Crime and Consequences Blog

Felon Voting Podcast

2012-02-03T21:59:32Z

The Federalist Society's teleforum on felon voting from last August is now available as podcast here. Participants are Nancy Abudu of the ACLU and Hans von Spakovsky of the Heritage Foundation. Roger Clegg of the Center for Equal Opportunity moderates.

17-year-old Murderers

2012-02-03T19:42:52Z

A person who commits murder at the age of 17 years, 364 days is exempt from the death penalty, regardless of how horrible the crime or how many people he kills.

Should that one day further exempt the murderer from a true life-without-parole sentence, holding out the possibility of parole regardless of the crime? Should the 17-year-old get a double discount for murder compared to the 18-year-old? Some people think so. California State Senator Leland Yee is trying again. He has put cosmetic changes on his bill, SB9, but it still amounts to a possibility of parole.

Crime Victims Action Alliance has this update, with links to contact Assembly members.

Note: California already exempts under-16s, so people who say this bill is about "children" are using an ambiguous term in an intentionally deceptive way. [Try standing in front of a class of high school juniors and saying, "Good morning, children." See what kind of reaction you get.]

April SCOTUS Argument Calendar

2012-02-03T19:20:26Z

The calendar for April arguments in the US Supreme Court is available here. There are no state criminal cases or state-prisoner habeas cases on the docket. Should we be grateful for "salutary neglect"?

On Tuesday, April 17, the Court hears argument on the retroactivity of the rollback of the crack v. powder cocaine sentencing ratio. There are a number of prior posts on this blog on the subject, including

Obama Signs Reagan Version of Crack Sentencing

The Crack Ratio

Crack Retroactivity and Plata

Crack Sentencing

The big case in terms of press coverage will be the Arizona immigration case on Wednesday, April 25.

News Scan

2012-02-03T18:06:43Z

Loughner Still Not Competent to Stand Trial: Michael Kiefer of The Arizona Republic reports U.S. District Judge Larry Burns wrote in a court order Thursday that a psychologist says Jared Loughner is still not mentally competent to stand trial. Diagnosed as a schizophrenic, Loughner has been confined to the federal prison hospital in Missouri since March, where he will likely remain for four more months. Loughner's principal psychologist said she believes he has made progress and can eventually be restored to competence. Burns ordered a hearing take place Monday in San Diego to discuss the matter with the defense attorneys and federal prosecutors. Loughner, 23, is charged with 49 felonies stemming from the January 8, 2011 shooting rampage in Tuscon, where six people were killed and thirteen others wounded.

CA Supreme Court Overturns Death Sentence for Man Who Burned Woman Over $100: Maura Dolan of the Los Angeles Times reports the California Supreme Court Thursday voted unanimously to overturn the death sentence for Gary Galen Brents, ruling that Orange County Superior Court Judge John J. Ryan failed to properly instruct the jury. Brents was convicted of the 1995 murder of Kelly Gordon. Gordon had agreed to sell $100 worth of methamphetamine for Brents. When he went to collect and she didn't have the drugs or money, Brents tried to suffocate Gordon, and choked her. He then put her in the trunk of a car, drove to a remote location, poured gasoline on her and the outside of the car, and lit the gasoline on fire. Trapped in the trunk, Gordon burned to death. The Orange County district attorney's office is reviewing the ruling. The opinion is here.

30 Bales of Marijuana Found Floating in Pacific Ocean: Robert J. Lopez of the Los Angeles Times reports 30 bales of marijuana, estimated to be worth about $500,000 on the street, were found floating in the waters off Marina Del Rey, CA. The bales were spotted by a boater Wednesday and recovered by the Los Angeles County Sheriff's Department with the help of lifeguards. The bales were turned over to the U.S. Customs and Border Protection Agency.

A Sentence "Increase" in Cambodia

2012-02-03T17:14:09Z

Sopheng Cheang reports for AP:

A U.N.-backed tribunal's Supreme Court lengthened the sentence for the Khmer Rouge's chief jailer to life imprisonment on Friday because of his "shocking and heinous" crimes against the Cambodian people.
The surprise ruling increased a lower court's 19-year sentence for Kaing Guek Eav, known as Duch. Prosecutors had appealed the sentence as too lenient, and outraged survivors had feared the man who oversaw the torture and killing of thousands could one day walk free.

The latter possibility was actually quite remote, given that "Duch" is 69 years old and highly unlikely to survive 19 years in prison. Even so, I suppose the sentence increase is useful as a symbol.

The sentence remains inadequate, though. Due to the U.N.'s involvement, the tribunal is incapable of imposing the death penalty, the only punishment that comes close to sufficient for this man's unspeakable crimes.

The world's worst criminals can be adequately punished, as Saddam Hussein was, only when the Europeans, the U.N., and the International Criminal Court are kept out of the decision. That is regrettable, but that is the way it is.

News Scan

2012-02-02T17:13:12Z

After 44 Arrests and No Convictions, Man Now Faces 32 Years: Nathan Gorenstein from the Philadelphia Inquirer reports John Gassew, 25, who avoided any sort of a conviction in state courts despite having been arrested 44 times, will now serve at least 32 years in federal prison. The primary reason for the previous lack of convictions is that victims failed to appear in court to testify. In the first of two robberies he was convicted for, Gassew held up a 7-Eleven and beat a store clerk with a .45-caliber semiautomatic pistol. Gassew then proceeded to drive a stolen truck into a tree, drawing police attention, and fled the scene, leaving his gun behind in the vehicle. After two days of jury deliberation, Gassew was found guilty of two counts of robbery and two counts of violating the Hobbs Act by carrying a firearm during the commission of a violent crime. Federal prosecutors have used the Hobbs Act to charge robbers who hit gas stations, convenience stores, and other businesses that can be shown to be involved in interstate commerce. He will be formally sentenced in May.

Mississippi Supreme Court to Take Pardons Case: The Associated Press reports the Mississippi Supreme Court said Wednesday it will take up the legal challenge to the pardons issued by outgoing Governor Haley Barbour. State Attorney General Jim Hood wants to invalidate dozens of the 198 pardons Barbour handed out. Hood says only about two dozen of those pardoned followed the Mississippi Constitution's requirement to publish notice about their reprieve in their local newspapers for 30 days. Ten of the people who received full pardons were still incarcerated when they received the reprieves. "It's a core question of separation of powers between the branches of government. It's an important question that the Supreme Court has to answer," said Matt Steffey, a constitutional law professor at Mississippi College. The state Supreme Court set a hearing for February 9.

Teacher Charged With 23 Counts of Lewd Conduct in Classroom Keeps Benefits: Howard Blume of the Los Angeles Times reports former elementary school teacher Mark Berndt, who is charged with 23 counts of lewd conduct in his classroom including spoon-feeding his semen to blind-folded children, will retain his life-time health benefits from his school district in addition to his pension because he technically resigned and was never officially fired. Vivian Ekchian, chief human resources officer for L.A. Unified, says the district is looking at its options for trying to rescind those benefits if Berndt is convicted. His retirement benefits are not at issue, because "a teacher will receive their pension regardless of the reason for their termination" said Michelle Mussuto, a spokeswoman for CalSTRS.

Oregon Death Penalty Poll

2012-02-01T21:36:08Z

A poll by Oregon Public Broadcasting and DHM Research shows little change in public support -- still overwhelmingly in favor. Kristian Foden-Vencil has this story at OPB News. "The poll found that 57 percent favor the death penalty for some crimes; 39 percent oppose it. Four percent say they don't know." The story does not give the exact wording of the question, which we know from other polls matters a lot. DHM's website does not mention the poll at all.

News Scan

2012-02-01T21:28:40Z

New York Gov. Proposes More Flexible Probation Sentencing Laws: Reuters reports New York Governor Andrew Cuomo, as part of the state budget proposal, wants to make New York's probation sentencing laws more flexible. For most felony convictions, the sentence would be three to five years, instead of the current mandatory sentence of five years. For Class A and unclassified misdemeanors, the probation sentence would be two to three years, instead of the current mandatory three years. Cuomo's budget also includes the measure to expand the state's criminal DNA database, and a measure that would allow criminal courts to order the forfeiture of the money earned in the commission of a crime. Under current state law, those convicted of misdemeanors can keep the money they gain from their crimes, and prosecutors must sue those convicted of felonies to take back any criminal profits.

CA Assembly Passes Three-Strikes Reform: Jim Sanders of The Sacramento Bee reports the California Assembly Tuesday passed AB 327, which would alter California's existing three-strikes law, by a vote of 41-33. The legislation would provide that an offender be sentenced to a 25 year to life prison term for a third strike only if the third strike is for a violent or serious felony, with some exclusions for certain previous crimes.The bill would only become effective if approved by voters at the November 2014 statewide general election. The bill now goes to the state Senate.

New CrimePush App Available on iTunes Today: Anushay Hossain, a Forbes Woman contributor, reports the CrimePush App, which allows smartphone users to quickly and discreetly report crimes, is available on iTunes today. Users can take a photo, record video and audio, and provide the location of the crime and a text description of the incident. Users can also report the crimes anonymously.

Collective Tantrum Update -- Left Coast Edition

2012-02-01T16:46:48Z

SF Chrontrarian Debra Saunders has this column on the further degeneration of Occupy Oakland:

Occupy Oakland protesters broke into City Hall on Saturday, sprayed graffiti, toppled a historic model of City Hall and children's artwork, stole and then burned an American flag, sprayed graffiti and otherwise trashed the people's building. Police arrested about 400 people. Mayor Jean Quan likened the activists' behavior to "a tantrum," as she complained Occupy activists have been treating the city "like a playground."

Well, well, even a stopped clock is right twice a day. Welcome to reality, Mayor Quan. Hope your visit is longer this time, before you return to the flower-child alternate reality where you permanently reside.

News Scan

2012-01-31T17:37:55Z

Georgia to Execute Killer of 3-Year-Old Girl and Mother: The Associated Press reports Nicholas Cody Tate, 31, is scheduled to be executed at 7 p.m. local time in Georgia today. In 2001, Tate and two of his younger brothers purchased ammunition, duct tape, and knives at a sporting goods store before going to the home of Chrissie Williams, where they believed she had a stash of drugs and cash. Tate's brother tried to strangle Williams' 3-year-old daughter, Katelyn, with a telephone cord before using Tate's knife to slit her throat. Tate put a seat cushion over Williams' head, killing her with one shot. The brothers fled to Mississippi, where they kidnapped a 23-year-old woman from a gas station. After releasing her, they kept her car and headed toward Oklahoma before calling their parents and negotiating their surrender to police. Tate was sentenced to death in 2005. His brothers were sentenced to life in prison. In 2009 he said he wanted to waive all future appeals. Update: The execution has been postponed, Greg Bluestein reports for AP.

CA Supreme Court Rules on Self-Representation for Mentally Disturbed Defendants: Bob Egelko of the San Francisco Chronicle reports the California Supreme Court ruled "gray-area defendants" (those competent to stand trial but who lack the mental health or capacity to represent themselves) can be denied self-representation and be required to accept a lawyer. The ruling upheld the convictions for Andrew D. Johnson, who in June 2007 committed a brutal sexual assault on a bartender, and later that day hit a man at a sandwich shop in the head with a metal chair. A judge withdrew his permission for Johnson to act as his own lawyer, and he was represented by an attorney despite his rejections. The state Supreme Court said "the trial court acted within its discretion in revoking defendant's self-representation status." The opinion is here.

News Scan

2012-01-30T21:07:38Z

Appeals Court Upholds Stolen Valor Act: Ivan Moreno of the Associated Press reports the 10th U.S. Circuit Court of Appeals ruled Friday that the Stolen Valor Act is constitutional. The ruling reverses a district court's decision that the Stolen Valor Act violates the First Amendment, saying the U.S. government had not presented any compelling reason to restrict that specific type of speech. That case out of Colorado involves Rick Strandlof, who founded a veterans group and said he had received the Purple Heart and Silver Star. He was charged with violating the law in 2009 and his case was later dismissed by a federal judge. The opinion from the 10th U.S. Circuit Court of Appeals is here. The U.S. Supreme Court will take up the issue in February in the case of United States v. Alvarez, after the 9th U.S. Circuit Court of Appeals struck down the law. CJLF's brief with the Legion of Valor for that case is here.

NY Bar Association Proposes Removing Some Felonies From Public Records: Russ Buettner of The New York Times reports the New York Bar Association's proposal to create a way to remove some nonviolent felony convictions, under certain conditions, from a person's public record was approved Friday by the association's House of Delegates. The change would allow misdemeanor convictions and a single nonviolent felony conviction under certain circumstances to be sealed with the approval of a judge. An offender would have to wait five years after a misdemeanor conviction or eight years after a felony conviction, without committing any crimes during the waiting period, before the record could be sealed. Sealed records would become public again if an offender committed another crime.

First Trial Under Racial Justice Act: Paul Woolverton of The Fayetteville Observer reports the first hearing in North Carolina under the Racial Justice Act began today for Marcus Reymond Robinson, who was sentenced to death for robbing and killing a 17-year-old boy in 1991. Robinson's Racial Justice Act claim says prosecutors dismissed half of the black jurors and only 15 percent of the non-black jurors. The victim's stepmother said the court system wasn't racist, but Robinson was. He is black, and his victim is white. She said a witness testified at the trial that Robinson said he was going to "kill a whitey."

Factors in Death Sentencing

2012-01-30T17:19:00Z

In this week's NCJRS Weekly Accessions List, we find a study that appears to be good news, at least from the abstract (emphasis added):

In the Poisson models for the full sample, several criminal-career variables were significantly associated with subsequent death sentences. These variables included an early onset of antisocial behavior as measured by juvenile arrests and prior rape, robbery, and molestation offending. In both models, which focused on separate instant offenses and the violent and property offenses, prior prison sentences predicted subsequent death sentences. These findings suggest that violent, recidivistic offenders who are routinely incarcerated throughout their life course might be sentenced to death for a capital offense. This pattern is consistent with the behavioral continuity that is a cardinal feature of criminal careers research. The number of murdered victims significantly predicted death sentences, which supports prior research that found multiple homicide victims was the strongest predictor of receiving a death sentence. An offender's race had no predictive effect on death sentences in the current sample; however, the coupling of criminal career information and race-dyad effects is an important issue for future research.

The study is Monic P. Behnken, Jonathan W. Caudill, Mark T. Berg, Chad R. Trulson, Matt DeLisi, Marked for Death: An Empirical Criminal Careers Analysis of Death Sentences in a Sample of Convicted Male Homicide Offenders, Journal of Criminal Justice Volume:39 Issue:6 Dated:November/December 2011 Pages:471 to 478.

So murderers are sentenced to death or not depending on how many people they kill and what crimes they have committed before, not depending on their race. That is exactly how it should be. That last part has to be hedged, of course, to allow for the possibility of a strained race-based argument in the future.

Junk Science

2012-01-30T16:31:05Z

Christina Hoff Sommers has this op-ed at the Washington Post on a study by the Centers for Disease Control that is completely off the wall.

How many people are raped each year? That is a difficult question to answer. The FBI's Uniform Crime Report tells us that 84,767 rapes were reported to law enforcement in 2010, but of course not all rapes are reported. Not even a majority. The National Crime Victimization Survey, which calls up a sample of people Gallup-style and asks them, estimates more than twice as many -- 188,380. But now the CDC claims there are nearly seven times that many rapes and seventy times that many incidents of sexual violence.

How do they figure? According to Sommers, "It found them by defining sexual violence in impossibly elastic ways and then letting the surveyors, rather than subjects, determine what counted as an assault." How bad does it get?
]]> Participants were asked if they had ever had sex because someone pressured them by "telling you lies, making promises about the future they knew were untrue?" All affirmative answers were counted as "sexual violence." Anyone who consented to sex because a suitor wore her or him down by "repeatedly asking" or "showing they were unhappy" was similarly classified as a victim of violence. The CDC effectively set a stage where each step of physical intimacy required a notarized testament of sober consent.

The fight against violent crime is not helped by nonsense that stretches the definitions beyond rationality. The guy who lies or badgers is a cad but not a rapist. Our justified outrage against rapists and calls for their severe punishment should not be diluted by lumping them together with mere cads.

And why is the CDC spending its budget studying crime anyway? Are the research needs for cancer and infections and heart disease and diabetes so fully satisfied that this agency has to look outside its area of expertise to spend its budget? Here is an area of government duplication that can be eliminated in the next budget. Let CDC go back to its microscopes and leave the study of two-legged infections to NIJ.

Abolitionism Runs Aground

2012-01-28T02:30:55Z

A few days ago, I put up an entry about a previously convicted killer serving LWOP who knifed to death a prison guard. The next day, the story was picked up by Sentencing Law and Policy, a popular legal blog. SL&P, although center-left in its orientation, noted that a case of that sort makes it very problematic categorically to oppose the death penalty.

The story generated (so far) 68 comments, which is a very large number by the standards of that blog. A dozen abolitionists chimed in. I repeatedly asked them the following question:

"What punishment, short of the death penalty, do you suggest for this case that is (1) consistent with the Eighth Amendment, (2) likely to deter LWOP inmates from murder, and (3) proportionate to the offense?"

I first posed the question five days ago. Most readers of C&C will not be surprised to learn that, through all 68 comments, not a single abolitionist has answered it.

The reason is not that hard to figure out. They don't have an answer.

So in what condition does that leave abolitionism today?

]]>

News Scan

2012-01-27T17:53:18Z

Tougher CA Parole-Revoking Rules Struck Down: Bob Egelko of the San Francisco Chronicle reports a federal judge Thursday ruled that all of California's Proposition 9 provisions for parole revocation were invalid. Proposition 9, passed in 2008, did not guarantee parolees the right to present evidence at the hearings, allowed parole agents to testify about incriminating statements by witnesses who were not in court, required the state to provide lawyers only for parolees who appeared unable to defend themselves, and required the parole board to give more consideration to "the safety of victims and the public" than to the costs and burdens of imprisonment when deciding whether to revoke parole. The ruling does not affect other sections of Proposition 9, which requires prisoners serving life terms to wait up to 15 years between parole hearings and expands the rights of crime victims and their families for taking part in parole proceedings. State prison officials are reviewing the ruling.

Medical Care for Aging Inmates Puts Strain on Prisons: The Associated Press reports elderly inmates are an increasing population in U.S. prisons. Officials are grappling with how to balance cost factors and public safety while meeting the expensive needs of aging inmates at a time when state budgets are tight. Prison officials have to address questions like whether to install handicap toilets and grab bars in some cells, how to accommodate wheelchairs, or how to manage inmates with dementia. Some states have turned to medical parole, hospice programs, and assisted living facilities. Inmates' health tends to decline more rapidly than the traditional U.S. population due to long-term substance abuse and poor health maintenance. "You can't just generalize about these prisoners," said Texas State Rep. Jerry Madden, chairman of the House Corrections Committee. "Some are still extremely dangerous, some may not be.... Some you wouldn't want in the same assisted living facility with your parents or grandparents."

Komisarjevsky Formally Sentenced to Death in Connecticut Home Invasion Murders: The Associated Press reports Joshua Komisarjevsky was formally sentenced to death in Connecticut today. Komisarjevsky denied having any part in the three killings he was convicted of. Dr. William Petit, who survived the attack, called the loss of his wife and two daughters "a personal holocaust." Komisarjevsky will join his accomplice on death row. Both men were on parole at the time of the deadly home invasion crime. The 2007 attack sparked tougher state laws for repeat offenders and home invasions, and led to the defeat of a bill to abolish the death penalty in Connecticut.

Executions Stayed in Ohio and Texas: Christine Lee of NBC 5 Dallas-Forth Worth and the Associated Press report Donald Newbury, one of the "Texas 7," has won a stay in his execution scheduled for February 1 for killing a police officer after escaping from a Texas prison in 2000. U.S. Supreme Court Justice Antonin Scalia granted the stay Thursday after Newbury's attorneys argued it should be granted while the U.S. Supreme Court considers a case out of Arizona that questions death row inmates' entitlement to better legal assistance during their initial appeals. In Ohio, the Associated Press reports a federal judge on Wednesday delayed the execution of Michael Webb, who was scheduled to be executed February 22 for the 1990 arson death of his 3-year-old son. U.S. District Judge Gregory Frost's one-page ruling addressed challenges to Ohio's lethal injection procedures and a debate over whether executions should be halted due to minor variations to the policies. Frost delayed the execution of Charles Lorraine earlier this month, saying the state deviated from its execution policies. Ohio has filed a motion with the U.S. Supreme Court to overturn that ruling. Ohio Attorney General Mike DeWine says minor variations in the execution policy are not the same thing as an unconstitutional system, and even Frost has said the rulings are not a commentary on the constitutionality of the state's execution procedures.

RI Senate Panel Endorses Tougher Good-Time Credits Legislation: David Klepperof the Associated Press reports the Rhode Island Senate Judiciary Committee voted to endorse legislation written by Attorney General Peter Kilmartin that would make offenders of certain crimes ineligible from earning "good-time" credits. The measure was prompted by last year's release of Michael Woodmansee, who shaved 12 years off his 40 year sentence after being convicted of killing a 5-year-old boy and keeping his bones in his bedroom. The boy's family said no one should have to suffer like they did when they learned Woodmansee was being released early due to good behavior. "We're only talking about the worst of the worst here. Child molesters. Murderers. Rapists. They just shouldn't be allowed to get out early," said John Foreman V. The director of the state's Department of Corrections says prison bills will be higher if more prisoners are serving their entire sentence. "Of course it would be additional costs," said Senator Glenford Shibley (R-Coventry). "But some things are worth the cost."