Sentencing Law and Policy

With seven executions scheduled, Texas running out of needed drugs

As this AP story reports, Texas is on the verge of having problems already facing other states with expired or expiring execution drugs.  Here are the details:

The nation's most active death penalty state is running out of its execution drug. The Texas Department of Criminal Justice said Thursday that its remaining supply of pentobarbital expires in September and that no alternatives have been found. It wasn't immediately clear whether two executions scheduled for next month would be delayed. The state has already executed 11 death-row inmates this year, and at least seven more have execution dates in coming months.

"We will be unable to use our current supply of pentobarbital after it expires," agency spokesman Jason Clark said. "We are exploring all options at this time."

Texas switched to the lethal, single-dose sedative last year after one of the drugs used in its three-drug execution process became difficult to obtain and the state's supply expired. Other death-penalty states have encountered similar problems after some drug suppliers barred the drugs' use for executions or have refused, under pressure from death-penalty opponents, to sell or manufacture drugs for use in executions....

"When Texas raises a flag that's it having a problem, obviously numerically it's significant around in the country because like they're doing half the executions in the country right now," Richard Dieter, executive director of the Washington-based Death Penalty Information Center, an anti-death penalty organization, said Thursday....

Some death penalty states, most recently Georgia, have announced they're turning to compounding pharmacies, which make customized drugs that are not scrutinized by the Federal Drug Administration, to obtain a lethal drug for execution use.

Missouri wants to use propofol, the anesthetic blamed for pop star Michael Jackson's 2009 death - even though the drug hasn't been used to execute prisoners in the U.S. Its potential for lethal injection is under scrutiny by the courts and its first use isn't likely anytime soon. The Missouri Supreme Court has declined to allow execution dates to be set in that state until the legal issues are resolved.

Missouri Attorney General Chris Koster recently suggested that if a suitable execution drug can't be found, the state should consider the gas chamber. State law still allows for execution by lethal gas, though Missouri no longer even has a gas chamber....

Texas has by far executed more inmates than any other state in the U.S. since the Supreme Court allowed executions to resume. Since 1982, six years after the high court's order, Texas has executed 503 inmates. Virginia is a distant second at 110.

"Violence will rise as climate changes, scientists predict"

The title of this post is the headline of this recent Los Angeles Times article, which suggests that environmentalists might try to pitch conservatives that limiting carbon emissions is key to ensuring public safety.  Here is how the piece starts:

Long before scientists began to study global warming, author Raymond Chandler described the violent effects of dry, "oven-hot" Santa Ana winds gusting through the city of Los Angeles. "Every booze party ends in a fight," he wrote in his 1938 story "Red Wind." "Meek little wives feel the edge of the carving knife and study their husband's necks. Anything can happen."

While social commentators have long suggested that extreme heat can unleash the beast in man, formal study of the so-called heat hypothesis — the theory that high temperatures fuel aggressive and violent behavior — is relatively new. Using examples as disparate as road rage, ancient wars and Major League Baseball, scientists have taken early steps to quantify the potential influence of climate warming on human conflict.

Now, three UC Berkeley researchers have pulled together data from these and other studies and concluded that the incidence of war and civil unrest may increase by as much as 56% between now and 2050, due to warmer temperature and extreme rainfall patterns predicted by climate change scientists.

Likewise, episodes of interpersonal violence — murder, assault, rape, domestic abuse — could increase by as much as 16%, they report in a study published Thursday by the journal Science. "We find strong causal evidence linking climatic events to human conflict … across all major regions of the world," the researchers concluded.

Related prior posts:

• "Crime, Weather, and Climate Change"
• Why global warming (like everything else) is really a criminal justice issue

Federal jury rejects death penalty for murderous Somali pirates

As reported in this AP piece, a "jury recommended Friday that three Somali pirates be sentenced to life in prison in the slayings of four Americans aboard a yacht off the coast of Africa." Here is more on this notable sentencing decision:

Prosecutors had sought the death penalty, and 22 of the 26 crimes they were convicted of were death-eligible offenses. But a federal jury in Norfolk, Va., recommended the only other possible sentence for 20-year-old Ahmed Muse Salad, 25-year-old Abukar Osman Beyle and 29-year-old Shani Nurani Shiekh Abrar.

During the sentencing phase of the trial, defense attorneys attempted to raise doubts about the certainty of the crimes the jury had convicted them of. Salad attorney Claire Cardwell noted that nobody was able to definitively say which person shot which victim, and that much of the evidence presented relied on testimony of other convicted pirates. If the jury and the government wanted to dole out justice by taking an eye for an eye, "Which eye, for which eye?" she asked....

The three men were among 19 who boarded the Quest in February 2011 several hundred miles off the coast of Somalia in hopes of taking the Americans back to Somalia and ransoming them for millions of dollars. The plan fell apart when the U.S. Navy began shadowing the sailing vessel. The yacht's owners, Jean and Scott Adam of Marina del Rey, Calif., and their friends, Bob Riggle and Phyllis Macay of Seattle, were shot to death a few days after negotiations with the Navy broke down....

Prosecutors said the murders were planned, as evidenced by threats from the pirates to the Navy, but Cardwell said that made no sense for them to kill their hostages. By the time Navy SEALs scrambled aboard, all four Americans had been mortally wounded. Prosecutors said the Americans had been shot 41 times.

"Let's call it what it is. It was a massacre," Assistant U.S. Attorney Joseph DePadilla told jurors while arguing for the death penalty during closing arguments earlier this week. The victims were the first U.S. citizens killed in a wave of pirate attacks that have plagued the Gulf of Aden and Indian Ocean in recent years. In their justification for seeking the death penalty, prosecutors wrote that the men killed or attempted to kill more than one person during a single episode. They also said their actions endangered the U.S. military and that the Americans were killed "in an especially wanton and gratuitous manner."...

Defense attorneys for Salad had argued he should not be eligible for the death penalty because they claimed he is mentally handicapped. Defense documents say Salad has a low IQ, a poor memory and had difficulty functioning as a child in Somalia. Defense attorneys also noted in court filings that his co-defendants describe Salad as "slow" and inept at fishing....

Eleven other defendants who were aboard the Quest have already pleaded guilty to piracy and have been sentenced to life in prison. Four other suspected pirates were killed aboard the yacht. A fifth suspected pirate was released because he was a juvenile.

To some Justices' chagrin, SCOTUS refuses to delay latest California prison release order

As reported here by Lyle Denniston at SCOTUSblog, the "Supreme Court, over three Justices’ dissents, on Friday afternoon refused to delay a lower court order requiring California state prisons to release nearly 10,000 inmates by the end of this year, to relieve overcrowding." Here is more:

In an order containing no explanation, the Court majority denied state officials’ plea to keep the release order on hold until it could be challenged on appeal. The Supreme Court’s ruling did not even mention state officials’ plea to grant full-scale review of the order.

Justice Antonin Scalia, in a bitterly worded dissent joined by Justice Clarence Thomas, called the three-judge District Court’s release mandate a “terrible injunction” that will have the grave consequence of releasing many dangerous prisoners. Justice Samuel A. Alito, Jr., noted simply that he would grant a postponement.

The Scalia dissent condemned what he called “the Power of the Black Robe” in broadly expanding judicial power, and then hinting at limitations “that make it seem not so bad.” He was referring to the Court’s ruling in this same case, two years ago, suggesting that the state might seek and get some relief from an earlier release order. “Comes the moment of truth,” Scalia wrote, “the hinted-at limitation proves a sham.” The District Court judges, he suggested, have now called the Court’s earlier “bluff” and ordered further releases.

State officials, the dissenters argued, had come forward with evidence that they have “made meaningful progress” in relieving the serious overcrowding in the state’s 34 adult prisons, and thus it was unnecessary for additional releases to be made....

Before the latest release order, which is expected to require opening the prison gates to some 9,600 inmates, the state already had released about 37,000 inmates. Officials claimed, in their new challenge, that the only prisoners who could be released to comply to the new mandate are those convicted of very serious crimes.

The state’s challenge to the latest order was filed with Justice Anthony M. Kennedy, who handles emergency legal matters from the geographic area that includes California — the Ninth Circuit.  Kennedy referred it to the full Court, resulting in the denial issued Friday.

Although the voting of the Justices was not spelled out in the order, it appeared that it had been joined by Kennedy, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. 

The state’s challenge had been pending at the Court for more than three weeks; it was filed July 10. The delay in resolving it may have been due to the fact that members of the Court, now in their summer recess, have been traveling.

The brief order from the Court, along with Justice Scalia's three-page dissent, is available at this link.

Could prison perhaps be helping to cause serious recidivism in Delaware?

The question in the title of this post is the first reaction I had upon seeing this lengthy local story, headlined "Study: 8 in 10 released inmates return to Del. prisons." Here are the details:

Nearly eight in 10 Delaware inmates sentenced to more than a year in prison are arrested again for a serious offense within three years of their release, according to a first-of-its-kind state study.  The 27-page report, Recidivism in Delaware, also found that 71% of released prisoners are convicted of a serious crime within three years, and that 68% return to prison for at least one day....

Conducted by the Delaware Criminal Justice Council, the report was a necessary initial step to evaluating the effectiveness of the state's justice system, including the programs available to prisoners while behind bars or after being freed. "These are people who have been sentenced to a year or more in prison, the more serious offenders, and we expected them to be the highest recidivists," said Drewry N. Fennell, the criminal justice council's executive director.

"It really gives us a baseline against which to measure our successes in the future. And our failures. And to know whether we are spending our time and money well in ways that really do enhance communities that people are going back to, as well as enhancing the lives of people who have been incarcerated. We don't want to invest in things that don't do that."

Delaware Gov. Jack Markell said the information should be used to develop better strategies to prevent crime and reduce the number of criminals who re-offend. "Too many people released from our prisons go on to commit more crimes. We need to change that," he said in a statement.

Delaware officials haven't studied how effective the corrections system is in keeping offenders from returning to prison since 2000, and that study was limited to a one-time snapshot of prisoners returning after their release in the 1980s and early 1990s.

Delaware Public Defender Brendan O'Neill, whose taxpayer-funded agency represents about 85% of the state's defendants, said he was surprised the rates included in the new report are so high. "It raises more questions than it answers now," O'Neill said, while applauding officials for finally conducting the long-needed study....

Delaware Attorney General Beau Biden said in a written statement that the report "highlights an alarming rate of recidivism that needs to be addressed by the criminal justice system." Biden said its findings underscore problems his office has been trying to address, such as prison sentences that don't "adequately reflect the seriousness of the crime" or deter future crimes, and the failure of judges to order pre-sentence reports for most serious felony cases.

Delaware embarked on the study on the orders of the General Assembly, which passed a bill in 2012 that required an annual report from the Criminal Justice Council's Statistical Analysis Center. The law, part of the Justice Reinvestment Initiative that looks to spend corrections dollars more wisely, requires one-year, two-year and three-year rates of re-arrest, reconviction and recommitment of released offenders....

Researchers studied 1,167 prisoners released in 2008 and 1,091 freed in 2009. About 91% were men. Fifty-nine percent were black, and 41% white. Those released in 2008 had slightly higher rates of going back into the criminal justice system than those freed in 2009. Of the 2008 group, 56% got arrested for a "serious offense" within one year, compared to 53% in 2009. Fennell said serious crimes include all felonies and Class A and B misdemeanors. Class B misdemeanors include crimes such as marijuana possession, prostitution and criminal contempt....

Perry Phelps, head of the Bureau of Prisons, cautioned, however, that the deck is often stacked against former inmates because they have trouble getting public assistance, college financial aid or jobs. Lawmakers, educators and employers need to face that reality and remove some of the barriers for those who truly want to reform to help prevent them from returning to their criminal ways, he said.

"We tell people in this country we forgive and forget. You go to jail and do your time and you are set free. But that's not the reality of it," Phelps said. "Some people are ostracized as criminals for so long when they go back to society."

A press release concerning this recidivism report is available at this link, and the full report is available at this link. Among the notable findings from the detailed report is that property offenders serving significant prison terms the first time around still have the highest recidivism rate, which leads me to worry (as my post title suggests) that property offenders may be folks most likely to learn about new and improved ways to commit new offenses while inside prison.

"Sentencing Reform Starts to Pay Off"

The title of this post is the headline of this (too short) new New York Times editorial. Here is the text:

In 2010, Congress passed the Fair Sentencing Act, which reduced the vast disparity in the way the federal courts punish crack versus powder cocaine offenses. Instead of treating 100 grams of cocaine the same as 1 gram of crack for sentencing purposes, the law cut the ratio to 18 to 1. Initially, the law applied only to future offenders, but, a year later, the United States Sentencing Commission voted to apply it retroactively. Republicans raged, charging that crime would go up and that prisoners would overwhelm the courts with frivolous demands for sentence reductions. Senator Charles Grassley of Iowa said the commission was pursuing “a liberal agenda at all costs.”

This week, we began to learn that there are no costs, only benefits. According to a preliminary report released by the commission, more than 7,300 federal prisoners have had their sentences shortened under the law. The average reduction is 29 months, meaning that over all, offenders are serving roughly 16,000 years fewer than they otherwise would have. And since the federal government spends about $30,000 per year to house an inmate, this reduction alone is worth nearly half-a-billion dollars — big money for a Bureau of Prisons with a $7 billion budget. In addition, the commission found no significant difference in recidivism rates between those prisoners who were released early and those who served their full sentences.

Federal judges nationwide have long expressed vigorous disagreement with both the sentencing disparity and the mandatory minimum sentences they are forced to impose, both of which have been drivers of our bloated federal prison system. But two bipartisan bills in Congress now propose a cheaper and more humane approach. It would include reducing mandatory minimums, giving judges more flexibility to sentence below those minimums, and making more inmates eligible for reductions to their sentences under the new ratio.

But 18 to 1 is still out of whack. The ratio was always based on faulty science and misguided assumptions, and it still disproportionately punishes blacks, who make up more than 80 percent of those prosecuted for federal crack offenses. The commission and the Obama administration have called for a 1-to-1 ratio. The question is not whether we can afford to do it, but whether we can afford not to.

As my many blog posts highlight, there is a lot more which can and needs to be said concerning all the topics that this editorial touches upon. But I am very pleased to see that the Times is noticing the impact of recent federal sentencing reforms and call for more.

Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"

As reported via this press release from the offices of Senator Dick Durbin, another notable pair of Senators from the two parties have put aside other differences to come together to support and promote federal sentencing reform.  (Since the press release comes from Senator Durbin's office, I have Senator Lee's picture posted.)   Here are the basics:

With federal prison populations skyrocketing and nearly half of the nation’s federal inmates serving sentences for drug offenses, Assistant Majority Leader Dick Durbin (D-IL), Senator Mike Lee (R-UT) have introduced the Smarter Sentencing Act, to modernize our drug sentencing polices by giving federal judges more discretion in sentencing those convicted of non-violent offenses. Making these incremental and targeted changes could save taxpayers billions in the first years of enactment.

“Mandatory minimum sentences for non-violent drug offenses have played a huge role in the explosion of the U.S. prison population,” Durbin said. “Once seen as a strong deterrent, these mandatory sentences have too often been unfair, fiscally irresponsible and a threat to public safety. Given tight budgets and overcrowded prison cells, judges should be given the authority to conduct an individualized review in sentencing certain drug offenders and not be bound to outdated laws that have proven not to work and cost taxpayers billions.”

“Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said. “By targeting particularly egregious mandatory minimums and returning discretion to federal judges in an incremental manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing polices.”

The United States has seen a 500 percent increase in the number of inmates in federal custody over the last 30 years, in large part due to the increasing number and length of certain federal mandatory sentences. Mandatory sentences, particularly drug sentences, can force a judge to impose a one-size-fits-all sentence without taking into account the details of an individual case. Many of these sentences have disproportionately affected minority populations and helped foster deep distrust of the criminal justice system.

This large increase in prison populations has also put a strain on our prison infrastructure and federal budgets. The Bureau of Prisons is nearly 40 percent over capacity and this severe overcrowding puts inmates and guards at risk. There is more than 50 percent overcrowding at high-security facilities. This focus on incarceration is also diverting increasingly limited funds from law enforcement and crime prevention to housing inmates. It currently costs nearly $30,000 to house just one federal inmate for a year. There are currently more than 219,000 inmates in federal custody, nearly half of them serving sentences for drug offenses.

The bipartisan Durbin-Lee-Leahy bill is an incremental approach that does not abolish any mandatory sentences. Rather, it takes a studied and modest step in modernizing drug sentencing policy by:

• Modestly expanding the existing federal “safety valve”....

• Promoting sentencing consistent with the bipartisan Fair Sentencing Act: The bipartisan Fair Sentencing Act of 2010 – which was authored by Senator Durbin and unanimously passed the Senate before it was signed into law – reduced a decades-long sentencing disparity between crack and powder cocaine offenses. Unfortunately, because of the timing of their sentences, some individuals are still serving far-too-lengthy sentences that Congress has already determined are unjust and racially disparate. The Smarter Sentencing Act allows certain inmates sentenced under the pre-Fair Sentencing Act sentencing regime to petition for sentence reductions consistent with the Fair Sentencing Act and current law....

• Increasing individualized review for certain drug sentences: The Smarter Sentencing Act lowers certain drug mandatory minimums, allowing judges to determine, based on individual circumstances, when the harshest penalties should apply. The Act does not repeal any mandatory minimum sentences and does not lower the maximum sentences for these offenses....

The bipartisan Smarter Sentencing Act is supported by faith leaders from the National Association of Evangelicals to the United Methodist Church. It is supported by groups and individuals including Heritage Action, Justice Fellowship of Prison Fellowship Ministries, the ACLU, Grover Norquist, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, the NAACP, the Sentencing Project, Open Society Policy Center, the American Bar Association, NAACP Legal Defense and Educational Fund, the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, the Constitution Project, Drug Policy Alliance, Brennan Center for Justice, and Lawyers’ Committee for Civil Rights Under Law.

I am going to need to see the text of this new bipartisan Smarter Sentencing Act before opining about whether it is a terrific reform proposal or just a very good one. But, even without seeing the specifics, I can note and praise the willingness and ability for these Senators, who likely do not agree on too many issues, coming together to give effect to their shared view that the federal sentencing system need to be made smarter.

Some recent and older related posts about the new federal politics of sentencing:

• "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)
• "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
• Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
• Justice Safety Valve Act gets bipartisan introduction in House of Representatives
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Another notable GOP member of Congress advocating for federal sentencing reform
• "As Prisons Squeeze Budgets, GOP Rethinks Crime Focus"
• Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?

Domestic and international marijuana legalization making headlines

According to the news headlines, today appears to be yet another significant day for those eager to see movement toward the ending of national and international pot prohibition.  Here are the stories catching my eye:

• "Quinn signs Illinois medical marijuana bill into law"

• "Uruguay takes key step toward legalizing marijuana"

Seventh Circuit, spliting 5-4, refuses to reconsider guideline error remedy after Peugh

A helpful reader alerted me to this Seventh Circuit order denying rehearing in US v. Hawkins and this set of opinions from judges on the panel explaining how the Supreme Court's recent ruling in Peugh enters the analysis.  I fear that the legal issues being debated here are hard to unpack (though they are fascinating), and thus I will here just reprint the first paragraph from Judge Rovner's dissent from the denial of rehearing, which helps spotlight the issue being debated:

Since July 25, 2003, Bernard Hawkins has been sitting in a Federal Correctional Institution, where he is scheduled to remain for approximately twelve-and-ahalf years.  It is uncontroverted that the district court erred when it calculated his sentence using the career offender enhancement, and had the court not erred, his calculated sentencing range would have been approximately ten times less — somewhere in the range of 15-21 months. Yet despite the known and conceded error, we are told that for the sake of principles of finality, Hawkins must remain in prison for the entire 151-month sentence. My dissent to the panel opinion elucidated the reasons why I believe this was the wrong result. In the interim, the Supreme Court issued a decision in Peugh v. United States, 133 S.Ct. 2072 (2013), addressing the question of how appellate courts should view the effect of errors that sentencing courts make when they select the incorrect United States Sentencing Guideline as a starting point. In light of that decision, and for the reasons articulated in the dissent to the panel opinion, I believe it is our duty to reconsider Mr. Hawkins’ case and therefore I respectfully dissent from the denial of rehearing.

Cleveland kidnapper Castro gets LWOP sentence plus 1000 years as plea deal provided

I had the honor this morning of watching the first part of the state sentencing proceeding for Cleveland kidnapper Ariel Castro in a remote studio waiting to be a boxed pundit on CNN.  Consequestly, I will link here and quote below part of CNN's extensive coverage of the sentencing chapter of this high-profile case:

Kidnapping victim Michelle Knight told her captor, Ariel Castro, during his sentencing hearing, "You took 11 years of my life away. ... I spent 11 years in hell. Now, your hell is just beginning."

"I can forgive you, but I will never forget," she said in her statement to Castro, calling him a hypocrite. "Nobody should go through what I went through," she said tearfully. She called another victim, Gina DeJesus, her "teammate" saying the woman saved her when she was "dying from his abuse." Knight said she "will overcome what happened" but Castro "will face hell for eternity."

During Ariel Castro's sentencing hearing, prosecutor Anna Faraglia said that Castro "tormented (his victims) by allowing them to watch their vigils ... and even had the audacity to attend them."  She further said that Castro would talk to his victims' parents as if he were distraught by their disappearances when "they were right underneath his roof."

Tim McGinty, Cuyahoga County prosecutor, stressed there's no backing to the claim that Ariel Castro suffered from mental illness. "He is responsible," he said, likening him to murderers John Wayne Gacy and Ted Bundy. "He has no excuse."  When asked what Castro would do if he could go back and do things differently, the kidnapper responded that he'd do it all over again, McGinty said. "He doesn't believe he did anything wrong," McGinty said. "There is no remorse."

Defense attorney Craig Weintraub then told the judge that he felt some of the testimony presented was inappropriate because "these were really private matters," the sentence had been agreed upon prior to the hearing and Castro waived his right to challenge the facts of the case. Judge Michael Russo responded that he felt the testimony and evidence was necessary to help him guide his decision on whether to accept the sentence.

Cleveland kidnapper Ariel Castro, speaking at his sentencing hearing, said, "I'm not a violent person.  I simply kept them there so they couldn't leave."  He was referring to the three women he held captive for about a decade.   Castro said he knew what he did was wrong, but he argued that the "accusations that I would come home and beat them" are "totally wrong."

"I'm not a monster. I'm just sick. I have an addiction. Just like an alcoholic has an addiction."...

Describing himself as a "very emotional person," Ariel Castro said during his sentencing hearing that "these people are trying to paint me as a monster and I'm not a monster. I'm sick."

"I believe I am addicted to porn to the point that it makes me impulsive and I lost it," he said, adding he's "not trying to make excuses."

Ariel Castro took issue with the aggravated murder charge related to the allegation that his abuse terminated the pregnancy of one of his victims, saying there was no evidence the incident occurred. Judge Michael Russo reminded him that he pleaded guilty, and Castro said he did so only to save his victims further psychological trauma....

Judge Michael Russo has already sentenced kidnapper Ariel Castro to hundreds of years in prison, mostly in eight- to 10-year consecutive blocks.  Russo said Castro "will never be released from incarceration during the period of his remaining natural life for any reason."

"A person can only die in prison once," Judge Michael Russo told Ariel Castro Thursday in handing down a sentence of life in prison plus 1,000 years.  The judge called the sentence "commensurate with the harm you've done." Russo, noting that Castro treated his victims as "slaves," said consecutive sentences rendered in his case must be "imposed" to protect the public and "to punish you."...

"There is no place in this city, there is no place in this country, there is no place in this world for those who enslave others," Judge Michael Russo told kidnapper Ariel Castro. The court in Cuyahoga County is seizing the property of Ariel Castro and imposing a fine of $100,000 on him, in addition to his massive sentence.

Related prior posts:

• Could and should the death penalty be on the table in the Cleveland kidnapping and sexual torture case?
• Cleveland police report supports Aggavated Murder capital charges against Ariel Castro
• "Why Might the Cleveland Kidnapper Get Charged With Murder?"
• Effective discussion of death penalty prospects for Cleveland kidnapper (and alleged pregnancy terminator) Ariel Castro
• "Man in case of 3 Ohio women held captive faces 329 charges including murder, rape, kidnapping"
• Not surprisingly, early buzz about a possible plea for Cleveland kidnapper Ariel Castro
• Committee of prosecutors to consider capital charges againse Cleveland kidnapper Ariel Castro
• Cleveland kidnapper Castro takes LWOP+ plea deal sentence to avoid death penalty

"Sentencing Bradley Manning: He could get 100 years, he could get none"

The title of this post is the headline of this notable new article in the Christian Science Monitor about a notable upcoming sentencing of a notable criminal offender.  Here are excerpts:

As the trial of Pfc. Bradley Manning begins its sentencing phase Wednesday, the prosecution will attempt to show that the documents he released gravely damaged national security.

At the same time, the defense will make the case that the perhaps the government was embarrassed by Private Manning’s disclosures, but they did not cause the catastrophic harm to national security that the Obama administration initially claimed....

“They are going to try to show that nothing he did ultimately harmed the country,” says Richard Rosen, former commandant of the US Army’s Judge Advocate General’s School and currently the director of the Center for Military Law and Policy at Texas Tech University School of Law in Lubbock. The bulk of this sort of evidence could not be introduced before the judge rendered its verdict, because it could be deemed prejudicial or irrelevant, but in the sentencing phase of the proceedings, “The rules of evidence are relaxed,” Mr. Rosen adds....

The key for Manning will be providing mitigating evidence – “factors that may sway the judge to grant him a lesser sentence,” Rosen says. “This may be family problems or that people persecuted him because of his sexual preferences.”

The sentencing phase will be extensive and may last for weeks. Although Manning was acquitted of “aiding the enemy,” which would have carried with it a life sentence without the possibility of parole, he has been found guilty of crimes that generally impose decade-long sentences each, which could quickly add up. “It’s going to accumulate quite a few years,” Rosen says. “We’re probably talking nearly 100 years – we’re talking a lot of years.”

“We’re not celebrating,” defense attorney David Coombs said. “Ultimately, his sentence is all that really matters.”

Once Col. Denise Lind, the presiding judge, renders her verdict, Manning’s case will automatically go to what is known as the “convening authority,” a general who, if he so desired, could overturn the verdict.

The powers of the convening authority have been called into question over recent months, when they have twice thrown out sexual assault convictions rendered by military juries. Though unlikely to happen, the general who is serving as the “convening authority” in the Manning trial – as with the sexual assault cases that caused so much controversy – could dismiss the conviction, known as “setting aside” the verdict.

What the general cannot do is provide a harsher sentence than Colonel Lind has already given to Manning. “He can give further clemency if he wants, he can lessen the sentence, or he can set aside the findings,” Rosen explains.

If the convening authority declines to change the sentence, Manning’s defense team can also seek clemency through the Court of Appeals for the Armed Forces. Beyond that, they could take the Manning case all the way to the US Supreme Court, likely by arguing that the US government violated Manning’s constitutional rights.

That will be a tough case to make. “I can’t think of a time when the Supreme Court has overruled a court of appeals for the Armed Forces,” Rosen says. “They don’t like to second-guess the judgments of the military courts.”

In the meantime, the defense will seek to ensure that Manning gets credit for the jail time he has already served – three years – and perhaps more by arguing that he was mistreated in pretrial confinement by being put in solitary confinement and being stripped naked.

For this, “He’ll try to seek additional credit – in other words, not a one-to-one reduction in jail time, but, say 10 to 1 – in other words, 10 days for every day he was mistreated,” Rosen says. “It’s going to be long and involved,” he adds. “It doesn’t end here.”

Big taxpayer pricetag ($4 million) for just one notable casualty from federal drug war

Accurately calculating either the benefits or costs of the modern American war on drugs is all but impossible.  But it is hard not to notice and lament the discovery of one particularly costly incident for both a casualty of this war and federal taxpayers as is documented in this local article headlined "DEA settles left-in-cell case for $4M." Here are the details:

Daniel Chong, the self-confessed pot smoker who was caught up in a drug sweep last year and nearly died after federal agents inadvertently abandoned him in a holding cell for five days without food or water, is now a millionaire.

Attorney Eugene Iredale announced Tuesday he reached a $4.1 million settlement with the U.S. Department of Justice, without even filing a lawsuit.  “What happened to Daniel Chong should never happen to any human being on the face of the planet,” Iredale said....

In addition to the cash payment, the lawyer said federal officials agreed to adopt new detainee procedures designed to make sure no one is left unwittingly in a holding cell again.  Iredale said he also was told the temporary lockups inside the San Diego office have been equipped with cameras to allow agents to view what happens inside.

The U.S. Department of Justice, which paid the settlement and absorbed all other liability from the local police agencies assisting in the sweep, declined Tuesday to discuss the events or the multimillion-dollar payment.

The harrowing experience for Chong, 25, an engineering major at UC San Diego, began on a Friday night in 2012, when he admittedly went to some friends’ house in University City to celebrate April 20, a special date for marijuana users.  Chong didn’t know it at the time, but the home had been under surveillance by a federal narcotics task force.

Drug agents executed a search warrant early in the morning of April 21, Among other things, they found 18,000 ecstasy pills, marijuana and several weapons in the residence, according to court papers.  The agents also found Chong sleeping on a couch in the front room and transported him and six others to the San Diego field office of the U.S. Drug Enforcement Administration for follow-up interviews.

Chong said he answered all of the agents’ questions and they agreed to send him home without criminal charges.  But instead he was returned to a temporary holding cell, where he spent the next four days without food or water.  During the final two days of the ordeal, Chong was in complete darkness, he said.  He has said he became delirious, drank his own urine, ate the broken shards of his glasses and used the glass to cut the message “sorry mom” in his own forearm.

He said he kicked the door and screamed for help but agents never came to his assistance.  DEA agents admitted later they “accidentally” left Chong in the cell and took the unusual step of apologizing publicly to the UCSD student.   “When they finally opened the door, I was happy,” Chong said Tuesday. “I thought maybe they were going to take me to a mental ward. I was screaming.”

Chong spent five days at Sharp Memorial Hospital in Kearny Mesa before he was able to return home.  Although his lawyer said Chong still suffers from post-traumatic stress, Chong indicated he is doing better overall....

Findings of an investigation of the case by the Office of the Inspector General’s Office of the U.S. Department of Justice have not been released.  Iredale said federal investigators told him they do not plan to pursue criminal charges against any of the agents involved in the task force. Iredale singled out for the first time a San Diego Police Department officer who was the last person to see Chong before the cell was locked.

Intriguing AP review of the challenges of GPS tracking

The AP has this intriguing piece of new reporting on a (too?) popular modern form of technocorrections.  The piece is headlined "Some Ankle Bracelet Alarms Go Unchecked," and here are excerpts:

Three decades after they were introduced as a crime-fighting tool, electronic ankle bracelets used to track an offender's whereabouts have proliferated so much that officials are struggling to handle an avalanche of monitoring alerts that are often nothing more sinister than a dead battery, lost satellite contact or someone arriving home late from work.

Amid all that white noise, alarms are going unchecked, sometimes on defendants now accused of new crimes.  Some agencies don't have clear protocols on how to handle the multitude of alerts, or don't always follow them.  At times, officials took days to act, if they noticed at all, when criminals tampered with their bracelets or broke a curfew....

Twenty-one agencies that responded to the AP inquiry logged 256,408 alarms for 26,343 offenders in the month of April alone.  It adds up for those doing the monitoring.  The 230 parole officers with the Texas Department of Criminal Justice handled 944 alerts per day in April.  The Delaware Department of Correction, which has 31 field officers, handled 514 alarms per day....

Sorting through alerts, and deciding which are serious enough to merit a rapid response, can be fraught with peril....

Supporters of electronic monitoring say [violent crimes by monitored offenders who set off alarms and other] tragedies are the exception and that the devices are a valuable tool for authorities who previously relied only on shoe leather and the telephone to keep tabs on released prisoners. In many cases involving violence by people on trackers, the accused likely would have been free on bail or parole even if electronic monitoring didn't exist, and would have been far harder to monitor.

"No one should think this is going to be 100 percent effective," said George Runner, a former California legislator who wrote that state's voter-approved law requiring bracelets for all paroled sex offenders. "It's just a tool. When used, and used effectively, it can be not only helpful in modifying behavior, but we've heard stories about it actually preventing crimes."

Once used to track straying cows, electronic monitoring of criminals debuted in 1983, when a New Mexico judge inspired by a Spider-Man comic book allowed a man who violated probation to wear an ankle bracelet rather than go to jail.  Use took off in the last decade, as technology improved and lawmakers became enamored of trackers as a cost-effective alternative to incarceration and a way of monitoring sex offenders for life.

Today, 39 states require monitoring of sex offenders.  The biggest user of ankle bracelets is the federal government, which tracks people on pretrial release and probation, as well as thousands of immigrants fighting deportation....

"It's virtually impossible to sit there and track a person all day," said Kelly Barnett, a union official who represents probation officers doing GPS tracking in Michigan.  Barnett said that while officers see value in the monitoring, such programs also give "a false sense of security to the community."

Studies have found mixed results on the devices' value as a crime deterrent.  Bill Bales, a criminology professor at Florida State University, said he believes they are beneficial. Offenders wearing them tend to stay home more with their families.  "They're glad to be in the free world, albeit tethered, rather than in prison," Bales said.

The key to making the devices work, he and other experts said, is to figure out how best to process the immense amounts of information they generate.

New USSC data on implimentation and impact of retroactive crack guidelines after FSA

I just noticed on the US Sentencing Commission's website this new data report carrying the title "Preliminary Crack Retroactivity Data Report; Fair Sentencing Act."  This report, dated July 2013, appears to be the latest accounting of who has (and has not) received the benefit of retroactive application of the 2011 amendments to the federal sentencing guidelines for crack offenses which implemented the new 18-1 crack/powder ratio that Congress created via the Fair Sentencing Act of 2010.

Based on the information reflected in Tables 1 amd 8 of this data report, it appears that just over 7300 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA-inspired crack guidelines being made retroactive.  Significantly, this average reduction merely lowered the average crack sentence from roughly 12.5 years to just over 10 years for the group receiving sentence reductions; this means that even the new-average-lowered sentence for crack offenses were still significantly higher that the average sentences imposed for any other federal drug crimes.

For those eager to gauge the potential economic impact of FSA retroactivity, it appears that the retroactive guidelines as implemented has now saved almost 16,000 cumulative years of federal imprisonment, with a consequent savings to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration).  And for those concerned about racial sentencing dynamics, Table 5 of this data reports that more than 85% of those benefiting from reduced crack sentences have been black prisoners, demonstrating once again the historically racialized reality of federal crack prosecutions.

As I have said in prior posts, if those defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs. And it those defendants do not learn the error of their law-breaking ways, I both expect and hope they will really get the sentencing book thrown at them if ever up for sentencing again.

"Prisons are shrinking. That won’t necessarily last."

The title of this post is the headline of this recent notable essay by Mike Konczal posted on-line via the Washington Post. Here is how it starts:

The Bureau of Justice Statistics on Thursday released its count of the number of prisoners in the country. There are 1,571,013 individuals under the jurisdiction of state and federal correctional authorities. However, that number represents a decline, having fallen 1.7 percent since last year — the third consecutive annual drop and the largest of the three. This multi-year falling trend is also true if you consider everyone in the correctional system, or the nearly 7 million people you get when you include local jails, probation and parole. This is after decades of rapidly expanding prisoner populations in the United States.

Meanwhile, the Corrections Corporation of America (CCA), the nation’s leading provider of private, for-profit prisons, had a happy announcement in a recent PowerPoint presentation: State budgets will soon be no longer in crisis. One must imagine that CCA shareholders who are U.S. residents were excited that school budgets would no longer be slashed, public services more broadly would no longer be cut, and the dangerous state-level austerity holding back the economy would no longer be an issue. But the real excitement was over the idea that states could finally start arresting people again, thus filling the depleted ranks of the incarcerated.

Liberals debate the longer-term consequences of the past five years all the time. Is the financial sector well-regulated again? Did we roll back the expansive executive authority of the War on Terror, or solidify it? Did we invest enough in infrastructure when interest rates were at all-time lows? But a major question is still open for debate: Did collapse of state budgets during the Great Recession put us on a permanent path to rolling back the United States’ high levels of incarceration?

New Slate pitch for Prez to use clemency powers to address crack sentencing disparities

Thanks to the suggestions, and insights and energy of Harlan Protass, a criminal-defense lawyer in New York and an adjunct professor at the Cardozo School of Law, some ideas expressed in this recent post concerning the President Obama's words and (lack of) actions now find expression in this new Slate commentary.  Here is how the piece, co-written by me and Harlan, starts and finishes:

President Barack Obama, commenting last week on George Zimmerman’s acquittal in Trayvon Martin’s death, remarked on “a history of racial disparities in the application of our criminal laws — everything from the death penalty to enforcement of our drug laws.”  A few months earlier, Attorney General Eric Holder similarly lamented new government data suggesting that even today “black male offenders” are sentenced to federal prison terms “nearly 20 percent longer than those imposed on white males convicted of similar crimes.”  These statements reveal that our nation’s first African-American president and first African-American attorney general are aware of serious racial discrimination in the administration of our nation’s criminal laws.  The question is what they plan to do about it?

Neither the president, nor his attorney general, has followed-up or suggested a fix for the problem.  Yet with one signature, Obama could make a remarkable difference: He could use his constitutional powers to commute the sentences of thousands of disproportionately black inmates serving excessive prison terms for crack cocaine offenses.  Put bluntly, rather than dropping occasional comments about high-profile criminal-justice incidents with racial overtones, both the president and the attorney general should make a focused and sustained effort to redress longstanding criminal justice disparities....

Back in 2009, Holder famously described us as a “nation of cowards” in dealing with race issues.  And while both Holder and the president seem to have the courage to speak about high-profile cases, they have yet to show the fortitude and focus needed to turn high-profile controversies into constructive opportunities.  If President Obama is genuinely committed to addressing racial disparities in the enforcement of our criminal laws, he can grant clemency today, and then make a sustained commitment to addressing these issues throughout his second term.  If he fails to do so, he can, justifiably, be called our nation’s “Coward-in-Chief” where race is concerned.

FBI sweep leads to multiple rescues and arrests involving sexually exploited children

As reported in this new Washington Post piece, headlined "FBI raids in 76 cities save 105 kids forced into prostitution; 150 others arrested" the feds have been conducting a multi-day, multi-city sweep on persons involved in child prostution. Here are the basics:

Authorities rescued 105 children who were forced into prostitution and arrested 150 pimps and others in a three-day law enforcement sweep in 76 American cities, the FBI said Monday. The victims, almost all girls, range in age from 13 to 17.

The largest numbers of children rescued were in San Francisco, Detroit, Milwaukee, Denver and New Orleans.  The campaign, known as Operation Cross Country, was conducted under the FBI’s Innocence Lost initiative.

“Child prostitution remains a persistent threat to children across the country,” Ron Hosko, assistant director of the bureau’s criminal investigative division, told a press conference. The FBI said the campaign has resulted in rescuing 2,700 children since 2003.  The investigations and convictions of 1,350 have led to life imprisonment for 10 pimps and the seizure of more than $3.1 million in assets.

For the past decade, the FBI has been attacking the problem in partnership with a non-profit group, the National Center for Missing and Exploited Children. John Ryan, the head of the center, called the problem “an escalating threat against America’s children.”

I cannot help but wonder whether and how the many hundreds of federal prosecutions of persons guilty only of downloading child porn on their computers plays a role in the success of Operation Cross Country and the FBI’s Innocence Lost initiative.  If there is evidence to indicate that the frequent prosecution and tough sentencing of persons guilty of downloading child porn in fact plays a significant role in helping the feds crack down on child sex trafficking, I would be much less trouble by how these cases often get handled.  In my experiences in a few cases, however, many downloaders of child porn getting the sentencing book thrown at them had no connection with actual child sexual abuse offense and were not able to provide the feds with helpful information about anyone directly involved in such abuse.

New law school clinic to undertake impact litigation on rights and criminal justice issues in Mississippi

At the request of Dean I. Richard Gershon of the University of Mississippi School of Law, I am pleased to be able to post this announcement about at exciting new clinic and job opportunity at Dean Gershon's school:

The University of Mississippi School of Law announces the creation of the MacArthur Justice Clinic, the law school's ninth clinical program.  The Clinic will undertake impact litigation on civil rights/human rights matters and criminal justice issues in Mississippi.  The law school seeks a tenure-track (or long-term appointment ) clinical faculty member to lead and teach in the clinic. With the generous support of the J. Roderick MacArthur Foundation, the law school will receive funding for the Clinic’s litigation efforts, and will also create an endowment to provide loan repayment and fellowships for recent graduates who pursue public interest law in Mississippi. The School of Law looks forward not only to the work of the MacArthur Justice Clinic, but also to the connection the Clinic will build with the Roderick MacArthur Justice Center at Northwestern University School of Law.

The Chair of the Search Committee is Professor Ben Cooper (email bcooper @ olemiss.edu). For more information about the position and to apply, please visit this link.  For more information on the establishment of the Clinic, please visit this link.

US District Judge Young explains why he believes corporate plea deals merit special scrutiny

US District Judge William Young of the District of Massachusetts late last week issued another interesting (and lengthy) opinion about federal sentencing and the role of the sentencing judge.  In this new ruling, United States v. Orthofix, No. 12-10169 (D. Mass. July 26, 2013) (available for download below), Judge Young explain at lengthy why the public interest may not be served if judges too readily accept corporate plea deals.

As long time readers know, Judge Young's sentencing work always merits attention, and Orthofix does not disappoint.  There is too much ground covered in Orthofix to allow a simple summary, but here is part of this introduction which provides a preview for what follows:

This memorandum sets out the Court’s reasons for rejecting each of the (C) pleas from these two corporate criminal defendants.  In many ways, the Court’s decision to reject Orthofix’s (C) plea stands as the better subject for elucidation of the Court’s principled objection toward accepting (C) pleas from corporate criminals.  This is because, in contrast with the wholly unsatisfactory settlement proffered by APTx, see APTx’s Plea Hr’g 18:13 (“[T]his is a strikingly below guidelines sentence . . . .”), Orthofix’s plea was tendered as part of what was, substantially, “a fair and appropriate settlement,” Tr. Arraignment, Plea & Sentencing (“Orthofix’s Sentencing”) 25:8, Dec. 14, 2012, No. 12-10169-WGY, ECF No. 39. 

This memorandum articulates the Court’s view of the unusually complex considerations posed by the sentencing of corporate criminals and lays out the Court’s interpretation of the duties it must discharge, with prudence and circumspection, in performing its sentencing function.  The Court concludes that, in light of these considerations, it would be rare indeed for a corporate criminal to persuade this Court that its guilty plea is an appropriate candidate for acceptance under the fetters of Rule 11(c)(1)(C).

Download Orthofix and APTx Sentencing Mem

After extensive (and expensive?) jurisdictional wrangling, Jason Pleau agrees to plead guilty to avoid federal death penalty prosecution

As reported in this local piece from Rhode Island, standard-issue robbery murder case which prompted a high-profile legal tussle between state officials and the feds has now resulted in a standard-issue plea deal to take the death penalty off the table.  The piece is headlined "Death sentence avoided as Jason Pleau’s pleads guilty in 2010 killing of gas-station manager," and here are the details:

The saga of Jason Wayne Pleau, the accused killer whose case drew a governor and the U.S. attorney general into the national debate on the death penalty, has reached a resolution that could see his life spared, in return for spending the rest of it behind bars.

In a plea agreement filed in federal court Friday, Pleau, who faced the death penalty, agreed to plead guilty to charges in connection with his fatal shooting of David D. Main, a Woonsocket gas station manager, during a bank robbery in September 2010.

Pleau agreed to accept a life sentence in prison, with no release.  In return, U.S. Attorney General Eric Holder signed off on a decision by federal prosecutors not to seek the death penalty....

“Obviously, we’re all grateful that Jason Pleau isn’t facing the prospect of a death sentence,” said his lawyer, Robert B. Mann.

Pleau’s case attracted national attention when Governor Chafee, an opponent of the death penalty, refused to turn Pleau over to federal custody. 

Chafee issued a statement following Friday’s announcement by federal prosecutors.  “My thoughts are with Mr. Main’s family. The case today has reached a conclusion, and Mr. Main’s family can begin the long healing process. A life sentence is the appropriate punishment for this brutal crime and respects Rhode Island’s long-standing opposition to the death penalty.”

According to a signed plea agreement filed in U.S. District Court in Providence, Pleau, 35, will plead guilty to committing Hobbs Act robbery; and carrying, using, and discharging a firearm during and in relation to a federal crime of violence, death resulting....

A federal grand jury indicted Pleau in December 2010, but the case was delayed for nearly a year as Chafee became possibly the first governor in the nation to refuse to surrender a prisoner to federal custody based on opposition to capital punishment.

The 1st U.S. Circuit Court of Appeals rejected the governor’s argument, on a 3-to-2 vote, and the U.S. Supreme Court declined to intervene.

As the title of my post suggests, I wonder how much it cost the taxpayers of Rhode Island for its Governor to put up an aggressive fight to try to prevent federal authorities from being able to effectively prosecute a federal murderer. Ironically, losing this fight ultimately saved these same taxpayers the roughly $500,000 it will likely cost to keep Jason Pleau imprisoned until he dies.  Now federal taxpayers will be footing this bill.

Is 898-year federal sentence symbolic and meaningful or senseless and misguided?

The question in the title of this post is prompted by this federal sentencing story out of Texas, headlined "Victim Assaulted by Fake Producer Finds Closure in Sentencing," which was sent my way by Josh Blackman. Here are the basics:

898 years is what a Gemase Lee Simmons will now have to serve for 39 counts of various bank fraud and child pornography offenses. Simmons would tell young men and women that he had a modeling agency and as part of their "sessions" would take naked pictures of some of them.

Bianca Love, a victim, told the judge in federal court that Simmons had scammed her out of money and sex.

Jailers also informed the judge that while waiting for his sentencing Simmons had managed to get other sexual predators to perform sex acts on him. According to investigators Simmons told 2 other prisoners that it was part of a test the U.S. Attorney's Office administered.   Simmons told them he would help them to pass it so they would get less time.

For a much more literary account of this case, I discovered this fascinating opinion discussing the defendant and his crimes.  The opinion is authored by Chief District Judge Fred Biery (WD Texas) to explain his conclusion, after a bench trial, that Simmons was guilty of all the counts against him (and likely many more).  This opinion is a must read in part because, in less than four pages, it makes reference to, inter alia, The Wizard of Oz, Catch Me if You Can, Something Wicked This Way Comes, and Dante's Inferno.  In addition, in response to a quote from the defendant's trial testimony, the judge in this opinion drops a footnote which simply reads: "LOL".

Though I really enjoyed reading the opinion linked above and I can see why Chief Judge Biery was eager to throw the book at Gemase Lee Simmons, I still question the decision to impose a sentence of 898 years.  (In addition, as Josh suggested to me, such an extreme sentence might give the defendant here a non-frivolous claim on appeal that his sentence is unreasonable.)   I tend not to be a fan of legal fictions or of treating the imposition of hundreds of years in prison as just numbers on a page.  While I suspect that a life sentence was not possible because none of the charges carried such a statutory term, I also suspect that a potent message without such a crazy number would have been sent had Chief Judge Biery imposed a terms of, say, 100 years.

That all said, the fact that Chief Judge Biery imposed a sentence of 898 years caught Josh's attention and mind, and perhaps that was part of what Chief Judge Biery hoped to achieve with this remarkable sentencing term.  And if Chief Judge Biery were to write another sensational (and short) opinion to explain his lastest decision in this case, I might well come to the conclusion that the societal ends justify the sentencing means here.