Recently in Sentencing Category

California has started releasing criminals early because, so it is said, the state is out of money to fund the prison system.  Only now it turns out that the same force that has driven the state to near-bankruptcy  --  the free spending legislature  --  is considering a bill that would allocate taxpayer dollars to track animal abusers.

I swear I'm not making this up.  Here are the first few paragraphs of the story, as reported by Fox News:

The California state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse. 

Animal abusers would be tracked like sex offenders if California lawmakers have their way. 

The state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse. 

The registry, which under the law would be posted on the Internet, wouldn't just include names. The bill calls for photographs, home addresses, physical descriptions, criminal histories, known aliases and other details to be made public. 

Animal abuse is a sick, heart-wrenching and disgusting crime, as anyone will agree who has a dog at home (I have the world's most pig-headed Basset hound).  But to propose new and significant spending on an animal abuse registry while releasing criminals on grounds of insolvency sounds like something that could only happen in.............California.

It dares not speak its name, that is, because its name is murder.

That is the demonstrated cost of prison sentences that are too short to persuade, or force, offenders to refrain from returning to crime.  The case in point, and in the news, is that of Chelsea King, a high school student who was raped and murdered this week.  A fellow named John Gardner has been arrested for the crime.  At present, there appears to be little realistic doubt of his guilt.

The twist in the case is that Gardner pleaded guilty in 2000 to molesting a 13 year-old girl.  Instead of being required to serve the eleven years to which he could have been sentenced, he was given a six year sentence, of which he served five.

The case illuminates two long-running and active themes the defense bar has been pushing. One is that we should substantially reduce prison sentences to save money. The other is that sex offenders are treated too harshly (forced to sleep under a bridge in Miami, etc.), apparently because the country consists of high-handed and puritanical morons.

 

Today, the U.S. Supreme Court announced three opinions for cases argued this term: Johnson v. United States (08-6925); Reed Elsevier v. Muchnick (08-103); and Mac's Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac's Shell Service (08-240; 08-372).  At SCOTUSblog, Erin Miller posts brief descriptions of each of the opinions. 

Reed Elsevier and Mac's Shell address areas copyright and franchise law, but today's decision in Johnson held that in the context of  the Armed Career Criminal Act's definition of "violent felony," the phrase "physical force" means violent force.  This means that in order to qualify for enhanced sentencing under "violent felony" section of the Armed Career Criminal Act, a person must have engaged in "force capable of causing physical pain or injury to another person."  The individual could not be sentenced for a violent felony if the person had been convicted for "unwanted touching." 

In 2007, Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony.  This violated 18 U.S.C. §922(g)(1).  Based on its determination that Mr. Johnson had three earlier convictions for violent felonies, the district court sentenced him to 185 months in prison. Mr. Johnson appealed the court's determination with respect to his 2003 conviction for "unwanted touching," which had been elevated from simple battery to felony status because of a prior battery conviction.

In today's 7-2 decision, Justice Scalia wrote that Johnson's 2003 "conviction was a predicate conviction for a 'violent felony' under the Armed Career Criminal Act only if '[a]ctually and intentionally touch[ing]' another person constitutes 'physical force' within the meaning of §924(e)(2)(B)(i)."  When the Court ruled that it was not, it reversed the judgment of the Eleventh Circuit, set aside Johnson's sentence, and remanded the case for further proceedings.  Justice Alito wrote a dissent, which Justice Thomas joined. 

Chris Lehman reports for Oregon Public Broadcasting:

An Oregon Senate panel voted Tuesday to put a controversial prisoner re-sentencing program on hold.

Lawmakers approved the original plan last year as a way to cut costs in the public safety budget.

Critics blasted the effort, saying it allowed violent criminals to get out of prison early

Now, the Senate Judiciary Committee has voted to suspend the early release program until July of next year. Democratic Senator Floyd Prozanski chairs the committee.

The general rule that character evidence is inadmissible in criminal proceedings is always subject to exceptions.  One of those exceptions is when the prosecution "opens the door" by introducing evidence of the victim's virtuous life during the penalty phase.  But in a murder trial, is evidence that the victim possessed child pornography enough to sully his good character?  And if defense counsel fails to introduce that evidence, is it reversible error under Strickland v. Washington? 

Yes, says the Supreme Court of Missouri in the recent case of Gill v. State:

When the State introduced evidence regarding the victim's good character, Gill's counsel should have presented rebuttal evidence. However, his counsel failed to present rebuttal character evidence because they failed to discover it. They saw the names of the sexually explicit files on the report but were not diligent in investigating further. Defense counsel testified at the Rule 29.15 hearing that after more carefully reviewing the report, they noticed entries that should have alerted them to the presence of pornography on the computer. They had the opportunity to discover the child pornography, bestiality content, and instant message conversations on the victim's computer but neglected to do so.

By failing to discover those files on the victim's computer, Gill's counsel's performance was deficient.

Robert Lewis and Sam Stanton report for the Sacramento Bee:

One of the inmates the Sacramento County Sheriff's Department released early as part of an effort to reduce the state's prison population was arrested Tuesday on suspicion of attempted rape, less than 24 hours after getting out of jail, The Bee has learned.

Kevin Eugene Peterson got out of jail Monday night after serving about two months on a four-month sentence for violating probation on a prior felony conviction. Peterson was arrested 12 hours later, around 12:30 p.m. Tuesday, on suspicion of an attempted rape involving a female counselor at the 1300 block of North C Street, a Sacramento Police Department spokesman said. He was booked into the Sacramento County jail at 3:21 p.m. Tuesday on suspicion of attempted rape, sexual battery, false imprisonment and violating the terms of his probation.

"Our greatest fear has occurred almost immediately after the early release of these inmates," said Christine Ward of the Crime Victims Action Alliance. "We are certain that we will see more of this as more inmates are released from jails and prisons."

Peterson has a criminal history including a 2008 felony conviction for assault with a deadly weapon. He pled guilty and was sentenced to a year in prison. On Dec. 2, he was sentenced to four months for violating the terms of his probation, according to court documents.

Only nonviolent inmates will be released. There is no point in imprisoning people on technical parole violations. We know how to identify the ones who can be safely released. This program will enhance, not endanger, public safety. This is part of being smart on crime.

Oh, and would you like to buy a bridge?

From the Sacramento Bee's crime blog:

Sacramento County is releasing hundreds of prisoners from its jails as a result of California's new early-release program, an effort to save money in the cash-strapped state.

The county has already started releasing inmates from the Rio Cosumnes Correctional Center, and the county could release as many as 250 prisoners by the end of today, Sheriff John McGinness confirmed. The number could grow by the end of the week.

How many crimes will be committed as a result, that could have been avoided? We'll see.

In Arizona, supporters of a bill to grant parole eligibility to killers sentenced to life without parole have abandoned their effort. A press release from POMC and NOVJL follows the jump.

Opponents of the death penalty always claim that it is unnecessary for incapacitation because "life with absolutely no possibility of parole" does the same thing. But the legislature can always add parole back in later, as this effort shows.

My previous post had incorrectly characterized the bill.

In a truly remarkable article published in the Sacramento Bee on January 17th, Michelle Alexander, author of "The New Jim Crow" and former director of the ACLU Racial Justice Project, explained how criminal justice policy in California over the past three decades has been  all about race.  While the focus of the piece is to question the sincerity of Governor Schwarzenegger's recent interest in releasing prison inmates, which Ms. Alexander supports, it's her insights on why the prisons are full that make it noteworthy.  She explains that the skyrocketing incarceration rates of the past three decades were caused by "the war on drugs - a war that has targeted people of color for drug crimes even though studies show they are no more likely to use or sell illegal drugs than whites."  She cites the recent 9th Circuit decision in Farrakhan v. Washington in which the court "acknowledged the rampant racial bias in the criminal justice system, particularly in the prosecution of the drug war."  Then there were the "racial profiling studies that were conducted several years ago documenting biased stop and search practices in dozens of police departments, including the California Highway Patrol."   There's more: "The uncomfortable reality we must face is that California, like the nation as a whole, has treated a generation of African Americans and Latinos as largely disposable.  They have been rounded up by the thousands, locked in cages, and upon release ushered into a parallel social universe in which they can be denied the right to vote, automatically excluded from juries and legally discriminated against in employment, housing, access to education and public benefits..."    Finally we learn that the get tough on crime movement that increased sentences, was driven "not by crime rates, but by politics - a politics that scapegoated the most vulnerable as a means of scoring political points."   

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The November (ahem) issue of the Journal of Law and Economics just hit my emailbox. Among the articles is Randi Hjalmarsson, Juvenile Jails: A Path to the Straight and Narrow or to Hardened Criminality? Here is the abstract (emphasis added):

Juvenile justice systems throughout the United States have become increasingly punitive since the 1970s. Most states have passed legislation making it easier to transfer juveniles to the criminal courts. Supporters of this "get tough" movement argue, in part, that juvenile courts are ineffective in deterring young offenders. This claim, however, is based primarily on poorly designed evaluations that do not account for the nonrandom nature of sentencing. This paper demonstrates how the institutional features of the justice system can be exploited to identify causality when true random assignment is not feasible. In particular, I capitalize on discontinuities in punishment that arise in Washington State's juvenile sentencing guidelines to identify the effect of incarceration on the postrelease criminal behavior of juveniles. The results indicate that incarcerated individuals have lower propensities to be reconvicted of a crime. This deterrent effect is also observed for older, criminally experienced, and/or violent youths.

Note that "deterrent effect" here is specific deterrence -- the individual punished is less likely to do it again. This is different from a "general deterrent" effect, where punishing one person makes others less likely to do it.

Heather MacDonald of the Manhattan Institute has this op-ed, with the above headline, in the WSJ.

The recession of 2008-09 has undercut one of the most destructive social theories that came out of the 1960s: the idea that the root cause of crime lies in income inequality and social injustice. As the economy started shedding jobs in 2008, criminologists and pundits predicted that crime would shoot up, since poverty, as the "root causes" theory holds, begets criminals. Instead, the opposite happened. Over seven million lost jobs later, crime has plummeted to its lowest level since the early 1960s. The consequences of this drop for how we think about social order are significant.

*                                *                              *

The recession crime free fall continues a trend of declining national crime rates that began in the 1990s, during a very different economy. The causes of that long-term drop are hotly disputed, but an increase in the number of people incarcerated had a large effect on crime in the last decade and continues to affect crime rates today, however much anti-incarceration activists deny it. The number of state and federal prisoners grew fivefold between 1977 and 2008, from 300,000 to 1.6 million.

*                                *                              *

The spread of data-driven policing has also contributed to the 2000s' crime drop. At the start of the recession, the two police chiefs who confidently announced that their cities' crime rates would remain recession-proof were Los Angeles Police Chief William Bratton and New York Police Commissioner Ray Kelly. As New York Police Commissioner in the mid-1990s, Mr. Bratton pioneered the intensive use of crime data to determine policing strategies and to hold precinct commanders accountable--a process known as Compstat. Commissioner Kelly has continued Mr. Bratton's revolutionary policies, leading to New York's stunning 16-year 77% crime drop. The two police leaders were true to their word. In 2009, the city of L.A. saw a 17% drop in homicides, an 8% drop in property crimes, and a 10% drop in violent crimes. In New York, homicides fell 19%, to their lowest level since reliable records were first kept in 1963.

The U.S. Supreme Court this morning agreed to review another case sifting through the debris of the United States Sentencing Guidelines following its 2005 decision in United States v. Booker, 543 U.S. 220. The new case is Dillon v. United States, No. 09-6338. The Third Circuit's decision was originally unpublished but then published on the motion of the government. The lead paragraph follows the jump.

The case of Barber v. Thomas, No. 09-5201, taken up by the Supreme Court today, has to do with the computation of good time credits for federal prisoners. The District Court opinion in a companion case, Tablada, is here. The Ninth Circuit opinion affirming in that case is here. The Ninth's order in the present cases, Barber and Jihad-Black, is summary without opinion, based on Tablada. Tablada's certiorari petition is still pending in case 08-11034. SCOTUSblog has the certiorari petition in Barber here and the brief in opposition here. Doug Berman has this post at SL&P.

The Graham case presents the constitutional question in its clearest terms. Unlike Sullivan, there is no procedural obstacle to reaching the merits. The facts also present the problem of a bright-line rule most clearly. Graham was just 35 days short of his 18th birthday when he committed the last offense. To believe in a constitutional bright line at the 18th birthday, you have to believe that Graham's sentence violates our most fundamental law even though the same sentence would have been perfectly proper had the same person with the same record committed the same crime 35 days later.

That's pretty hard to swallow, and in today's argument no Justice gave a clear indication of having swallowed it. Unlike a death sentence, which is cleanly distinguishable from all other sentences, a life-without-parole sentence may not be significantly different in reality from other sentences. How about a sentence of life with the possibility of parole after 50 years? How about consecutive sentences for each offense that add up to something far beyond defendant's life expectancy? The Justices asked about these possibilities, and defense counsel did not have a clear answer.

But is age irrelevant? Of course not. Well, why not take the proportionality rule from Solem v. Helm and Harmelin v. Michigan and say that age is a key factor under that rule? Chief Justice Roberts pushes hard for this rule throughout the argument. None of the others objects to it as a matter of principle. On pp. 21-23, Justice Ginsburg asks if there is an express proportionality review in Florida procedure. No, but at least since Solem in 1983 a proportionality objection has always been available as a matter of federal law, and a defendant can make it as part of the argument on sentencing.

The Chief knows where he wants to go with this case, and no one else seems to have a strong difference of opinion. Justice Breyer was uncharacteristically quiet. I think the Chief will get a majority, maybe even unanimity, for a resolution that does not differ much from the existing noncapital proportionality rule.

The New York Times "Room for Debate" feature has this online debate on the Graham and Sullivan cases between Marc Mauer of the Sentencing Project and yours truly.

Update (12:35 p.m. ET / 9:35 a.m. PT): Lyle Denniston reports at SCOTUSblog that "it did not appear that there was a clearcut majority for taking away altogether the life-without-parole option even in cases where the victim of a youth's crime did not die." The transcript is not available yet.

Update 2: The transcript of the Graham argument is here. Due to the heavy load on the Court's website, we will temporarily mirror the transcript here.

Update 3: The transcript of the Sullivan argument is here.