CrimProf Blog

"Defining `Cruel and Unusual' When Offender is 13"

From today's New York Times:

"In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape.

. . . .

"The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.

. . . .

"Mr. Sullivan is 33 now, and his lawyers have asked the United States Supreme Court to consider the question of whether the Eighth Amendment’s ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing."

Read the rest of the story here [Mike Mannheimer]

Federal Judge Orders All Plea Agreements Posted Online

From the National Law Journal, NLJ.com: MIAMI — Chief Judge Federico Moreno of the Southern District of Florida, bucking the wishes of the U.S. Department of Justice, has ordered all plea agreements to be posted online.

In an order issued on Jan. 22, Moreno stated that as of Feb. 20, all plea agreements "will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an order in advance directing the sealing or otherwise restricting a plea agreement." Moreno's order rescinds a previous order of April 2007 taking all plea agreements offline and making them accessible for physical viewing only at the courthouse.

The issue of whether plea agreements should be publicly available, able to be viewed electronically through the PACER system, is a controversial one, pitting prosecutors against defense lawyers and First Amendment advocates. In 2007, the Justice Department asked the Judicial Conference to restrict electronic access to plea and cooperation agreements in order to keep information about cooperating witnesses secret.

The Justice Department was concerned about a new Web site, Whosarat.com, which was posting information about all cooperators in federal cases. "We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as whosarat.com for the clear purpose of witness intimidation, retaliation and harassment," stated the Justice Department's memo to the courts. The Southern District of Florida, like most other courts around the nation, complied, taking pleas off PACER.

But defense attorneys, First Amendment advocates and the federal public defender's office protested, arguing that the public's right to know about the court system was being impaired.

In 2007, the National Association of Criminal Defense Lawyers passed a resolution opposing the exclusion of plea agreements from PACER. Full story from Law.com... [Michele Berry]

Truce on hardline sentencing

THE NSW Opposition has pledged to end the "law and order auction" in a dramatic break with the tradition of promising to increase punishments and fill jails that has characterised every state election campaign since 1988.

The Coalition's justice spokesman, Greg Smith, who entered Parliament in 2007 with a reputation as a tough criminal prosecutor, said hardline sentencing and prisons policies - including those of his own party - have failed.

In an exclusive interview, Mr Smith told the Herald he would invest more money and resources in rehabilitation to break the cycle in which almost half of all NSW criminals re-offend after their release.

"I know that for a series of elections there was one side bidding against the other in what they called a law and order auction," Mr Smith said.

"While I think there are some areas where the law could be even tougher, such as showing more concern for the families of victims of homicide, in terms of the harm done to them, there are other areas where I am concerned that prisoners are not properly being rehabilitated, not given a chance to go straight in a community that really would want them to go straight."

Mr Smith likened his move to "Nixon in China". Just as it took an anti-communist US president, Richard Nixon, to open relations with communist China in 1972, it might take a politician with Mr Smith's conservative credentials to push for a bipartisan position on criminal justice. [Mark Godsey]

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Mike Wolff asks Obama for sentencing reform

Missouri Supreme Court Judge Michael A. Wolff has joined the chief justice of the Oregon Supreme Court in a letter to President-elect Barack Obama calling for "major change in state and federal sentencing practices" that have resulted in the United States imprisoning a larger percentage of its population than any other country.

The letter to Obama and his transition team from Judge Wolff and Chief Justice Paul De Muniz says it is ironic that the United States has become the leader in incarceration at a time when it is "hoping to regain respect as leader of the free world." 

The judges liken society's dependence on prisons to an addiction and called for more community-based options to replace incarceration.

"We use prisons as addicts use drugs," they wrote. "They don’t do what the public expects them to do, so we use them even more, with the result that we need more because prison makes many inmates worse when they return to their communities."

The judges wrote that the "archaic" sentencing policies have resulted in a "disproportionately large share of minorities" in prison even as a disproportionately large share of minorities are victims of crimes.

The judges said that the problems go far beyond the frequently criticized disparties in sentencing for cocaine offenses.  They said that the federal sentencing guidelines are "blind to risk" and "ultimately ignore public safety as an objective."

State and federal sentencing policies were designed to eliminate disparties in sentencing, reduce prison populations and achieve truth-in-sentencing, the judges wrote.  Instead, disparties still exist and prison populations have increased.  The policies have resulted in prison terms closer to the actual sentence, they acknowledged.  But they added that sentencing policies "utterly conceal the truth that federal and most state guidelines have nothing whatever to do with public safety, and result in misallocation of prison resources as measured by public safety outcomes"

Several states have made progress in sentencing reform, they said, including Missouri, Oregon, Wisconsin and Virginia.  Virginia has cut the number of new prisoners it incarcerates by one-fourth without an increase in crime.  It has accomplished the reduction by assessing the risk of the new prisoners.

The judges said that community-based treatment is more effective than prison in many cases because the criminal gets treatment that reduces recidivism. [Mark Godsey]

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New Sentencing Guidelines For Crack, New Challenges

Michael D. Thompson, a former crack cocaine dealer, thought he deserved a break.

Sentenced in 2000 to 15 years and eight months in prison, Thompson asked a federal judge in the District to release him, arguing that he had received an unfair sentence and has turned his life around behind bars, earning a general equivalency diploma and completing a commercial driving course.

Federal prosecutors said that was a terrible idea. Citing Thompson's criminal past and prison disciplinary record, which includes threatening a prison official with a knife, prosecutors argued in court papers that the 37-year-old poses a danger to the community and should complete his sentence.

Thompson's case is one of thousands around the country in which crack offenders and their defense attorneys are sparring with federal prosecutors over how to interpret new sentencing guidelines for crack possession or sale. The guidelines were issued to right old wrongs. But they have led to time-consuming legal challenges dealing with the often long-forgotten consequences of the bloody crack wars in the late 1980s and 1990s.

Defense lawyers say they are correcting systemic sentencing flaws that removed their clients, mostly black men, from their communities for too many years. Federal prosecutors say they are working to prevent bad guys from returning to the streets to wreak more havoc. Both sides say they are seeking justice. [Mark Godsey]

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Prosecutors Seek to Rescind Cooperation Letter for Millennium Bomber

Federal prosecutors are seeking yet another sentencing for would-be millennium bomber Ahmed Ressam — this time without credit for helping to convict a fellow terrorist.

Ressam was sentenced for the second time last week to 22 years in prison for plotting to bomb Los Angeles International Airport on the eve of the millennium. Prosecutors said at the time that the sentence wasn't long enough, and the guideline range is 65 years to life.

In a motion made public today, the U.S. Attorney's Office asked to withdraw a document prosecutors filed several years ago acknowledging that Ressam cooperated. They say that motion, which provided part of the basis for the lenient sentence, is no longer valid because Ressam told the judge last week he wanted to take back every statement he made to the government, including his testimony against a coconspirator.

Ressam was arrested Dec. 14, 1999, in Port Angeles after coming off the ferry from Victoria, B.C. Inspectors found electronic timers, powders and liquids in the trunk of his rental car that turned out to be the makings of a powerful bomb.

Ressam, 40, was convicted of planning to set off a powerful suitcase bomb at the Los Angeles airport during the millennium holiday. Prosecutors said Ressam had been recruited by a radical Islamic cell in Montreal and had trained in Osama bin Laden-sponsored terrorism camps in Afghanistan.

After his conviction in April 2001, Ressam cooperated with federal authorities in hopes of winning a shorter prison sentence. He became a key source of information on the operation of al-Qaida in Western Europe and North America after the Sept. 11, 2001, attacks, providing information that led to the prosecution of some of the terrorist organization's top leaders.

Ressam stopped cooperating in 2003, and a court-appointed psychiatrist found that he was suffering from a mental breakdown after years in solitary confinement and repeated interrogations.

Read full article here. [Brooks Holland]

Judge backs county inmates in jail case

A federal judge has sided with inmates' claims that conditions in Maricopa County jails continue to violate their constitutional rights.

U.S. District Court Judge Neil V. Wake on Wednesday modified a 1995 judgment that laid guidelines for a wide range of issues in Maricopa County jails, including medical and mental-health care, population control and record keeping.

Maricopa County sheriff's officials said they plan to comply with the judge's orders.

Wake effectively pared down the original 115-point decision to 16 paragraphs that outline what the Sheriff's Office must do to at least maintain constitutional standards for pretrial inmates. The judgment also requires the Sheriff's Office to submit quarterly reports to inmates' attorneys in order to show compliance.

"Sheriff Arpaio's horrendous treatment of detainees, especially those with severe medical and mental-health problems, has caused terrible suffering for years," said attorney Margaret Winter, associate director of the American Civil Liberties Union's National Prison Project.

A number of the violations included Correctional Health Services, which is required to provide medical care for inmates. Wake said CHS violated inmate rights by not giving timely and adequate assessment of health needs and not identifying and appropriately treating many detainees with serious mental illness.

A national organization began an effort to pull accreditation from the county's jails last month after learning of potentially damaging testimony that emerged during the trial, but the jails remain accredited while county officials appeal the decision.

Sheriff's officials have long made the distinction between their role and that of Correctional Health Services, though Arpaio's critics have contended that the office's indifference in getting inmates to CHS medics violates the constitution. [Mark Godsey]

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Sentences on Trial

YOGI BERRA could have written a recently released report on the failure of mandatory minimum sentences.

The report, published by Families Against Mandatory Minimums (FAMM), chronicles lawmakers' rush in the 1950s to enact tough mandatory minimum sentences for what they saw as the viral spread of illegal drugs throughout the country. The most frightening of these substances, marijuana, was blamed for a rise in "sadistic" murders and gruesome sex crimes.

Twenty years later, during the administration of Republican President Richard M. Nixon, many of these mandatory minimums were repealed after lawmakers gathered enough evidence to show that they did not reduce crime or drug consumption and that they served primarily to usurp the power of judges to tailor punishments to crimes. The stiff sentences also resulted in unconscionably long sentences for nonviolent offenders. Reliance on education to prevent drug use, rehabilitation to help addicts kick the habit and sentencing schemes that restored flexibility to judges -- including the flexibility to hand down tougher sentences than required under mandatory minimum statutes -- replaced irrational, tough-on-crime posturing. According to the report, no Republican was kicked out of office for supporting the changes.

That these lessons were forgotten a mere decade later bring to mind one of Mr. Berra's more famous observations: It's deja vu all over again. As the FAMM report explains, in the 1980s Congress again turned to mandatory minimums to combat a growing and admittedly frightening problem involving another relatively unknown drug, crack cocaine, and the crime wave that accompanied it. The result: Judges were forced to sentence first-time nonviolent offenders to unconscionably long prison terms. Under these new laws, a first-time offender caught with five grams of crack faced a mandatory sentence of five years behind bars; if caught with 10 grams, he faced a mandatory sentence of 10 years, with no possibility of parole. A defendant would have to have been caught with 100 times that amount of powder cocaine to trigger similar punishment. [Mark Godsey]

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Opponents of Tough Federal Sentencing Rules Take Up Heller for Help

The federal judge that sentenced Weldon Angelos to 55 years and one day in prison in 2004 said his hands were tied by mandatory-minimum gun laws, calling his own sentence "unjust, cruel, and even irrational."

Now a law professor and a group of Am Law 200 lawyers are challenging the sentence on unique grounds: that Heller v. District of Columbia, the case celebrated as a definitive victory for gun rights, protects Angelos and others like him convicted of gun crimes.

Douglas Berman, a law professor at the Moritz College of Law at The Ohio State University, devised the strategy with help from attorneys at Steptoe & Johnson and Snell & Wilmer.

Angelos is hoping to have his sentence overturned by the U.S District Court in Salt Lake City after a federal appeals court upheld it in 2006 and the U.S. Supreme Court denied cert.

Berman knows Heller's core supporters--the National Rifle Association, for example--don't typically overlap with individuals who are tough on criminal sentences. But he believes Heller should make it harder to tack dozens of years on to a prison sentence simply because someone happens to own a gun.

"Most people think I'm crazy at first," says Berman, who writes the popular blog Sentencing Law and Policy. "I'm fighting people on the left who think this guy's a bad person just because he touched a gun, and I'm fighting people on the right who like guns but don't like people like (Angelos) with guns."

Three gun charges carrying a combined mandatory minimum sentence of 55 years account for all but one day of Angelos's prison sentence.

The first-time offender sold marijuana to an informant three times in 2002. The informant said he saw a handgun on Angelos during two of the deals--once in the console of Angelos's car, and once in an ankle holster. Angelos never displayed or threatened to use the gun (which was determined to have been stolen), but the government charged Angelos with two counts of possession of a firearm in furtherance of a drug crime. The first count carries a minimum five-year sentence. Each subsequent count nets another 25 years. [Mark Godsey]

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Change of the Guard in Corrections Department

In her 19 years as a corrections officer on Rikers Island, Barbara Williams has been trapped in a mess hall with rioting inmates and thrown against an iron gate by a man twice her size who left her with a fractured shoulder. But nothing makes her wince like remembering the time an inmate commented on the way her hips swayed ever so slightly beneath her boxy blue uniform, back when she first came on the job.

“He said: ‘Damn! You remind me of a pantyhose commercial,’ ” recalled Ms. Williams, who is in her late 40s and has a compact build and a deep, raspy voice. “The feeling I had all that day was as if he had touched me or something.”

She spoke of the episode one recent afternoon at Horizon Academy, a high school for male inmates that is in the George Motchan Detention Center, one of eight jails on the island holding inmates awaiting trial. Ms. Williams cited the man’s comment as a crucial moment in her career.

“I saw right off that I have to change my demeanor: I have to be more forceful; I have to harden myself,” said Ms. Williams, a single mother of two grown daughters. That very night, she went back to her apartment in Jamaica, Queens, and practiced stiffening her walk in front of a mirror.

“It’s like I tell my daughters: In life, you have to know when to be a woman and when to be a lady,” she said. “I don’t feel that ladies belong in jail. So, that softer part of me, I try to leave outside. I walk in here, and I try to be 110 percent woman.”

Women have worked in the city’s Department of Correction for decades, but never in such large numbers as they do today. Women make up 45 percent of about 9,300 uniformed employees of the department, according to the agency. From guards to wardens to the four-star chief, Carolyn Thomas, they fill almost every rank. And in many respects, they are changing the culture of the city’s jails.

Walk down the corridors of any of the city’s 11 active jails, and it is clear that not only are there a high number of female officers, but a majority of those women — 75 percent — are black, said Stephen Morello, a department spokesman. They are former soldiers, beauticians and bank tellers. They are single mothers who took the job to support their children. They are grandmothers like Angela Crim (“Crime without the ‘E,’ ” she says sweetly), who carries handwritten Scripture in her purse and says she tries not to judge the men whom she guards.

Some of the women are natural caretakers who dispense wisdom to inmates along with bars of lye soap. Others are hard-nosed disciplinarians. But all the women have one thing in common: They are taking their place in a world traditionally dominated by men.

Nowhere is their sense of sorority more evident than in the women’s locker room, where pictures of Barack Obama and male models with rippling torsos provide a little relief after a long shift, and jars of hair products like Queen Helene Styling Gel clutter the sink counters.

Upward Bound

Ask any woman in the city’s Correction Department why she wanted a job that brings with it such stress and potential danger, and she’ll tell you that it’s the security. Such a career, in which no college degree is required and the top yearly pay for an officer is $75,000, can mean the difference between a life of hardship and a ticket into the middle class.

“I don’t think anybody grows up saying, ‘I want to be in charge of inmates,’ ” said Chantay Forbes, a 30-year-old single mother from East New York, Brooklyn, who took the corrections officer’s exam about a decade ago when she was pregnant with her son. She recently bought a house upstate.

“All I saw was what it could do for my future,” added Ms. Forbes, a newly promoted captain. “If it wasn’t for this job, I might not be able to own a home right now.”

Several factors explain the rising number of women entering the city’s Correction Department. One is the 1977 United States Supreme Court decision in Dothard v. Rawlinson, a watershed sex discrimination case that helped opened doors for women in law enforcement.

Another is the fact that in the mid-’80s, the agency’s third female commissioner, Jacqueline McMickens, began assigning female guards to all-male jails that were once off limits to them. More recently, academic experts suggest, labor shortages and an overhaul of the welfare system have driven more women into the field.

But nothing beats word of mouth. Over the years, mothers and daughters, sisters and girlfriends have recruited one another. One recruit, Suzeth Orr, a hairdresser who used to work at a salon in Downtown Brooklyn, learned about the job from two clients who worked for the department. “They said it’s not a hard job,” she said. “It’s actually safe.”

Statistics bear that out. Last year was the safest on record for the city’s jails, according to the department, and many female corrections officers think that the decrease in violence is linked in part to their presence.

“The female touch is a little more gentle,” said Joandrea Davis, a warden who runs a jail for sentenced male inmates on Rikers and keeps her office stocked with bottles of Perrier and candy-apple-scented hand lotion. “You don’t have that machismo that comes into confrontational situations, and sometimes we’re able to quell things.”

But not all the time. “It is a jail,” she added. “We’re not dealing with choirboys here.”

It’s impossible to quantify the exact impact women have had on the city’s jails. But the system has seen changes.

Read full article here. [Brooks Holland]