Sentencing Law and Policy

"Passive Pedophiles: Are child porn viewers less dangerous than we thought?"

The title of this post is the headline of this notable recent commentary by Emily Bazelon at Slate. Here are excerpts:

Making child pornography is abuse.  What about possessing it? As a group, these offenders — the ones who look but don’t abuse children to create new images — are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years.  Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”

It’s hard to feel concern for people (mostly men) who prowl the Internet for sexually abusive images of children, some of whom are very young.  Their crimes aren’t “victimless,” as defense lawyers sometimes argue.  These men create the market for new images.  They are the demand behind the supply.  I’ve written about how hard it is for women who were abused and photographed as girls to know that men are still viewing, and taking pleasure in, the record of their suffering — and about the victims’ efforts to win restitution from these men.

But the main reason Congress has upped the penalties for men who possess child pornography is the deep-seated belief that many of them physically abuse children and that they are highly likely to keep doing so because they can’t stop themselves.  Is that true? I’ve heard it so many times it’s hard to think otherwise.  Yet that premise is contested in a new 468-page report by the U.S. Sentencing Commission (the body Congress established to advise it about federal sentencing law).  The commission did its own research.  It says the federal sentencing scheme for child pornography offenses is out of date and argues that this leads to penalties that “are too severe for some offenders and too lenient for other offenders.”...

This isn’t an easy subject.  Punishments for sex offenders move only in one direction in this country — they get harsher.  But the Sentencing Commission’s critique should get a serious hearing.  Prison comes with a cost for taxpayers as well as the people it incarcerates.  And if there’s increasing hope for effective treatment, as the commission suggests, investing in it could save kids....

Maybe men convicted of possessing child pornography probably reoffend more than the researchers can measure because they don’t tell.  Surely they commit more new crimes than the number they get arrested for, as the commission is careful to say.  The question is how many more.  Do they really pose a different risk in this regard than other criminals do?  The Justice Department “takes issue” with the commission’s conclusions about recidivism and the link between viewing pornography of children and molesting them. These questions won’t be resolved any time soon.  In the meantime, Congress could fix the aspects of child pornography sentencing that both DOJ and the Sentencing Commission see as broken.

Months before scheduled sentencing, lawyers buzzing about Jesse Jackson Jr.'s mental health

As highlighted in this story about a hearing in a high-profile federal case in DC, "prosecutors raised the prospect on Friday in court of having their experts examine former Rep. Jesse Jackson Jr. if his lawyers plan to raise his bipolar disorder as a mitigating factor in trying to reduce his prison sentence." Here is more:

U.S. District Court Judge Amy Berman Jackson made no decision after prosecutor Matt Graves said he wanted to “alert” her to the possible issue in advance of the sentencing July 1 of Jackson and his wife, former Ald. Sandi Jackson.  The two pled guilty in February to looting $750,000 from campaign funds for personal use.

Judge Jackson asked for the hearing because she is taking over the case after U.S. District Court Judge Robert Wilkins — who handled the pleas of the couple — withdrew without explanation from the case.

Graves said the government is “entitled” to have Jackson checked “by our own experts” if Jackson’s lawyers decide to argue Jackson’s mental health should be taken into consideration by the judge when she sentences him.

Defense attorney Reid Weingarten told Judge Jackson that the former congressman’s bipolar disorder is well known and “not controversial.”  Weingarten also said they do not intend to argue that Jackson’s “criminal activity” was caused by his mental illness.  The former congressman was hospitalized at Mayo Clinic last year for treatment of bipolar depression.

Judge Jackson — who consolidated two separate sentencing dates into one morning July 1 sentencing session for the couple — had nothing before her to rule on, since the defense lawyers have yet to show their hand.  The judge signaled that the former congressman’s mental state may be a factor for her, since she said she was required to consider “who he is as a person.”

Recent related posts:

• You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?
• Jacksons plead guilty and federal prosecutors recommend significant prison terms for both
• Noteworthy new lawyer and now a new judge for Jesse Jackson Jr. sentencing

"Sometimes a number is just a number, but when the number at issue triggers an enhancement under the Sentencing Guidelines, that number matters."

The title of this post is the first sentence of this notable Eleventh Circuit panel decision today in US v. Washington, No. 11-14177 (11th Cir. April 26, 2013) (available here).  Here is the rest of the first paragraph, as well as an interesting extra little part of the story from the final section of the Washington opinion (cites omitted):

In this appeal we decide whether the government presented sufficient evidence that 250 or more persons or entities were victimized by the fraud scheme in which Gary Washington participated.  Because the government failed to put on any evidence that there were 250 or more victims, we vacate Mr. Washington’s sentence and remand for the district court to resentence Mr. Washington with a 2-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) rather than a 6-level enhancement under § 2B1.1(b)(2)(C)....

The government asks that it be allowed to prove on remand that there were 250 or more victims for whom Mr. Washington was responsible.  We decline the government’s request. Nothing prevented the government -- which was aware of Mr. Washington’s objection -- from putting on evidence concerning the number of victims at the sentencing hearing, and a party who bears the burden on a contested sentencing issue will generally not get to try again on remand if its evidence is found to be insufficient on appeal.  We have discretion to permit the government to present evidence at resentencing even though it amounts to giving the party a second bite at the apple.  But often a remand for further findings is inappropriate when the issue was before the district court and the parties had an opportunity to introduce relevant evidence, and here the government failed to present any evidence concerning the number of victims.

Current NRA president vocally supporting (liberal? conservative?) mandatory minimum sentencing reform in Oregon

David Keene, a former chairman of the American Conservative Union who is now serving as president of the National Rifle Association, has this notable new commentary piece in the Salem Statesman Journal promoting sentencing reform in the Beaver State. Here are excerpts:

If you are an Oregon conservative, I hope you’re asking the same question the state’s bipartisan Commission on Public Safety asked: “Are taxpayers getting the most from the money we spend on public safety?”  Oregon has been a leader in effective corrections policy and boasts one of the lowest recidivism rates in the nation.

But the state is trending in the wrong direction when it comes to corrections spending, and much of the growth is due to mandatory minimum sentences that violate conservative principles.

Oregon criminal justice agencies predict that the state’s prison population will grow significantly over the next 10 years, and that the growth will be composed mostly of nonviolent offenders. The expected inmate surge is projected to cost Oregon taxpayers $600 million, on top of the biennial corrections budget of $1.3 billion.

The time is ripe for comprehensive criminal justice reform — not only supported by Oregon conservatives, but led by Oregon conservatives.

We believe all government spending programs need to be put to the cost-benefit test, and criminal justice is no exception.  Oregon has done a good job with this in the past but is slipping, by locking up more offenders who could be held accountable with shorter sentences followed by more effective, less expensive local supervision programs....

As conservatives, we also believe that a key to protecting our freedom is maintaining the separation of powers between the branches of government.  Such protection is lost when so-called “mandatory minimum” sentences force the judicial branch to impose broad-brush responses to nuanced problems.  Mandatory minimums were adopted in response to the abuses of a few judges decades ago, but have proven a blunt, costly and constitutionally problematic one-size-fits-all solution begging for reform.

The commission’s recommendations make modest prospective changes to mandatory minimums under Measures 11 and 57.  These measures have given prosecutors unchecked power to determine sentences by way of charging decisions, regardless of the facts of the case, or the individual’s history and likelihood of re-offending.

The reform package now before the Legislature would restore the constitutional role of the courts for three of the 22 offenses covered by Measure 11. Judges could still impose the stiffest penalties where necessary, but would regain discretion in sentencing appropriate offenders to shorter prison terms or less expensive, more intensive community supervision.

These sensible reforms will restore some checks and balances between prosecutors and the courts, allow prison resources to be focused on serious violent offenders and let taxpayers know that their public safety dollars are being spent more wisely.

A data-based exploration of prison growth and the drug war

I am very pleased to see that John Pfaff is guest-blogging over at PrawfsBlawg about the modern growth in US prison populations and the role that the drug war may or may not have played in this story.  Here are his first three posts in a series that is a must-read for a number of reasons:

• Hunting Zombies: The War on Drugs and Prison Growth
• Setting the Stage: The Explosion in Prison Populations
• Some More Evidence Against the War on Drugs Hypothesis

Imagine the debate and analysis if we had an "FSG draft"

Hard-core football fans have long had this date circled on their calendars because tonight is the start of the 2013 National Football League Draft.  Though I am a huge sports fan, I tend not to get too worked up about who may be taken in the first round by what team or whether and when there will be some big trade to move up or down the draft board.  But I am consistently intrigued and impressed my how much time and energy is devoted, on ESPN and sports talk radio and elsewhere, to the pros and cons of different college football players who are about to become pros (and may, in the future, also become cons). 

With tonight's NFL draft on my mind, I came up with the idea suggested in the title of this post, namely imagining a draft of the Federal Sentencing Guidelines by a bunch of sentencing experts.  In part because I think there are at least a few good existing features of the US Sentencing Guidelines which do not get much attention or praise, I especially like the notion of imagining the goal of this draft to be having a bunch of federal sentencing stakeholders pick the very best of the existing federal sentencing guidelines which they would be eager to preserve as the starting points for a new-and-improved federal sentencing structure.

Put more simply, dear readers, if you were forced to select one of the existing federal sentencing guidelines as the very best, which one would you select.  Is the an existing guideline you like so much (for whatever reason) that you would be eager to bestow upon it the title of "Top FSG Draft Pick"?  Even better, would anyone like to be the Mel Kiper Jr. of the FSG Draft to provide a "big board" ranking the top guidelines or explaining why you think certain guidelines should slip way down the draft board?

I realize one has to be a pretty big sentencing geek to get a kick out of this thought experiment, but I sure hope somebody might be inclined to play along with me here.

"Harvard Law School Offers 'Tax Planning For Marijuana Dealers' --- No Joke."

The title of this post is the headline of this new Forbes commentary which discusses a presentation of this notable paper by Benjamin Leff available via SSRN.  Here is the context for the article and why a new Forbes piece stressed its affiliation with President Obama's alma mater:

Perhaps Harvard’s Board of Trustees will get wind of it and get upset. But the ire should be directed at tax rules that need fixing.  Now that we have legalized medical marijuana in 18 states and the District of Columbia can these businesses be run like businesses? Not really.  Massachusetts was the most recent entrant, and its marijuana businesses, like those in all the other states, face legal and tax problems....

Why?  Because even legal dispensaries are drug traffickers to the feds.  Section 280E of the tax code denies them tax deductions, even for legitimate business costs.  Of all the federal enforcement efforts, taxes hurt most.  “The federal tax situation is the biggest threat to businesses and could push the entire industry underground,” the leading trade publication for the marijuana industry reports.

One answer is for dispensaries to deduct other expenses distinct from dispensing marijuana. If a dispensary sells marijuana and is in the separate business of care-giving, the care-giving expenses are deductible....

Another idea was presented April 24 at Harvard by Professor Benjamin Leff of American University’s Law School.  Professor Leff’s paper carried an unvarnished title: Tax Planning for Marijuana Dealers.  It was part of Harvard’s Tax Policy Seminar hosted by Harvard Prof. Stephen Shay.  Mr. Leff correctly pointed out the 280E Catch 22 and came up with another end run.

Marijuana sellers could operate as nonprofit social welfare organizations, he suggested. [See Leff's February Slate piece, Growing the Business: How Legal Marijuana Sellers Can Beat a Draconian Tax]. That way Section 280E shouldn’t apply.  A social welfare organization must promote the common good and general welfare of people in its neighborhood or community.  Operating businesses in distressed neighborhoods to provide jobs and job-training for residents?  That could fit a dispensary nicely.

You don’t need a Harvard education to see that there’s something wrong with this picture. Meanwhile, Congressmen Jared Polis (D-CO) and Earl Blumenauer (D-OR) have introduced a bill to end the federal prohibition on marijuana and allow it to be taxed.  This legislation would remove marijuana from the Controlled Substances Act.

That way growers, sellers and users could no longer fear violating federal law.  Their Marijuana Tax Equity Act would also impose an excise tax on cannabis sales and an annual occupational tax on workers dealing in the growing field of legal marijuana.  Whatever happens, it’s at least good that someone is paying attention to this mess.

Colorado report documents significant costs of poor planning for sex offender sanctions

A helpful reader alerted me to this interesting new Denver Post piece headlined "Audit rips Colorado's lifetime-supervision sentence for sex offenders." Here are excerpts:

A 15-year-old state law that created a lifetime-supervision sentence for Colorado sex offenders provides insufficient treatment for many of the highest-risk inmates and has left thousands of others waiting for therapy in prison, according to a recent audit.

Demand for treatment in the Department of Corrections' Sex Offender Treatment and Monitoring Program greatly exceeds supply, the audit found.  Just one-sixth of inmates eligible to begin treatment are able to start the program each year — effectively keeping many sex offenders in prison indefinitely.

More than 1,000 inmates who are ready and waiting for treatment have passed their parole-eligibility dates, the auditors found. Their prolonged incarceration may be costing Colorado taxpayers as much as $30 million a year.

In a scathing audit given to corrections officials in February, Central Coast Clinical and Forensic Psychology Services Inc. also found the sex-offender program suffers from poorly qualified therapists and inappropriate levels of treatment given offenders.

"It's a disaster," said Laurie Kepros, who directs sexual-litigation cases for the Colorado public defender's office.  "Thousands of people are being told you have to have treatment to get out of prison" by a system failing to provide that treatment, she said. "We're paying for this every day."

Former Republican state Rep. Norma Anderson, who sponsored the 1998 law, said she recognizes the high cost of keeping many violent sex offenders in prison indefinitely and would like to see funding for treatment increased.  Still, "I'd rather have them there than out committing another sex crime," she said.  "I'm on the side of the victim and always will be."

Tom Clements, the state corrections chief who was killed March 19, had promised a swift response to the issues raised by the audit and fundamental changes to the sex-offender program in a March 8 letter to the legislative Joint Budget Committee.  Clements was shot to death at the door of his Monument home.  The suspected killer, Evan Ebel, was an inmate who had been released directly from solitary confinement to "intensive supervision" parole.

Clements' murder brought intense scrutiny to the state parole system because Ebel, paroled on robbery and related charges, had slipped off his ankle bracelet five days earlier.  Now, legislators say they also plan to scrutinize the sex-offender treatment program within the prisons — and the law that created potential lifetime sentences for sex offenses.

The law established indeterminate sentences — five years to life, for example — for many sex-offense crimes in Colorado.  Sex offenders who successfully complete a prison-treatment program and get paroled then enter a community-based lifetime-supervision program....

The number of Colorado inmates classified as sex offenders has grown from 21 percent to 26 percent of the total prison population in five years.  Much of the growth can be traced to the 1998 law. By 2012, more than 1,600 of the nearly 4,000 men classified as sex offenders in Colorado prisons were sentenced under the law.

The audit of the program was undertaken at the behest of state Rep. Claire Levy, a Boulder Democrat who serves on the Joint Budget Committee. She said it confirmed her longstanding concerns about the program's fairness and effectiveness. It affirmed that "low-risk sex offenders can be treated as effectively in the community," Levy said. "The lifetime-supervision law does not allow that."

The report described the state's sex-offender treatment program as "largely a one-size-fits-all program in which all treatment participants are generally expected to complete the same treatment exercises." This treatment occurs in groups that "are very large, often with 14 per group," the experts wrote.

The auditors reported that low-risk sex offenders in Colorado remain imprisoned at great cost, that the most dangerous offenders get too little attention and that nearly half the therapists they observed were "poor" — conducting group therapy sessions with behaviors "outside the range of what is acceptable for a therapist." In some cases, those therapists appeared bored and "sometimes expressed hostility," the authors reported.  "Therapists sometimes appeared demeaning and condescending, mocking their patients."

The state spends about $31,000 a year to keep a single person in prison. That's $30 million a year the state is spending unnecessarily if the prison system holds a thousand sex offenders who could be treated safely outside, said Kepros of the public defender's office....

The audit found Colorado prisons can yearly accept just 675 of 3,959 sex offenders who are within four years of parole eligibility, leaving 3,284 unable to participate in treatment. As a result, other sex offenders may be unable to get any treatment before their release "even if they present an exceptionally high risk" to the community, the audit said.  It noted that therapists and inmates alike described the treatment programs as "under-resourced," with little attention to individual needs and scant opportunity for private, individual therapy.

Arkansas Supreme Court explains what Miller ruling means now for Kuntrell Jackson

As reported in this AP piece, in a ruling today the Arkansas Supreme Court "ordered a new sentencing hearing for Kuntrell Jackson, whose case was one of two that led to a U.S. Supreme Court decision last year throwing out mandatory life sentences without parole for juveniles." The nine-page ruling in Jackson v. Norris, 2013 Ark. 175 (April 25, 2013) (available here), is an interesting read for a number of reasons.

First, this latest round of habeas litigation for  Kuntrell Jackson does not deal at all with any possible dispute over whether the Supreme Court's Miller ruling is to be given retroactive effect.  This may because it appears the prosecution did not contest Jackson's request to be resentencing in light of Miller, as evidence by this sentence from the opinion: "We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case.  See Yates v. Aiken, 484 U.S. 211, 218 (1988)."

Second, after parroting most of the key language from the SCOTUS Miller ruling, the Arkansas Supreme Court has an interesting discussion of how to revamp the sentencing provisions applicable to Kuntrell Jackson's conviction in the wake of Miller.  Here is how that discussion finishes:

We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration.  We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony.  For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life.  Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997).

Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.

Notably, Jackson's crime took place in 1999, and I presume he has been in custody since his arrest. In other words, given that he has already served more than a decade in prison and that the Arkansas Supreme Court has decided he is now eligible for a sentence as low as 10 years, he could possibly upon resentencing get a term of only time served. Going forward, it will be interesting to see what sentence state prosecutors request and what sentence actually gets imposed on Jackson at his future resentencing.

"Can I Say I'm Sorry? Examining the Potential of an Apology Privilege in Criminal Law"

The title of this post is the title of this article by Michael Jones, which I just saw via SSRN. Here is the abstract:

This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question.

This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.

"Four female prison guards impregnated by same inmate"

The headline of this post is arguably the most sensational facet of a huge federal corruption prosecution this week emerging from the jail system in Baltimore, Maryland.  The basics are reported in this story:

Four female prison guards in Baltimore fell pregnant to the same inmate, according to authorities who have busted a major smuggling gang inside the jail system. Two of the women tattooed the inmate's name on their bodies and he showered three of

The four women are among 25 people who face federal charges, including 13 female prison guards, CBS Baltimore reports. The scheme involved smuggling drugs and cell phones into Baltimore City Detention Center.

U.S. Attorney Rod Rosenstein said the 25 defendants participated in running the activities of the Black Guerilla Family - a prison and street gang - from behind bars in Baltimore City. Thirteen female corrections officers, seven inmates and five alleged co-conspirators are charged with racketeering, money laundering and possession with the intent to distribute....

The affidavit says the corrections officers helped members of the notorious Black Guerilla Family gang smuggle cell phones, marijuana, prescription pills and cigarettes into the jail to sell to other inmates and make thousands of dollars. "This situation enabled BGF members to continue to run their criminal enterprise within the jail and the streets of Baltimore," said Steve Vogt, FBI....

The indictment says the ringleader, inmate Tavon White, reportedly made $16,000 in one month from the smuggled contraband.

Four corrections officers-Jennifer Owens, Katera Stevenson, Chania Brooks and Tiffany Linder, who are also facing charges -- allegedly fell pregnant to White while he was behind bars. Charging documents reveal Owens had "Tavon" tattooed on her neck and Stevenson had "Tavon" tattooed on her wrist....

Secretary of Public Safety & Correctional Services Gary Maynard said he was taking full responsibility. "It becomes embarrassing for me when we expose ourselves and we participate in an investigation that's going to show what's going on in our jails that I am not proud of," he said.

This press release from the Maryland U.S. Attorney's office concerning the indictments has a little extra fun with the most prurient aspects of this sordid story in its heading: "Correctional Officers Smuggled in Cell Phones and Drugs and Were 'in Bed' with BGF Inmates."  And though this story is hardly a laughing matter, I hope readers will forgive me after a few weeks of very serious news if I encourage commentors to perhaps add some additional levity by suggesting alternative headlines for this notable new federal corruption case.

A prosecutor's potent perspective on Lafler?, Frye and the future of plea bargaining

I was pleased to learn about this interesting new commentary now appearing in the Houston Law Review’s online edition by Graham Polando, who is Deputy Prosecuting Attorney in Marshall County, Indiana.  The short and insightful piece is titled "Being Honest About Chance: Mitigating Lafler v. Cooper's Costs," and here is an excerpt from its first section:

What so exorcises prosecutors about Lafler, then, is that Cooper will get to have his cake and eat it too --—he got a shot at acquittal, then, that having failed, he will get the original plea offer the prosecutor designed, at least in part, to avoid that contingency.

The problem, then, is not one of resources (as Justice Alito contended), but of information.  Cooper received a look behind the veil of uncertainty provided by the trial and did not like what he saw.  Rather than an egg that cannot be unscrambled, this is a bell that cannot be unrung.

After Lafler, a prosecutor rightly worries, a defendant will be able to proceed to trial with the plea offer in his pocket, forcing specific performance when counsel's advice to proceed turns out to be incorrect, as it must have been -- he was, after all, convicted!  Chief Justice Roberts himself noted this concern at oral argument: “"[I]f you're the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, oh by the way, I didn't tell you about this, and he gets a whole new trial."  As in other contexts, the defendant benefits from both his counsel's successes (by getting a favorable result) and failures (by obtaining relief).  The rational prosecutor might respond to Lafler, then, by eliminating plea offers altogether, or at least reducing them.

"Balancing the State and Federal Roles in Boston Bomber Case"

The title of this post is the headline of this new article via Stateline, and here are some excerpts that reinforce my sense that at least some Masschusetts officials are quite pleased the feds have taken over the initial prosecution in this case because of the availability of the death penalty:

It’s not clear that anyone in Massachusetts is objecting to a potential death sentence in the bombings that killed three and injured hundreds, and in fact, a bipartisan group of lawmakers filed a bill Tuesday to reinstate the death penalty.  “What if he were not going to be federally charged?” said Republican Rep. Shaunna O’Connell in an interview with the Boston Globe.  “In Massachusetts, there would be no death penalty for him.”

The federal interest in the case against Tsarnaev is national security and the so far, state and federal authorities are cooperating.  There’s no federalism ground for the state of Massachusetts to object to a death sentence, said Robert Chesney, a professor at the University of Texas School of Law, since the federal charge carries a federal death sentence.  The final decision on whether to seek the death penalty will be made by Attorney General Eric Holder.

Currently, the state does not plan to introduce state charges against Tsarnaev, said Jake Wark, press secretary for the Suffolk County district attorney who handles all violent crime in Boston.  Wark said that in the first few hours after the explosions near the finish line of the Boston Marathon, the Suffolk County District Attorney’s Office was responsible for the case and handled it like any triple murder investigation.  But after the call came from Washington late Monday afternoon, the district attorney’s office deferred to the United States Attorney’s Office to proceed with the terrorism investigation.

Gov. Deval Patrick has been silent on the issue since the bombings, but said in 2005, “The death penalty can never be made foolproof, it is not a deterrent, and the huge costs incurred in capital proceedings divert resources away from actually fighting and prosecuting crime.”

So far in the investigation, federal, state and local authorities have worked together nearly seamlessly.  David Laufman, a former federal prosecutor in the Eastern District of Virginia, said that is the result of 10 years of relationship building between the FBI and state and local law enforcement.  In Boston, the joint terrorism task force, headed by the U.S. Department of Justice and FBI but also staffed with state and local officers, is taking the lead in the investigation.

“The FBI took some lumps in the 9/11 era for big-footing state and local law enforcement in national security and in other cases,” said Laufman, “but the FBI’s made a concerted effort to improve state and local relationships and now there are much better working relationships for the FBI to work in cases like this.”

Some related recent posts:

• Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
• Can the new media help identify the two persons the FBI are seeking in the Boston bombings?
• Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev
• Does Boston bombing provide still more support for my federal-only death penalty perspective?

Justice Safety Valve Act gets bipartisan introduction in House of Representatives

A helpful media members forwarded me a press release which provided the basis for this notable federal sentencing news from inside the Beltway:

Rep. Robert C. “Bobby” Scott, D-VA, and Rep. Thomas Massie, a Republican from Kentucky, today introduced the bipartisan Justice Safety Valve Act of 2013, which would give federal judges the flexibility to issue sentences below mandatory minimums.

Republican Sen. Rand Paul of Kentucky and Sen. Patrick Leahy, a Democrat from Vermont and chairman of the Senate Judiciary Committee, had previously introduced a Senate version of the bill on March 20.

Scott said that mandatory minimum sentences have been shown to mandate unjust results.  “They have a racially discriminatory impact, studies conclude that they waste the taxpayer’s money, and they often violate common sense,” he said.

Massie added that the one size fits all approach of federally mandated minimums does not give local judges the latitude they need to ensure that punishments fit the crimes. “As a result, nonviolent offenders are sometimes given excessive sentences,” Massie said. ”Furthermore, public safety can be compromised because violent offenders are released from our nation’s overcrowded prisons to make room for nonviolent offenders,” he said.

Now that there is bipartisan support in both houses of Congress for the Justice Safety Valve Act of 2013 (Senate story covered here), we finally have the foundation and the opportunity to find out if President Obama and his Department of Justice are prepared to start walking the walk (instead of just talking the talk) about the need for cost-conscious, data-driven modern federal sentencing reforms.  importantly, the Justice Safety Valve Act of 2013 is a big deal in the formal law which would really not be that big deal in actual practice: the law essentially provides that now-mandatory minimum statutory sentencing terms would be presumptive minimum sentencing provisions for federal judges (which, of course, has always been their status for federal prosecutors, who have charging/bargaining powers that can allow them to take mandatory off the table when it suits their interests).

Especially in the early part of a second term, with federal criminal justice actors dealing with budget cuts and furloughs, and with most Americans pleased with the possibility of federal charges in Boston including a (discretionary) death sentencing system, now is the time for President Obama to finally live up to his 2007 campaign promise at Howard university (covered here) to "review mandatory minimum drug sentencing to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of non-violent offenders."  If not now, when?  And if not with support of the Justice Safety Valve Act of 2013, how?

Less than three weeks ago, Attorny General Holder stated forcefully in a big speech (covered here) that, in the United States today, "too many people go to too many prisons for far too long for no good law enforcement reason." In that same speech, AG Holder stated plainly: "Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive." The Justice Safetly Valve Act of 2013 could and would (especially if made retroactive) directly and perhaps profoundly address these issues in the federal sentencing system via one simple bill.

If President Obama and AG Holder really mean what they say and say what they really mean, we should expect press releases coming from the Department of Justice and the White House putting the force force and weight of the Obama Administration behind the Justice Safetly Valve Act of 2013 and urging its passage ASAP.  But I fear that we will not be seeing such a press release in the near future -- that worrisome reality will, in turn, lead me again to my growing concern that the Obama Administration's persistent failure to champion badly needed sentencing reforms will become its most lasting federal criminal justice legacy.

Some recent and older related posts:

• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"
• NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)

Lots on sentencing, sequester and other stuff at "Hercules and the Umpire"

I am not at all surprised that, less than two months after coming on-line, U.S. District Court Judge Richard Kopf's his notable blog, "Hercules and the Umpire," is now a regular must-read.  Here are just a few April posts by Judge Kopf on topics that should greatly interest sentencing fans, sequester watchers and so many others: 

On sentencing:

• Genghis Khan and sentencing
• Does ideology matter when district judges sentence?
• 30 days in jail for taking a cell phone photo of sentencing in federal court? Damn right!

On sequester realities:

• The Federal Judiciary, and Federal Public Defenders in particular, are facing devastation and the Constitution is in peril–this is not hyperbole
• Touching the third rails of judicial politics
• Statement on Impact of Sequestration on Judiciary, Defender Funding
• Congress is herewith warned

On other stuff:

• The frequent irrelevancy of the Supreme Court
• It’s a fact: Federal district judges are carpenters not politicians
• What I learned (and am still learning) from a “Fuck You” motion

There is so much worth of attention in these (and other) posts by Judge kopf, but I want to close this post with excerpts from yesterday's post warning Congress about the impact of sequester:

I just received notice that the Federal Public Defender for the District of Nebraska furloughed his staff and closed his office on Friday, April 19, 2013 and he plans to furlough and close his office on 10 additional days. Here is the missive received today from our Clerk’s office:...

The Nebraska Judicial Council directs all courtroom deputies and judicial assistants to avoid scheduling any trial and hearings involving the Nebraska Federal Public Defender’s Office on the following dates ...[when that office] will be furloughed....

While I intend to honor this directive, I am also contemplating the dismissal of a certain percentage of criminal cases assigned to the FPD. If I dismiss a bunch of immigration cases, where a short prison sentence would otherwise be imposed and the defendants will be deported anyway, perhaps I can assist the FPD in meeting his statutory and constitutional obligations. I have not finally decided on this course of action, but I am seriously contemplating it.

Congress is therefore on notice that its failure to fund the judiciary, and most particularly the Federal Public Defenders and Criminal Justice Act counsel, may result in the guilty going unpunished. If a banana republic is what members of Congress want, I may help them get it.

States seek to find right tax formula for newly legal recreational marijuana

This notable New York Times piece, headlined ""Colorado Ponders the Economics of a Marijuana Tax," highlights the challenges of fuguring out the best state tax structure and rates for legalized marijuana. Here are excerpts:

If marijuana is legalized and properly regulated, its proponents have long said, it could generate millions of dollars in state tax revenue.  But how the drug should be taxed has proved to be a thorny question.

In Colorado, where voters approved a measure in November legalizing small amounts of marijuana for recreational use, officials have been grappling with this issue for months as the state works to forge a cohesive regulatory code.

This week, legislators here will consider excise and sales taxes on marijuana of up to 30 percent combined.  The proposal emerged from a task force of health officials, representatives of the state’s rapidly developing marijuana industry and others that was commissioned last year to help develop rules for marijuana.

The goal, task force members and lawmakers say, is to set taxes high enough to finance the administration of new laws, but not so high that customers are driven back to the black market.

“We should see a financial benefit as a state that can help pay for enforcement and other fundamental issues,” said Christian Sederberg, a Denver lawyer on the panel whose firm helped draft Amendment 64, the measure legalizing recreational marijuana.  “The other side is that if you tax something too high, then you simply crowd out the regulated market.  We’re confident we’ll find the right balance.”

Under the proposal, the first $40 million collected from a 15 percent excise tax would be used to build public schools.  Revenue from a 15 percent sales tax imposed, in addition to the state’s 2.9 percent sales tax and any local sales tax, would be apportioned to local governments and for enforcement....

State Representative Jonathan Singer, a Democrat from Longmont and the bill’s sponsor, said finding the right tax rate was also a matter of public safety.  “The big thing is that we want to make sure we’re able to put the appropriate safeguards in place so that marijuana doesn’t end up in the hands of kids, criminals or cartels,” he said.

Not everyone is certain that a tax is a good idea.  Michael Elliott, executive director of the Medical Marijuana Industry Group here, said he feared that too heavy a tax could make it hard for any marijuana business to survive, because Colorado’s black market is so entrenched....  “Higher taxes on the legal, commercial model will prevent the transition to a legitimate market from happening and keep more people buying it illegally,” he said....

In Washington State, where voters in November passed a similar measure legalizing small amounts of marijuana for personal use, taxes will be levied in three tiers of 25 percent each on producers, processors and retailers.  Those taxes were laid out in the initiative that voters approved, and passing on the costs will result in an effective rate for consumers of 44 percent, according to the state’s Liquor Control Board, which will administer marijuana regulations....

Jeffrey Miron, an economics professor at Harvard University and a senior fellow at the Cato Institute, a libertarian group, cautioned that while both states’ approaches seemed reasonable, he doubted the taxes would create a substantial windfall.  Dr. Miron, who supports legalization, said that as long as federal marijuana laws continued to be unsettled, collecting taxes would be challenging.  Moreover, he said, there is no way to predict how many customers would continue to buy on the black market.

After Prohibition ended in 1933, states levied taxes on alcohol, in part because they were desperate for revenue after the Great Depression.  But that shift, Dr. Miron noted, was undertaken with the full support of the federal government.  “It’s easy to get a little overexcited that legalizing marijuana is going to solve the world’s budgetary problems,” Dr. Miron said.  “But the question for the tax revenue part of this will be how much the federal government allows these markets to come completely above ground.”

"You Can't Get There from Here: Elderly Prisoners, Prison Downsizing, and the Insufficiency of Cost Cutting Advocacy"

The title of this post is the title of this notable new piece by Elizabeth Rapaport now available via SSRN. Here is the abstract:

The prison population in the United States has peaked and begun to recede, reversing more than 30 years of growth.  Mass incarceration is yielding to the imperative to reduce state budgets in recessionary times. As states turn away from the extravagant use of prison for nonviolent offenders, the percentage of the prison population serving long and life sentences for violent felonies will increase.  By 2009 one in eleven prisoners were lifers. These are the prisoners growing old and dying in prison. 

High cost elderly prisoners who have aged out of crime should be good candidates for cost saving measures such as compassionate release, parole, and release through community corrections programs.  This impression does not withstand scrutiny. Two thirds of elderly prisoners have been convicted of violent crimes; one quarter has been convicted of sexual offenses.  Programs to reduce prison costs have indeed gained ground but they are designed for a very different population.  The offender who is well positioned to avoid or leave prison as a result of cost savings policies is a young nonviolent offender; The majority of states have succeeded in reducing prison admissions by diverting nonviolent offenders to drug and other treatment programs and reducing prison terms for low level offenders. A threshold condition for diversion or release is low risk of violent offending. Implicitly these low risk nonviolent offenders are also promoted as criminals who can rehabilitate and reintegrate into the community.  The majority of compassionate release programs either exclude prisoners who were convicted of violent crimes or require that the prisoner be incapacitated to the extent that he or she poses no threat to public safety.  Yet even prisoners who meet these standards are rarely released.

Arguing for cost cutting release of the fast growing legion of elderly prisoners is much less easily buttressed with soothing claims about the happy coincidence of lower costs and public safety.  Even if, and it is big if, exaggerated fear of further predations were successfully addressed, the advocate of cost cutting reform cannot answer demands for retribution without venturing beyond the discourse of the “tough on crime” era.  For thirty years the political class has shunned the previously commonly invoked criminal justice values of second chances -- the redemptive values of rehabilitation, reintegration, and mercy.  The sickest and oldest prisoners are largely beyond second chances for productive citizenship. Whether released or incarcerated their care will be borne by the public purse. Elder care is not free.

This Article focuses on the subclass of old prisoners who are beyond any prospect for productive citizenship because of age and ill health and are in need of elder care.  The argument of this Article is that in order to capture the savings that release (and efficient carceral care) of elderly prisoners would bring, politicians and policy advocates will have to relearn to speak the language of humane criminal justice values, prominently mercy.

Eighth Circuit panel discusses of public trial rights at sentencing

A panel of the Eighth Circuit provides a pair of interesting opinions in US v. Thompson, No. 12-1673 (8th Cir. April 23, 2013) (available here), concerning the rarely litigated issue of whether a defendant's right to a public trial extends to sentencing.  Here is a snippet from the majority opinion:

In light of the First Amendment public trial access jurisprudence, the emphasis by the Supreme Court that the right was created specifically for the benefit of the accused, the Supreme Court's reminder regarding the critical nature of sentencing hearings themselves, and, most importantly, our conclusion that public access at a sentencing hearing plays a significant positive role in its functioning and furthers the benefits sought to be afforded the accused under the Sixth Amendment, we hold that the Sixth Amendment right to public access attaches at sentencing.  Accordingly, we move on to determine whether the district court, in this instance, violated that right....

In this case, the district court, noting the absence of press representation at the proceeding, reviewed its possible alternatives and cleared Thompson's family from the courtroom during Campbell's testimony, a partial closure.  From the record, it is clear that Thompson's family members were the only people in the gallery who were not court staff. And, even though the district court did not make a thorough record articulating the substantial reason it contemplated prior to its partial closure, the record is sufficient for this court, on appeal, to do so.  Having made such a review, we find no abuse of discretion by the district court.

Judge Gruender authored an extended and very interesting concurring opinion, which gets started this way:

I write separately because although I would affirm the district court’s decision to order a partial closure, I would recognize Thompson’s constitutional right to a public sentencing under the Fifth Amendment, rather than the Sixth.

Georgia now has permission, but not needed pentobarbital, for executing Warren Hill

The saga surrounding Georgia's efforts to carry out the punishment of death for a Warren Hill, now more than two decades after his second murder, moved forward yesterday after a big split panel ruling by the Eleventh Circuit.  This Atlanta Journal Constitution article, headlined "Court lifts execution stay; state out of lethal-injection drugs," explains the panel ruling, while also highlights why this long-running death penalty drama seems unlikely to end anytime soon:

The federal appeals court in Atlanta has denied Warren Hill’s bid to halt his execution on grounds he is mentally retarded at a time when the state finds itself out of lethal-injection drugs. 

By a 2-1 vote, the 11th U.S. Circuit Court of Appeals said Hill’s mental retardation claims had already been considered and rejected.  The court also said that because Hill only challenged his eligibility for execution, and not his conviction of murder, it could not consider his new claims.

The court lifted its stay of execution, meaning the state can set a new execution date for Hill at anytime.  But the Georgia Department of Corrections is currently out of pentobarbital, a barbiturate used as the state’s sole lethal-injection drug.  “At this time, we are looking into the procurement of the drug,” agency spokeswoman Gwendolyn Hogan said in an email.

Hill’s case attracted international attention this year when three state experts, who previously testified Hill was faking his mental disability, came forward and said they had been mistaken.  The doctors — two psychiatrists and a psychologist — described their evaluations of Hill more than a decade ago as rush jobs and said an improved scientific understanding of mental retardation led them to now believe Hill is mildly mentally retarded.

In 1988, Georgia became the first state to ban executions of the mentally retarded; the U.S. Supreme Court declared the practice unconstitutional nationwide in 2002.

Judge Rosemary Barkett issued a stinging dissent, saying there is now “no question” that Georgia will be executing a mentally retarded man.  She noted that all seven mental health experts — the state’s and Hill’s — who have examined Hill now unanimously agree he is mentally retarded.   “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness,” she wrote.

Hill’s lawyer, Brian Kammer, said he was “deeply disappointed” that the 11th Circuit “found that procedural barriers prevent them from considering the compelling new evidence.”  He said it is likely he will ask the U.S. Supreme Court to consider Hill’s claims....

Hill was sentenced to death for killing Joseph Handspike, an inmate serving a life sentence in the same state prison where Hill was incarcerated.  In 1990, Hill bludgeoned Handspike to death with a nail-studded wooden board.  At the time, Hill was already serving a life sentence for killing his 18-year-old girlfriend, Myra Wright, by shooting her 11 times in 1986.

The full 69-page split panel ruling in In re Hill,  No. 13-10702 (11th Cir. April 22, 2012), is available at this link.

SCOTUS holds "social sharing" of a little pot not an "aggravated felony" under INA

In a 7-2 opinion handed down this morning in Moncrieffe v. Holder (available here), the Supreme Court explains why a low-level marijuana offense does not automatically mean deportation. Here is the first and last paragraph of the majority opinion (per Justice Sotomayor):

The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U. S. C. §1101 et seq., provides that a noncitizen who has been convicted of an “aggravated felony” may be deported from this country.  The INA also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case.  Among the crimes that are classified as aggravated felonies, and thus lead to these harsh consequences, are illicit drug trafficking offenses.  We must decide whether this category includes a state criminal statute that extends to the social sharing of a small amount of marijuana.  We hold it does not....

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.”  Once again we hold that the Government’s approach defies “the ‘commonsense conception’” of these terms.  Carachuri-Rosendo, 560 U.S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53).  Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding’” of “trafficking,” which “‘ordinarily . . . means some sort of commercial dealing.’”  Carachuri-Rosendo, 560 U.S., at ___ (slip op., at 9) (quoting Lopez, 549 U.S., at 53–54).  Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an “aggravated felony.”  We hold that it may not be.  If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.  The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justices Thomas and Alito both authored separate dissents, though neither garner any companion votes.

Law and Contemporary Problems devotes March 2013 issue to sentencing reform around the world

I am so very pleased to see that available on line here is the full March 2013 issue of the journal Law and Contemporary Problems, which is devoted to providing a "Global Perspective on Sentencing Reforms." The issue has a dozen articles, some of which are focused on state sentencing reforms, some of which are focused on federal sentencing reforms, and some of which are focused on sentencing reforms in the UK and Germany and elsewhere.  And all of the article look like must reads for sentencing geeks like me.  The Foreward to the Issue is authored by by Professor Oren Gazal-Ayal of the University of Haifa, and here are excerpts from the start and end of this introduction:

The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world.  While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics.

The effects of sentencing guidelines are highly contested and debated among scholars. As a result, there are a number of outstanding questions regarding the actual effects of such guidelines.  For instance, do sentencing guidelines transfer sentencing powers from the judiciary to prosecutors?  Should the guidelines bear some of the responsibility for the surge in prison population in the United States?  Has the lack of guidelines helped Germany constrain its prison population?  Do sentencing guidelines help mitigate the effects of punitive surge, or, on the other hand, do they facilitate the punitive effect of moral panics? Do guidelines effect racial and ethnic disparity in sentencing?  And how should guidelines be structured?...

The articles in this issue are the out come of a conference on sentencing reform that was held at the University of Haifa, Faculty of Law in February 2011.  The conference and this issue address the effects of sentencing reforms from a global perspective, relying mainly on empirical research.  The result is, as in most such attempts, incomplete. But we did come closer to answering some of the pressing questions — though only to find out that many new questions hide behind the answers to the old ones.  It seems that sentencing, a topic that has been the focus of academic debate for centuries, will continue to attract this much needed attention for centuries to come.

Does Boston bombing provide still more support for my federal-only death penalty perspective?

As long-time readers know, I like to describe myself a "death-penalty agnostic" concerning the theoretical and empirical arguments that traditionally surround the the criminal punishment of death.  But while I have long been uncertain about the "meta" arguments for and against capital punishment, as a matter of modern US policy and procedures I have a firm and distinctive view: given (1) persistent public/democratic support for death as a possible punishment for the "worst of the worst," and given (2) persistent evidence that states struggle in lots of ways for lots of reasons with the fair and effective administration of capital punishment, I believe that (1+2=3) as a policy and practical matter we ought to consider and embrace an exclusively federal death penalty.

Regular readers have seen and surely remember various prior post in which I have talked through this idea a bit, and I have linked some of these posts below.  But, as the title of this post is meant to highlight, I think the soundness and wisdom of my distinctive view on the best modern way to administer capital punishment in the United States is now on full display in the wake of the Boston bombings. 

Massachusetts, of course, does not have death as an available punishment.  And yet, I have already seen reports of many local and state officials (not to mention Massachusetts citizens) who now say they are open to (if not eager to) have the bombing suspect(s) prosecuted in federal court in part because federal law includes the possibility of the death penalty.  Moreover, there is every reason to view terror bombings like these, whether or not they have direct international connections and implications, as the kinds of crimes that ought to be investigated and prosecuted primarily by national authorities (assisted, of course, by state and local official and agents).

Stated in slightly different terms and with the events in Boston now making these ideas especially salient and timely, I believe that essentially by definition in our modern globally-wired and national-media-saturated American society (1) every potential "worst of the worst" murder is of national (and not just local) concern, and (2) every potential "worst of the worst" murder merits the potential involvement of federal investigators, and (3) federal authorities have constitutional and practical reasons for wanting or needing to be the primary "deciders" concerning the investigation and prosecution of every potential "worst of the worst" murder, and (4) state and local officials typically will welcome being able to "federalize" any potential "worst of the worst" murder, and thus (1+2+3+4=5) we should just make death a punishment only available at the federal level so that the feds know they can and should get involved if (and only when?) federal interests and/or the value of cooperative federalism are implicated by any potential "worst of the worst" murder.

Lots of (mostly older) related posts on the federal death penalty:

• The federalization of the death penalty
• More support for an exclusively federal death penalty
• Context-free ruminations on the federal death penalty
• Debating the death penalty as bargaining chip
• Research on capital punishment's impact on plea deals
• Another example of the death penalty as an effective plea bargaining tool
• Great new (though still dated) examination of the death penalty and plea bargaining
• A poster child for the (federal) death penalty?
• The federal law gap in the NJ death penalty report
• The federal death penalty in America's paradise
• The federal death penalty in NY and elsewhere
• Ashcroft's death penalty "legacy"
• Wondering about the state and fate of the federal death penalty
• "Cruel and Unusual Federal Punishments"
• Split Sixth Circuit reverses federal death sentence on interesting grounds
• "The Racial Geography of the Federal Death Penalty"
• Federal prosecutor in Western NY (wisely?) recommending lots of capital prosecutions
• Making the case for the use of the federal death penalty
• Notable commentary on "Christopher Dorner and the California Death Penalty"

UPDATE:  This new DOJ press release reports on the initial charges brought against the surviving Boston bomber.  Here is how the release starts:

Attorney General Eric Holder announced today that Dzhokhar A. Tsarnaev, 19, a U.S. citizen and resident of Cambridge, Mass., has been charged with using a weapon of mass destruction against persons and property at the Boston Marathon on April 15, 2013, resulting in the death of three people and injuries to more than 200 people.

In a criminal complaint unsealed today in U.S. District Court for the District of Massachusetts, Tsarnaev is specifically charged with one count of using and conspiring to use a weapon of mass destruction (namely, an improvised explosive device or IED) against persons and property within the United States resulting in death, and one count of malicious destruction of property by means of an explosive device resulting in death.   The statutory charges authorize a penalty, upon conviction, of death or imprisonment for life or any term of years.  Tsarnaev had his initial court appearance today from his hospital room.

Notable civil rights action victory for Iowa sex offenders subject to civil confinement

Because sex offenders rarely get court victories concerning impositions on their civil rights, I found noteworthy today's panel ruling in the Eighth Circuit in Arnzen v. Palmer, No. 12-3634 (8th Cir. April 2013) (available here). Here is how the opinion starts:

Patients at the Iowa Civil Commitment Unit for Sex Offenders (CCUSO) filed a complaint under 42 U.S.C. § 1983 challenging the placement of video cameras in CCUSO restrooms, and moved for a preliminary injunction to stop their use. The district court denied the motion as to cameras in the "dormitory style restrooms" (restrooms with multiple toilets, showers and sinks) but granted a preliminary injunction ordering that cameras in the "traditional style bathrooms" (bathrooms with a single toilet, sink, and shower) be pointed at the ceiling or covered with a lens cap. The administrators of CCUSO appeal and we affirm.

"Defensible Disenfranchisement"

The title of this post is the title of this newly posted article by Mary Sigler now available via SSRN.  Here is the abstract:

As many commentators have noted, the practice of felon disenfranchisement — denying the right to vote to some or all of those convicted of a felony — is widespread and familiar, but, at least in the modern context, also short of defenders.  Indeed, apart from a handful of vocal public officials, a case for disenfranchisement is rarely articulated at all. Instead, critics have occupied the field largely unchallenged, arguing that felon disenfranchisement is illiberal and undemocratic, counterproductive, racist, and, in the United States, unconstitutional.

Against these claims, this paper outlines a form of felon disenfranchisement that is consistent with liberal-democratic values.  In particular, I argue that felon disenfranchisement is best conceptualized not as a form or aspect of punishment but as a means of regulating electoral eligibility.  On this view, felons render themselves liable to disenfranchisement because they have violated the civic trust that makes liberal democracy possible.  Although the long history of disenfranchisement features extreme forms of exclusion and reflects a range of odious and unconvincing rationales, a more defensible version, grounded in the liberal and republican values of the Anglo-American tradition, would apply to a narrower range of offenders and include a meaningful opportunity for restoration. In this way, the temporary exclusion of serious offenders from the electorate has the potential to affirm, rather than betray, our commitment to liberal-democratic community.

Controlled Substances # 3: Measuring Culpability by Measuring Drugs?

Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):

The drug sentencing chapter in my casebook involved a bit of a balancing act.  Students need to have some understanding of foundational sentencing principles in order to make sense of the sentencing problems specific to drugs.  But, of course, there is a risk of wading too far into a subject as rich and complex as sentencing and going off-track. 

Ultimately, I decided to keep the focus on drug sentencing issues as much as possible.  I begin the chapter with a few pieces to contextualize modern sentencing practice, without getting into too many of the specifics.  (I should add that one of the lead items in this section is an excerpt from Doug Berman’s excellent Reconceptualizing Sentencing, 2005 University of Chicago Legal Forum 1.)  From there, the chapter moves right into the material drug sentencing.

Drug sentencing poses particularly difficult grading problems.  For crimes like murder or robbery, the essence of what makes the conduct wrongful is easy to grasp.  There may be disagreement about how to differentiate more and less serious homicides, for example, but the contours of the debate tend to present themselves more naturally.  Few would disagree that a person who kills “recklessly” should typically receive a lower sentence than someone who kills “intentionally” and so on. 

I believe there is much less agreement about what it is that makes drug crimes fundamentally wrongful.  Is it the quantity of drugs involved?  The role the defendant played in the specific offense?  The defendant’s motive for becoming involved in drugs (for example, should a drug courier who is an addict be sentenced differently from one who is not)?  The defendant’s overall position in the drug enterprise (to the extent this can ever be pinpointed)?  (The argument that drug crimes are “victimless” and therefore not blameworthy at all is considered elsewhere in the casebook.)

Federal drug laws, and the laws of many states, have answered this problem by focusing largely on drug type and quantity.  The chapter begins with materials that look at this phenomenon.  Students will see the relationship between drug quantity and determinate sentencing laws.  Determinate sentencing requires measurables to work effectively and drug type and quantity are two of the easiest things to measure.  Certainly, weighing drugs is much easier than, for example, trying to define and prove someone guilty of being a “drug kingpin.”  But, is drug quantity really an accurate measure of culpability?  This is a theme that runs throughout the chapter with cases that continue to ask students to consider what factors should drive drug sentences. 

Students also confront a number of practice-oriented problems.  United States v. Hickman, 626 F.3d 756 (4th Cir. 2010), for example, centers on a drug conspiracy quantity calculation.  The conspiracy was not sprawling by any means.  It involved just a few discrete transactions, planned transactions, and confiscated drug amounts.  But putting all of the numbers together to reach a quantity still proves to be quite a chore.  Hickman displays some of the methods courts use to calculate drug quantity in a conspiracy.

Drug sentencing also provides a great vehicle for thinking about prosecutorial discretion.  The issue comes up throughout the chapter, in cases on providing substantial assistance, drug sentencing and the Eighth Amendment, and the crack-powder sentencing disparity.  Toward the end of the chapter, prosecutorial discretion becomes the focus in a section devoted to the issue. 

The central case in this section is the 2012 decision, United States v. Dossie , which was almost released too late to make it into the book.  I’m very glad I was able to include it.  In Dossie, Judge Gleeson, urges the Department of Justice to adopt a policy to curtail the reserve mandatory minimum sentences for only a small subset of offenders.  The decision is a great one for drawing students into a discussion about prosecutorial discretion.  Dossie’s discussion of mandatory minimums and drug quantity also ties together a number of different points from the chapter.

Prior post in series:

• Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"
• Controlled Substances # 1: Teaching Drug Possession
• Controlled Substances # 2: Identifying the Kingpin: Easier Said than Done

Sixth Circuit panel finds reasonable 30-day contempt sentence for courtroom cell phone use by observer

The sentencing component of this local Ohio article caught my attention based on the headline "Tweeting and texting earns Cleveland man contempt of court charge, 30 days in jail." Here are the basics:

Cell phones are routinely used in classrooms and bathrooms — sometimes even in churches.  But not in federal courtrooms, where all electronic devices are banned.  But that didn’t stop Maurtez Prince, 22, of Cleveland, from trying to sneak in a few tweets and texts last year during a buddy’s sentencing hearing at the U.S. District Courthouse in Akron.

Prince will be able to contemplate his crime from behind jail bars, where he will spend 30 days for contempt of court.

On May 31, the day of the friend’s sentencing, an assistant U.S. marshal spotted Prince using his cell phone in the courtroom and ordered him to turn it off, according to court documents. Later, the marshal again caught Prince texting and confiscated the phone.

Then, when Prince went to reclaim his phone, the marshal pointed out the three signs outside the courtroom banning cell phones and any cameras or recording devices, the court documents state.  That’s when Prince admitted having photographed his friend with the phone.

When U.S. District Judge John Adams heard about the incident he ordered Prince to appear before him and explain why he shouldn’t be held in contempt.  Prince argued that he had not deliberately defied a court order against cell phones or taking photographs, his lawyer said.  He claimed he hadn’t seen the signs, and had misunderstood the marshal, believing he simply had to silence his phone.  "Mr. Prince was very apologetic to the judge and the marshal for what he did," said Assistant Federal Public Defender Edward Bryan. "He wasn’t cocky at all. It was his first time in federal court and he didn’t understand the seriousness of his actions."

But Adams was not persuaded and found Prince guilty, stating that "the most troubling part" of the crime was that Prince had continued using his phone after he had been ordered to stop.  Adams sentenced Prince to 30 days in jail, but allowed him to remain free pending an appeal.

On Friday, a three-judge panel from the 6th U.S. Circuit Court of Appeals in Cincinnati released a six-page opinion affirming Adams’s sentence. Judge Deborah Cook wrote that Prince demonstrated "willful disobedience" and that "ample evidence supports the district court’s contempt finding."

A sentence of a month in jail for use of a cell phone in a courtroom struck me as quite severe, but the unpublished Sixth Circuit panel opinion in US v. Prince, No. 12-3789 (6th Cir. April 19, 2013) (available here), suggests to me there may be a lot more to the story. Specifically, the panel opinion highlights that Prince has a significant criminal history and that he may have been doing something quite nefarious when seeking to take pictures and send texts during another's federal sentencing proceedings.  In other words, after reading the panel opinion in Prince, I was less troubled by the decision to sentence this defendant to a month in lock-up for his contempt of court.

But I remain curious and uncertain as to whether there are perhaps some First Amendment implications here given that the courtroom Prince was in was not sealed and that sentencings are generally to be public proceedings.  I presume the First Amendment would generally preclude a courtroom spectator from being punished for writing/reporting on-line (say on a blog) about a public federal sentencing while that spectator has moved into the hallways of a public courthouse. Should I just view the courtroom ban/punishment here a proper time, place, manner restriction on the First Amendment, or do others agree there might be some important constitutional issues here?

Lots of death penalty headlines in wake of capture of one Boston bomber

Just as has taken place on this blog (via comments to this post), there is now lots and lots of media buzzing about seeking the death penalty for surviving boston bomber Dzhokar Tsarnaev.  Here are some of the headlines and stories from various sources that caught my eye via Google news this morning:

• "Accused Boston Marathon bomber will likely face death penalty"

• "Tom Menino open to death penalty: Wants toughest punishment for accused terrorist"

• "Schumer says death penalty 'appropriate'"

• "Bombing Does Not Guarantee Death Penalty"

Do recent California prison reforms demonstrate Plata ruling was a success or a failure?

There was lots of debate, both within the Justices' opinions and in the outside punditry, about whether and why the Supreme Court was wise or foolish to uphold in its 2011 Plata ruling a federal judicial panel's "prisoner release order" based on California's dismal record in running its overcrowded prisons.   Now, nearly two years later, this article from today's New York Times prompts the question in the title of this post.  The article is headlined "California Tries to Regain Fuller Control of Prisons," and here are excerpts:

On the sprawling grounds of the state prison, built here in 1955, a new three-story, $24 million treatment center for mentally ill inmates stands out because of its freshly painted walls and rooftop solar panels.  Inside, on a recent morning, psychologists and social workers were leading group therapy sessions for inmates in large, brightly lighted rooms while individual meetings were being held in smaller offices.

By all accounts, the opening of the new wing in January, as well as that of a crisis center and a housing unit for more troubled inmates in recent years, has improved the quality of mental health care in this prison, known formally as the California Medical Facility.  In the past, the group sessions were held in a housing unit’s common room and left those not participating locked in their cells, unable to socialize or watch television....

California is arguing that the building here, just west of Sacramento, part of the $1.2 billion spent on improving mental health care in the last three years, is an example of why the state should be allowed to regain fuller control over its prisons, the nation’s largest correctional system.  But federal judges recently issued stinging criticisms of the state, denying its bid for greater authority in two related cases and affirming the continuing need for federal overseers to achieve a level of care required by the United States Constitution.

Gov. Jerry Brown, who has been pressing strongly for the end of federal oversight since the beginning of the year, has said that the state will appeal the two decisions. Meanwhile, Mr. Brown and other state officials have been given until early May to submit a plan to further reduce overcrowding in the state prisons or be held in contempt of court....

The judges and lawyers representing inmates said that the improvements had been made only because of federal oversight. “We know they’ve needed treatment space for 20 years,” Michael Bien, a lawyer who has long represented inmates, said of the new building here. “It’s just an example of yes, they did it — great. They did it only under compulsion of the law. It wasn’t voluntary.”

Mr. Bien was involved in a class-action lawsuit regarding mental health care filed by inmates against the state more than two decades ago. In 1995, a federal court appointed a special master to carry out reforms in mental health care, which it found inadequate at the time and in violation of the Constitution. The court ruled this month that the federal overseer was necessary to remedy continuing constitutional violations behind problems like the high suicide rate.

The state is arguing that mental health care meets or exceeds constitutional standards. It is spending $400 million a year on mental health care in its prisons, and a dozen new facilities valued at a total of $1.2 billion have been built in the past three years or are under construction....

A special three-judge federal court also denied the state’s motion to overturn an order to reduce prison overcrowding from its current level of 150 percent of capacity to 137.5 percent by the end of this year.

In 2009, the court found that adequate mental and medical health care could not be delivered because of overcrowding — which reached more than 200 percent in 2006 — and ordered the state to reduce the prison population gradually. The Supreme Court upheld the order in 2011 after the state appealed.

California has already cut its prison population by 25,000 inmates to about 120,000 by sending low-level offenders to county jails in a policy known as realignment. Mr. Beard said that sending 10,000 more inmates to county jails — the number required to reach the court-mandated goal of 137.5 percent of capacity — would overwhelm the counties. Some county officials, forced to release inmates early from increasingly packed jails, have blamed realignment for a rise in break-ins and auto thefts.

Barry Krisberg, a law professor at the University of California, Berkeley, and an expert on California’s prisons who testified in the 2011 Supreme Court case, said it was unlikely the state would succeed in its appeals because of that 2011 ruling. “He can’t win these cases,” Mr. Krisberg said, referring to the governor. “In my view, it’s nearly impossible to go to the same Supreme Court and within a year ask them the same question.”

Instead of looking only to realignment, Mr. Krisberg said, the state must consider the politically difficult option of shortening sentences for good behavior, a policy that previous governors have carried out without an increase in crime. “If they were to restore good-time credits for the people who are doing everything we’re asking of them in prison, they could get these numbers,” he said, referring to the 137.5 percent goal.