Tuesday, December 16, 2014

"Survey: Teen marijuana use declines even as states legalize"

The title of this post is the headline of this notable new USA Today article reporting on new data that seems likely to be trumpted by those advocating for continued reform of marijuana laws.  Here are the basics:

Marijuana use among teens declined this year even as two states, Colorado and Washington, legalized the drug for recreational use, a national survey released Tuesday found. University of Michigan's Monitoring the Future study, now in its 40th year, surveys 40,000 to 50,000 students in 8th, 10th and 12th grade in schools nationwide about their use of alcohol, legal and illegal drugs and cigarettes.

"There is a lot of good news in this year's results, bu the problems of teen substance use and abuse are still far from going away," Lloyd Johnston, the study's principal investigator, said.

After five years of increases, marijuana use in the past year by students in all three grades declined slightly, from 26% in 2013 to 24% in 2014. Students in the two lower grades reported that marijuana is less available than it once was, the survey found. Among high school seniors, one in 17, or 5.8%, say they use marijuana almost daily this year, down from 6.5% in 2013.

Synthetic marijuana, chemical concoctions meant to simulate a marijuana high and sold at convenience stores and gas stations, have also fallen out of favor. In 2011, when the survey first asked about the drugs, known as K2 and Spice, 11% of 12th graders said they had used the drugs in the past year. In 2014, that number had dropped to 6%. "Efforts at the federal and state levels to close down the sale of these substances may be having an effect," Johnston said.

Abuse of all prescription drugs, including narcotic painkillers, sedatives and amphetamines, declined from 16% in 2013 to 14% in 2014 among 12th graders, the survey found. Narcotic painkiller use, in decline since 2009, dropped again from 7% in 2013 to 6% in 2014. Heroin use, which has grown among adult populations, remained stable for teens.

Teens considered narcotic pain relievers, such as OxyContin and Vicodin, safer than illicit drugs such as heroin and cocaine, because they are prescribed by doctors, Nora Volkow, director of the National Institute on Drug Abuse, said. "There's a very strong and aggressive campaign about educating the public on the risk of opioid medications as it relates to overdoses and deaths," Volkow said. "That has made teenagers aware that they are not so safe as they thought they were."

Teen use of both alcohol and cigarettes dropped this year to their lowest points since the study began in 1975, the survey found. Teens may be trading conventional cigarettes for e-cigarettes. In 2014, more teens used e-cigarettes than traditional tobacco cigarettes or any other tobacco product, the study found. "E-cigarettes have made rapid inroads into the lives of American adolescents," Richard Miech, a senior investigator of the study, said....

Alcohol use and binge drinking peaked in 1997, when 61% of the students surveyed said they had drunk alcohol in the previous 12 months. In 2014, 41% reported alcohol use in the previous year, a drop from 43% in 2013, the survey found. Since the 1997 peak, "there has been a fairly steady downward march in alcohol use among adolescents," Johnston said....

"Even though the indicators are very good news, at the same time we cannot become complacent," Volkow said. "This is a stage where their brains are most vulnerable. We need to continue our prevention efforts."

Cross-posted at Marijuana Law, Policy & Reform

December 16, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack (0)

Notable NPR coverage of the "Human Casualties Of Mandatory Sentencing"

Download (3)I am pleased and intrigued to see that National Public Radio seems to be starting a deep dive into some of the personal stories surrounding the debate over federal mandatory minimum.  This introduction, headlined "From Judges To Inmates, Finding The Human Casualties Of Mandatory Sentencing," sets up the discussion this way:

This year, everyone from Attorney General Eric Holder to Tea Party Republicans in Congress has argued those stiff mandatory minimum prison sentences do more harm than good for thousands of drug offenders. Legislation to cut the tough-on-crime penalties has stalled on Capitol Hill, but it's likely to be reintroduced in 2015. Meanwhile, the White House and the Justice Department have taken the unprecedented step of asking for candidates who might win early release from prison through presidential pardons or commutations in the final years of the Obama presidency. That effort, known as Clemency Project 2014, is moving slowly.

Amid the backdrop of debate inside Washington and across the country, NPR decided to focus on the human toll of these mandatory prison sentences. We talked with judges who expressed tearful misgivings about sending people away for the rest of their lives for crimes that involved no violence and a modest amount of drugs. We found a newly-released inmate trying to reacquaint herself with her community in the Florida panhandle and rebuild ties with her grieving children after 17 years away from home. And we went inside a medium-security prison in New Jersey to find a lifer who says he deserves another chance. These people acknowledge they broke the law and accept the need for punishment. But they say their decades-long incarcerations cast a shadow that lingers over their families, damage that far outweighs the wrongs they did to put them in prison.

The series' first lengthy piece here is titled "Judge Regrets Harsh Human Toll Of Mandatory Minimum Sentences," has lots of good content and quotes from Judge John Gleeson and Professors Rachel Barkow and Bill Otis.

December 16, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Should problematic police be on a registry like sex offenders?

The provocative question in the title of this post is drawn from this provocative new commentary by Ed Krayewski at Reason titled "Time for a Police Offenders Registry." Here are excerpts:

There's a moral obligation to keep bad cops off the streets.  A job with a police department is not a right and shouldn't be treated like one. Police unions that push for permissive rules that end up protecting bad cops pose a serious public safety threat. Nevertheless, dismantling them where they've taken root is a difficult prospect even in the long-term. There are other ways to keep bad cops off the streets. The federal government, and state governments, ought to create and encourage the use of a police offender registry list.  Such a list would register individuals who while employed as law enforcement officers were found unfit for duty or faced serious disciplinary issues they may have resigned to avoid. Just as any other component of comprehensive police reform, this won't eliminate excessive police violence, but it's a start.

When actually identified, a surprising (or not) number of officers involved in controversial, high-profile use of force incidents have previously disciplinary history.  Officer Daniel Pantaleo, the New York City cop who put Eric Garner in a fatal chokehold, had been previously accused, at least twice, of racially-motivated misconduct, including strip searching a man in the middle of the street and allegedly hitting his testicles.  The police union in New York City is among the strongest in the country.  When a rookie cop shot Akai Gurley in apparent panic last month, he didn't think twice to reportedly contact his union rep first. A man lay dying in a stairwell for no other reason that he startled a rookie, and the fact that the officer called his union representative before calling for assistance isn't shocking enough to lead to the officer's termination.  Even if it were, it would still be impossible to terminate the officer immediately.  While all this is happening, the state of New York is on the verge of placing even more of the disciplinary regime that applies to cops under the purview of the police unions.

But not everywhere is the situation as hopeless as in New York City.  In other parts of the country, cops can get fired relatively more easily.  But it doesn't stop them from finding jobs elsewhere.  Richard Combs, who was the sheriff and only cop in Eutawville, South Carolina, is now facing a murder charge for shooting a resident after an argument at Town Hall, but Combs had been previously terminated from the county sheriff's office for unspecified "unsatisfactory performance."  In Cleveland, Ohio, the cop who shot 12-year-old Tamir Rice, mistaking the boy's toy gun for a real one, had been previously found too emotionally unstable and unfit to carry a firearm for law enforcement.  In Georgia, the cop who shot and killed 17-year-old Christopher Roupe after the teen opened the door to his home holding a Wii controller, had been previously fired for multiple disciplinary problems including shooting at an unarmed person....

This is just a sampling of stories that received enough local attention to gain some prominence.  The situation is unconscionable.  Police found unfit for duty in one jurisdiction shouldn't be employed in another.  Cops who resign to avoid disciplinary charges shouldn't slither their way into another department.  Cops who cost taxpayers millions in lawsuit settlements shouldn't be able to expose taxpayers in other places to the same risk....

State governments, and the federal government, can help.  Sex offender registries, which in some jurisdictions can lead to 19-year-olds who receive sexts from their 17-year-old friends being branded sexual predators for life, are an odious thing that makes a mockery of due process and the idea of the penal system as rehabilitation.  But for some of the same reasons they would work to police the privilege of employment in law enforcement. Constitutionally, the federal government could not mandate states use its police offender registry list or operate their own.  Yet because many of the most troublesome police departments (those in big cities and those in the sticks) also rely most on federal assistance in one way or another, the feds could induce compliance by tying it to such assistance.  The federal government has done this before, though usually to push states to impose certain laws on its residents, not to protect residents from abusive government employees. Such a list wouldn't be a comprehensive solution to excessive police violence, but it's an important part, one that could work to lower the number of bad cops operating on the streets and begin to rebuild trust between police and the communities they're supposed to serve. 

December 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack (0)

"Why Plea Bargains are Not Confessions"

The title of this post is the title of this interesting new paper by Brandon Garrett now available via SSRN. Here is the abstract:

Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.”

I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction.

More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.

December 16, 2014 in Collateral consequences, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack (0)

Monday, December 15, 2014

NJ Supreme Court clarifies legitimacy and importance of considering post-offense conduct at sentencing

This local article, headlined "Court: ‘Post-offense conduct’ must be gauged at sentencing," provides an effective summary of a notable New Jersey Supreme Court ruling today. Here is the start of the article:

A man who pleaded guilty to a drug offense was entitled to have the positive changes he made in his life between the time of his plea and sentencing considered by the judge determining punishment, the state Supreme Court ruled Monday.

The state’s highest court ruled that sentencing judges must consider relevant, post-offense conduct when they weigh aggravating and mitigating factors during their sentencing analysis. In the Morris County case involving Joseph M. Jaffe, now 42, and last of Brick, the sentencing judge told his lawyer in 2012 that New Jersey law precluded him from considering Jaffe’s conduct in the year-long span between his guilty plea in August 2011 and sentencing in August 2012.

“In conclusion, the trial court should view a defendant as he or she stands before the court on the day of sentencing,” the Supreme Court said in its opinion, released Monday. “This means evidence of post-offense conduct, rehabilitation or otherwise, must be considered in assessing the applicability of, and weight to be given to aggravating and mitigating factors,” the court said.

The full unanimous opinion in New Jersey v. Jaffe, No. A-12-13 (N.J. Dec. 15, 2014), is available at this link.  Here is how the opinion gets started:

Defendant Joseph M. Jaffe received a three-year state prison sentence almost a year after pleading guilty to an accusation charging him with third-degree conspiracy to possess cocaine with the intent to distribute.  At sentencing, defense-counsel asked the court to consider defendant’s rehabilitative efforts since he was arrested and charged. The trial court declined to weigh such evidence in assessing mitigating factors, concluding that applicable law did not allow him to consider “post[-]offense conduct.” In light of our recent holding in State v. Randolph, 210 N.J. 330 (2012), that a defendant should be assessed as he stands before the court on the day of sentencing, we conclude that the sentencing court must consider a defendant’s relevant post-offense conduct in weighing aggravating and mitigating factors.

A judge’s sentencing analysis is a fact-sensitive inquiry, which must be based on consideration of all the competent and credible evidence raised by the parties at sentencing.  Because we decide here that the trial court must consider at sentencing evidence of a defendant’s post-offense conduct, we are compelled to remand for resentencing to ensure consideration of all of the facts relevant to the applicable aggravating and mitigating factors.

December 15, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack (0)

Police prevail 8-1 in first notable criminal justice merits ruling of SCOTUS term

The Supreme Court completed its last bit of formal action for the year this morning with an orders list and a few opinions.  One opinion is a bit of a holiday gift for criminal justice fans: a relatively short ruling in Heien v. North Carolina, No. 13–604 (S. Ct. Dec. 15, 2014) (available here), concerning Fourth Amendment application.  Here is the alignment of the Justices and the start of the majority opinion:

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion.

The Fourth Amendment prohibits “unreasonable searches and seizures.”  Under this standard, a search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake.  An officer might, for example, stop a motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon approaching the car that two children are slumped over asleep in the back seat.  The driver has not violated the law, but neither has the officer violated the Fourth Amendment.

But what if the police officer’s reasonable mistake is not one of fact but of law?  In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required.  The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment.  We hold that it can.  Because the officer’s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment.

Obviously, Heien is not a sentencing case or even an issue that I could see readily having some sentencing echoes.  But the alignment of the Justices on this matter might lead some to identify additional tea leaves to read about the various criminal justice perspectives embraced by various members of the Roberts Court.

December 15, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack (0)

Former Virginia Gov McDonnell facing significant (trial?) penalty in his federal guideline calculation

This recent article from the Washington Post, headlined "Early federal sentencing recommendation for McDonnell: At least 10 years in prison," spotlights the seemingly severe sentence recommended by the federal sentencing guidelines for a former Governor's corruption.  Among other notbale aspects of this high-profile sentencing story is the fact that former Virginia Gov Bob McDonnell is now facing a guideline sentencing range that is more than three to four times longer than the longest possible sentence he would have faced had he been willing to plead guilty on terms urged by federal prosecutors.  Here are the notable details at this stage of a developing high-profile sentencing story:

The guidelines recommended by the U.S. probation office are preliminary, and even if finalized, U.S. District Judge James R. Spencer is not required to follow them. But experts said that Spencer typically heeds the probation office’s advice, and judges in his district have imposed sentences within the recommendations more than 70 percent of the time in recent years. “It’s of critical importance,” said Scott Fredericksen, a white-collar criminal defense lawyer. “The fact is, the vast majority of times, courts follow those recommendations closely.”

The matter is far from settled. The probation office recommended a punishment from 10 years and a month to 12 years and 7 months. Calculating an appropriate range of sentences in the federal system is a complicated, mathematical process that takes into account a variety of factors, including the type of crime, the defendant’s role and the amount of loss. The judge has yet to see the arguments from each side.

McDonnell and his wife, Maureen, were convicted in September of lending the prestige of his office to Richmond businessman Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury items. McDonnell is scheduled to be sentenced Jan. 6. His wife’s sentencing is scheduled for Feb. 20, and her guideline range is expected to be lower than her husband’s. The probation office has not yet filed a report concerning her.

It is unclear how the probation office determined that the former governor’s crimes necessitate a minimum decade-long sentence. The initial report on the matter is sealed, and people familiar with its contents revealed only the recommended range to The Washington Post.

The range is particularly notable because last December, prosecutors offered to let McDonnell plead guilty to just one count of lying to a bank as part of an agreement that would have meant he could be sentenced to three years in prison at the most and probation at the least. Importantly, though, McDonnell would have been required to sign a statement acknowledging that he helped Star Scientific, Williams’s dietary-supplement company, at the same time the businessman was giving him loot, fully shouldering blame for a relationship he has insisted was not criminal and was driven largely by his wife....

White-collar criminal defense lawyer Matthew Kaiser said McDonnell’s range probably was increased because he was a high-ranking public official, because he took more than one payment from Williams and because the total value of the gifts he received was so high. Kaiser said the probation officer also probably faulted McDonnell because his testimony was contrary to the jury’s verdict.

Prosecutors and defense attorneys will still have an opportunity to argue to the probation officer about whether the range was correctly calculated — although Kaiser said the probation office often “sticks to its guns.” After that, both sides can try to persuade Spencer to modify the recommended range.

Even then, Spencer is not bound by the guideline. Defense attorneys have already begun working vigorously in their bid to sway him toward leniency. This week, they won a legal skirmish with prosecutors so they can file additional pages in their sentencing memorandum — a key document outlining the sentence they believe McDonnell should receive and why. It is unclear whether their efforts to move Spencer away from the probation office’s recommended range will be fruitful.

In the Eastern District of Virginia, where McDonnell is being sentenced, judges imposed sentences within the guideline range more than 70 percent of the time last fiscal year, according to data from the U.S. Sentencing Commission. In about 21 percent of cases, they imposed sentences below the guideline range without a request from prosecutors to do so. Nationally, judges imposed sentences within the guideline range about 51 percent of the time last fiscal year and deviated downward without a request from prosecutors to do so in about 19 percent of cases.

In the McDonnell case, prosecutors are not expected to ask for a sentence below the guideline range.... Brian Whisler, a defense lawyer who used to work as a federal prosecutor in

Richmond, said that Spencer is known to be “largely deferential to the probation office and its sentencing calculations.” Whisler — whose firm, Baker & McKenzie, represented state employees in the McDonnell case — said the judge will likely draw on other cases in the district to inform his conclusion.

The outcome of those might not be to McDonnell’s liking. In 2011, another federal judge in Richmond sentenced former Virginia delegate Phillip A. Hamilton to 9.5 years in prison in a bribery and extortion case. In 2009, a federal judge in Alexandria sentenced former congressman William J. Jefferson to 13 years in prison for accepting hundreds of thousands of dollars in bribes — though, notably, that fell well short of the recommended range of 27 to 33 years.

December 15, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (0) | TrackBack (0)

Sunday, December 14, 2014

Detailing the dysfunction of Pennsylvania's death penalty system

Download (2)This lengthy local article, headlined "Capital punishment in Pennsylvania: When death means life: Commonwealth's death penalty system called expensive and dysfunctional," provide a review of how the Keystone State has a capital punishment system that seems to function as if it were operated by the Keystone Cops. Here are excerpts from the article, which is the first is an extended series:

Pennsylvania's death penalty has cost taxpayers more than $350 million for a dysfunctional system that has sentenced hundreds but hasn't executed anyone in 15 years, a Reading Eagle analysis has found.  The newspaper analysis comes three years after state lawmakers called for an intensive report on Pennsylvania's death penalty, and as a Montgomery County lawmaker maps out a proposal to abolish the system.

The long-overdue report is at least several months away from being issued. There still has been no reckoning of the system's massive financial or psychological cost — including the immeasurable agony of justice-seeking family members and the pain of families waiting for condemned relatives to be executed. "My sister didn't have a choice about when her life ended. Why should he?" said Diane Moyer of Robesonia, referring to convicted killer Glenn Lyons of Reading.

Lyons is one of 185 condemned inmates, making Pennsylvania's death row the fifth largest in the nation.  He's also one of 12 death row inmates prosecuted for murders committed in Berks County, which along with York County has the second-highest number of death row inmates in the state behind Philadelphia's 69.  It was 1937 when Pennsylvania last executed someone for a murder that took place in Berks.

Observers of the state's system both locally and nationally agreed it is deeply flawed. It is likely to get even more scrutiny as prosecutors move ahead with a death penalty case against Eric Frein, accused of ambushing and murdering a state trooper this year....

The newspaper's cost estimate is likely a conservative number.  That's because the estimate, which relies on a 2008 Maryland study by the Urban Institute, was calculated using the Pennsylvania inmates now on death row.  The estimate does not account for unsuccessful death penalty cases tried by prosecutors, nor does it include death row inmates whose sentences were overturned on appeal.

The 2008 study — which produced findings similar to other state studies — found that Maryland spent an average of $1.9 million more on cases that led to death sentences than on cases where the death penalty could have been sought but was not.  At least two experts, including the researcher of the Maryland report, said the study was a fair comparison for estimating the cost to Pennsylvania taxpayers.  Applying the Maryland per-case figure to Pennsylvania's current 185 death row inmates yields a Pennsylvania cost of $351.5 million....

The state has executed three men, all of whom gave up their appeals, since the U.S. Supreme Court reinstated the death penalty in 1976.  But with so few executions among the 429 death warrants Pennsylvania governors have signed since 1985, experts say it's critical lawmakers know the cost to justify budget expenses with a projected $1.85 billion state shortfall in the upcoming fiscal year.  So far, the death penalty hasn't been part of the budget debate.

For the loved ones of the victims, like Moyer, the financial cost of the death penalty is outweighed by the emotional toll of likely never having the killer's execution carried out. Lyons used two kitchen knives to stab Leibig, 45, of Millcreek Township, Lebanon County, again and again, investigators said.  The brutal attack lasted up to 15 minutes.  Lyons, now 49, was convicted and sentenced to death by a Berks jury, but claims he didn't kill Leibig.

The state Supreme Court denied his appeal in 2013, and his execution was set for August, but a federal judge granted him a stay in July, and his appeal process continues.  Leibig's family is frustrated and disappointed, knowing the state may never follow through with his execution.  "He'll keep fighting and playing the system," Moyer said.  "He had a fair trial, and he was guilty.  Put him to death. Give him the injection."...

A death penalty that doesn't actually execute people frustrates those on both sides of the debate.  Death penalty proponents blame an endless and costly appeals process.  Opponents criticize a system with too little funding for poor defendants....

At least one Berks judge who once supported the death penalty has had a change of heart. The judge, who asked not to be identified, had thought execution was a just punishment for the state's worst offenders and a deterrent to others.  But after seeing how cases continuously circle the courts, the judge now thinks the death penalty is a waste of time and money and is unnecessarily difficult on the victim's loved ones holding out hope for an execution.

"It's horrible for the families," the judge said.  Death penalty rulings aren't foolproof and should be scrutinized, but there should also be a limit on appeals, the judge said. "Now there is hearing after hearing.  It never ends," the judge said....

"There is a problem with a law that is never carried out," he said. State Rep. Thomas R. Caltagirone, a Reading Democrat, said he's heard from victims' families how hard it is to sit and wait for the death penalty to be carried out.  "They say: 'We lost a loved one. Why is he still living? Where is the justice?'" Caltagirone said.  "And victim's rights groups are livid about the endless appeals."  But Caltagirone also said he wonders whether it's appropriate for the state to execute someone.  "I'm kind of torn on it," he said.

More than a dozen states have analyzed death penalty costs.  Some states found the costs nearly 50 percent to 70 percent higher than non-death penalty cases.  While the costs vary across the U.S., all found capital trials more expensive.  The reason?  Mostly because the process is more complicated at every point in the case.  A death penalty case involves more attorneys, witnesses and experts.  Jury selection is long, as are the trials.  Also the cases usually have more pre-trial motions and require a separate trial for sentencing.

Incarcerating death row inmates in solitary confinement is also expensive — about $10,000 more a year than inmates serving a life sentence, according to the Pennsylvania Department of Corrections.  And, the majority of death penalty trials on appeal are found to be flawed, some significantly, and must be redone, adding to the price tag.

The state has been studying a laundry list of issues since 2011 when lawmakers directed the Joint State Government Commission to research capital punishment.  Berks officials did not know what the costs of trying capital cases are to taxpayers. "Definitely, the death penalty extremely strains our resources," Adams said.  "There's no way that we can put a financial number to that."...

"You can't choose to do it and not pay for," said Marc Bookman, a former public defender and director of the Atlantic Center for Capital Representation in Philadelphia, a nonprofit resource center.  "It's really expensive to do it properly and it's even more expensive to do it incorrectly," he said.

Last year, Maryland became the 18th state to abolish capital punishment.  Maryland Gov. Martin O'Malley cited the cost — roughly three times as much as life without parole — as one of the factors for repealing the death penalty.  John Ramon, author of "The Cost of the Death Penalty in Maryland," said the costs to Pennsylvania taxpayers are likely comparable, assuming trial and incarceration expenses are similar. "It's not as big as an assumption as it sounds," Ramon said....

Knowing the cost, Ramon and others said, changes the conversation on a very polarizing issue. "I think it changes the nature of the debate because what it's saying is let's not just ask if the death penalty is better than not having the death penalty," Ramon said. "It's saying, given the death penalty is far more expensive, is it still worth having?"

December 14, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

Saturday, December 13, 2014

"The Misleading Math of ‘Recidivism’"

The title of this post is the headline of this effective recent piece of reporting and analysis by Dana Goldstein for The Marshall Project.  Here are excerpts:

Recidivism, the rate at which former inmates run afoul of the law again, is one of the most commonly accepted measures of success in criminal justice.... [But] recidivism, though constantly discussed, can be widely interpreted — and misinterpreted....

In some studies, violating parole, breaking the law, getting arrested, being convicted of a crime, and returning to prison are all considered examples of recidivism. Other studies count just one or two of these events as recidivism, such as convictions or re-incarceration.

When the federal government calculates a state’s recidivism rate, it uses sample prisoner populations to tally three separate categories: rearrests, reconvictions, and returns to prison, all over a one- to five-year period from the date of release. In contrast, a widely cited 2011 survey from the Pew Center on the States relied on states’ own reporting of just one of those measures: the total number of individuals who returned to prison within three years.

Both the federal and Pew statistics leave out an entire group of former prisoners: those who break the law but don’t get caught. That’s why some recidivism research ... relies on subjects’ self-reports of illegal activity.

Another inconsistency across recidivism studies is the period of time they cover. Though three to five years is considered the gold standard, many studies examine a much smaller time frame. One recent study claimed that a parenting program for prisoners in Oregon reduced recidivism by 59 percent for women and 27 percent for men. But the study tracked program participants for only a single year after they left prison. The likelihood of reoffending does decrease after one year. But according to the Bureau of Justice Statistics, an additional 13 percent of people will be rearrested four years after their release....

In its 2011 Brown v. Plata decision, the U.S. Supreme Court cited California’s stratospherically high recidivism rates (according to the Bureau of Justice Statistics, close to 70 percent of former inmates in the state return to jail or prison within three years of release) as evidence that California prisons do not rehabilitate, but instead “produce additional criminal behavior.” The justices blamed recidivism on overcrowding and the lack of adequate medical services behind bars, and ruled those conditions unconstitutional. The ruling required California to decrease its prison population.

But what if the court’s take on the causes of California’s high recidivism rate is wrong? What if it isn’t primarily prison overcrowding that causes reoffending, but an overly punitive parole system — the same trend that drives the majority of recidivism in New York? That’s what the data shows. Parolees in California are actually less likely than parolees in New York or Illinois to commit a new crime. Yet they are exponentially more likely to be arrested and sent back behind bars for violating the conditions of their parole, according to an analysis of BJS data from researcher Ryan G. Fischer. California law punishes technical parole violations with a few days to four months in a county jail or state prison....

[U]sing federal recidivism data for inmates who left state prisons in 1994, parole violations accounted for the entirety of the gap between California’s recidivism rate and the recidivism rates of other large states. In other words: Because of the differences in how states and localities enforce parole, recidivism rates tell us little about the reoccurrence of the types of crimes with which the public is most concerned: crimes that have a victim.

December 13, 2014 in Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (5) | TrackBack (0)

Friday, December 12, 2014

Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively

The Supreme Court, as revealed by this order list, finally appears set to resolve an issue that it has been avoiding for a few years as lower courts have split over implementing its Eighth Amendment work in Miller v. Alabama.  Here is the basic news as set out in the order list:

TOCA, GEORGE V. LOUISIANA

The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following questions: 1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case? 2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?

December 12, 2014 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack (0)

Federal task force on corrections getting geared up for (big?) work in 2015

Logo5As effectively reported in this Crime Report piece, earlier this week the members of a "congressionally mandated task force on the federal prison system" were announced.  Here is the context for this notable development:

[The task force is now] headed by a bipartisan duo of former House members, Republican J. C. Watts of Oklahoma and Democrat Alan Mollohan of West Virginia.  They are being be joined by seven other experts in a yearlong study that many analysts hope will result in agreement on ways to cut the prison population.

There were 212,438 federal inmates last week, a total that has jumped from about 136,000 since the turn of the century -- even though crime rates have steadily fallen. (The federal inmate total exceeded 218,000 two years ago; it has shrunk as the Obama administration has reduced the terms of some prisoners serving time for low-level drug offenses.)...

Last month, Justice's Inspector General, Michael Horowitz, said that the Bureau of Prisons budget totals $6.9 billion and accounts for about 25 percent of the department’s "discretionary" budget, which means that prison spending hampers the DOJ's "ability to make other public safety investments."

The new task force is named for the late Chuck Colson, the former aide to President Richard Nixon who served a 7-month prison term in 1974 for obstruction of justice in the Watergate scandal and then became a corrections reformer, founding the Prison Fellowship. Colson died in 2012.  Retiring Rep. Frank Wolf (R-Va.), chairman of the committee that reviews Justice Department appropriations, successfully pushed for the task force in recent years while Congress was unable to agree on any major legal changes that would affect the federal inmate total.

Watts, who will chair the panel, served in the House from 1995 to 2003. When he was elected, he was one of only two African-American Republicans in the House.  He is a member of the conservative justice-reform group Right on Crime.  Last summer, in an article in the Tulsa World on prison reform in Oklahoma, Watts wrote that, "for nonviolent offenders, watching television and receiving 'three hots and a cot' in prison does far less to advance personal responsibility than paying restitution to the victim, performing community service, holding a job and paying child support."

Mollohan, who serve as vice chair, was Wolf's predecessor as the House's chief Justice Department appropriator when the Democrats controlled the House.  Mollohan has presided over many hearings on corrections issues.  In 2012, he co-authored an op-ed article with David Keene, former chairman of the American Conservative Union, declaring that, "Instead of throwing good money after bad, Congress should follow the example of ... states and take steps to curb federal prison population growth."...

The task force will hold the first of five meetings on January 27 in Washington, D.C. Its official mandate is to "identify the drivers of federal prison population growth and increasing corrections costs; evaluate policy options to address the drivers and identify recommendations; and prepare and submit a final report in December 2015 with findings, conclusions, policy recommendations, and legislative changes for consideration by Congress, the Attorney General, and the President."

The Urban Institute and the Center for Effective Public Policy will provide "research, analysis, strategic guidance and logistical support" for the task force under an agreement with the Justice Department's Bureau of Justice Assistance.   A year ago, the Urban Institute published a study titled "Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System," that might be something of a blueprint for the Colson group....

Several members of Congress, notably Senators Rand Paul (R-KY) and Cory Booker (D-NJ), have introduced proposals that could lead to reductions in the federal prison population, but it is not clear that any will be enacted while the Colson task force is conducting its study.

In any case, the task force's final report is likely to include recommendations that will go beyond any bills that might be approved in the next year.  The group's eventual proposals may include some that require Congressional approval and others that the Obama administration could put into effect by executive order.

This new Charles Colson Task Force on Federal Corrections rolled out this website, which I am hopeful over time might become a source of new research and data about the federal criminal justice system.  And though I tend to be somewhat cynical and pessimistic about what task forces can really achieve, I am hopeful and optimistic that this group will be an effective and important contributor to on-going federal sentencing reform efforts.

December 12, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Texas top court rules juveniles getting transferred to adult court too readily

As reported in this Texas Tribune article, headlined "CCA Offers Guidance to Courts Trying Teens as Adults," the top criminal court in Texas issued a significant ruling earlier this week about bringing juvenile offenders into the adult system. Here are the details:

A Houston teen sentenced to 30 years in prison should not have been tried as an adult, the state's highest criminal court ruled Wednesday in a decision calling for greater judicial scrutiny before young defendants are transferred into the adult court system.

"The transfer of a juvenile offender from juvenile court to criminal court for prosecution as an adult should be regarded as the exception, not the rule," Court of Criminal Appeals Judge Tom Price wrote in the majority opinion, agreeing with an earlier ruling by the 1st Court of Appeals in Houston....

Trial judges can transfer a juvenile's case to adult court after considering criteria including whether the crime was against a person or property, the juvenile defendant's maturity level and previous criminal record. The court's ruling zeroes in on how prosecutors prove a juvenile has sufficient maturity to be tried as an adult. In Moon's case, prosecutors called one witness, the arresting officer.

In Wednesday's opinion, Price, citing a 1995 change in the law, said that a juvenile court should "take pains to 'show its work' in coming to that certification decision.

"This legislative purpose is not well served by a transfer order lacking in specifics that the appellate court is forced to speculate as to the juvenile court’s reasons for finding transfer to be appropriate or the facts the juvenile court found to substantiate those reasons," Price wrote.

The Houston Chronicle has reported that when Moon was certified, Harris County judges were granting prosecutors' requests for certifications about 95 percent of the time.

The Court of Criminal Appeals' decision sends Moon's case back to Harris County, where a spokesman for the prosecutor's office said they were "disappointed" about the court's ruling. "But we're going to revisit the case, and there's a possibility we will try to recertify him," said Jeff McShan, spokesman for the Harris County district attorney's office.

"It's a nice Christmas present," said Jack Carnegie, Moon's attorney, adding that the ruling gives trial courts better guidance on what they need to do certify juvenile defendants. "This is a roadmap for how you have to do it now."

The full 40-page Texas ruling in this case is available at this link.

December 12, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Senator Grassley introduces juvenile justice bill showing eagerness to do bipartisan reforms

This article from The Hill, headlined "Next Judiciary chairman eyes treatment of minors," provides an encouraging sign that the incoming new leadership in the Senate may be eager to work on at least some bipartisan federal criminal justice reforms. Here are the details:

Sens. Chuck Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.) introduced a bill Thursday that would update national standards covering how the justice system treats minors.

With Grassley preparing to take over as chairman of the Senate Judiciary Committee in the next Congress, the move is an early signal of the committee’s potential criminal justice agenda. Grassley has been particularly supportive of new accountability measures that will be included in the bill to reauthorize the Juvenile Justice and Delinquency Prevention Act (JJDPA).

“The Juvenile Justice and Delinquency Prevention program helps in preventing at-risk youth from entering the system and helps those in the system become valuable members of communities across the country,” Grassley said in a statement. “This bipartisan bill will be a good starting point for reauthorizing this important program as we begin a new Congress.”

One advocate said Thursday that Grassley’s sponsorship will be a boon for the bill, but that the measure still has a long journey to becoming law. “I think as head of Judiciary, with his name on it, that is going to be a huge help,” said Marcy Mistrett, the CEO of the Campaign for Youth Justice.

The bill, which will not see any movement before the end of the current Congress, aims to beef up juvenile justice standards that haven’t been updated in more than a decade. The juvenile system is estimated to detain 60,000 minors on any given night.

“This legislation will strengthen the main protections of the JJDPA, and improve the conditions and practices that can determine whether offenders leave our justice system as productive members of society,” Whitehouse said in a statement.

One update would make it harder for states to lock up children who have committed “status offenses” that would not be an offense if they were an adult, like running away from home or skipping school. Another update would require that states do more to make sure they are not confining minors near adults. It would also give states new direction on how to reduce racial and ethnic disparities in the juvenile justice system....

The bill comes at a moment when there is bipartisan support for certain reforms to the criminal justice system. Grassley has had a historical interest in juvenile justice. But it is not known if he will have the committee tackle some of the thorny problems in the adult criminal justice system, which encompasses everything from policing to prison conditions.

The United States imprisons more people than any other nation in the world, something a smattering of lawmakers have been moving to change. Sens. Mike Lee (R-Utah) and Dick Durbin (D-Il.) have introduced a bill that would make small changes to the federal mandatory minimum sentences that have led to black Americans being imprisoned at disproportionate rates. It’s received support from big names both sides of the aisle, including Sens. Rand Paul (R-Ky.), Ted Cruz (R-Texas) and Elizabeth Warren (D-Mass.). But Grassley opposes the measure and will decide whether it comes up for a vote on the Judiciary Committee, where it would likely pass.

December 12, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2014

Repeat drunk-driver tells fishy story to explain erratic driving

Beer batterThis local story from Wisconsin tells a funny story about what (as regular readers know) I do not think is a very funny crime often committed again and again and again by certain violent career criminals.  The story is headlined "Man charged with 10th OWI; tells officer he'd eaten beer battered fish," and here are the details:

An Adams County man will be charged with his 10th OWI.  75-year-old John Przybyla was pulled over October 12. He was driving north on State Highway 13 in the Township of Dell Prairie.  Officers pulled him over because he crossed the center line and had a broken tail light.

The officer asked Przybyla if he had been drinking.  He said that he hadn't, and that he'd only eaten beer battered fish.

The officer conducted field sobriety tests and Przybyla's preliminary breath alcohol test was .062.  He can't have a PBT over .02 because of earlier convictions.

He faces an additional charge of driving with a revoked license after a 3rd OWI and three other traffic citations.  Przybyla was first convicted for an OWI in 1995.

The repeat offender's amusing excuse for his crime is, of course, what drew me to this story. But I also think it is significant and telling that a person can be a violent menace to innocent people on the roads over and over again and yet as a society we still general fail to impose serious sanctions likely to incapacitate this kind of violent career criminal.  But if someone is caught selling even a relatively small quantity of illegal drugs even a few times, our laws will frequently threaten or mandate very lengthy prison terms.

December 11, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack (0)

Notable new reporting on "tough-on-sex-offenders" rhetoric in recent judicial campaigns

The Marshall Project has this interesting new review of the most recent election cycle headlined "Trial By Cash: Judicial elections have gotten ugly. That’s bad news for defendants." Here is how it gets started:

In this year’s battle for the governorship of Arkansas, criminal justice reform was front and center. The Republican victor, Asa Hutchinson, a former federal prosecutor and DEA administrator, promised to combat prison overcrowding and called out “over-aggressive prosecutors who do not use common sense.”  His Democratic challenger, Mike Ross, advocated lighter sentences for nonviolent offenders and more emphasis on rehabilitation. Neither candidate deployed the fear-mongering attack advertisements that have been a campaign-season staple for decades.

The race for an open seat on the Arkansas Supreme Court seat was another matter.  One outside group's campaign ad praised Judge Robin Wynne of the state court of appeals for “refusing to allow technicalities to overturn convictions.”  Another attacked his primary opponent, defense attorney Tim Cullen, by claiming he had called child pornography “a victimless crime.”  Over eerie black-and-white footage of an empty playground, a woman’s voice responded to the statement (a distortion of Cullen's defense brief for a single case), intoning: “Tell that to the thousands of victims robbed of their childhood.” Wynne won.

If there is a growing bipartisan consensus that America locks up too many people for too long, there is little indication that anyone spending money on judicial elections shares the concern.  The real scourge of American justice, these campaigns seem to suggest, is the rampant coddling of child molesters by judges up for re-election.  “WHY SO LENIENT?” one ad demanded, attacking an incumbent state justice in Illinois.  A similar commercial in North Carolina cut from an image of children pedaling tricycles to one of inmates pacing in their cells, and declared that a justice up for re-election “took the side of convicted molesters.”

Judicial races once were largely polite, low-budget affairs.  But in the 1990s, business and political groups began to focus on these elections as an important (and often cost-effective) path to influencing policy and regulation.  Since then, judicial campaigns have come to look more like any other political circus: rallies, political consultants, attack ads, and a flood of campaign cash.  As of Nov. 5, election watchers at the Brennan Center, a liberal think tank that tracks legal issues, estimated that at least $13.8 million had been spent on TV advertising for state supreme court elections nationwide in 2014 — up from $12.2 million in the last midterm election in 2010.  

The funders of these campaigns aren’t generally motivated by a desire to lock up criminals.  In fact, some of this year’s big donors to organizations running tough-on-crime campaigns — including the conservative philanthropists Charles and David Koch — have simultaneously backed so-called “smart-on-crime” reform efforts aimed at shortening mandatory sentences and reducing prison populations.  But fear works, election strategists believe.  Why run on what really matters to your funders — like tort reform or deregulation — when you can run against paroling pedophiles?

December 11, 2014 in Elections and sentencing issues in political debates, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

"As Though They Were Not Children: DNA Collection from Juveniles"

The title of this post is the title of this notable new paper by Kevin Lapp now available via SSRN. Here is the abstract:

Law enforcement craves data.  Among the many forms of data currently collected by law enforcement, perhaps none is more potentially powerful than DNA profiles.  DNA databasing helps law enforcement accurately and efficiently identify individuals and link them to unsolved crimes, and it can even exonerate the wrongfully convicted.  So alluring is DNA collection that the practice has rapidly expanded to juveniles.  The federal government and every state but Hawaii mandate DNA collection from juveniles as a result of some contact with the criminal justice system.  A conviction in criminal court, a delinquency adjudication in juvenile court, and even a mere arrest can trigger compulsory DNA collection.  Law enforcement also seeks DNA samples from juveniles based on their consent.

This Article provides a comprehensive accounting of current juvenile DNA collection legislation and case law.  It then situates DNA collection from juveniles within the law’s longstanding and renewed emphasis on special treatment of children both generally and with particular attention to criminal law and juvenile justice.  Bringing to bear Supreme Court jurisprudence, neuroscientific and psychosocial research, juvenile court history, and the critical lens of childhood studies, it argues that DNA collection from juveniles based on contact with the criminal justice system is not reasonable and cannot withstand scrutiny. The government interests served by DNA profiling are reduced with respect to juveniles, and the privacy interests are enhanced.  Many of its benefits, including deterrence, are lost with regard to juveniles.  The Article calls for the prohibition on DNA collection following an adjudication of delinquency or an arrest, and a ban on consent collection from juveniles.  This will protect children, and their childhood, while preserving law enforcement’s ability to exploit genetic databasing and aggregate data collection where its rationale justifies its application.

December 11, 2014 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 10, 2014

Second Circuit panel finds evidence insufficient to support two major insider trading convictions

There is big news in the white-collar crime (and sentencing?) world this morning coming out of New York thanks to the Second Circuit's significant new opinion in US v. Newman, No. 13‐1837 (2d Cir. Dec. 10, 2014) (available here).  This New York Times article about the ruling helps spotlight why this is Newman ruling is a very a big deal:

A federal appeals court on Wednesday overturned two of the government’s signature insider trading convictions, a stunning blow to prosecutors and their campaign to root out illegal activity on Wall Street.

In a 28-­page decision that could rewrite the course of insider trading law, sharply curtailing its boundaries, the United States Court of Appeals for the Second Circuit in Manhattan tossed out the case against two former hedge fund traders, Todd Newman and Anthony Chiasson. Citing the trial judge’s “erroneous” instruction to jurors, the court not only overturned the convictions but threw out the cases altogether....

The unanimous decision – the first higher court rebuke of an insider trading case filed by Preet Bharara, the United States attorney in Manhattan – could portend a broader revisiting of Mr. Bharara’s insider trading crackdown. It will also offer a blueprint for traders to defend future insider trading cases, a development that is likely to unnerve prosecutors while delighting the defense bar.

Here are a few paragraphs from the start of the Newman opinion:

Defendants‐appellants Todd Newman and Anthony Chiasson appeal from judgments of conviction entered on May 9, 2013, and May 14, 2013, respectively in the United States District Court for the Southern District of New York (Richard J. Sullivan, J.) following a six‐week jury trial on charges of securities fraud....

The Government alleged that a cohort of analysts at various hedge funds and investment firms obtained material, nonpublic information from employees of publicly traded technology companies, shared it amongst each other, and subsequently passed this information to the portfolio managers at their respective companies.    The Government charged Newman, a portfolio manager at Diamondback Capital Management, LLC (“Diamondback”), and Chiasson, a portfolio manager at Level Global Investors, L.P. (“Level Global”), with willfully participating in this insider trading scheme by trading in securities based on the inside information illicitly obtained by this group of analysts.   On appeal, Newman and Chiasson challenge the sufficiency of the evidence as to several elements of the offense, and further argue that the district court erred in failing to instruct the jury that it must find that a tippee knew that the insider disclosed confidential information in exchange for a personal benefit.  

We agree that the jury instruction was erroneous because we conclude that, in order to sustain a conviction for insider trading, the Government must prove beyond a reasonable doubt that the tippee knew that an insider disclosed confidential information and that he did so in exchange for a personal benefit.  Moreover, we hold that the evidence was insufficient to sustain a guilty verdict against Newman and Chiasson for two reasons.    First, the Government’s evidence of any personal benefit received by the alleged insiders was insufficient to establish the tipper liability from which defendants’ purported tippee liability would derive.    Second, even assuming that the scant evidence offered on the issue of personal benefit was sufficient, which we conclude it was not, the Government presented no evidence that Newman and Chiasson knew that they were trading on information obtained from insiders in violation of those insiders’ fiduciary duties. 

 Accordingly, we reverse the convictions of Newman and Chiasson on all counts and remand with instructions to dismiss the indictment as it pertains to them with prejudice.

Though this Newman opinion does not discuss formally sentencing issue, I cannot help but think that modern white-collar sentencing realities might be playing a role (perhaps a significant role) in the review and ultimate rejection of insider-trading convictions here. Both defendants appealing in this case were sentenced to a significant number of years in prison, and appellate judges are surely aware of how high the stakes now are for white-collar defendants subject to novel and aggressive prosecutorial practices.

December 10, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (8) | TrackBack (0)

Various appeals do not interfere with Georgia and Missouri completing final executions of 2014

As detailed in this lengthy AP/CBS article, headlined "Missouri, Georgia execute murderers, one a cop killer," two executions were carried out over the last 24 hours.  Here are some of the details:

A Missouri inmate was put to death early Wednesday for fatally beating a 63-year-old woman with a hammer in 1998, the state's record 10th lethal injection of 2014, matching Texas for the most executions in the country this year.  In Georgia, a man convicted of killing a sheriff's deputy moments after robbing a convenience store in central Georgia was executed Tuesday night.

The Missouri case involved Paul Goodwin, 48, who sexually assaulted Joan Crotts in St. Louis County, pushed her down a flight of stairs and beat her in the head with a hammer. Goodwin was a former neighbor who felt Crotts played a role in getting him kicked out of a boarding house.

Goodwin's execution began at 1:17 a.m., more than an hour after it was scheduled, and he was pronounced dead at 1:25 a.m.  Efforts to spare Goodwin's life centered on his low IQ and claims that executing him would violate a U.S. Supreme Court ruling prohibiting the death penalty for the mentally disabled.  Attorney Jennifer Herndon said Goodwin had an IQ of 73, and some tests suggested it was even lower....

Missouri's 10th execution of 2014 matches the state's previous high of nine in 1999. Neither Missouri nor Texas has another execution scheduled this year.  Texas, Missouri and Florida have combined for 28 of the 34 executions in the U.S. this year.  Missouri has scheduled one execution each month since November 2013.  Two were halted by court action, but 12 were carried out over the past 14 months.

In Georgia, Robert Wayne Holsey, 49, was declared dead at 10:51 p.m. at the state prison in Jackson, authorities said.  Holsey was sentenced to die for the Dec. 17, 1995, killing of Baldwin County sheriff's deputy Will Robinson.  A jury convicted Holsey in February 1997.

Holsey robbed a convenience store in the town of Milledgeville early on Dec. 17, and the store clerk immediately called police, describing the suspect and his car, prosecutors said. According to court documents, Robinson stopped a car at a nearby hotel minutes later and radioed in the license plate number.  As Robinson approached the vehicle, Holsey fired at him, prosecutors said.  The deputy suffered a fatal head wound....

Holsey's lawyers filed a number of last-minute appeals to stop the execution but they were all rejected.  Holsey was executed nearly an hour after the U.S. Supreme Court rejected a request for a stay....

Holsey's lawyers had argued in a clemency petition that their client should be spared lethal injection because his 1997 trial was mishandled by an alcoholic lawyer who was distracted by his own problems.  The trial lawyer died in 2011.  The original lawyer told the court that intellectual disability would not be a factor in the case, despite records showing Holsey was intellectually disabled, Holsey's lawyers argued.  And the jury also didn't hear details about Holsey's childhood, which was characterized by horrifying abuse at the hands of his mother, according to the petition.

In their efforts to halt the execution, Holsey's lawyers argued that he was intellectually disabled. The U.S. Supreme Court in 2002 barred execution of the intellectually disabled, but left the states to determine who is intellectually disabled.  Georgia requires death-row inmates to prove intellectual disability beyond a reasonable doubt in order to be spared execution on those grounds.  Courts have consistently upheld Georgia's toughest-in-the-nation standard of proof on this issue....

The state of Georgia argued in court filings that Holsey is not intellectually disabled.  An expert found that Holsey had a learning disability but was not disabled, and his siblings relied on him as a leader, the state's lawyers argued.  The state also disputed the idea that Holsey's trial lawyer was ineffective, saying the prosecutor in the case and the judge both testified that the original lawyer performed very well.

December 10, 2014 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 9, 2014

Madoff aides finally getting sentenced for their roles in massive Ponzi scheme

As reported in this new AP article, a notable set of fraud sentences are being handed out this week and next in New York federal court.  Here are the early parts of a high-profile white-collar sentencing story:

The former secretary for imprisoned financier Bernard Madoff was sentenced Tuesday to six years in prison after she apologized to victims of the multi-decade, multi-billion dollar fraud and berated herself for failing to see past her boss's influence and the riches he bestowed on her.

Annette Bongiorno, 66, was sentenced in Manhattan by U.S. District Judge Laura Taylor Swain, who said she believed Bongiorno's testimony at trial that she was largely duped by Madoff into manufacturing fake trade results for his private investment business.  She called her "a pampered, compliant and grossly overcompensated clerical worker who supervised other clerical workers with a ferocious enthusiasm."

The judge said Bongiorno "could and should have recognized that Mr. Madoff's success seemed impossible because it was impossible." Swain added: "Ms. Bongiorno chose to put her life and the life of others in the wrong hands."

One of Madoff's computer programmers was awaiting an afternoon sentencing.  Bongiorno was convicted earlier this year along with four others after a six-month trial.  Sentencing proceedings resulting from it will conclude on Monday.

On Monday, Madoff's director of operations was sentenced to a decade in prison.

Prosecutors said in court papers that Bongiorno was "at the very heart of the fraud" for decades. They had sought a prison sentence of more than 20 years. The fraud cost thousands of investors nearly $20 billion. Madoff, 76, was arrested in December 2008 and is serving a 150-year prison sentence.

Before she was sentenced, Bongiorno portrayed herself as a loyal worker who was in over her head from the time she was hired at age 19. "Not once in my 40 years there did anyone say to me, 'Annette, this is not the way it's done in the real world,'" she said. "I thought I was doing my job as I thought it should be done."...

The judge, who also ordered forfeiture of $155 billion, said she will recommend that Bongiorno serve the last year of her prison term in home confinement.

December 9, 2014 in Booker in district courts, Celebrity sentencings, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack (0)

"Structuring Pre-Plea Criminal Discovery"

The title of this post is the title of this notable new article by Daniel McConkie Jr. now available on SSRN. The piece spotlights the various links between criminal discovery rules and sentencing procedures and outcomes, and here is the abstract:

Ninety-seven percent of federal defendants plead guilty, and they rely on prosecutors for much of the information about the government’s case on which the decision to plead is based. Although federal prosecutors routinely turn over most necessary discovery to the defense, the law does not require them to turn over any discovery before the guilty plea. This can lead to innocent defendants pleading guilty and to guilty defendants pleading guilty without information that could have affected the agreed-upon sentence.

This article argues that the lack of a judicially enforceable pre-plea discovery regime flouts structural protections that due process is supposed to provide.  Defendants who plead not guilty and go to trial get a jury to adjudicate guilt and a judge to preside over the proceedings and pronounce sentence.  The judge and jury hear an adversarial presentation of the evidence, and the judge at sentencing can consider an even broader spectrum of information about the defendant and the crime.  But defendants who plead guilty effectively act as their own judge and jury.  Unfortunately, because prosecutors are not required to provide any pre-plea discovery, the defendant who pleads guilty may not have nearly as much information as the judge and jury would have had at trial and sentencing.

The Supreme Court has employed a balancing test to determine whether a particular procedure comports with due process.  This article proposes tailoring that test to the pre-plea discovery context.  The proposed test would ask (1) whether the defense is getting sufficient information before the guilty plea to promote accurate sorting of the innocent from the guilty and reasonably informed and consistent sentencing; (2) whether there are there clear rules that allow judges, before a guilty plea, to regulate prosecutors’ decision not to disclose; and (3) whether the production of pre-plea discovery in a given case imposes undue costs on society.

One hopeful development is that several district courts, pursuant to Congressionally-granted authority, have promulgated local rules for pre-plea discovery.  Although the Constitution does not require it, I argue that Congress should adopt several of these time-tested rules to give both clear standards to prosecutors and authority to judges to enforce liberal pre-plea discovery.

December 9, 2014 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack (0)