Sentencing Law and Policy

Mississippi state judge blocks some of out-going Gov. Barbour's controversial pardons

This new AP story, which is headlined "Miss. court halts quick release of some pardoned," reports on an interesting new development in the controversy over the remarkable use of clemency power by Mississippi's (now-former) Governor on his way out the door. Here are the basics:

A Mississippi judge has temporarily blocked the release of 21 inmates who'd been given pardons or medical release by Republican Haley Barbour in one of his final acts as governor.

Circuit Judge Tomie Green issued an injunction late Wednesday at the request of Democratic Attorney General Jim Hood.  Hood said he believes Barbour might've violated the state constitution by pardoning some inmates who failed to give sufficient public notice that they were seeking to have their records cleared.

Barbour said in a statement Wednesday, a day after leaving office, that he believes people have misunderstood why he gave reprieves to more than 200 inmates.... In Wednesday's statement, Barbour said: "The pardons were intended to allow them to find gainful employment or acquire professional licenses as well as hunt and vote. My decision about clemency was based upon the recommendation of the Parole Board in more than 90 percent of the cases."...

Barbour spokeswoman Laura Hipp was not immediately available for comment about Green's decision to temporarily block release of the 21 inmates.  It was not clear how many of the 21 are convicted killers.

Section 124 of the Mississippi Constitution says any inmate seeking a pardon must publish notice about his intentions.  Before the governor can grant it, the notice must appear 30 days in a newspaper in or near the county where the person was convicted.

Hood said it's not clear whether all the inmates pardoned by Barbour met the publication requirement, and that he believes it's likely that some did not.  "It's unfortunate Gov. Barbour didn't read the constitution," Hood said Wednesday.

Mississippi Department of Corrections spokeswoman Suzanne Singletary told The Associated Press that five inmates let out over the weekend are the only ones on Barbour's list who had been released as of Wednesday evening.  She said the 21 were still in custody because processing paperwork generally takes several days. Among other, things, state law requires the department to give victims 48 hours' notice before an inmate is released.

Neither Hipp nor Barbour's lead staff attorney, Amanda Jones Tollison, responded to questions about whether Barbour's staff verified that pardoned inmates had met the 30 days' publication requirement.

Recent related posts:

• On way out door, Mississippi Gov. Haley Barbour pardons five serious offenders who worked at the Governor's Mansion 
• "Did Haley Barbour's pardon spree go too far?"

When and how will Padilla retroactivity issues get to SCOTUS?

The question in the title of this post flows from this effective story by Michelle Olsen at Appellate Daily. The piece it titled "Circuit Split Watch: Variations on the Padilla Theme," and here are highlights:

The U.S. Supreme Court will soon have the chance to revisit Padilla v. Kentucky, its 2010 decision holding — at the intersection of criminal and immigration laws — that the Sixth Amendment requires attorneys to inform their clients about the possible deportation consequences of a guilty plea.

In recent months, three federal appellate courts split 2-1 on whether Padilla applies retroactively, teeing the cases up for possible review by the Supreme Court.  All three were denied rehearing en banc.

Chaidez v. United States, from the U.S. Court of Appeals for the 7th Circuit, is already the subject of a petition for certiorari....   Judge Joel Flaum, writing for himself and Senior Judge William Bauer, explained that Padilla is not retroactive, meaning that it only applies to cases on direct review, not to a coram nobis motion or other collateral attack.  The direct line of Chaidez’s criminal case had been final for years, when she pled guilty and did not appeal.

In Judge Flaum’s view, Padilla announced a groundbreaking new rule that lower courts had not anticipated.  In fact, Flaum noted, federal courts before Padilla had unanimously held that plea counsel is not constitutionally required to warn clients of immigration consequences.

Judge Williams disagreed, finding that Padilla applies retroactively to collateral review. Risk of deportation is important information to know before entering a plea.  Williams urged that “prevailing professional norms at the time of Chaidez’s plea required a lawyer to advise her client of the immigration consequences of a guilty plea.” Under Supreme Court precedent cited by Williams, such norms have long been relevant to whether counsel’s representation was reasonable.

The 7th Circuit panel knew that its decision would create a circuit split. Less than two months earlier, the 3rd Circuit in United States v. Orocio determined, like Judge Williams, that Padilla applied retroactively....

Joining the 7th Circuit and making the split 2-1, the 10th Circuit in United States v. Chang Hong ruled that Padilla is not retroactive. Although not precedent, a footnote in United States v. Hernandez-Monreal, a 4th Circuit unpublished opinion from 2010, stated, without analysis, that “nothing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review.”

"Did Haley Barbour's pardon spree go too far?"

The title of this post is the headline of this effective new article from the Christian Science Monitor discussing the controversy over the remarkable use of clemency power by Mississippi's (now-former) Governor on his way out the door.  Here are excerpts:

A law-and-order Republican governor, Haley Barbour of Mississippi, has given full pardons or clemency to 208 inmates, including 14 convicted murderers, setting off a political uproar over the limits of executive power in the traditionally patriarchal South....

Mr. Barbour, a popular two-term governor who was term-limited from serving more, signed the pardons before leaving office on Tuesday. The surprise spree caught both Republicans and Democrats off stride, and it suggested that Barbour, who had flirted with running for the White House last year, may be leaving politics for good....

[T]he pardons have scrambled traditional political roles in the state, with the Republican Barbour going easy on scores of convicted criminals and Democrats clamoring to bolster law and order. Toward that end, they reintroduced a bill to curb gubernatorial pardon power. “It seems to kind of fly in the face of the Haley Barbour politician that we all know, because he is a strong law-and-order guy,” says Curtis Wilkie, a journalism professor at Ole Miss in Oxford.

Barbour has refused to comment on the pardons. Several are high-profile convicts, including Jackson socialite Karen Irby, convicted of manslaughter in 2010 for the DUI-related deaths of two doctors; Earnest Scott Favre, older brother of retired NFL quarterback Brett Favre, who was convicted for the DUI-related death of his friend; and Azikiwe Kambule, a South African expat convicted in a 1996 carjacking and murder case.

Eighty of the pardoned prisoners had committed crimes including murder, homicide, manslaughter, rape, aggravated assault (including one on a police officer), and armed robbery. Thirty-two of those prisoners received full pardons, meaning they were set free without conditions. Other pardoned prisoners include inmates who worked at the Governor's Mansion under a “good behavior” program that traditionally has been a route to clemency or pardon....

The torrid pardon pace by Barbour outdistanced other Mississippi governors by a wide margin. Former Gov. Kirk Fordice had the previous high, pardoning 13. Before this week's pardons, Barbour had previously signed the release papers for 10 convicted criminals, none of whom have caused any trouble, the Mississippi Department of Corrections commissioner, Christopher Epps, told Mississippi reporters....

Last summer, Barbour was hailed by the National Association for the Advancement of Colored People as a "shining example" for commuting the life sentences of two African-American women who had spent 16 years in prison for an armed robbery that yielded $11....

In Mr. Favre's case, he had been sentenced originally to a year of house arrest but was ordered to serve a suspended 15-year prison sentence after he left his house to go fishing. In pardoning Mr. Kambule, Barbour may have heeded pleas from his attorneys that there was no evidence that the then-teenager fired the fatal shots that killed a Madison County woman in 1996, a crime for which Kambule was sentenced to 35 years in prison.

"There are a whole lot of people in prison who should not be there," Chokwe Lumumba, a Jackson City councilman, told The Clarion-Ledger. "Obviously, murder is the kind of thing you put people in [prison] for ... but that doesn't mean that people cannot be rehabilitated."

Other Mississippians say Barbour simply went too far. "He will not comment on anything,” Tiffany Ellis Brewer, sister of the woman slain by the pardoned Mr. Gatlin, told CNN. “We have no answers as to why he has done this. I would like to think he did not have all of the facts of the case.... Apparently, we haven't had a really good man for our governor."

Two great reads (and additional information) on what's going on in Mississippi come from PS Ruckman at his Pardon Power blog:

• Mississippi: Tip of an Iceberg?
• Gov. Barbour's Wild Clemency Ride

The second of these posts wraps up this way:

The signs of a last-minute rush abound. 63 percent of the warrants do not even list the sentences that were given to recipients. Other critical dates are missing right and left. A man named Turner was pardoned. But he has actually been dead for some time, since 1999. The warrant doesn't say when he was convicted, if he died in prison, or anything about why he was pardoned. Which seems odd given the fact that, well, he is dead, and given the fact that someone took the time to note an arsonist from the 1960's was now living a "good, productive and useful life."...

[This] was a classic example of just about every thing the pardon power should not be. The only thing that seems to be missing, for now, is some hint of "politics" (donors, supporters, friends, relatives, inside influence and the like). But, give it time. Barbour clearly could have spread these decisions over a period of months, if not years, making each one a little more well-considered, a little less suspicious looking and -- for those who really were deserving -- something barely worth public celebration. But, no, a Republican governor, in the South, and potential presidential nominee has to keep up appearances.

One thing we can say for certain, now, Barbour will not be considering a run for the presidency any time in this lifetime.

Federal judge again halts Ohio execution because state not following its own protocol

As reported in this piece from the Columbus Dispatch, "U.S. District Judge Gregory Frost today blocked next week’s scheduled execution [in Ohio] of convicted murderer Charles Lorraine because the state has not adhered to its own execution policies."  Here are the basics:

Lorraine, 45, was slated to be executed Jan. 18 for murdering 80-year-old, bedridden Doris Montgomery and her 77-year-old husband, Raymond, in 1986.

However, Frost, who previously raised serious questions about Ohio’s execution procedures, ruled today that the Ohio Department of Rehabilitation and Correction didn’t properly document the drug used or check the medical chart of inmate Reginald Brooks when he was lethally injection on Nov. 15 at the Southern Ohio Correctional Facility near Lucasville.

The ruling today from Judge Frost, in a case now captioned In Re Ohio Execution Protocol, runs 23 pages and can be downloaded below.  Here is how it gets started (emphasis in original):

This case is frustrating.

For close to eight years, the Court has dealt with inmate challenges to the constitutionality of Ohio’s execution protocol.  During that time, the litigation has morphed from focusing primarily on allegations of cruel and unusual punishment to allegations of equal protection violations.  Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms.  Occasionally in this litigation, state agents lie to the Court. At other times, different state actors impress this Court with their sincere devotion to carrying out the unenviable task of executing death-sentenced inmates within constitutional parameters.  As a result of laudable effort by the various state actors involved -- motivated either by duty, embarrassment, the decisions of this Court, or a combination of any of the foregoing -- Ohio finally arrived at a protocol that on paper satisfies every Eighth and Fourteenth Amendment challenge thrown against it.  Then once again Ohio decided to carry out the protocol in a manner that simply ignores a key component of the execution scheme.

The end result is that rather than proceeding to a final conclusion in this case that would enable Ohio to proceed to fulfill its lawful duty to execute inmates sentenced to death free from this ongoing litigation, Ohio has unnecessarily and inexplicably created easily avoidable problems that force this Court to once again stay an execution.

This is frustrating to the Court because no judge is a micro-manager of executions and no judge wants to find himself mired in ongoing litigation in which he must continually babysit the parties.  But the law is what it is, and the facts are what they are.  The Constitution demands that a judge honor the rights embodied in that document, that a judge appreciate the nuance involved in those rights rather than adopting a constitutionally irresponsible, “big-picture, close enough” approach, and that a judge follow the evidence presented by the parties to whatever principled conclusion it leads–no matter how easily avoided and frustrating that conclusion may be.  In other words, if Ohio would only do what it says it will do, everyone involved in this case can finally move on.

Download Ohio LI Opinion and Order

"Marijuana Smoke Not as Damaging as Tobacco, Says Study"

The title of this post is the headline of this report from ABC News, which seems sure to add fire to arguments that pot ought to be legalized and regulated like alcohol and tobacco.  Here is how the piece starts:

Occasional marijuana use does not appear to have long-term adverse effects on lung function, according to new research published in the Journal of the American Medical Association.

Researchers from the University of Alabama at Birmingham and University of California at San Francisco analyzed marijuana and tobacco use among 5,000 black and white men from the national database, CARDIA (Coronary Artery Risk Development in Young Adults study), which was intended to determine heart disease risk factors over a 20-year period.

Measuring participants' lung function for air flow and lung volume five times throughout the study period, the researchers found that cigarette smokers saw lung function worsen throughout the 20-year period, but marijuana smokers did not.  Only the heaviest pot smokers (more than 20 joints per month) showed decreased lung function throughout the study.

"The more typical amounts of marijuana use among Americans are occasional or low levels," said Dr. Stefan Kertesz, assistant professor of medicine at the University of Alabama at Birmingham and principle investigator of the study.  "From the standpoint of being a scientist, these data suggest that low and moderate range use of marijuana do not do long-term harm."

But, he cautioned, the research should not be viewed as a green light to toke up. a primary care doctor, I see patients who have problems with drugs and alcohol," Kertesz said.  "This is a complicated substance that has a lot of potential effects on human life and well-being."

Among the study participants, the average pot smoker lit up two to three times per month. The average tobacco user smoked eight cigarettes per day.  Those who smoked less than the heaviest actually saw a slight increase in air flow and lung function.

Lots of sentencing news of note via The Crime Report

As I have said before, and as I am happy to say again, all sentencing law and policy fans should be sure to make The Crime Report a daily read.  To reinforce this point, check out just some of these new posts from over there in the last 24 hours:

• CA Inmates In Shift Have More Serious Mental Ills Than Expected

• Restrictions Drive Sex Offenders to Live in Motels, Trailer Parks

• Experts Recommending Reforms to Oklahoma Offender Supervision

• CA Gov. Brown Again Proposes to Close State Youth Rehab Units

Head of NAACP talking up campaigns to abolish death penalty in states

As reported in this AP article, "NAACP President Benjamin Jealous said Tuesday that Maryland needs to abolish capital punishment to help lead the way in ending it in other states." Here is more from this report:

“People in this country care about fairness,” Jealous said at a news conference in Annapolis with other civil rights leaders and state lawmakers opposed to capital punishment. “They’re outraged about what happened to Troy Davis. They want to see our country join the rest of the western world and abolish the death penalty. In order to get there, Maryland has to do it.”... Some Maryland lawmakers will seek a repeal in the legislative session that begins Wednesday. They say they have a majority of support in both the House and Senate, but they say they are one vote shy on a Senate committee to move the bill to a full vote.

“We’ve abolished it in Illinois in recent years; we’ve abolished it in New Jersey in recent years; we’ve abolished it in New Mexico in recent years, and there is no reason why it has not been abolished here, except for a few politicians who have gotten in the way,” Jealous said.

Jealous said the Baltimore-based NAACP is focusing on two other states where they believe there is opportunity for repeal, Connecticut and California.  “Even in Georgia, people see an opportunity to start sort of chipping away at the death penalty in a way that we haven’t seen, because the state is still on fire” over the Davis case, Jealous said....

Maryland Gov. Martin O’Malley, a death penalty opponent, pushed hard for repeal in his first term, but the measure stalled in the state Senate.  Instead, lawmakers compromised by restricting capital punishment to murder cases with biological evidence such as DNA, videotaped evidence of a murder or a videotaped confession.  Maryland has five men on death row, and five inmates have been executed since Maryland reinstated the death penalty in 1978. Wesley Baker was the last person to be executed in Maryland, in December 2005.

I am intrigued to hear the claim that Georgia "is still on fire" in the wake of the Troy Davis execution, and I wonder what it might take to quench that fire.  More concretely, I am also intrigued to see if the NAACP is really going to devote a significant share of resources and political energies to this issue in the months ahead.  Significant and sustained NAACP involvement in state DP abolition movements might "move the needle" in some settings, perhaps especially in a state like California where a referendum will allow voters to weigh in on the death penalty directly.

Creating circuit split, Eleventh Circuit rejects file-sharing basis for significant child porn guideline enhancement

The Eleventh Circuit has an interesting and seemingly important ruling concerning the application of the child porn federal sentencing guidelines today in US v. Spriggs, No. 10-14919 (11th Cir. Jan 10, 2012) (available here).  Here is the start of the opinion and two key paragraphs from the heart of the ruling:

Appellant Timothy Spriggs pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2).  At sentencing, over Spriggs’s objection, the district court applied a five-level enhancement for distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value. See U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(3)(B) (2010).  Spriggs argues that no evidence supports application of the enhancement. We vacate the sentence and remand because, although we find evidence that Spriggs distributed illicit images, there is insufficient evidence to support the other elements of the five-level enhancement....

The Eighth Circuit applies the five-level enhancement if the defendant “expected to receive a thing of value — child pornography — when he used the file-sharing network to distribute and access child pornography files.”  United States v. Stultz, 575 F.3d 834, 849 (8th Cir. 2009).  Because file-sharing programs enable users to swap files, the court reasoned that no additional evidence is needed to establish the type of transaction contemplated in the Guidelines.

We have a different view, however, of the function and operation of filesharing programs than that of the Eighth Circuit.  File-sharing programs exist to promote free access to information. Generally, they do not operate as a forum for bartering.  For example, file-sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares his files.  The files are free.  Because the transaction contemplated in the Guidelines is one that is conducted for “valuable consideration,” the mere use of a program that enables free access to files does not, by itself, establish a transaction that will support the five-level enhancement.  Accordingly, we disagree with the approach taken by the Eighth Circuit.

Lots of not-quite-sentencing criminal justice stuff from SCOTUS

The Supreme Court today issued four opinions in cases argued this past Fall, and three of the group involve criminal justice issues.  This SCOTUSblog post provides a great run down of the basics, along with links to the opinions:

Justice Sotomayor announced the first opinion of the morning, in Gonzalez v. Thaler.  By a vote of eight to one, the Court affirmed the decision of the Fifth Circuit, holding that Section 2253(c)(3) is a mandatory but nonjurisdictional rule. The failure of a  certificate of appealability to “indicate” a constitutional issue does not deprive a court of appeals of jurisdiction to adjudicate the appeal. Moreover, the Court held, for a state prisoner who does not seek review in a state’s high­est court, the judgment becomes “final” for purposes of Section 2244(d)(1)(A) upon “expiration of the time for seeking such review.” The petitioner’s appeal in this case was therefore untimely.   Justice Scalia filed a dissenting opinion.

Justice Breyer announced the second opinion, Minneci v. Pollard. Also by a vote of eight to one, the Court reversed the Ninth Circuit’s decision, holding because in this case, state tort law authorizes adequate alternative damages actions no Bivens remedy can be implied. Justice Scalia wrote a separate concurring opinion, which was joined by Justice Thomas, but also joined the Court’s opinion. Justice Ginsburg filed a dissenting opinion....

The final opinion issued today was in Smith v. Cain, announced for the Court by Chief Justice Roberts.  Once again by a vote of eight to one, the Court reversed the decision of the Louisiana state court and remanded the case for further consideration. The Court held that the substantial Brady claims in the case require a reversal of the petitioner’s conviction.  Justice Thomas filed a dissenting opinion.

Bivens, Brady and habeas issues are not of direct concern for sentencing law and policy, but there are still plenty of reasons I hope to soon find time to give all these opinions a close read.  In the meantime, perhaps readers can and will use the comments to highlight if there are any must-see parts of these rulings.

"Paying a Price, Long After the Crime"

The title of this post is the headline of this New York Times op-ed by Professors Alfred Blumstein and Kiminori Nakamura.  Here are excerpts:

A stunning number of young people are arrested for crimes in this country, and those crimes can haunt them for the rest of their lives.  In 1967, President Lyndon B. Johnson’s Crime Commission found that about half of American males could expect to be arrested for a nontraffic offense some time in their lives, mostly in their late teens and early 20s. An article just published in the journal Pediatrics shows how the arrest rate has grown — by age 23, 30 percent of Americans have been arrested, compared with 22 percent in 1967. The increase reflects in part the considerable growth in arrests for drug offenses and domestic violence.

The impact of these arrests is felt for years. The ubiquity of criminal-background checks and the efficiency of information technology in maintaining those records and making them widely available, have meant that millions of Americans — even those who served probation or parole but were never incarcerated — continue to pay a price long after the crime.  In November the American Bar Association released a database identifying more than 38,000 punitive provisions that apply to people convicted of crimes, pertaining to everything from public housing to welfare assistance to occupational licenses.  More than two-thirds of the states allow hiring and professional-licensing decisions to be made on the basis of an arrest alone.

Employers understandably want to protect their employees and customers from risk.  Yet at the same time, there is a growing public interest in facilitating job opportunities for those who have stayed crime-free for a reasonable period of time.... Last April, Attorney General Eric H. Holder Jr. urged state attorneys general to review laws and policies “to determine whether those that impose burdens on individuals convicted of crimes without increasing public safety should be eliminated.”

It is well established that the risk of recidivism drops steadily with time, but there is still the question of how long is long enough.  By looking at data for more than 88,000 people who had their first arrest in New York State in 1980, and tracking their subsequent criminal histories over the next 25 years, we estimate the “redemption time” — the time it takes for an individual’s likelihood of being arrested to be close to that of individuals with no criminal records — to be about 10 to 13 years.  We also found that about 30 percent of the first-time offenders in 1980 were never arrested again, in New York or anywhere else.

Employers could apply their own judgments around those estimates, but the real problem is the state and local rules — often embedded in statutes — that restrict employment or licensing for the rest of the individual’s life.  In New York, former offenders can be forever denied licenses for certain jobs, ranging from beer distributor to real estate broker.  Such “forever rules” — which fall heavily on minorities, who are particularly likely to be arrested — are inherently unfair.

We propose that the “forever rules” be replaced by rules that provide for the expiration of a criminal record.  We believe it is unreasonable for someone to be hounded by a single arrest or conviction that happened more than 20 years earlier — and for many kinds of crimes, the records should be sealed even sooner.  The state, as well as private employers, should face a heavy burden to demonstrate the need for any rule that imposes consequences on someone who has remained crime-free decades after a single offense....

Policies that encourage employers to hire people who made a mistake in the past but have since rebuilt their lives would not only help those people, but also our economy and our society.  With unemployment so high, we need to make it easier, not harder, for people to find jobs.  And by embracing the principle that having paid the price for crime, there should be a limit on the time they are made to suffer, we would be giving true meaning to the ideals of rehabilitation and redemption.

On way out door, Mississippi Gov. Haley Barbour pardons five serious offenders who worked at the Governor's Mansion

This AP story, headlined "Miss. Gov. Barbour Pardons 4 Killers," reports on what seems sure to be a high-profile state clemency story in the days and weeks ahead.  Here are the basics:

Outgoing Mississippi Gov. Haley Barbour has pardoned at least four convicted killers who worked as inmate trusties at the Governor's Mansion, including a man who was denied parole less than two weeks ago.

Relatives of three victims told The Associated Press on Monday that state corrections officials notified them over the weekend that the men convicted in the crimes were to be released this past Sunday.  Barbour's office hasn't responded to numerous messages. Barbour, a Republican, leaves office on Tuesday.

Copies of the pardons filed with the Mississippi Secretary of State's office were released Monday. They show he has pardoned at least five men, the convicted killers and a man serving life for robbery.

The inmates are David Gatlin, convicted of killing his estranged wife in 1993; Joseph Ozment, convicted in 1994 of killing a man during a robbery; Anthony McCray, convicted in 2001 of killing his wife; Charles Hooker, sentenced to life in 1992 for murder; and Nathan Kern, sentenced to life in 1982 for burglary after at least two prior convictions.

The pardons outraged victims' relatives as well as Democratic lawmakers, who called for an end to the custom of governors' issuing such end-of-tenure pardons.  "Serving your sentence at the Governor's Mansion where you pour liquor, cook and clean should not earn a pardon for murder," Public Service Commissioner Brandon Presley, a Democrat, posted Monday on his Facebook page.

While Barbour's office hasn't responded to messages about the pardons, he told the AP for a 2008 story that releasing the trusties who live and work at the mansion is a tradition in Mississippi that goes back decades.  Trusties are prisoners who earn privileges through good behavior....

Democrats have pounced on the pardon.... Members of the Mississippi House Democratic Caucus will hold a press conference at 3 p.m. today at the Mississippi Capitol Rotunda. They plan to announce legislation to prevent the premature pardon or release of murderers. Democratic members of the legislature will be joined by family members of victims.

Barbour created a similar stir by releasing convicted killer Michael Graham in 2008. The Republican later defended the move as "the custom" of governors to cut short the sentences of the mansion's inmate workers if they behave.

Barbour's three predecessors, dating back to 1988, gave some type of early release or pardon to a total of 12 such prisoners. All but two of them had been convicted of murder. One was serving time for forgery and another for armed robbery and aggravated assault.

Mississippi Corrections Commissioner Chris Epps told the AP for a 2008 story that the inmates who end up working at the Governor's Mansion are often convicted murderers because they are the ones who serve long enough sentences to build the trust needed for such a task.

Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading

An interesting and potentially important reasonableness review decision was handed down by a Sixth Circuit panel this morning in US v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (available here). Folks concerned with the operation of reasonableness review or with child porn sentencing should be sure to read this thoughtful opinion in full. Here is how the opinion gets started along with one of many notable passages from the heart of the opinion:

Richard Bistline pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer. Many, if not a majority, of those images and videos depicted 8- to 10-year-old girls being raped by adult men.   Under the Sentencing Guidelines, Bistline’s recommended sentence was 63 to 78 months’ imprisonment.  The district court rejected that recommendation and instead sentenced Bistline to a single night’s confinement in the courthouse lockup, plus ten years’ supervised release.   The United States contends that Bistline’s sentence is substantively unreasonable, arguing that the district court improperly rejected the relevant sentencing guideline as “seriously flawed” and that Bistline’s sentence fails to reflect the factors recited in the sentencing statute.  We agree, and vacate his sentence....

The district court made a number of observations with respect to the seriousness of this offense.  Many of them served to diminish it.   The court did say that the images on Bistline’s computer were “horrendous,” and that the “production of child pornography and the distribution of it is an extremely serious offense, one which should be punished accordingly.”   But notably omitted from that recitation (and virtually unpunished in this case) was the crime of possession of child pornography.   Indeed, the court said there are “significant differences . . . in the degree of culpability in the chain of events that leads to the display of child pornography[,]” with the “most culpable” persons being “those who are involved in actually performing these acts and photographing them.”   We agree with that statement so far as it goes.   That the producers of child pornography are more culpable, however, does not mean that its knowing and deliberate possessors are barely culpable at all.

Intriguing sparring partners in SCOTUS comments after denial of cert in Ninth Circuit habeas case

Released today with a relatively uneventful Supreme Court order list are two short opinions in Cash v. Maxwell, a habeas case from the Ninth Circuit in which the Court denied cert review.  Justice Scalia issued this dissent, which Justice Alito joined, concluding this way (emphasis in original):

It is a regrettable reality that some federal judges like to second-guess state courts.  The only way this Court can ensure observance of Congress’s abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law.  We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit.  See, e.g., Cavazos v. Smith, 565 U. S. 1 (2011) (per curiam) (reinstating California conviction for assault on a child resulting in death); Felkner v. Jackson, 562 U. S. ___ (2011) (per curiam) (reinstating California conviction for sexual attack on a 72-year-old woman); Premo v. Moore, 562 U. S. ___ (2011) (reinstating Oregon conviction for murder of a kidnaped victim); Knowles v. Mirzayance, 556 U. S. 111 (2009) (reinstating California first-degree murder conviction); Rice v. Collins, 546 U. S. 333 (2006) (reinstating California conviction for cocaine possession); Kane v. Garcia Espitia, 546 U. S. 9 (2005) (per curiam) (reinstating California conviction for carjacking and other offenses); Yarborough v. Gentry, 540 U. S. 1 (2003) (per curiam) (reinstating California conviction for assault with a deadly weapon); Woodford v. Visciotti, 537 U. S. 19 (2002) (per curiam) (reinstating capital sentence for California prisoner convicted of first-degree murder, attempted murder, and armed robbery).  Today we have shrunk, letting stand a judgment that once again deprives California courts of that control over the State’s administration of criminal justice which federal law assures.  We should grant the petition for certiorari and summarily reverse the Ninth Circuit’s latest unsupportable §2254 judgment.

Justice Sotomayor responds with this opinion ending this way (footnote omitted):

Here, the Ninth Circuit recognized that 28 U. S. C. §2254(d)(2) imposes a “daunting standard — one that will be satisfied in relatively few cases.”  628 F. 3d, at 500 (internal quotation marks omitted). The court below found that standard met only after describing, in scrupulous detail, the overwhelming evidence supporting the conclusion that Storch falsely testified at Maxwell’s trial — attempting to manipulate the integrity of the judicial system as he did in numerous other cases.  I agree with the Ninth Circuit’s determination. But even to the extent that the dissent sees error in that determination, the Ninth Circuit conducted precisely the inquiry required by §2254(d)(2) and our precedents.  “The principal purpose of this Court’s exercise of its certiorari jurisdiction is to clarify the law.” Caperton v. A.T. Massey Coal Co., 556 U. S. 868, 902 (2009) (SCALIA, J., dissenting). Mere disagreement with the Ninth Circuit’s highly factbound conclusion is, in my opinion, an insufficient basis for granting certiorari.  See this Court’s Rule 10.

This little spitting match over a Ninth Circuit habeas grant is not only intriguing on the merits, but also notable for who keeps their tinder dry.  I am a bit surprised to see that Justice Thomas is not joining in Justice Scalia's opinion; it also seems interesting that Justice Sotomayor is a lone voice defending the work of the Ninth Circuit in this case.

"A steep drop in crime, but do you feel safer?"

The title of this post comes from the headline of this article run this past weekend in the Los Angeles Times, though the question might well be asked in just about every major city in the nation.  Here is how the interesting piece gets started:

A newsroom has its own way of tracking a city's trend toward diminishing crime. Twenty years ago, a reporter tallying crime stats for our newspaper's weekly blotter might sift through dozens of killings on a single weekend. There were more than 1,000 homicides a year. Last year, there were fewer than 300 homicides — and many weekends with no killings.

Ten years ago, reporters working the streets kept mental lists of neighborhoods considered too dangerous to visit alone. Now, no neighborhood is off-limits. That sense of ambient criminal menace is gone.

Los Angeles —- like other big cities around the country — is in the midst of a crime drop so steep and profound, it has experts scratching their heads. Crime fell in 2011 for the ninth year in a row, to levels not seen in Los Angeles since half a century ago. The city had fewer crimes last year — and a million and a half more people — than it did when "Leave It To Beaver" made its debut in 1957.

The reasons are complicated and ripe for debate: better policing and more community involvement; fewer drugs and fuller prisons; an explosion in new technology; and the fading profile of violent gangs. The phenomenon ought to be scrutinized. We need to know what mix of forces has conspired to drive crime down, so we can — in an era of shrinking resources — plan and spend wisely to keep this going.

We also have to ask ourselves: What will this transformation mean? What will we do with all this safety in a city known not so long ago as the capital of drive-by shootings?

Some related posts on the great modern crime decline in California and nationally:  

• Despite death penalty's practical demise and a prisoner release order, California crime hit record low in 2010
• Effective Washington Post commentary talks up great (and still puzzling) crime decline
• Amazingly great new FBI data: crime down yet again in start of 2011!
• Still more great news and data on the latest crime rates in the United States
• Remarkable drop in US violent crimes rates in 2010 according to latest BJS data
• Some speculations about the great crime decline in Florida
• "Falling Crime Rates Challenge Long-Held Beliefs"
• "Punishment Politics: Gubernatorial Rhetoric, Political Conflict, and the Instrumental Explanation of Mass Incarceration in the American States"

US Sentencing Commission meeting this week to consider guideline amendments

As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Tuesday, January 10, 2012, at 2:00 p.m." And on the official agenda is "Possible Votes to Publish Proposed Guideline Amendments and Issues for Comment."

As reported in this prior post from last summer, the USSC had a lot of high-profile matters on its list of possible priority policy issues for this year's amendment cycle, including continued reviews of the drug and kiddie porn guidelines.   I am not expecting to see any blockbuster amendments being proposed this year, but one never knows.   But I am inclined to predict (and fear) that the USSC may be especially timid this year because of last fall's House hearing in which the Commission got a lot of grief from congressional Republicans.

A few recent related posts:

• US Sentencing Commission provides notice of proposed 2012 priorities
• "Should the USSC publish sentencing data for individual judges?"
• Witnesses identified for House hearing on post-Booker federal sentencing
• Early reactions to the (too) quick House hearing on post-Booker sentencing

Notable paper urging a different model for victim involvement in criminal justice system

Via this post at Right on Crime, I came across this interesting new paper from the Partnership for Safety and Justice about victim involvement in the criminal justice system titled "Moving Beyond Sides: The Power and Potential of a New Public Safety Policy Paradigm."   Here is a paragraph describing the goals of the paper and another from the introduction revealing its key themes:

This paper is designed to foster critical dialogue and actual movement toward more proactive and thoughtful collaboration between crime survivor advocates and criminal justice reform advocates who have a shared stake in creating a system focused on long-term, evidence-based policies best equipped to create safe and healthy communities....

When examining the propagation of tough on crime policies, particularly at the state level, certain crime victim advocates have played a powerful role.  These victim organizations and activists have created the emotional impetus for the passage of tough on crime policies.  Both intentionally and unintentionally, these high-profile “victim advocates” have become the de facto representatives of the victims’ perspective among the media and policymakers, while the authority and scope of their perspectives remain largely unchallenged.  What usually goes unnoticed in criminal justice policy debates is the absence of the diversity of victims’ perspectives.  The communities most impacted by crime and violence — low-income communities, communities of color, and women — are rarely taken into consideration by these high-profile victim advocates who are primarily coming from a white, male, and middle-class perspective. It is not unusual that the people with privilege and the most access to the system have an easier time getting the system to respond when personally affected; but the most dominant voices among victim advocates don’t reflect the full spectrum of victim experiences and perspectives and are advancing a narrow policy agenda that has actually damaged some communities.

Interesting new data on operation of death penalty in Connecticut

Thanks to this New York Times editorial by Lincoln Caplan, which carries the provocative headlined "The Random Horror of the Death Penalty," I saw this fascinating new study by Professor John Donohue concerning the operation of the death penalty in the Nutmeg State.   First, from the study: it is titled "Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution," and here is the start of the abstract:

This study explores and evaluates the application of the death penalty in Connecticut from 1973 until 2007, a period during which 4686 murders were committed in the state. The objective is to assess whether the system operates lawfully and reasonably or is marred by arbitrariness, caprice, or discrimination.  My empirical approach has three components. First, I provide background information on the overall numbers of murders, death sentences, and executions in Connecticut.  The extreme infrequency with which the death penalty is administered in Connecticut raises a serious question as to whether the state’s death penalty regime is serving any legitimate social purpose.

Specifically, of the 4686 murders committed during the sample period, 205 are death-eligible cases that resulted in a homicide conviction, and 138 of these were charged with a capital felony.  Of the 92 convicted of a capital felony, 29 then went to a death penalty sentencing hearing, resulting in 9 sustained death sentences, and one execution (in 2005). A comprehensive assessment of this process of winnowing reveals a troubling picture. Overall, the state’s record of handling death-eligible cases represents a chaotic and unsound criminal justice policy that serves neither deterrence nor retribution.

Second, from the start and end of the NYT editorial:

The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people.  An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime....

Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.

The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence. Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.

In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.

The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.

In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.

I may have a lot more to say about the implications of Professor Donohue's research once I have a chance to reads his entire study.  But I will begin by suggesting that I do not think Furman can or should be read to hold or even imply that county-by-county differences in the application of the death penalty within a state serve to make the operation of the death penalty unconstitutional.  A state's policymakers may surely decide that such geographic differences make for bad policy and should be addressed legislatively; but I do not think the judiciary can or should hold that such differences alone make the death penalty unconstitutional.

Will new federal definition of rape significantly impact approaches to sex crimes and punishments?

The question in the title of this post is prompted by this past week's news that the feds have officially adopted a new rape definition for FBI crime reporting purposes.  The basics are well covered in this entry, headlined "Holder Makes It Official: New FBI Rape Definition Approved," coming from the folks at The Crime Report:

U.S. Attorney General Eric Holder today announced revisions to the Uniform Crime Report’s definition of rape, which the Justice Department says will lead to a more comprehensive statistical reporting of rape nationwide.

Holder said the new definition is more inclusive, better reflects state criminal codes, and focuses on the various forms of sexual penetration understood to be rape. The revision had been urged by women's advocacy groups and was approved by an FBI advisory committee. FBI Director Robert Mueller approved the new official definition on Dec. 21, 2011....

The change has been almost a decade in the making, as The Crime Report previously reported, with a series of advisory and listening meetings on a new definition. The old definition, which was proposed in 1927 and signed into law in 1929, defined rape as "the carnal knowledge of a female, forcibly and against her will." The new definition is: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” This new definition now includes men and boys to provide a fuller picture of rape in America.

A recent Centers for Disease Control Study reported that as many as 1 in 3 women have experienced rape, physical violence or stalking by an intimate partner in their lifetimes, and about 1 in 10 men.

In 2010, the FBI reported 84,767 rapes. The complete numbers for 2011 Uniform Crime Report have not yet been reported, but the FBI issued a preliminary report showing a 6.4 decrease in violent crimes during the first six months of 2011. In addition to forcible rape, violent crimes reported by the UCR also include murder, robbery, and aggravated assault. Experts expect the numbers of reported rape to increase over the next few years once the new tools are fully implemented.

Interesting global drug use data via new study in The Lancet

This New York Times article, which is headlined "Marijuana Use Most Rampant in Australia, Study Finds," reports on lots of interesting global illegal drug use data:

A study published Friday in a British medical journal may have finally uncovered the secret behind Australia’s laid-back lifestyle, and it turns out to be more than just sun and surf: The denizens Down Under, it turns out, consume more marijuana than any other people on the planet.

The study, an analysis of global trends in illegal drugs and their effect on public health published in The Lancet, a prestigious journal, found that Australia and neighboring New Zealand topped the lists globally for consumption of both marijuana and amphetamines, a category of drugs whose use the study found to be growing rapidly around the world.

The study’s co-authors, Professors Louisa Degenhardt of the University of New South Wales and Wayne Hall of the University of Queensland, reported that as much as 15 percent of the populations of Australia and New Zealand between the ages of 15 and 64 had used some form of marijuana in 2009, the latest year for which data were available.

The Americas, by comparison, clocked in at 7 percent, although North America batted above the neighborhood average with nearly 11 percent of its population partaking. Asia demonstrated the lowest global marijuana use patterns at no more than 2.5 percent, the study said, although difficulties in obtaining accurate data in less developed countries were cited as one possible reason for the low figures....

Stepping back for a global perspective, the study found that marijuana was the world’s most widely consumed illicit drug, with anywhere from 125 million to 203 million people partaking annually. Use of the drug far outstrips that of other illicit drugs globally, with 14 million to 56 million people estimated to use amphetamines, 14 million to 21 million estimated to use cocaine and 12 million to 21 million estimated to use opiates like heroin.

Still, despite marijuana’s significantly outpacing other illicit drugs in terms of the volume of use, the study found that it was the least likely of all illicit drugs to cause death. Additionally, barely 1 percent of deaths in Australia annually can be attributed to illegal drugs, the report said, compared with almost 12 percent from tobacco use.

This global study is actually part of a series of articles in The Lancet available at this link and set up with this executive summary:

A three-part Series assesses the global public-health toll and policy implications of drug addiction. The first paper summarises data for the prevalence and consequences of problem use of amphetamines, cannabis, cocaine, and opioids.  In high-income countries, illicit drug use contributes less to the burden of disease than tobacco, but a substantial proportion of that burden is due to alcohol.  Intelligent policy responses to drug problems need better prevalence data for different types of illicit drug use and the harms that their use causes globally.  This need is especially urgent in high-income countries with substantial rates of illicit drug use and in low-income and middle-income countries close to illicit drug production areas.  The second paper reviews existing drug policies and highlights the need for greater reliance on scientific evidence-based policy making.  The final paper examines the value of international drug conventions in protecting public health.

"Criminal serving his sentence with monks pleads to be sent back to prison... because monastery life is too hard"

The title of this post is the headline of this amusing article from the UK, which was sent my way by a kind reader.  Here is how the piece starts:

A convicted criminal who was serving out his sentence in a monastery has escaped for the second time and asked to be sent back to prison because life was too tough.

Thief David Catalano, 31, was sent to a Santa Maria degli Angeli community run by Capuchin monks in Sicily last November.  But he found their austere lifetstyle too tough to handle and soon escaped. After a short while on the run he was caught by police and sent back.

On Monday he fled for the second time in six weeks, only to swiftly turn himself in at a police station and beg officers to send him back to jail in the nearby town of Nicosia.   He told the stunned policemen: 'Prison is better than being at that hostel run by monks.'

A police spokesman said: 'Catalano arrived out of the blue and said there was no way he could stay on with the monks.  He said it was too tough and he wanted to go back to prison, so we happily obliged and he is now back behind bars serving the rest of his sentence.'