yards from her school in Pinellas County.  He said his sister fought hard, and Mann beat her, sending blood and hair throughout his pickup truck, as well as the note his mother wrote excusing Elisa from being late to school.  He described how Mann pulled over into an abandoned orange grove, slit her throat twice, and then bludgeoned her head with a pipe with a cement base.

He paused from the written statement to add, "We just watched that same man slip into a very peaceful sleep. That's a far cry from how my sister passed."... Elisa's parents, David and Wendy Nelson, watched in silence.  Her father kept his arms cross as he stared at Mann, who kept his eyes closed except for a brief moment throughout the procedure.

Outside the prison, there were 43 people gathered in favor of the execution and, in a separate area, 38 people were protesting the death penalty.

In 1980, Mann tried killing himself immediately after the girl's slaying, slashing his wrists and telling responding police officers he had "done something stupid."  They thought he was talking about the suicide attempt until a couple of days later when Mann's wife found the bloodied note Elisa's mother wrote.

While Mann sought to die the day he killed Elisa, his lawyers had succeeded in keeping him alive for decades through scores of appeals.  His lawyers didn't contest his guilt during appeals, but rather whether he had been properly sentenced to death.

Jeff Nelson criticized the justice system for making his family wait so long. "Elisa was only in our lives for less than 3,800 days and this pedophile and his lawyers have spent nearly 12,000 days -- over three times her entire life -- making a mockery of our legal system," he said.

Of the 406 inmates on death row in Florida, only 28 had been there longer than Mann....

While Mann didn't make a last statement in the death chamber, he did ask that "last words" be handed out after the execution. He chose a Bible verse. "For the wages of sin is death, but the gift of God is eternal life in Christ Jesus our Lord," Mann wrote out by hand.

Elisa's brother said the family has had to hear over the years that Mann would kneel in prayer while in prison and express remorse for his crime. "He just had his chance to say something and he didn't say anything," Nelson said. "We question whether he was really remorseful."

Though I still remain a troubled agnostic on so many aspects of the modern death penalty, here I share the view of the murder victim's brother that this case ended up "making a mockery of our legal system." If factual guilt was in doubt or if this was a complicated crime implicating competing culpability issues concerning the proper sentence, I suppose I could understand why it might take a decade or more to sort out and then carry out this killer's punishment.  But it seems guilt was never in doubt and that the details of the crime and the killer's basic culpability were relatively clear from the outset.

In other words, it appears that the chief reason why final resolution of this case took over 32 years was because the legal system was eager to have a sentencing debate churn over and over and over again.  I have long believed that there ought to be a basic rule that provides that if a death sentence cannot be reviewed and upheld through all levels of appeal within 15 years, then it ought just become an LWOP sentence in order to save everyone the time and aggravation of the continued uncertainty and legal fighting over the difference a quicker (execution) or slower (LWOP) death sentence. Indeed, I think it is interesting to speculate whether the family of the murder victims in this case would have been able to better more on with their lives if in, say, 1995 it was simply decided that Larry Eugene Mann would just serve LWOP. (It is also interesting to speculate whether Larry Eugene Mann might have died before April 2013 if he had gotten an LWOP sentence from the outset instead of a death sentence which surely led to him getting a lot more attention from lawyers and courts throughout the last three decades.)

April 13, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (22) | TrackBack

"Hurricane Sandy has been good for the Gambino crime family"

The title of this post is the amusing first sentence of this New York Daily News article discussing the latest way-below-guideline federal sentencing outcome for extortion crimes in and around New York.  Here are the factual basics:

Reputed soldier Vincent Dragonetti is the third mobster convicted of extortion to be sentenced to perform community service for victims of last year’s weather disaster instead of jail time.

Federal Judge Dora Irizarry could have sent Dragonetti away for up to 51 months for his extortion of Brooklyn developer Sitt Asset Management, but he gave him 200 hours of service instead.

Irizarry previously sentenced Gambino associates Emmanuel Garofalo and Thomas Frangiapane to Sandy-related relief.

I am not eager to question the sentencing wisdom of Judge Irizarry or any other federal judge who concludes that the goals of sentencing set out by Congress in 3553(a) are better served by community service than by prison time.  That said, I hope that there will be proper monitoring of these community service sentences so that Sandy victims really do directly benefit from the alternative sentences given to these high-profile federal criminals.

April 13, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, White-collar sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

April 12, 2013

A few minutes of ganja gold social commentary from The Colbert Report

I have already seen lots of interesting social commentary about the modern marijuana reform movement, but the recent segment by Steven Colbert (embedded below) makes for especially amusing viewing on a Friday afternoon.  Enjoy:

Notably, this amusing new segment may soon seem dated, as this AP article details that Maryland appears to be on the verge of becoming the 19th state to legalize medical marijuana.  In addition to being intrigued by state developments in this realm, I think it may be only a matter of time before so many states have legalized medical marijuana that the feds may have to confront new constitutional arguments problems when trying to aggressively prosecute and severely sentence responsible persons who are involved in state-approved medical marijuana businesses.

A few recent and older related posts: 

April 12, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (8) | TrackBack

Terrific SCOTUSblog preview of Kebodeaux and SORNA

A helpful reader reminded me not only that the Supreme Court has a last few criminal justice cases slated for oral argument the next few weeks as its term winds down, but also that one sex offender case, US v. Kebodeaux, due to be argued next week raises a host of intricate legal issue. Helpfully, Steven Schwinn sorts through Kebodeaux via this terrific (and very lengthy) post at SCOTUSblog  titled "Argument preview: Can Congress punish a former sex offender for failure to register?".  Here are highlights from the analysis section of the preview:
This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here)....

In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.

Still, bigger issues are likely to emerge in the arguments. Thus, look for the Court to press the government for limits on congressional authority, and to ask the government about federal intrusion into areas of traditional state concern. In other words, some on the Court are likely to worry about whether the government’s theories lead to an expansive federal power that can encroach too far on the states.

On the other hand, look for the Court to ask Kebodeaux about the sweep of federal power under Comstock, especially when Kebodeaux came under federal authority because of his military service, and not because of his interstate travels. Look for the Court also to test Kebodeaux’s theory of federal control pre-SORNA, given the full sex-offender registration scheme under the Wetterling Act (including the federal penalty for failure to register, and also including the federal financial incentives for states to create their own registrations and other features of the Act). The Court could see SORNA’s application to Kebodeaux as only a modest additional exercise of federal authority, given these considerations.

April 12, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

Two discussions suggesting potential virtues of shame punishments

I have just noticed two notable punishment theory papers via SSRN discussing shame punishments.  This broader piece by Luke Coyne is titled "Can Shame Be Therapeutic?" and here is its abstract:

This paper focuses on alternative judicial punishments such as reciprocal and humiliation punishments.  It explores the past and present use of such punishments.  It covers the theories behind the use of these punishments.  It also takes a look at the praise and criticism for the use of these punishments.  Additionally, the paper discusses the use and effects of these punishments, including recidivism rates.

This other piece is by Xiyin Tang is a bit more focused. It is titled "Shame: A Different Criminal Law Proposal for Bullies," and here is the abstract:

Public concern over bullying has reached an all-time high.  The absence of a sensible criminal charging and sentencing regime for the problem recently reared its head in the highly-publicized prosecution of Dharun Ravi, who was convicted of 15 counts and faced the possibility of 10 years in prison.  This Essay argues that existing criminal statutes used to address the problem, like bias intimidation and invasion of privacy, do not fit neatly with the specific wrongs of bullying.  However, recently-enacted “cyberbullying” laws, which give complete discretion to school administrators, are weak and ineffective.

I propose another solution: first, to criminalize the act of bullying itself, thus sending a powerful expressive message that can flip the high school and teenage norm of meanness as virtue.  To reinforce that message, sentencing a bully to shaming, not imprisonment, better serves utilitarian, expressive, rehabilitative, and retributive goals specific to the wrongs of bullying.

April 12, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

April 11, 2013

Former NFL player now a high-profile felon facing (severe?) federal sentencing realities

As reported in this ESPN piece, headlined "Sam Hurd pleads guilty," I now have a new high-profile (and potentially high) federal defendant to watch as his sentencing approaches.   Here are just some of the interesting details:

Former NFL wide receiver Sam Hurd pleaded guilty Thursday to trying to buy cocaine and marijuana to set up a drug-distribution network, a move that leaves him facing significant prison time.

Hurd, 27, pleaded guilty in federal court in Dallas to one count of possession of cocaine and marijuana with intent to distribute. His trial was scheduled to begin Monday, and a federal judge had refused his attorney's request to delay it.

Prosecutors and Hurd's attorneys have been in plea discussions for months, according to one of his attorneys, Jay Ethington. One sticking point was what allegations Hurd would acknowledge in a plea agreement, which will factor into his recommended sentence on the indictment, Ethington said in September.

Ethington told The Chicago Tribune that he plans to "vigorously contest" Hurd's sentencing, contending that the former receiver didn't engage in drug trafficking to the extent alleged by prosecutors. "He's a marijuana freak," Ethington told the newspaper. "He loves marijuana. He's addicted to high-grade marijuana."

Ethington said Hurd was not a marijuana dealer. "Sell? No. Share with his friends? Yes," Ethington told the newspaper.

Hurd was a player for the Chicago Bears when was arrested in December 2011 outside a Chicago-area steakhouse after accepting a kilogram of cocaine from an undercover officer, according to documents prosecutors filed in the case.  Prosecutors alleged he told the officer and an informant at the steakhouse that he wanted to purchase up to 10 kilograms of cocaine a week for $25,000 per kilogram.

His arrest shocked his teammates and led to his release from the team. Months later, he was back in court after failing two drug tests and allegedly trying to arrange another drug buy.  Two men linked to Hurd's alleged attempts to buy drugs have pleaded guilty and were prepared to testify against him.

April 11, 2013 in Celebrity sentencings, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (2) | TrackBack

"How to Awaken the Pardon Power"

The title of this post is the headline of this notable new commentary by Mark Osler now up at The Huffington Post.  Here is how it starts and ends:

In recent months, a striking array of people -- from the Kardashians to those within the Heritage Foundation -- have called attention to the often-forgotten ability of the president to shorten sentences and pardon convictions. It's no wonder: There is a crisis of over-incarceration in this country, and the pardon power is an obvious way to address it.

Inaction has exacerbated the problem, as the federal pardon power has nearly faded away. President Obama's recent grant of 17 pardons in minor, old cases does little to refute this. Even after these pardons, this president remains the stingiest user of executive clemency in recent history. In addition to a handful of pardons through the course of his presidency, President Obama has granted only a single commutation petition (which merely reduces a sentence), while denying over 3,000. Meanwhile, over 5,000 federal prisoners continue to serve sentences under an old mandatory minimum sentencing statute for crack cocaine sentences that has been reformed but not made retroactive.

No one seems happy with this abandonment of an important Constitutional power. Reports critical of Obama's performance have recently been issued by experts at both the conservative Heritage Foundation and the liberal American Constitution Society, and Supreme Court Justice Anthony Kennedy has condemned the dissolution of the pardon power both while on and off the bench. Such rare consensus among the right, the left, and the middle must mean that something is very wrong.

The process for considering clemency petitions is a part of the problem, according to the critics. The United States Pardon Attorney and his small staff are a part of the Department of Justice, and several levels of review stand between that office and the president. Those tasked with evaluating the apportionment of mercy are embedded deep within the agency charged with prosecution. The stingy results are predictable.

Three simple steps would cure this systemic problem. First, the consideration of clemency needs to be taken out of the Department of Justice. Second, clemency petitions should be evaluated by a diverse, bi-partisan board rather than a single official. Finally, clemency considerations should be routinized, with that board presenting its recommendations to the president at regular intervals....

The president of the United States is a Constitutional scholar, and it is the Constitution itself which creates the odd but important pardon power of the executive. It is nothing less than a charge to do justice while embracing mercy, a job made possible by the humble acknowledgment that our laws at times are not perfectly fit to the changing shapes of human frailties. We can only hope that the president possesses the strength to embrace that humility.

April 11, 2013 in Clemency and Pardons, Scope of Imprisonment, Who Sentences | Permalink | Comments (0) | TrackBack

Latest proof that every issue, including gay marriage, has a sentencing angle

One of many reasons I love to obsess over sentencing is because I see sentencing issues in everything other issue of public or private concern.  Indeed, as my students (and reader of this blog) often hear from me, I see any and every issue of public policy concern to really be a crime and punishment issue in some way.  The latest proof of this sentencing-is-everything perspective comes today with a gay marriage spin thanks to this new article from the New York Daily News.  The piece is headlined "Openly gay daughter of Colombo gangster pleads for mercy in sentencing," and here are excerpts:

The openly gay daughter of Colombo gangster Dennis Delucia has outed her father as a supporter of same-sex marriage. In a moving letter seeking mercy from the judge who will sentence him, Donna Delucia says her father is a family man in the truest sense.

“My dad was the one who told me he would love me no matter what I would do or tell him,” Donna Delucia wrote to Judge Kiyo Matsumoto. “I finally came out at 22 years old. My mother did not handle it well and pushed me away .... I was scared, frightened and afraid of my dad’s reaction,” she continued in the letter filed in Brooklyn Federal Court.

“My dad accepted me, embraced me and has supported me. His love and acceptance helped me through the rough times and growing pains.”

Dennis Delucia, 71, a reputed capo in the crime family, pleaded guilty last year to extortion and faces 46 months in prison. He admitted using a couple of extra-large goons who made him look like a “midget” to intimidate the operator of a rival gambling club in the Bronx.

She conceded her father is a “chauvinist” and recalled his “king of the castle” views that included prohibiting her brothers from cleaning off the dinner table because they were boys. But after Donna fell in love with her partner and informed him they were planning to have a baby, the mobster cried. “He made me so proud,” Donna wrote.

Delucia helped pay for Donna and her spouse to move from Philadelphia to New York where same-sex parents pass parental rights to their partner. Today, they live in Kentucky, “far from the hype of Italian-Americans,” where they are raising their 9-year-old son. “Please let him come home,” Donna begged the judge. “I want my son to spend long days with his grandfather. I want him to know my dad.”

As federal sentencing gurus know, there is a long-running (and never quite resolved) debate over whether and how "family ties and responsibilities" can and should impact a federal sentencing decision. This story provides a timely reminder that whether and where same-sex marriage is allowed can and will, in turn, impact whether and how defendants with gay relatives can and will be able to tell a more modernized story of the importance of "family ties and responsibilities."

April 11, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (7) | TrackBack

How should we understand and react to a small uptick in San Diego's crime rate?

330317_1n11crime_1_t940The question in the title of this post is my reaction to this local article which carries the (problematic?  incomplete?) big and bold headline "County crime increased in 2012."  Here are the basics of the (important? problematic? fascinating?) local California crime story:

The decades-long trend of declining crime across San Diego County took a turn last year, when reported incidents increased by 7 percent.  Regional law enforcement officials say they are concerned, but not certain if there is cause for alarm.

“Nobody in law enforcement likes it when the crime rate goes up,” Sheriff Bill Gore said Wednesday, adding that it is cause for concern.  “Crime rates have been going down for 30 years. We didn’t think crime would go to zero.”

The 2012 numbers were released Wednesday by the San Diego Association of Governments, which each year tallies the seven major crimes tracked by the FBI: homicide, rape, robbery, aggravated assault, burglary, larceny and motor theft.

The countywide figures, in rounded numbers, show that reported crimes rose from 76,000 in 2011 to 81,000 in 2012, a 7 percent increase. Violent crimes rose 7 percent, property crimes rose 6 percent.

Crime rose by 7 percent within the city of San Diego, which had 35,000 crimes in 2011 compared to 37,000 in 2012.  Incorporated cities and unincorporated county areas served by the Sheriff’s Department saw an 8 percent increase in crime, from about 16,000 to 17,000.

The local numbers seem to echo, and exceed, a national upward trend in crime figures. “Nationally, for the first six months of 2012, we saw a less than 2 percent increase in the numbers — a slight uptick,” said James Austin, president of nonprofit JFA Institute, a Washington D.C.-based criminal justice research and consulting firm.  “By region, most of that increase is produced in the Northeast and the Western region, and San Diego is part of the Western region. So that is consistent.”

With the 2012 increase in crimes, authorities around San Diego County have asked themselves “Why?” and looked for ways to slam on the brakes.  Some are ready to place at least some of the blame on the state’s public safety realignment law, also known as AB 109. “It’s too early to say,” said Cynthia Burke, director of SANDAG’s criminal justice research division. “It’s something law enforcement is tracking.”...

San Diego police Chief Bill Lansdowne pointed out that in 2011, the city had its lowest crime rate in 42 years. Then came last year’s spike.  There were more homicides, rapes, assaults, home burglaries, larcenies and car thefts.  The only crime category to drop was nonresidential burglaries.

“I believe AB 109 is starting to have an effect on our crime,” Lansdowne said.  He said lower numbers of police officers, because of budget cuts, were also a likely factor.  Gore, too, said financial constraints and staff reductions have had their effect, and he hopes to fill 250 empty deputy positions by mid-2014.

In recent months, Lansdowne said, the department has focused crime-fighting efforts on areas seeing the greatest increases. One result, he said, is that homicides are down by 36 percent so far this year, compared to the same time last year, and gang-related crime is down 86 percent.

He also is hiring more officers, and looking forward to San Diego’s share of a $1.6 million state grant to county law agencies to address AB 109 issues.  Within the county last year, Ramona saw the largest increase in crime — 28 percent — with 546 crimes reported in 2011 and 699 in 2012.  Most of the crime was burglary and theft, said Lt. James Bovet, in charge of the town’s sheriff’s station....

Bovet said he was watching closely last year as the mountain community’s crime figures edged up. “Our overall crime rate is low, but this increase was so dramatic, we had to take some quick steps,” he said. “We analyzed our crime problems and prioritized out staff with more deputies per shift. I tasked my deputies here to pretty much talk weekly to a probationer. We do more to keep track of our known criminals and parolees.”

Bovet said deputies also broke up two burglary rings late last year, making several arrests. “I can tell you, this year, we’ve seen significant decreases in crime,” Bovet said. “We’ll keep monitoring it and do what we can do.”

Assuming the data reported here (both in the text and in the chart) is accurate, the real question/story here for sentencing fans is how should we come to understand this data and react thereto.  For folks who do not like the SCOTUS Plata ruling and/or the realignment plan that it prompted, it is real easy to claim that this crime increase is the fault of activist judges and Governor Jerry Brown.  But for folks who want to defend the SCOTUS Plata ruling and/or the realignment plan that it prompted, it is also real easy to claim that local authorities failed to plan properly for realignment and/or that modern budget cuts and limited funding for police and realted social services is the primary reason crime ticked up.

Perhaps more importantly, perhaps the right "story" and reaction thereto is celebration of government improvements, not finger-pointing and government blame.  As the chart above reveals, crime rates in San Diego, even after the SCOTUS Plata ruling and the realignment plan, remain a historically low level.  And it seems that an small uptick in crime led to local police department reviewing closely whether and how they could do more effectivel crime-fighting for less money.  And, at least according to the "cops on the beat," it now appears that despite realignment AND budget cuts, now  in some areas "homicides are down by 36 percent so far this year, compared to the same time last year, and gang-related crime is down 86 percent."

In other words, despite the short-hand bad-news headline of "County crime increased in 2012," the real story is much more mixed, and a lot of different stories can be told about whether and why the local crime glass is half-full or half-empty.  Unfortunately, while I have the time and energy to think this all through and am inclined to spin this story in a positive way, I suspect the average voter and average politician instead only has time to see the headline and to (over)react to what seems like very bad news concerning both crime and punishment in California.

Some related posts on the great crime decline and modern crime rates: 

April 11, 2013 in Detailed sentencing data, National and State Crime Data, Who Sentences | Permalink | Comments (13) | TrackBack

April 10, 2013

New Brennan Center report on Gideon and indigent defense

Via e-mail, I received news of this new report on the right to counsel titled "Gideon at 50: Three Reforms to Revive the Right to Counsel."  Here is how the e-mail described its context and contents:

The Brennan Center for Justice at New York University School of Law releases a new report examining the numerous challenges public defenders face in providing legal representation to poor clients.  Fifty years after the U.S. Supreme Court recognized the constitutional right to an attorney for criminal defendants in Gideon v. Wainwright, many public defenders are so underfunded and overworked that clients are not getting the legal defense they were guaranteed, further feeding our nation’s mass incarceration problem.  In this report, Thomas Giovanni and Roopal Patel identify impediments to effective counsel and propose three common sense reforms.

“The underfunding of legal defense for poor people increases the risk that innocent people will be convicted,” said Giovanni.  “The overcriminalization of petty, non-violent activity diverts scarce resources from real public safety priorities.  Until legislators commit the necessary resources to public defenders and rethink the classification of low-level offenses, the cycle of mass incarceration will continue at great societal, political, and fiscal costs.”

April 10, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (3) | TrackBack

"The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."

The title of this post is drawn from this early report via Jennifer Rubin of the Washington Post concerning Senator Rand Paul's notable policy speech today at Howard University. Here is some context and more content from Rubin's strong first-cut analysis of Senator Rand's efforts (with one particular line emphasized by me):

Sen. Rand Paul (R-Ky.) delivered an important and intriguing speech at Howard University as part of his determined effort to expand the reach of the GOP and take his message everywhere.

His remarks, as prepared for delivery, highlighted the best and the worst aspects of his thinking, and they left some question marks....

The most interesting part of the speech was his widely anticipated defense of drug law reform.  “I am working with Democratic senators to make sure that kids who make bad decisions, such as non-violent possession of drugs, are not imprisoned for lengthy sentences.  I am working to make sure that first-time offenders are put into counseling and not imprisoned with hardened criminals.  We should not take away anyone’s future over one mistake.”  He described two young men, one white and privileged and the other mixed race and modest in income, who could have had their lives ruined by a drug arrest. He concluded with a kicker: “Instead, they both went on to become presidents of the United States. But for the grace of God, it could have turned out much differently.”

He then explained his opposition to mandatory minimum sentences:

"Our federal mandatory minimum sentences are simply heavy-handed and arbitrary. They can affect anyone at any time, though they disproportionately affect those without the means to fight them.  We should stand and loudly proclaim enough is enough. We should not have laws that ruin the lives of young men and women who have committed no violence.  That’s why I have introduced a bill to repeal federal mandatory minimum sentences.  We should not have drug laws or a court system that disproportionately punishes the black community."...

It was a nervy effort on his part, and a sincere one, I think, to explain his views to an audience not enamored of his party or philosophy. He should do more of it, and in more concrete terms, to persuade and explain how his philosophy works and why liberalism doesn’t.

He is a force to be reckoned with; liberals and conservatives ignore him at their own risk. If nothing else, he demonstrated that a forceful reiteration of history can illuminate the Republican Party and that conservatism deserves a fair hearing. That’s more than 90 percent of Republicans have done.

Regular readers (and certainly my dad and close friends) know that my political commitments lean toward the libertarian, and thus I was inclined to be a fan of Senator Rand Paul from the get-go. More broadly, as regular readers and others surely know, I strongly believe our modern federal criminal justice system ought not be so committed to costly big national government one-size-fits-all solutions for what seem, at least to me, to often be local small community diverse problems. Thus, I am especially excited that Senator Paul is apparently committed to bringing his libertarian perspective to the arena of federal criminal justice reform.

But the single sentence I have highlighted above reflect a different theme and one that strikes a different chord with my own philosophical commitments. Saying that "We should not take away anyone’s future over one mistake," reflects not a unique political philosophy but rather suggests a kind of personal moral philosophy grounded in a deep commitment to (1) recognizing the reality of human fallibility, and (2) embracing the potential for human improvement and achievement even after a human mistake is made.

Of course, if one really accepts this kind of deep moral commitment and wants criminal laws to reflect this commitment, there are a whole lot of important sentencing implications beyond reform of federal drugs and mandatory minimum sentencing terms. Such a personal moral philosophy, at least in my view, would necessarily call for eliminating the death penalty and LWOP for any and all first offenders, and it might even call for eliminating any imprisonment any and all first offenders. But I do not want to, at least right now, start setting out a script for just how Senator Rand Paul should seek to operationalize his political and personal philosophies. For now I just want to (a) celebrate the fact that he is really starting to talk the talk on long-needed federal criminal justice reforms, and (b) continue to get excited about how he will be soon walking the walk on long-needed federal criminal justice reforms.

Some recent and older related posts:

April 10, 2013 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (15) | TrackBack

"Can Constitutional Rights Be Sequestered?"

The title of this post is the headline of this notable and potent new commentary appearing today in the New York Law Journal. It is authored by federal public defender Douglas Morris, and here are excerpts:

In Germany, between the end of World War I and the beginning of the Nazi regime, a criminal defense lawyer named Max Hirschberg confronted right-wing reactionaries in court, including one Adolf Hitler in a dramatic case in 1929.  Some three years later, at the end of 1932, just months before Hitler came to power, Hirschberg published an article in a small democratic journal.  He protested the recent misuse of emergency decrees for stripping defendants of certain basic rights.  The excuse, Hirschberg pointed out, was budget constraints.

Today in the United States, the federal sequester, the across-the-board cuts in federal spending that took effect March 1, has become a frontal assault on the Sixth Amendment right to counsel.  For years I have been representing defendants as an employee of Federal Defenders of New York, Inc., the public defender office in New York City for those who cannot afford an attorney.  But my office, like its counterparts elsewhere, is being gnawed to the bone in the jaws of the sequester....

The sequester is not just financially squeezing the federal defenders, who already earned far less than, say, first year associates at major law firms. It is destroying any semblance of justice.  The body blow is to the defense, not the prosecution.  Take the example of the Southern and Eastern Districts of New York, which comprise the federal trial courts for New York City and some surrounding counties. The prosecutors in the two U.S. Attorney Offices have always vastly outnumbered the defense lawyers in the federal defender office.

The head count alone captures the picture, with 280 prosecutors versus 38 Federal Defender lawyers, who represent approximately 40 percent of the New York metropolitan area's federal criminal defendants, a ratio of three to one.  The sequester, slashing our office's budget for the next six months by 20 percent, is forcing these 38 defense lawyers to take an average of six weeks of furlough, more than one day a week.  The alternative was laying off one third of the lawyers.  As of now, the prosecutors will take no furlough....

The adversarial system in criminal justice acknowledges that prosecutors have no monopoly on the truth, logical reasoning, or good judgment, and the Sixth Amendment right to counsel assures individuals in trouble some support against the powers of the state.  The principle of Gideon is that the Sixth Amendment announces not just a privilege for the rich, but a right for all, including the poor.  The only fair, effective and efficient way to secure that right is by investing money in institutions like Federal Defenders.  This institutional structure has taken years to build.  Ax it at the knees and it will collapse in no time.

Then the promise of Gideon will become the shameful memory of a principle that was beginning to work until its miserly abandonment. God, in infinite wisdom, set aside the seventh day as one for rest, but the Founding Fathers, with good practical sense, did not envision the right to counsel on furlough.  When Max Hirschberg cried out in late 1932 for preserving fairness in criminal defense, he did not know that Germany had only to await the imminent emergence of the Nazi regime for delivering the finishing blow to independent defense lawyers.  An open question is whether America will cripple criminal defense in the midst of a democracy.

Recent related posts:

April 10, 2013 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (27) | TrackBack

Amnesty International reports on latest state of death penalty around the globe

As reported in this New York Times article, yesterday Amnesty International released its annual compilation of capital punishment trends.  Here are the basics:

At least four countries that had not used the death penalty in some time — India, Japan, Pakistan and Gambia — resumed doing so last year, the rights organization Amnesty International says in its annual compilation of capital punishment trends.... Nonetheless, its yearly review, released early Wednesday in London, said the overall shift away from death sentences and executions continued in 2012.

“In many parts of the world, executions are becoming a thing of the past, ” Salil Shetty, secretary general of the organization, said in a statement. Amnesty said only 21 countries were recorded as having carried out executions in 2012, the same as in 2011, but down from 28 countries a decade earlier.

It said at least 682 executions were known to have been carried out worldwide in 2012, two more than 2011, and at least 1,722 death sentences were imposed in 58 countries, compared with 1,923 imposed in 63 countries the year before....

Amnesty also pointed out that its compilation excluded what it said were the thousands of executions it believes were carried out in China, where the number of capital punishment cases is kept secret. The organization said it still believed China remained the world’s top executioner.

Besides China, the top executors in 2012, Amnesty said, were Iran with 314, Iraq with 129, Saudi Arabia with 79 and the United States with 43. The report also noted that only nine American states executed prisoners in 2012, compared with 13 the year before, and that in April, Connecticut became the 17th state to abolish the death penalty.

The full AI report and additional related information can be accessed from this link.

April 10, 2013 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (22) | TrackBack

April 9, 2013

Guest post on federal sentencing data and costs of incarceration for child porn offenses

Average fed sentencesExperienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) sent me this "accounting" of the latest year-end federal sentencing data:

"Yesterday, the U.S. Sentencing Commission published its Annual Report to Congress, and Sourcebook of Federal Sentencing Statistics for fiscal year 2012.  Increasingly, this part of the Commission’s work is becoming of central importance to its mission.  Indeed, the stats reveal something rather startling, if not outright shocking, about the cost of incarceration. 

"Since United States v. Booker, the federal government has spent nearly $30 BILLION on incarceration, which exceeds the GDP of many countries including North Korea.  Of this, over $2 BILLION was spent on incarcerating child pornography offenders; 12,115 have been sentenced (not all to imprisonment, but most) under the guidelines since 2006.  What makes this rather startling is looking at other major offense categories.  For example, in the same period of time, over four times as many people have been sentenced for fraud offenses (54,813), however, the total cost of incarcerating those individuals was almost a billion dollars LESS!  ($2.1 billion for child pornography; $1.3 billion for fraud).  In other words, incarcerating 12,115 child pornography offenders cost the public fisc $2.1 billion, while incarcerating nearly 55,000 fraud offenders cost (only) $1.3 billion.

"So, why the big difference in cost?  Easy.  The increasingly longer sentences imposed on child pornography offender than for any other major offense category.  What that translates into is that the actual annual cost per offender is far higher for child pornography offenders than for any other major offense category.  We spend nearly $25,000 incarcerating child pornography offenders than fraud offenders, who cost only $3,500 per year.  Fraud is comparatively cheap because a substantial number do not receive any term of incarceration, and those that do often serve less than a year.  Here is a chart showing the AVERAGE sentences over the past 6 years for all major offense categories.  A quick glance shows how out of the ordinary child pornography offenses are, or more accurately, how obscenely out of whack they are.

"After spending $2 Billion over the last six years, it’s far past time to rein in this madness.  The Commission’s recent report on Federal Child Pornography Offenses effectively disavowing the sentencing guideline for non-production offenses is an enormous leap in the right direction.  We simply cannot afford to continue being fiscally foolish on child pornography sentencing; these data put the magnitude of the madness in sharp relief.  Hopefully Congress acts quickly to grant the Commission’s wish to have 'enact legislation providing the Commission with express authority to amend the current guideline provisions that were promulgated pursuant to specific congressional directives or legislation directly amending the guidelines.'

"[NOTE ON CALCULATION METHODS: the statistics were derived from table 13 and the BOP’s recent cost of incarceration estimate from FY 2012.  I simply took the total number sentenced each year (06-12), multiplied that by the MEDIAN sentence in months from each (to be conservative in my estimate; the mean or average would have resulted in much higher figures) and divided that by 12 to get the number of “Inmate Years” for a category.  I then multiplied the Inmate Years by $26,359, which is the average annual cost of incarceration per BOP.  This gives you the Total Cost FY06-12 for a category, e.g. $2,118,989,027 for Child Porn.  The Total Sentenced FY 06-12 is just exactly what it says.  Per Inmate, Per Year Cost is just the total cost divided by the total sentenced, then that number divided by 7 (7 years inclusive of FY2006-2012).]"

April 9, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Nebraska legislature debating "Miller fix" sentencing proposals

As reported in this local article, headlined "Debate begins on juvenile sentencing bill," the single body that legislates in Nebraska is sorting through competing ways to deal with the Supreme Court's handiwork in Miller.  Here are the basics:

Senators turned away two attempts Monday to amend a bill that calls for a minimum sentence of 30 years for juveniles convicted of first-degree or felony murder.

They defeated amendments that sought to make the minimum sentence 60 years and one that would have removed specific mitigating factors for judges to consider when sentencing....

A 30-year minimum sentence would provide discretion to the courts and is in line with current science on juvenile brain development, said Omaha Sen. Brad Ashford, who introduced the bill.

With a 30-year minimum sentence, the offender would be eligible for parole in 15 years. A judge would have the option of sentencing the convicted juvenile to more time -- or could impose a life sentence.

The Supreme Court ruled judges must consider a defendant's age, immaturity, impetuosity and failure to appreciate risks and consequences. They must take into account the family and home environment that surrounds the youth. The Nebraska bill would require the court to consider those mitigating factors, as well as the outcome of a comprehensive mental health evaluation by a licensed adolescent mental health professional.

On Monday, senators defeated an amendment by Omaha Sen. Scott Lautenbaugh, after dividing it into two questions: One that would have made the minimum sentence 60 years was defeated on a 21-23 vote. The other, which would have eliminated consideration of mitigating factors, was defeated on a 16-27 vote.

Ashford said in crafting a constitutional solution to the Nebraska life sentence, the committee knew the 35-year sentence in Pennsylvania and the 60-year sentence in Iowa were under constitutional attack. "Sixty is just beyond the pale. It would never, in my view, pass constitutional muster," he said.

Supporters of the amendment said the possibility of parole after 15 years was unacceptable. And judges already consider such factors as those listed in the bill. Omaha Sen. Beau McCoy said the discussion on the 60-year minimum sentence could resume Tuesday.

Among other stories, I find it interesting and notable that on-going constitutional litigation in other states over efforts to respond to Miller is clearly impacting how Nebraska's legislature is working through its legislative fix.  I think famed constitutional theorist Alexander Bickel, who often spoke of the import and impact of a multi-branch national dialogue about core constitutional principles (see post here by Barry Friedman at SCOTUSblog), would be quite pleased to see how just such a dialogue is unfolding as to how best to operationalize the sentencing principles set out in the Miller ruling.

April 9, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Who Sentences | Permalink | Comments (0) | TrackBack

Fascinating (distinct/similar?) commentary on marijuana policy and politics from inside the Beltway

As regular readers know well, I find the law, policy and politics of modern marijuana reform to be fascinating.  Two recent commentaries in the Washington Post reinforce my perspective.

First, consider this notable commentary by Peter Wehner, who worked in the last two Republican presidential administrations, under the headline "GOP should stand firm against drug legalization."  I find especially telling that this piece, as excerpted below, makes a forceful argument that (big federal) government works and that drug use is a moral issue that calls for more (big federal) government intervention:

Strong, integrated anti-drug policies have had impressive success in the United States. Both marijuana and cocaine use are downsignificantly from their peak use in the 1970s and ’80s....
In his dialogues, Plato taught that no man is a citizen alone. Individuals and families need support in society and the public arena. Today, many parents rightly believe the culture is against them.  Government policies should stand with responsible parents — and under no circumstances actively undermine them....

In taking a strong stand against drug use and legalization, Republicans would align themselves with parents, schools and communities in the great, urgent task of any civilization: protecting children and raising them to become responsible adults....

[R]arely do people say that drug use is wrong because it is morally problematic, because of what it can do to mind and soul. Indeed, in some liberal and libertarian circles, the “language of morality” is ridiculed.  It is considered unenlightened, benighted and simplistic.  The role of the state is to maximize individual liberty and be indifferent to human character.

This is an impossible stance to sustain.  The law is a moral teacher, for well or ill, and self-government depends on certain dispositions and civic habits.  The shaping of human character is preeminently — overwhelmingly — the task of parents, schools, religious institutions and civic groups.  But government can play a role.  Republicans should prefer that it be a constructive one, which is why they should speak out forcefully and intelligently against drug legalization.

Now, consider this notable commentary by Jonathan Rauch, who is a guest scholar at the Brookings Institution, under the headline "Let’s go down the aisle toward legalized pot."  I find especially telling that this piece, as excerpted below, makes a forceful argument that (big federal) government now will not work unless it adapts to new circumstances and that drug use is a moral issue that calls for (big federal) government withdrawal in light of changing attitudes:

All but a small fraction of the people who enforce the marijuana laws work for state and local governments and answer to state law.  Although states cannot break federal law, neither must they step in and enforce it.  Federal prosecutors probably could shut down regulated marijuana distributors in Colorado and Washington with relative ease by sending threatening letters to landlords and bankers.  But that would leave those states, and others that follow, with the option of legalizing marijuana without regulating it, because unconditional legalization under state law is indisputably within the states’ power.  The effect of removing states’ troops from the battlefield would be to strand the federal government with marijuana laws it could not enforce.

The chaos that might result would be counterproductive even (or especially) for drug hawks.  Instead of shutting down the states’ experiments, then, the federal government might better serve the policy goals of the Controlled Substances Act by working with Colorado and Washington to concentrate federal and state enforcement on high federal priorities, such as preventing legalized marijuana from spilling across state borders....

In a number of important respects, marijuana legalization and same-sex marriage track closely.  Both are controversial social issues about which public opinion has changed dramatically in the past few years; on both issues, polls show the public closely divided but tipping toward legalization.

Moreover, for both issues, young people are driving the trend; older opponents of legalizing both are exiting the scene.  The issues’ demographics suggest that public opinion is virtually certain to continue shifting.  A true national consensus, however, remains some distance away, and partisan and regional differences are sharp.

In recent years, the country has pushed many controversial issues — abortion, crime, education — up to the federal level.  But same-sex marriage has taken the opposite path, with leadership left to the states.  The result, though somewhat messy as policy, has been a remarkable political success at a time when the country has few to boast of.  That some states could try same-sex marriage without betting the whole country reduced the stakes and contained the conflict.  States’ experiments with gay marriage educed valuable information about its real-world consequences, or lack thereof, allowing for a better-informed, more rational debate.

Above all, localizing the dispute gave people across the country time to work out what they think and to adjust policies as public opinion changed.... State leadership on marijuana policy has all of the same advantages as on marriage.  It contains conflict by reducing the stakes; educes knowledge about what happens if marijuana policy is changed; and allows incremental adjustment to social change.  For the federal government, yielding some measure of control over marijuana policy to the states is not a threat; it is an opportunity to manage change and preserve options.  Painting federal policy into a corner serves no one, not even drug warriors.

Though I am eager to say a lot more about both of these commentaries, but I will conclude for now with the adjective that captures most of my feelings here: fascinating!

A few recent and older related posts: 

April 9, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (17) | TrackBack

April 8, 2013

Notable perspective on notable class disparities in federal sentencing

I received via this e-mail from a helpful ready the following blog-friendly comment (with links) that I believe merits sharing in this space:

I was reading your blog post about the return of debtors' prisons for those who fail to pay court fines in Ohio, and appreciate your concern about a two-tiered sentencing system: those who can afford to pay, and those who can't.

You may be interested in a similar phenomena in the Brooklyn federal courts where a defendant who has a business which employs others often gets probation because the judges don't want his employees to lose their jobs.  Isn't this favored treatment for the capitalist class, and a penalty for the poor who don't employ others?

Reputed Gambino associate Anthony Scibelli got off with just probation last Friday because the sentencing judge also was reluctant to imprison Scibelli over "concern that incarceration would jeopardize the jobs of 200 employees at his firm" as reported by John Marzulli for the Daily News.

In 2008 another Brooklyn federal judge spared alleged Gambino soldier and Brooklyn restaurateur Joseph Chirico from prison on a money laundering conviction as then reported by Kati Cornell for the New York Post:  "Judge Jack Weinstein said he was hesitant to cut Chirico a break, but wanted to ensure Chirico's workers stay employed."

April 8, 2013 in Race, Class, and Gender, White-collar sentencing, Who Sentences | Permalink | Comments (9) | TrackBack

"Retribution and Revenge in the Context of Capital Punishment"

The title of this post is the title of this notable new paper I just saw via SSRN. The piece is authored by Robert Schopp, and here is the abstract:

Several Supreme Court opinions that reject capital punishment specifically or retributive punishment generally as inconsistent with the Eighth Amendment of the Constitution characterize those practices as vengeance or as revenge.  These opinions apparently reflect the premise that vengeance is self-evidently evil.  Non-judicial participants in the legal, political, and public debates regarding capital punishment specifically or retributive punishment generally sometimes demonstrate a similar tendency to repudiate capital punishment or retributive punishment as revenge without further justification, suggesting that the mere characterization of behavior or of an institution as revenge is sufficient to establish that it is illegitimate.

This Article examines the relevant passages in these opinions and the central notions at issue in order to distinguish several possible interpretations of the positions asserted.  It then evaluates the broader interpretations in the context of one traditional moral theory. Finally, it clarifies the significance of this analysis for the underlying debate regarding the justification (or lack thereof) of retributive punishment generally or of capital punishment specifically.

April 8, 2013 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

Florida still trying to figure out its Miller fix

As reported in this local article, headlined "Lawmakers differ on how to fix juvenile sentencing laws," Florida is still not yet sure how it will change its laws to comply with the Supreme Court's ruling last year in Miller.   Here are the basics:

[W]ith the 2013 legislative session at its midpoint, it’s unclear if legislation will be passed fixing the problem. It’s also unclear if the legislation will allow judges to sentence minors to lesser sentences, or if some form of parole will return to Florida for the first time in a generation.

“It is something that needs to be fixed,” said state Sen. Darren Soto, D-Orlando, who has introduced one of the several bills that would amend Florida’s sentencing laws. “But there doesn’t seem to be much will to get anything done.”...

Florida law now mandates anyone convicted of first-degree murder gets life in prison without the possibility of parole, if they are not sentenced to death. There are no exceptions for people younger than 18....

State Sen. Rob Bradley, R-Fleming Island, has introduced a bill that would allow judges to sentence minors to less than life in prison. It requires any minor convicted of first-degree murder to go through a sentencing hearing where both sides would argue what the sentence should be.

Issues like a defendant’s background, remorse, education and family history could be introduced for a judge to consider. The family of the victim would also be allowed to testify. Parole was eliminated for anyone convicted after 1994, and Bradley’s bill still prohibits it.

“I am not comfortable with a hearing occurring every five years or so where a family shows up and argues about why the defendant who killed their loved one should stay in jail,” he said. “A parole-like system is not in the best interests of Florida.”

Soto’s bill does the opposite. Life sentences are still required, but juvenile defendants will be up for parole 15 to 25 years after the sentencing occurred. “I do think they need to go to jail for a long time,” Soto said. “But children that age do deserve an opportunity to get out.”

When they’re up for parole, whether they’ve educated themselves in prison and what their family life was like beforehand will be considered, Soto said. Soto’s legislation also permits parole for juveniles who get life sentences for lesser offenses like second-degree murder. Those people would be up for parole after 15 years while first-degree murderers would have to wait 25 years.

J.D. Moorehead, a professor at Florida Coastal School of Law, said Bradley’s legislation would likely survive a court challenge because it addresses the major concern the Supreme Court had. Soto’s plan to bring back the parole system might be more problematic, although it does make a certain amount of sense to bring back parole for juveniles, Moorehead said.

The most logical step might be to take a hybrid of both bills, give judges the option of life without parole but allow them to impose a lighter sentence, and also let judges decide whether the defendant should be eligible for parole at some point, Moorehead said. “Judges know the people in front of them best,” he said.

April 8, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences | Permalink | Comments (1) | TrackBack

April 7, 2013

Federal judge decides California still cannot run its prison without monitoring

As reported in this article, which is headlined "Judge refuses to end prison monitoring," the California prison system appears not to be getting out of federal court monitoring anytime soon. Here is the story:

Treatment of 32,000 mentally ill inmates in California prisons remains seriously deficient, with staff and facilities shortages and a high number of preventable suicides, a federal judge declared Friday in rejecting Gov. Jerry Brown's request to end more than 17 years of court monitoring.

Brown's insistence that prison mental health care now exceeds constitutional standards, after billions of dollars of expenditures, conflicts with evidence from an ongoing series of prison inspections, said U.S. District Judge Lawrence Karlton of Sacramento.

"Systemic failures persist in the form of inadequate suicide-prevention measures, excessive administrative segregation of the mentally ill (in isolated lockups), lack of timely access to adequate care, insufficient treatment space and access to beds, and unmet staffing needs," Karlton said.

He said the inmate suicide rate, which had been declining for several years, has soared since 2009 to nearly 24 per 100,000 inmates, or 60 percent above the national average. More than 70 percent of the suicides might have been prevented with adequate treatment, Karlton said....

Friday's decision is a signal that the population-reduction order is still needed and will be upheld, said Michael Bien, a lawyer for mentally ill inmates who sued the state in 1991. After finding constitutional violations, Karlton appointed a monitor, called a special master, to inspect the prisons and report on mental health care in January 1996. The judge's refusal to end the monitoring "allows us to get back to the real work of fixing a dangerously flawed mental health care system that's shamed California for more than 20 years," Bien said....

Karlton said the evidence, from experts on both sides as well as the court-appointed monitor, showed that the prisons have not implemented their own suicide-prevention plans, keep too many mentally ill inmates in high-security lockups and are understaffed by more than 20 percent.

April 7, 2013 in Prisons and prisoners, Who Sentences | Permalink | Comments (0) | TrackBack