CrimProf Blog

Giving Crime Victims More of Their Say

From U.S News & World Report:  W. Patrick Kenna felt cheated. In 2000, he invested $20,000 with a currency trading company, hoping to earn enough to start a new business. Instead, he lost nearly the entire sum, defrauded along with dozens of other investors. A Los Angeles businessman, Kenna took some comfort in knowing that the two men responsible—father-and-son owners of the company—would spend significant time behind bars, but he wanted to make sure the judge knew just how much trouble they had caused.

Kenna made his anger clear during the father's 2005 sentencing, but when the son's day in court arrived three months later, the federal judge denied Kenna's request to speak. "I listened to the victims the last time," Judge John Walter said. "There just isn't anything else that could possibly be said." Kenna was furious. "We didn't feel that the judge was taking into consideration the victims in the case," he says. So he turned to the U.S. Court of Appeals for the Ninth Circuit, which ordered the judge to let Kenna speak at a new hearing.

The reversal in Kenna's case reflects the growing influence of crime victims since the passage in 2004 of landmark federal legislation granting them new and expanded rights. Three years later, the changes are beginning to have an impact, shifting the balance of a legal system that historically has been solely a two-party affair. One result is tension between legal parties and concern among defense attorneys who fear that a greater role for victims conflicts with the right of defendants to a fair trial.

Historically, the adversarial legal system has carved out roles in criminal cases only for the prosecutor and the accused. Victims have been relegated to the sidelines unless they were testifying. Although the interests of prosecutors usually align with those of victims, they are not always the same: for instance, when victims want tougher sentences than prosecutors do. Victims' rights advocates hope the changes are just the start and are pushing to put victims on an equal footing with defendants and prosecutors. "What our goal should be is to put the victim back into the position as if no crime had been committed," says Paul Cassell, a former federal judge who resigned this year to advocate for victims.

Crime victims began winning rights at the state level decades ago, but the 2004 legislation brought the protections to the federal level for the first time. Victims now must be notified about court developments. They must be allowed to speak during bail and sentencing hearings. And most important, the law gives them the ability to appeal rulings when they think their rights are being violated, as Kenna did. The Justice Department is even funding three legal clinics, in Maryland, Arizona, and South Carolina, to help victims assert these rights in court.

Panel Considers the Retroactivity of More Lenient Crack Cocaine Sentences

From washingtonpost.com: An independent panel is considering reducing the sentences of inmates incarcerated in federal prisons for crack cocaine offenses, which would make thousands of people immediately eligible to be freed.

The US Sentencing Commission, which sets guidelines for federal prison sentences, established more lenient guidelines this spring for future crack cocaine offenders. The panel is scheduled to consider today a proposal to make the new guidelines retroactive.

Should the panel adopt the new policy, the sentences of 19,500 inmates would be reduced by an average of 27 months. About 3,800 inmates now imprisoned for possession and distribution of crack cocaine could be freed within the next year, according to the commission's analysis. The proposal would cover only inmates in federal prisons and not those in state correctional facilities, where the vast majority of people convicted of drug offenses are held. Rest of Article. . . [Mark Godsey]

Cali's Setencing Structure Will Probably Not Get Expected Overhaul

From sacbee.com: With the legislative session heading into the home stretch, an ambitious plan to overhaul California's criminal sentencing structure is facing dim prospects in the Governor's Office.

Two bills are circulating in the Legislature that would create a California sentencing commission with the ability to change the length of prison terms. But a spokesman for Gov. Arnold Schwarzenegger suggested it is highly unlikely that either commission bill would get signed into law.

"We're open to debate, but the governor has serious reservations about what's being proposed in the Legislature," Schwarzenegger spokesman Aaron McLear said in an interview. "He thinks that final authority (on sentencing laws) should be with elected officials who are accountable to the people."

Rest of Article. . . [Mark Godsey]

The Depravity Scale: Adding Method to Judging Criminal Depravity?

This NYTimes story focuses on the efforts to two researchers to develop a framework with which to objectively gauge the culpability of particularly cold-blooded killers. The article explains how the work of one the researchers, Dr. Michael Wellner, a clinical associate professor of psychiatry, who developed the so-called "depravity scale," could apply in death penalty proceedings.  He is at work on the “depravity scale” to aid juries in separating the worst of the worst from the really bad. It is based on an Internet survey that asks respondents to rank various acts in order of heinousness.

From TheDepravityScale.org: "To minimize the arbitrariness of how courts determine the worst of crimes, and to eliminate bias in sentencing, the Depravity Scale research aims to establish societal standards of what makes a crime depraved, and to develop a standardized instrument based on specific characteristics of a crime that must be proven in order to merit more severe sentences.

This research will refine into the Depravity Standard, an objective measure based on forensic evidence. This instrument distinguishes not who is depraved but rather, what aspects of a given crime are depraved and the degree of a specific crime's depravity."

According to the reasearchers, the depravity scale research will enhance fairness in sentencing, given that it is race, gender and socio-economic blind.  But, CrimProf Robert Blecker, an authority on the death penalty at New York Law School who sits on an advisory board assisting Dr. Welner, is worried about how a numerical scale would be used in practice. “Would it remove the arbitrariness?” he asked. “Or merely give the illusion of objectivity?” Story here. . . [Michele Berry]

Lower Cts in Shambles When it Comes to Sentencing Guidelines

From slate.com: Sentencing is supposed to be the straightforward moment in a criminal trial—easy arithmetic compared to the subjective assessments of jurors and attorneys. But ever since the Supreme Court got into the sentencing biz back in 2000, sentencing has been a mess. The court struck down federal mandatory sentencing guidelines in 2005, and some state guidelines have fallen as well. And in a 6-3 decision Monday, the justices killed the California sentencing guidelines.

The California case is the latest battle in a strange war that has turned natural judicial enemies into allies, set Congress against the courts, and given law professors a new life's work. Some of the justices probably have had their eye on easing the sentencing load on defendants, more and more of whom have been getting locked up for longer and longer periods.

But the court can't make pro-defendant reform its explicit aim—that sort of policy decision is the legislature's job, after all, and in any case the cobbled-together majority behind the recent decisions would never hold together. So, for now, at least, the court's war on sentencing has enraged the lower courts and left the law in a shambles. These cases showcase destruction—this is what it looks like when the Supreme Court lays waste.

The 2000 case that got the court started, Apprendi v. New Jersey, seemed to unveil a new constitutional right. The court suggested that the Sixth Amendment's guarantee of trial by jury means that a defendant can't be sentenced above the maximum specified in a statute unless a jury finds the facts that justify the increase. What does that mean?

According to this week's ruling, Cunningham v. California, for example, a legislature may not set the penalty for child sexual abuse at six to 12 years and then authorize a judge to send a sex abuser away for 16 years if the judge finds, for example, that the victim was particularly vulnerable or the abuser violent or dangerous. For one thing, those facts haven't been found by a jury. For another, they allow for a higher sentence based on a lower standard of proof than the one required for conviction: preponderance of the evidence, rather than guilt beyond a reasonable doubt.

Rest of Article. . . [Mark Godsey]

More on Cunningham v. California

Like Mark posted, in a 6-3 ruling yesterday, SCOTUS rejected California's 30 year-old sentencing law.  The crux of the the ruling is that judges cannot increase prison terms based on evidence that was never considered by a jury.  While the ruling is unlikely to benefit a significant segment of California's bulging prison population, legal experts say it should influence state leaders as they press forward with plans to overhaul the state's sentencing system.  Thousands of California inmates will now have a basis to argue for modest breaks in their sentences. The Supreme Court ruling, however, does not impact California's three-strikes-and-you're-out law or most serious criminals facing potential life terms for murder, rape and other violent felonies. More likely it will affect the typical felony case against burglars, robbers and defendants who commit sexual assault who do not face those stiff punishments

For prosecutors and defense lawyers, it could take months to evaluate the complex ruling and its consequences for inmates doing time. Michael Kresser, director of a San Jose-based appellate project that handles the bulk of criminal appeals from the South Bay, estimates he has about 200 cases from Santa Clara and nearby counties in which defendants may be able to argue for a sentencing break. Full story from San Jose Mercury. . . [Michele Berry]

Texas Court of Criminal Appeals: Above "the Law"?

Above the law?  Well, it depends on what you consider "the law."  According to a Texas Court of Criminal Appeals (CCA) plurality, in Ex Parte Medellin: (1) an International Court of Justice (ICJ) decision (Case Concerning Avena and Other Mexican Nationals from March 2004) and (2) presidential directive from GW Bush ordering states to comply with that ICJ decision, do not constitute binding federal "law"--therefore, the ICJ Avena decision (holding that the US denied the rights to consular notification and consultation in violation of Article 36 of the Vienna Convention to 49 Mexican nationals (including Jose Ernest Medellin) sentenced to die in Texas and other states) and Bush directive, do not preempt the Texas Code of Criminal Procedure, and the Texas CCA is in no way bound to review a death row inmate's case.

For these reasons, the CCA chose to follow Texas Code of Criminal Procedure Article 11.071 §5(a).  This Article confines the court's authority to consider the merits or grant relief of a death row inmate's successive state habeas writ application to the limited instances when the inmate could not have previously presented the claim because the legal basis for the claim was unavailable.  According to the CCA, the Bush directive and the ICJ's decision in Avena do not qualify as previously unavailable factual or legal bases for filing a successive writ.  Here are the plurality and concurring opinions in Ex Parte Medellin.  Full story from Texas Lawyer. . . [Michele Berry]

SCOTUS Reviews CA's Sentencing Rules; CrimProf Jeffrey Fisher Weighs in

Today the Supreme Court heard the case Cunningham v. California.  The Court reviewed whether California's Determinate Sentencing Law, by permitting judges to impose enhanced (upper term) sentences based on determination of facts not found by jury or admitted by the defendant, violates the 6th and 14th Amendments. 

John Cunningham, a former Richmond police officer, was sentenced to a 16 year prision term for sexually abusing his son.  Under California's determinate sentencing law, which dates back to 1977, all felonies except murder and a few others punishable by up to life in prison are subject to three possible sentences. For Cunningham's crime, continuous sexual abuse of a child, the options are 6, 12 or 16 years. The defendant must be sentenced to the middle term unless the judge justifies the higher or lower term by finding specific factors. Only about 15 percent of defendants sentenced in California are in Cunningham's category -- those whose judges chose the longest of three possible sentences prescribed by a verdict. But according to Stanford CrimProf Jeffrey Fisher, the judge's power to select that term, based on information that never goes before a jury, gives prosecutors in many other cases leverage in charging decisions and plea-bargain negotiations.  CrimProf Fisher, who filed arguements supporting John Cunningham, says a ruling in Cunningham's favor will affect most felony prosecutions in the state.  More on the case. . . [Michele Berry]

The Great Sentencing Debate Continues: to Affirm or Reverse, that is the Question

From National Law Journal: Nationally, circuits have been grappling with how much leeway to give trial judges in fashioning sentences that are either more or less lenient than the traditional guideline range established by the U.S. Sentencing Commission.  The 8th Circuit's decision in U.S. v. McDonald, No. 05-1617 is just one recent example.

The 8th Circuit overturned the 11-year prison term for repeat offender Jeffrey A. McDonald in a methamphetamine case because it was less than half the recommended sentencing guideline range of 22 to 27 years and just one year more than the law's minimum limit. The court ordered resentencing without such an extreme variance. 

Since the Booker decision, which gave judges discretion to shape reasonable sentences, the 8th Circuit has reversed 25 sentences below the guideline range while affirming four, yet affirmed 16 sentences above guideline range while reversing just one. 8th Circuit Judge Kermit Bye pointed this out in his dissent.  "If we fail to implement the promise of Booker and do not relinquish greater discretion to experienced district court judges whose proximity to sentencing renders them eminently more qualified to appreciate the subtleties of each case, we will find ourselves the architects of a new -- and equally unconstitutional -- de facto mandatory sentencing system crafted from the ashes of the last," Bye wrote. More. . . [Michele Berry]

Prosecutor's Study Claims NY Revised Drug Laws Freed KingPins

From nytimes.com: A year and a half after the New York Legislature revised the drug laws in an effort to reduce harsh prison sentences for low-level offenders, a study by Prosecutor Bridget G. Brennan, examined 84 drug offenders prosecuted by her office who have asked for resentencing since the laws were changed in 2004. The offenders had been convicted of possessing or selling enough hard drugs to make them eligible for sentences of at least 15 years to life.

The study found that judges granted lower sentences to 65 of those prisoners, and 22 of them, or about 34 percent, were either what she called "kingpins," leaders of international drug organizations, or "major traffickers," that is, leaders of local drug operations that moved large quantities of narcotics. Of the kingpins and major traffickers, 16 were granted relief from lifetime parole, and four of them have been released, she said.

The study looked only at those cases handled by her office, which accounted for about a quarter of the prisoners released statewide since the 2004 reforms. Advocates of the reforms said yesterday that because the special prosecutor was charged with handling the most serious cases, the study was somewhat skewed. Still, the study offers the first prosecutor's perspective of how the reforms have played out at a time when legislators are still debating whether they went too far or whether to relax the sentencing laws even further. Rest of Article. . . [Mark Godsey]

PA Debates Compassionate Release for Elderly Inmates

Story from Philly Inquirer here.  [Mark Godsey]

Probation in Texas: Anything Goes

This Dallas Morning News article in which Minnesota CrimProf Kevin Reitz is quoted describes two probationers supervized by the same judge.  One was convicted of robbery, got probation, failed a drug test and was resentenced to life.  The other was convicted of murder, failed five drug tests while on probation and was given reduced conditions of probation.

Second Circuit Issues Major Sentencing Decision

On Monday, the Second Circuit issued a major decision on reasonableness review in sentencing. In United States v. Fernandez, Docket No. 05-1596-cr (2d Cir. April 3, 2006) (decision found here) The Second Circuit addressed the following questions:

1. Does the Second Circuit possess statutory authority to review a sentence within the relevant Guidelines range for reasonableness?

2. Is a sentence within the relevant Guidelines range entitled to a presumption of reasonableness?

3. Does 18 U.S.C. § 3553(a)(6), which obliges sentencing judges to consider unwarranted disparities in sentencing, apply to differently situated defendants?

4. Does the duty to consider the sentencing factors of 18 U.S.C. § 3553(a) requires a sentencing judge to discuss on the record during the sentencing proceeding each of the factors or each argument that a defendant makes relating to those factors?

5. Can a sentencing judge take a defendant's cooperation with authorities into account under 18 U.S.C. § 3553(a) even if the Government has not made a § 5K1.1 downward departure motion?

For a detailed discussion, see the Second Circuit Sentencing Blog. [Mark Godsey, thanks to Harlan Protass]

Southern District of Florida Sees Little Change in Sentencing Post-Booker

When the U.S. Supreme Court issued its landmark sentencing rulings in U.S. v. Booker and U.S. v. Fanfan, defense attorneys in South Florida rejoiced, but 15 months later, prosecutors are the ones reeping the benefits. Judges in the area have opted to stay mostly within the guidelines, at a rate well above the national rate.

A new study by the U.S. Sentencing Commission found that judges in the Southern District of Florida, which covers the area from Key West to Fort Pierce, have been among the strictest in the nation in sticking to the guidelines. They stayed within the guideline range in 77.5% of 1,951 cases sentenced, whereas the Northern district of Florida sentenced within the guidelines 71.7% of the time and the Middle district, 65.6%.  But even more striking, the Sourthern District of Florida rate is significantly higher than the national rate. Nationally, across 94 judicial districts, federal sentences fell within the guidelines in 62.2 % of 65,368 cases.

How come? Some cite pressure from the Republican-controlled Congress and the Justice Department as a reason to be nervous about using more discretion in sentencing. "No one wants to be the judge that sticks his head out to be chopped off," said one. More. . . [Mark Godsey]

Harvard Reentry Conference

M  A  C  D  L Massachusetts Association of Criminal Defense Lawyers

The Criminal Justice Institute and the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School will co-host a national conference, entitled ReThinking Re-Entry: Confronting Perpetual Punishment, on March 31 - April 1, 2006.   Among the topics which panelists will discuss and explore in depth are addiction, community impact, disenfranchisement, economics and education, employment, housing, mental health, public policy, and women/families.   This conference will bring together a broad cross-section of stakeholders - academics, corrections officials, community based organizations, formerly incarcerated people and their families, youth, service providers, government officials and representatives of the media.   To learn more, go to

www.law.harvard.edu/academics/clinical/cji/events.htm

Welcome to the Blogosphere: Second Circuit Sentencing Blog

Cardozo adjunct crimprof and criminal defense lawyer Harlan Protass recently created the “Second Circuit Sentencing Blog” (http://www.fedsentencinglaw.com).  It is an analytic library of all substantive sentencing decisions in the Second Circuit (including district courts).  It is well worth checking out. (Jack Chin)

Corrections Corporation of America Put Human Waste in Inmate Food

Or at least some ex-employees did, the company admits.  Inmates were forced to eat the food or go hungry.

Non-Profit Private Prisons More Effective

Yale CrimStudent David Pozen has this Boston Globe OpEd summarizing research he did suggesting that non-profit, private prisons have the lowest recidivism rates, followed by public prisons, with private, for-profit institutions having the highest rates. [Jack Chin]

NYT: Prisons Shackle Prisoners During Childbirth

Story here. [Jack Chin]

Pardons in Pennsylvania

Story here. [Jack Chin]

New ABA Criminal Justice book - Criminal Lawyer's Guide to Immigration Law, 2nd

""The Criminal Lawyer's Guide to Immigration Law: Questions and Answers, 2nd Edition" (product code 5090100) has just been published by the ABA Criminal Justice Section. To purchase this book or for more information, go to http://www.abanet.org/abapubs/books/5090100 or call toll-free 1-800-285-2221.

Set up in a unique question-and-answer format, this concise guide focuses on the criminal lawyer's most common questions about immigration law and representing noncitizens, from "Who exactly is an alien?" to "Are removal hearings conducted like criminal proceedings?" The answers are clear and carefully focused and in most instances direct you to specific cases or more in-depth resources.

From an overview of immigration law to guidance for specific situations, this convenient reference addresses immigration court and procedures, immigration consequences of criminal convictions, extradition, and prisoner issues -- a variety of real-life situations you face as a criminal lawyer with noncitizen clients or witnesses.

The "Guide" is an invaluable resource for both federal and state criminal law practitioners. Federal lawyers will find the chapters covering alien smuggling and hostage taking, immigration document fraud and false statements, and illegal entry and reentry (pretrial through sentencing) to be the most up-to-date source of information on handling these cases. All criminal practitioners will find essential the chapters on immigration consequences of criminal convictions, as well as border stops, getting witnesses and evidence from abroad, international extradition, treaty transfers, and how the PATRIOT Act affects aliens."

Republican, Democrat Judges Differ on Sentences

Federal judges who are Republicans punish street crimes more severely, Democrats punish white collar crimes. Northwestern CrimProfs Emerson Tiller and Max Schanzenbach did the study.

California Prison Problems

Overcrowding leading to killings, and delay in reforming the parole system, which the Gov hoped would reduce the population. [Jack Chin]

9th Cir: Sentencing Speeches Upheld

From The Recorder: "Crime victims must be given a chance to literally have their say in court before sentencing, the 9th U.S. Circuit Court of Appeals ruled last week. By granting a rare writ of mandamus, the court cleared up confusion surrounding the Crime Victims' Rights Act, a 2004 federal law that establishes "the right to be reasonably heard" during sentencing." More. . . [Mark Godsey]

NY Gov. Pataki Proposes Stricter Sex Crime Laws

New York Governor George Pataki proposed stricter sex crime laws, which would increase sentences for sex crimes to as much as 25 years to life for some sex crimes, and to life in prison without the chance of parole for other sex crimes. According to the propositions, the minimum sentence for conviction of a sex crime against a child would be 25 years.  Adults convicted of a serious sex crime against a child under 13 years old could spend life in prison. [Mark Godsey]

2nd Cir: Judge Criticizes Federal Mandatory Minimums

Forced to impose a sentence he deemed unjust, Northern District of New York Judge David Hurd harshly criticized the federal statute, 21 U.S.C. §846, that required him to impose a life-without-parole term on a 32-year-old "relatively small-time drug dealer" with an IQ of 72.  Judge Hurd said child rapists and murderers will go free on parole while Justin D. Powell languishes in prison for life.  Powell was convicted of drug crimes twice during his teenage years, more than a decade before the instant offense. Because of those prior convictions, the sole sentencing option was life, Hurd said. According to 21 U.S.C. §846, the only way to escape the mandatory minimums is to provide "substantial assistance" to the prosecution. Story. . . [Mark Godsey]

Study: Prison Rape Rare

A new report of ideosyncratic methodology concludes that prison rape is rare.  “Prison rape worldview doesn’t interpret sexual pressure as coercion,” the author explained. “Rather, sexual pressure ushers, guides or shepherds the process of sexual awakening.”  Story here.

Sentencing Project Crack Study

What's happened since Booker? They've gone down, a bit.  Story here, report here. [Jack Chin]

Dispute over NJ Prison Riot

COs say it was an unprovoked attack; inmates say even those not involved were beaten by guards afterwards. [Jack Chin]

Juvie Jail Stay Backfires: Jailhouse Rocks, Mom Gets Bill

A harried Michigan mom thought that life behind bars would be just the thing for her unruly 15 year old, but it didn't work out that way.  "He was in bed all day in his pajamas. He loved it. He bragged about all these new movies he saw. I thought it would be more like a jail atmosphere. I thought he'd get a taste of it and wouldn't want to go back."  Meanwhile, the county bills parents $155 per day--more than mom earns--and Junior was in the resort for a month.  Story here. [Jack Chin]  

Markel on Tookie Williams Clemency

Findlaw column here. [Jack Chin]

Online Discussion about Prisoner Reentry

Here's an announcement of interest:

Dear Colleagues,

On behalf of the Government Innovators Network, KnowledgePlex, and the National Institute of Justice, I would like thank you for your interest in our web conference "Prisoner Reentry: Addressing the Challenges of Returning Home." We were delighted at the level of response we received on this important subject. Many of you attempted to join the conference, but found the meeting full, and we very much regret that we were not able to accommodate such a high turnout.

We would like to remind everyone, that the event was recorded; you can access this archived recording of the session on the KnowledgePlex website http://www.knowledgeplex.org/xchat.html), as well as the Government Innovators Network website http://www.innovations.harvard.edu/xchat.html

To access archived events, you must register with the KnowledgePlex or the Government Innovators Network -- registration is free and easy. Just click the word "register" on the top-right corner of the screen on either website, and follow the instructions. On this page, you will also be able to access a list of related resources including links to recent news articles and other resources on the topic of prisoner reentry and homelessness.

Many of you have expressed great interest in continuing the dialogue. Thus, we encourage you all to participate in our discussion forum, which will is titled "Prisoner Reentry," and can be found at the Government Innovators Network at http://www.innovations.harvard.edu/forums. Some starter topics have been added to get the ball rolling, including: "Barriers to Employment," "Securing and Networking Resources," and "Returning Sex Offenders."

The initial posts include many questions submitted by those of you who attended the 11/9 event. We encourage you to offer your professional insights and advice in response, or to pose some related questions of your own. In addition, we also invite you to post a new topic (e.g. one attendee has already initiated a great topic on the "Use of Technology and Workload"). There are many issues that were raised during the Q&A session, which the presenters only had time to touch on lightly, if at all, such as resources for children of incarcerated parents, reintegration of those released from juvenile detention facilities, reentry in rural communities, and coordinating mental health resources.

If you have any further questions about the accessing the recording of the event or the using the discussion forum, please let me know. We are happy to be working with this diverse group of leaders in prisoner reentry, and are excited to offer you further opportunities to exchange ideas.

Sincerely,

Jim Cooney
James R. Cooney, Communities of Practice Coordinator, Ash Institute for Democratic Governance and Innovation, John F. Kennedy School of Government, Harvard University

Missouri: Felons Cannot Be Bail Bondsmen

Story here. [Jack Chin]

Second Chance Act

Here's a page with the test of the Second Chance Act, and hearings about the act, which was designed to facilitate prisoner reentry.  According to Maryland Governor Bob Ehrlich: “This Legislation authorizes much needed assistance to state and local governments for projects that enhance a person’s ability to find a job and receive housing or substance abuse and mental health treatment.  . . . Just as important, the bill creates a federal task force from various agencies to identify ways to collaborate and remove barriers to successful re-entry.” [Jack Chin; thanks to Myrna Raeder]

National District Attorney's Association, National Governor's Association, Issue Policy Statement on Prisoner Reentry

I missed the NDAA policy when it came out in July, but it is very interesting.  Press release and policy here. NGA statement here. [Jack Chin]

Editorial on Prison Rape

They're against it. [Jack Chin]

New Reentry Website

This looks like a good comprehensive resource for materials on prisoner reentry.  But . . . I hate requiring registration.   [Jack Chin]

3rd Circuit: Batson Violation Upheld

From Law.com: (The Legal Intelligencer): "The now-infamous videotape of a training session led by former Philadelphia homicide prosecutor Jack McMahon -- in which he discussed techniques to keep African-Americans off juries -- has resulted in yet anther court ruling that tosses out a murder conviction. This time, the author of the opinion is 3rd Circuit Judge Edward R. Becker, who faulted McMahon for engaging in improper jury selection tactics that violated the U.S. Supreme Court's Batson v. Kentucky ruling.

Becker found that the training video was 'compelling evidence' that McMahon "regularly acted with discriminatory animus toward African-American jurors."  In the case of Zachary Wilson -- who was convicted of first-degree murder and sentenced to life in a 1984 case prosecuted by McMahon -- Becker found there was ample evidence that McMahon improperly struck numerous African-Americans from the jury...

Becker's 29-page opinion in Wilson v. Beard is loaded with quotes from McMahon's training video, including one in which McMahon said: 'Let's face it ... the blacks from the low-income areas are less likely to convict...There is a resentment for law enforcement, there's a resentment for authority and, as a result, you don't want those people on your jury. And it may appear as if you're being racist or whatnot, but, again, you are just being realistic. You're just trying to win the case.'

[Assistant District Attorney Thomas] Dolgenos argued that Wilson had access to television in prison and therefore could have discovered the existence of the videotape as early as April 1, 1997... [To the contrary, Becker found that]...'no person in Wilson's position would reasonably expect that the local news would be a source of information relevant to his case, given that his conviction had occurred 13 years ago and his final appeal had been rejected by the Supreme Court the previous year.'...

The ruling upholds an April 2004 decision by U.S. District Judge John R. Padova that granted Wilson a new trial.  [The decision]...could add new issues to the death penalty case because the jury found that Wilson's prior murder conviction was an "aggravating factor" that supported his death sentence. Story... [Mark Godsey]

9th Circuit: Death Penalty Reversed for Ineffective Assistance of Counsel

From Law.com: "Forget the stoner judge and the fact that Warren Summerlin's first defense lawyer hooked up with the prosecutor. It was Summerlin's incredibly bad lawyer that gave the 9th Circuit reason to jettison Summerlin's death sentence Monday in an en banc ruling.

By not inquiring into Summerlin's history of mental illness -- and by failing to point out that his client was illiterate, functionally retarded and a diagnosed schizophrenic -- Arizona defense lawyer George Klink "utterly failed in his duty to investigate and develop potential mitigating evidence for presentation at the penalty phase," Judge Sidney Thomas wrote for a 10-1 panel.

Klink failed to tell the court about "Summerlin's tortured family history, including the fact that Summerlin's alcoholic mother beat him frequently and punished him by locking him in a room with ammonia fumes," wrote Thomas. Also, Klink never pointed out that his client received repeated electroshock treatments, had a severe learning disability, was illiterate and was prescribed anti-psychotic drugs.

As a result, the decision -- from which Judge Diarmuid O'Scannlain was the lone dissenter -- ordered the case back to an Arizona trial court, where a jury may be convened to resentence Summerlin." Story...  The case is Summerlin v. Schriro C.D.O.S. 9041 [Mark Godsey]

Women 25% of Arrestees; 7% of prisoners

Story here. [Jack Chin]

Article on Female Prisoners

Here. [Jack Chin]

Online Seminar

AFDA's Online Seminars: Live Audio Webcast on Bureau of Prisons October 12, 2005

PROGRAM: Federal Bureau of Prisons: Counseling The White Collar Offender To Do Federal Time

DATE / TIME: Wednesday, October 12, 2005, 3:00 - 4:30 pm (eastern)

A live, 90-minute audio webcast with slide presentation featuring David Novak, a nationally renowned sentencing / BOP consultant.

Fee is $10 for AFDA members, $35 for non-members

CLICK HERE FOR MORE DETAILS

CLICK HERE TO REGISTER

Texas Court of Criminal Appeals Overturns Death Sentence for the Third Time

From SanDiego.com: Austin, TX (AP)-- "A convicted killer whose case helped spark national debate over whether mentally impaired inmates should be executed had his death sentence overturned for the third time Wednesday.  A divided Texas Court of Criminal Appeals sent Johnny Paul Penry's case back to trial for the punishment phase. The court ruled that jurors in Penry's most recent trial may not have properly considered his claims of mental impairment.

Penry has won two reversals from the U.S. Supreme Court that changed the way judges instruct juries in capital murder cases. The Supreme Court overturned his conviction in 1989 and, in 2001, overturned his sentence but left the conviction intact. Both times the high court reasoned the jury was not allowed to properly weigh Penry's alleged retardation.

For the July 2002 trial that was considered by the Texas appeals court, jurors heard detailed testimony about his intellect. Defense experts noted his IQ consistently tested below 70, the retardation standard, and Penry remained very childlike in his abilities. Prosecutors say his lifelong anti-social behavior prevented him from being able to properly take an IQ test and that he has a life-or-death reason to act unintelligent. The jury determined Penry was not retarded and sentenced him to die. More... [Mark Godsey]

DOJ Prisoner Rape Page

Here. [Jack Chin]

Sentencing Conference at Roger Williams-October 22

This looks spectacular. Brochure here. Speakers include:

Professors:
Dennis E. Curtis, Yale
Naomi Murakawa, University of Washington
Eva S. Nilsen, Boston University School of Law
Ian Weinstein, Fordham University School of Law
Ronald F. Wright, Jr., Wake Forest University

Judges:
Judge Simeon T. LakeIII (U.S. District Court,  S.D. Texas)
Judge Mary Lisi (U.S. District Court, D.R.I.)
Judge William E. Smith (U.S. District Court, D.R.I.)
Chief Judge Ernest C. Torres (U.S.  District Court, D.R.I.)

Lawyers and Practitioners:
U.S. Attorney Robert C. Corrente (District Of Rhode Island)
Roscoe C. Howard, Jr., Esq., Sheppard Mullin Richter & Hampton, LLP
Raquiba Labrie, Program Director, Community Advocacy Project
Edward C. Roy, Jr., Esq., Federal Public Defender
Julie Stewart, President, Families Against Mandatory Minimums;
Ronald Weich, Senior Counsel Office of U.S. Senate Minority Leader

No Sex Probation Order

Kaimi Wenger at Prawsblawg has a post on a 17 year old probationer sentenced to no sex. [Jack Chin]

Nebraska: Refusal to Commute Sentence Leaves the AG Wanting to "Throw Up"

From the OmahaChannel.com: "A commutation hearing prompted Nebraska's attorney general to say government can be too tough on criminals, and sometimes it makes him sick.

State officials decided Wednesday that a man should continue to serve a life sentence for his role in a murder, but the parole board's decision is controversial because the man was 17 at the time, and didn't commit the murder himself.  Jeremy Herman and Christopher Masters kidnapped Jeremy Drake, 15, in 1992. They were scuffling over stolen stereo speakers. Masters shot and killed Drake near Omaha's Hummel Park, while Herman said he just wanted to scare Drake.

But Herman pleaded guilty and under Nebraska law was sentenced to life in prison without parole.

On Wednesday, the Nebraska Board of Pardons held a rare hearing to decide whether or not to commute that sentence. Among the people in support of a lesser sentence was the victim's mother, who told the board the Herman didn't intend to hurt her son...

The issue sparked a heated debate during the hearing between the state's top officials.

"In my three years on this board, we have not commuted a single one," said Attorney General Jon Bruning. "And as I looked at this, I thought, this might be the single one."

In the end, two of the board's three members -- Gov. Dave Heineman and Secretary of State John Gale -- voted not to change Herman's sentence. That didn't end the argument over criminal sentencing.

"I'm tougher on crime -- I'm so tough it makes me want to throw up sometimes," Bruning said. "How tough on crime can we get before it gets to be ridiculous?"

"The Legislature is getting tougher and tougher, and Congress is getting tougher and tougher. More people are seeing more time," Gale said.

"And it's costing taxpayers more and more, and at some point it has to end," Bruning said.

"It's the voice of the people that's driving this issue," Gale said.

"It's the will of politicians trying to get re-elected," Bruning said. "We are continuously trying to get ourselves reelected, trying to be tougher than the next guy, and at some point it has got to end. And this commute is where it is."...Gale echoed that, and said the Wednesday's hearing has raised the issue of perhaps allowing more hearings on unusual cases...Herman can try again to have his sentence commuted. Full story... [Mark Godsey]

Inmates Present Rehabilitation Program They Designed

From Reuters:  "Inmates serving life sentences at a Pennsylvania prison have adopted a unique tactic to promote a program of personal change for fellow convicts and help end a culture of crime that boosts the U.S. prison population.  The program, which goes beyond traditional rehabilitation regimes to "transform" offenders, was presented by the convicts themselves at the maximum-security Graterford prison outside Philadelphia to academics attending the World Congress of Criminology, held this week at the University of Pennsylvania.  Academics hailed the meeting as a unique event in criminology and said the prisoners' program offered a fresh chance to end the cycle of crime that helps fill America's overflowing prisons.  "Never before have distinguished academics agreed to spend the day in prison discussing the causes of crime with inmates," said Susanne Karstedt, program chair of the conference and a professor at Britain's Keele University.  Some 70 inmates in brown prison uniforms welcomed some 150 delegates to the prison, the sixth-largest maximum-security jail in the United States, with 3,425 inmates, 770 of whom are serving life sentences.  The prisoners' group, calling itself LIFERS, has met each Saturday night at Graterford for about the last two years to conduct its "transformation" program with other inmates who have at least the prospect of release.  Inmates who take part in the program are urged to renounce street codes such as revenge, violence and materialism and replace them with what the lifers see as more genuine traits of manhood such as honesty, restraint and responsibility.  The inmates, many of whom have no chance of parole, say attempts by police, academics or social workers to end the culture of street crime and violence in many American cities is doomed to failure because such outsiders have no credibility.  Only those who have lived the street culture have a chance of persuading its members to change their behavior and abandon codes of machismo that often create urban mayhem, they said."  More . . .  [Mark Godsey]

Inmates and Daughters bond through Girl Scout Program

The Girl Scouts Behind Bars program aims to let daughters have contactw ith their incarcerated monthers.  The hope is that the harmful consequences of incarceration for both parties will be mitigated. [Jack Chin]

Three Years Means Death Sentence When BOP Botches Your Medical Care

A woman sentenced to three years for embezzlement was diagnosed with cancer at a civilian hospital, where doctors recommended immediate treatment, but BOP doctors disagreed--nothing was wrong.  But after several months, the BOP took another look; it was indeed cancer.  Unfortunately, the prisoner's condition degenerated during the several month delay, so treatment was no longer possible.  She wants to get out to get an experimental treatment, but the BOP and DOJ are fighting every step of the way.  Oped here.

Employment Obstacles for Ex-Cons

Here's a piece reprinted from Federal Probation on employment obstancles faced by ex-cons.  Thanks to Margy Love for the tip.