June 6, 2008
U.S. Prison Population Hits All-Time High: 2.3 Million Incarcerated
The Justice Department has released a new report showing the nation's prison and jail population reached a record 2.3 million people last year. The report notes that in the 10 largest states, prison populations increased "during 2006 at more than three times (3.2 percent) the average annual rate of growth (0.9 percent) from 2000 through 2005."
The new report from the Bureau of Justice Statistics found that in the first half of 2007 the growth rate slowed, but prison admissions growth outpaced the number of prison releases. The report provides a breakdown, noting "of the 2.3 million inmates in custody, 2.1 million were men and 208,300 were women. Black males represented the largest percentage (35.4 percent) of inmates held in custody, followed by white males (32.9 percent) and Hispanic males (17.9 percent)."
The United States leads the industrialized world in incarceration. In fact, the U.S. rate of incarceration (762 per 100,000) is five to eight times that of other highly developed countries, according to The Sentencing Project, a criminal justice think tank. [Mark Godsey]
4th Circuit Orders New Sentencing for Convicted al-Qaida Member
Yahoo.com: A federal appeals court upheld the conviction Friday of a Virginia man convicted of joining President Bush, but said that he must be resentenced.and plotting to assassinate
The 4threjected a 30-year prison term and ordered a new sentencing hearing for Ahmed Omar Abu Ali. Prosecutors had argued that the judge improperly deviated from federal sentencing guidelines that called for life in prison.
The ruling is a major victory for prosecutors in one of their most high-profile terrorism cases.
Born in Houston, Abu Ali, 27, grew up in the Washington suburb of Falls Church and was valedictorian of a private Islamic high school. He joined al-Qaida after traveling to sleeper cell in the United States.to attend college in 2002. As a member of a Medina-based al-Qaida cell, Abu Ali discussed numerous potential terrorist attacks, including a plan to assassinate Bush and a plan to establish a
Abu Ali challenged his conviction, saying that a videotaped confession he made to Saudi authorities had been obtained through torture and should have been tossed out of court. He also said he had the scars on his back to prove he had been whipped in Saudi custody.
The government strongly denied torture, and said the Saudis treated him well. The appeals court agreed that Abu Ali made a voluntary confession.
U.S. Attorney Chuck Rosenberg said in a statement that "Abu Ali was part of a dangerous al-Qaeda cell that sought to carry out attacks against — and within — the United States, and we are pleased that the appellate court affirmed this important conviction on every count."
The three-judge panel's ruling upholding the conviction was unanimous; the ruling ordering a new sentencing hearing was split 2-1, with judges J. Harvie Wilkinson III and William B. Traxler Jr. voting to remand and Judge Diana Gribbon Motz dissenting.
Trial judge Gerald Bruce Lee had discretion to sentence Abu Ali to anywhere from 20 years to life in prison. The appellate majority said Lee made too much of the fact that Abu Ali's assassination plot never got off the ground, and that Lee improperly compared Abu Ali's case with that of "American Taliban" John Walker Lindh, who was sentenced to 20 years after striking a plea bargain admitting that gave his services to the Taliban in Afghanistan.
The judges cited the case as an example of the federal judiciary's ability to handle terror trials while safeguarding individuals' constitutional rights without jeopardizing national security.
"We are satisfied that Abu Ali received a fair trial, though not a perfect one, and that theperformed those functions which the Constitution envisioned for it," the court wrote.
Continue reading article here. [Brooks Holland]
June 5, 2008
U.S. v. Santos as a Teaching Tool?
I'd be curious to hear what people think of the recent SCOTUS decision in U.S. v. Santos as a tool for teaching statutory interpretation in Criminal Law. I have been thinking of using it instead of U.S. v. Foster, the Ninth Circuit case in the Dressler casebook which addressed whether a person "carries" a firearm by keeping it in a zipped-down compartment of the pick-up truck he is driving. For those who have not read Santos, it essentially addresses whether the word "proceeds" in the federal money laundering statute means "profits" or "gross receipts." My inclination is that Santos would be a nice case for students to read, for several reasons:
1. The Justices look to a number of different sources to determine what "proceeds" means: dictionaries, other federal statutes, other places in the same federal statute, state statutes, and the purposes behind the statute.
2. It is the rare case in which the rule of lenity is dispositive. It is rarer still in that the justifications for the rule of lenity are explained.
3. It nicely points up the difference between vagueness and ambiguity. The word "proceeds" is ambiguous, not vague, because it means either "gross receipts" or "profits," AND NOTHING ELSE.
4. Justice Stevens takes the unique position that "proceeds" might mean different things depending on the predicate offense. I agree with the plurality that this is downright bizarre.
5. Relatedly, that Justice Stevens is the fifth vote in support of the judgment, but takes a position with which the other 8 Justices disagree, makes articulating the holding here problematic, a point the Justices acknowledge. While Criminal Law students generally do not encounter the problem of trying to figure out the holding of a splintered, multi-member court, Santos is a nice introduction to the problem, which they will encounter in spades in Criminal Procedure and Constitutional Law.
6. The recent exchanges between David Post and Orin Kerr on the Volokh Conspiracy on giving students unedited cases to read have motivated me to try to include at least one such opinion in each of my classes. Santos seems like a good candidate.
Any thoughts? [Mike Mannheimer]
NY to Study Wrongful Convictions
Manhattan attorney Bernice Leber, named president of the 74,000-member [New York State Bar] association on Monday, says that for every wrongful conviction that surfaces, unknown numbers of others remain unfairly resolved.
That's because most wrongful convictions have been uncovered by advances in DNA technology, while most crimes do not involve DNA evidence. Those who minimize the problem of wrongful convictions, claiming that "only" 200 exonerations have occurred (as of April) fail to grasp that fact.
Kudos, then, to the NY State Bar Association for establishing a task force to "analyze New York cases that led to wrongful convictions and hold hearings." Those states that have not done so should conduct their own studies to suggest means of assuring that their criminal justice systems do not convict the innocent. [Mark Godsey]
O.C. Grand Jury calls for limits on Taser use
Alarmed by the recent deaths of two jail inmates who had been shocked with Taser electronic stun weapons, the Orange County Grand Jury on Wednesday recommended that deputies no longer use the weapon if other means to control inmates are available.
In its annual report, the State of the Orange County Jails, the grand jury said the recent inmate deaths were a "cause of alarm."
The report noted that jail staff used Tasers on 437 inmates between 2004 and 2007.
"There is major debate amongst experts as to whether the use of the Taser may cause heart failure and death," the grand jury wrote.
The grand jury recommended that the department prohibit deputies from using Tasers in situations where an "alternative form of control can be effectively used," and that it prohibit use of the Taser on people who are handcuffed.
The grand jury also suggested that a panel of experts review instances in which individuals die after deputies used Tasers on them.
Jason Jesus Gomez died April 1, six days after deputies used a Taser while restraining him at the Intake Release Center in Santa Ana.
Interim Sheriff Jack Anderson suspended several employees after reviewing Gomez's death, and the district attorney's office opened an investigation, which is ongoing. An attorney for the Gomez family has contended that Gomez died from blunt-force trauma, but no cause of death has been released by the sheriff or coroner.
Gomez had been sentenced March 20 to 90 days in jail for violating terms of his probation, the result of a 2006 conviction for displaying a firearm and cultivating marijuana, court records show. [Mark Godsey]
Pilot program credited for drop in Missouri prison population
ST. LOUIS — Over the last six years, Missouri has evolved into a national model for helping released prisoners re-enter society and not reoffend. Overcrowding led the state to accept a national group’s offer in 2002 to be a pilot for reducing recidivism.
Today, in part because of the program’s success, Missouri has 700 fewer inmates than its peak population of 30,700 in October 2005, corrections officials said.
But in the case of nonviolent offenders, the wiser sentence may not be prison at all, but rather probation, restitution, treatment or other alternatives, Missouri Supreme Court Judge Michael Wolff said.
Wolff addressed a conference Wednesday on prisoner re-entry for 300 Missouri Department of Corrections managers and administrators. As chair of the Missouri Sentencing Advisory Commission, he led a team that crafted the state’s approach to sentencing that took effect in 2005.
Wolff, citing Missouri corrections statistics, said offenders convicted of nonviolent felony stealing were far less likely to reoffend when they were sentenced to probation or community service than prison.
“So does prison cause recidivism?” Wolff asked. “The data look ominous. Prison is ‘criminogenic.’ It encourages or teaches offenders to do further crimes.
“If we put nonviolent offenders in prison with violent offenders, the nonviolent do seem to learn from the violent. And the other way around? Not so much.”
Wolff said sentencing should be no more harsh than warranted, and that community-based sanctions should be preferred over incarceration for nonviolent offenders. [Mark Godsey]
June 4, 2008
Feds Aim to Dismantle L.A.'s 18th Street Gang
Authorities say Francisco "Puppet" Martinez controlled much of the gang violence and drug trade in the neighborhood around L.A.'s MacArthur Park from a federal prison cell in the late 1990s. Martinez ran the Columbia Lil Cycos clique of the 18th Street Gang. From prison, he directed his "loyal soldiers" and his wife to carry out his orders.
Martinez was eventually convicted on the first racketeering charges against gang members in Los Angeles, as well as several other charges. He is now serving three life sentences. [Mark Godsey]
Judge tosses two city gun laws
A Philadelphia judge yesterday sided with the National Rifle Association and struck down city ordinances banning assault weapons and limiting handgun purchases to one a month.
In a blow to the city's attempt to write its own gun laws, Common Pleas Court Judge Jane Cutler Greenspan ruled that Philadelphia should be permanently prevented from enforcing the laws that City Council passed unanimously in April.
But Greenspan gave city officials a consolation prize by declining to strike down three other laws on procedural grounds, indicating that the NRA and other plaintiffs did not have legal standing to challenge those laws.
Lawyers on both sides of the emotional issue hailed the split decision in a positive light.
"It's a partial victory," said Douglas I. Oliver, Mayor Nutter's spokesman. He said that the judge's decision to let three laws stand "shows that this city's actions were legal and not actions of a renegade government."
C. Scott Shields, the NRA's lawyer, called Greenspan's ruling a "huge victory" for gun-rights advocates.
"The assault-weapons ban was just ridiculous," he said. "There's just no way this would be enforceable."
The adversaries agreed on one thing: that the decision would be appealed, likely all the way to the state Supreme Court.
The lawyers said they were awaiting Greenspan's opinion spelling out her decision.
During hearings, Greenspan indicated that she agreed with the NRA's position that superseding state laws prevent the city from regulating guns in any way.
Yet by allowing three laws to stand, Greenspan gave gun-control advocates some hope that municipalities facing high levels of violent crime could push for local control. [Mark Godsey]
Goal: Keep mentally ill out of jail
CHAPEL HILL - A group of North Carolina lawmakers assured residents Saturday that they support doing more to prevent people with addictions or mental illness from ending up in jail.
Mental illness and its effects on the criminal justice system was the topic of the 30th annual Legislative Breakfast for Mental Health at the Friday Center, attended by community leaders, elected officials and people who either work in mental health fields or have personal experiences with mental health issues.
One of the latter, Kurt O'Briant, shared his success story with the audience. He struggled with drugs but graduated from an Orange County Community Resource Court program two years ago. Now he's clean and employed.
"I wouldn't be here today if it hadn't been for that court," he said. "When I went in there, I wouldn't listen to anybody."
Keynote speaker Joe Buckner, chief District Court judge for Orange and Chatham counties, helped launch Community Resource Court in 2000.
Formed in conjunction with Orange-Person-Chatham Mental Health, it was the first mental health court in North Carolina, bringing together mental health providers, law enforcement communities and others to address mental health needs and addictive disorders in criminal defendants.
Buckner, who grew up in the funeral business, said he decided to approach the problem of recidivism from a customer-service standpoint.
"This is not new business," he recalled thinking. "This is business we're doing anyway. Can we approach it different?"
Orange County's voluntary court-based diversion program is available to defendants who are not deemed a threat to public safety. Participating defendants must agree to comply with a recommended treatment plan for a minimum of six months and check in with the court once a month. Case managers sometimes help defendants find jobs. [Mark Godsey]
June 3, 2008
Death Penalty Under Review
The United States is fifth in the world when it comes to executing inmates — slightly above Iraq and right below Pakistan. Since the death penalty was reinstated in the mid 1970s, all death row inmates have been put to death for killing another person. But now, a surprising array of crimes can land you on death row.
For a broader look at capital punishment, Farai Chideya speaks with Richard Dieter, executive director of the Death Penalty Information Center.
For a broader look at capital punishment, Farai Chideya speaks with Richard Dieter, executive director of the Death Penalty Information Center. [Mark Godsey]
Innocence Project Focusing on Freeing the Wrongfully Jailed, Reforming a Flawed System
Now, 14 years later, the 41-year-old Cage is beginning to try and put his life back together after being released one week ago from an Illinois state prison. DNA tests proved that Cage did not rape the 15-year-old girl in 1994 who had picked him out of a police line-up.
Cage maintained then that he was at home at the time of the alleged incident, and his family stood by him.
"It’s a complicated time. It’s incredibly exciting to see him free. But you never can forget the 14 years he has lost and never will regain," attorney Alba Morales told BlackAmericaWeb.com.
"Now that he has been freed, the focus is on getting him the things he needs, like clothes and a phone," she said. "He was released from prison with basically nothing." [Mark Godsey]
Does Child Rape Warrant the Death Penalty?
Patrick Kennedy is on death row at Louisiana's Angola Prison, awaiting capital punishment for brutally raping his 8-year-old step daughter. But does executing someone for child rape violate the 8th Amendment, which bars cruel and unusual punishment?
For insight, Farai Chideya speaks with Ted Cruz, the former Solicitor General of Texas, who also participated in Kennedy's Supreme Court appeal. We also hear from Judy Benitez, the executive director of the Louisiana Foundation Against Sexual Assault. [Mark Godsey]
June 2, 2008
Immigration Prosecutions Hit New High
Federal law enforcement agencies have increased criminal prosecutions of immigration violators to record levels, in part by filing minor charges against virtually every person caught illegally crossing some stretches of the U.S.-Mexico border, according to new U.S. data.
Officials say the threat of prison and a criminal record is a powerful deterrent, one that is helping drive down illegal immigration along the nearly 2,000-mile frontier between the United States and Mexico. Skeptics say that the government lacks the resources to sustain the strategy on the border and that the effort is diverting resources from more serious crimes such as drug and human smuggling.
Before Operation Streamline, as the program is known, most Mexican nationals caught at the border were fingerprinted and returned to Mexico without criminal charges. Since 2005, people other than Mexicans are generally held until removed.
In testimony to Congress this spring, Homeland Security Secretary Michael Chertoff said that Operation Streamline "is a very good program, and we are working to get it expanded across other parts of the border" because "it has a great deterrent effect." The program is now in place in parts of Texas and Arizona.
But Melissa Wagoner, a spokeswoman for Sen. Edward M. Kennedy (D-Mass.), said there is a shortage of jail beds and public defenders in areas where the program is operating. "Operation Streamline in its current form already strains the capabilities of the law enforcement system past the breaking point," she said. [Mark Godsey]
Memo on cops gets spotlight
A Chicago police internal affairs investigator has testified before a federal grand jury about a 2005 memo he wrote questioning whether his bosses ignored alleged misconduct that grew into one of the biggest corruption scandals to hit the Police Department, sources close to the investigation said.
Taliaferro's testimony indicates that federal authorities continue to investigate whether Police Department higher-ups, including internal affairs bosses, allowed SOS officers to incur hundreds of complaints of illegal searches and robberies without stopping them.
The investigator also told federal prosecutors that Debra Kirby, former head of internal affairs, contacted him and asked for a copy of the memo in March when she learned that the Tribune was working on a story about the memo, according to the sources. The Tribune disclosed the existence of Taliaferro's memo March 17.FBI officials have said Kirby, whom Police Supt. Jody Weis promoted to his chief legal counsel in March, has not been labeled a subject of the federal investigation. Kirby ran internal affairs from late 2003 until early this year, covering much of the time that SOS incurred hundreds of allegations of misconduct. Her division cleared the officers in nearly all of the cases, but the Cook County state's attorney's office later stepped in and criminally charged seven officers.
Five months before Taliaferro's June 2005 memo, Kirby transferred another internal affairs investigator, Bridget McLaughlin, out of the division days after she filed a similar memo that showed eight SOS officers were racking up complaints of illegal searches. [Mark Godsey]
Michael Short knows he was wrong to sell crack cocaine, but he questions whether he needed 15 years in prison to learn his lesson. Now some of the politicians who helped put him there are wondering, too.
ON HIS 18TH DAY OF FREEDOM, Michael Short awakened before dawn. In prison, corrections officers had paced the halls at night, jingling keys and shining flashlights. Now Mike slept fitfully, even in a king-size bed.
It was a damp, gray Tuesday late in February. He slipped on a pinstriped shirt that hid his tattoos, slid his feet into shiny new loafers and rubbed coconut oil into his hair, cut razor-straight at the temples and flecked with gray. He was 36, with a basketball player's long-legged gait and the lined brow of a man well acquainted with consequences. Standing in front of the bathroom mirror, he nervously knotted a silver-and-white tie that his girlfriend had bought him at Macy's.
On days like this, he wished the past were a room with a door you could close, a place you could walk away from, as he had walked away from prison after President Bush commuted his sentence. But the past wasn't like that, at least not for him. Over breakfast, he practiced the testimony he was scheduled to deliver that afternoon before a congressional subcommittee: My name is Michael Short. I am here because in 1992 I was sentenced for selling crack cocaine. Before that, I had never spent a day in prison. I came from a good family. I had no criminal history. I was not a violent offender. But I was sentenced to serve nearly 20 years. I was 21 years old. [Mark Godsey]
CrimProf Kevin Washburn to Arizona from Minnesota
From the Press Release: "Kevin K. Washburn will join the Arizona Law faculty, teaching and working in the areas of American Indian law and criminal law. “Professor Washburn’s extensive work in American Indian law and gaming law will consolidate strengths in our Indigenous Peoples Law & Policy program (IPLP), which is known worldwide,” Dean Toni Massaro said, “and his expertise in criminal law will advance our multidisciplinary Program in Criminal Law & Policy (PCLP).”
Currently the Oneida Indian Nation Visiting Professor of Law at Harvard Law School, Professor Washburn previously taught at the University of Minnesota. He has written widely (SSRN page here) on areas at the intersection of Federal Indian law and criminal law. Professor Washburn is also an expert in gaming law, and has been a frequent commentator on issues in the media, in the legal community, and before Congressional panels examining gaming policy. He has also served as a principal investigator for a $1.4 million federal grant to examine the state of the criminal justice system on Indian reservations and has extensive law practice experience as a former Assistant U.S. Attorney and trial attorney for the Department of Justice, as well as general counsel of the National Indian Gaming Commission. He will begin teaching in the fall of 2008, holding the position of Rosenstiel Distinguished Professor of Law."
My former Cincinnati colleague Jack Chin is on the Arizona faculty; he told me that in addition to snagging Kevin, Arizona recently hired Katherine Barnes from Wash U (SSRN page here), a J.D./Ph.D. in statistics who is an expert in racial disparity, and Marc Miller from Emory (SSRN page here), known for his Criminal Procedure and Sentencing casebooks, and his empirical work on prosecutorial charging decisions. Marc and Jack appear in Brian Leiter's study of highly cited CrimProfs. Arizona has a criminal law speaker every week, a Criminal Law and Policy Certificate Program just graduated its first class, and a new White Collar prosecution clinic with the Arizona Attorney General's Office, in addition to the traditional prosecution and defense clinics. Jack told me that he and his colleagues have been especially pleased with the interest and participation of the criminal bar--both sides, and up and down the ranks--in the research and policy and discussions at the U of A. It looks like Arizona is building quite a strong criminal program. [Mark Godsey]
June 1, 2008
Real government waste: Mandatory sentences
Stop government waste. That's what state taxpayers are clamoring for, right? Cut out the padded pensions, lavish trips, no-show jobs ...
But all the money spent in those time-worn examples of "waste" pales in comparison to the millions and millions of dollars state taxpayers are spending to lock up nonviolent drug offenders who unwittingly found themselves within 1,000 feet of a school, or who are first-time offenders better served by drug treatment or other alternatives to jail.
The Drug Policy Alliance released a study last week finding the state spends $331 million per year jailing nonviolent drug offenders, or more than the entire corrections budgets for 16 states. More than one-third of the state's prison population was convicted of drug possession or low-level distribution offenses - at a yearly cost, per prisoner, of $46,880.
And for what? Many of those offenders are in jail because of mandatory sentencing laws and tougher penalties for offenses within drug-free zones. Yet studies and commissions have concluded that drug-free zones and mandatory sentences don't deter drug activity near schools. Fact is, in somes urban areas, the 1,000-foot school zones blanket the entire city - making them meaningless as a deterrent. And one commission found that students were involved in only 2 percent of the cases.
The report pointed out that not only is money being wasted, but lives. Serving a jail sentence reduces someone's earning ability by up to 40 percent, the study found. Lives often spiral downward after prison. Society, as well as the individual, suffers. [Mark Godsey]
Multnomah County juvenile justice system is broken, crime-victims' group says
The Multnomah County juvenile justice system is broken, with youth offenders not being held accountable for serious crimes, according to a report released Tuesday by an influential crime victims' advocacy group.
The report, written by a retired Jackson County juvenile probation officer for Crime Victims United, took more than a year and is dedicated to the memory of Davonte Lightfoot, a Portland 14-year-old who was fatally shot in North Portland on Jan. 6, 2007.
At the time he was gunned down, Lightfoot was wearing an electronic monitoring bracelet. He already had 16 juvenile referrals, a history of probation violations and a prior gun possession charge. Three weeks before Lightfoot's death, a prosecutor unsuccessfully tried to persuade a judge to detain him. [Mark Godsey]
Mr. Cooley: It's time to let this woman go
Twenty-five years after a Los Angeles prosecutor admitted that the key witness against her was a liar, and three years after L.A. County Dist. Atty. Steve Cooley agreed to a deal that would have led to her release, Deborah Peagler is still in prison for the 1982 murder of a pimp who repeatedly beat and sexually assaulted her.
Cooley, who in 2005 had a sudden change of heart about Peagler's release, is fighting to keep her locked up at the state prison in Chowchilla despite a 2002 law allowing reconsideration of cases involving battered women.
Peagler, in a telephone interview last week, told me Cooley's flip-flop was devastating.
"I was prepared to leave here, emotionally and mentally. I was gone. I was no longer a prisoner," said the 48-year-old.
Then came word that Cooley had changed his mind after some members of his staff objected to a release. "I was shocked, numb, so disappointed once again. I still have hope. However, I don't have any faith in the system I'm in."
I was asked to look into the Peagler case not by a bleeding heart but by Sean Walsh, a Republican political consultant who works at Bingham McCutchen, a corporate law firm whose senior members include former California Gov. Pete Wilson.
Two of the firm's lawyers, Nadia Costa and Joshua Safran, have represented Peagler free for six years, trying to win her release. They believe she was guilty of voluntary manslaughter, for which she probably would have served several years and been released many years ago.
"This is about hubris and ego," Costa argued. She and Safran accuse Cooley and his staff of having fought Peagler's release to quell an internal dispute about the case, to keep up the appearance that the D.A.'s office made no mistakes in her prosecution and to avoid civil liability. [Mark Godsey]