When will learn not to talk to the police?

Tiger Woods is just the latest example why it is NEVER a good idea to talk to the police.  Check this story from CBS News.  Apparently, Mrs. Woods tells some conflicting stories (Hmm, maybe I didn’t break out the window with a golf club after all) that could result in obstructing charges against her and domestic violence charges against both – possibly.  The story attaches a wonderful video by by James Duane, a professor at the Regent University School of Law in Virginia Beach and former criminal defense attorney who argues very persuasively that you will NEVER help yourself by talking to the police.   The video is found here.

 

Huckabee Liberal Minded?

Under intense criticism by bloggers and political opponents for granting clemency to suspected cop killer Maurice Clemmons, I think it’s time to defend former Gov. Huckabee for a courageous decision.  Clemmons  had served 11 years in prison after being sentenced at the age of 18 to 60 years in prison for burglary and theft and was set to serve the 60 years, in addition to the 48 years he was already serving on five felony counts.   Huckabee made these comments are noted in Prof. Berman’s blog

Huckabee defended his choice to grant the Arkansas felon clemency by insisting that Clemmons original sentence went too far. “If he were a white kid from an upper middle class family he would have gotten a lawyer and some counseling,” Huckabee said. “But because he was a young black kid he got 108 years.” Huckabee said the sentence was “far disproportionate from any other punishment in Arkansas at the time for a similar crime.”

“It’s a lot easier to be a pundit or a commentator or a blogger than to govern the state and have to make tough decisions,” he said. “People are talking about this from a political standpoint, but what they need to be asking is how did the system break down?”

So is Huckabee a closet liberal or just a man of conviction that sees the broken and often racist criminal justice system in this country for what it really is?  I noticed that this clemency grant generated little notice when it was originally ordered.

 

Reliance on Snitches a Great Danger to Justice

This post on the Snitching Blog underscores the inherent danger in relying on snitches to provide testimony to make a case

Cleared of murder charges after serving 18 years, Fernando Bermudez was freed on Friday. See NYT story here and my previous post. Four witnesses recanted their testimony, stating that they had been pressured by the government into identifying Mr. Bermudez as the shooter. The main witness, Efraim Lopez, testified falsely under a cooperation agreement guaranteeing that he would not be charged with any crimes, even though he was centrally involved in the shooting. Judge Cataldo concluded that the government either knew or should have known Lopez was lying. Judge Cataldo’s opinion is available here. Although the government concedes that its main witness Lopez perjured himself at trial, it has announced that it intends to appeal.

This is the same problem that has plagued the criminal just system for decades – especially with the huge increase in the prosecution of drug conspiracies.  The are almost universally built on snitch testimony.

 

 

 

1 in 4 rape accusations are false

I just came across this very interesting (though slightly dated) article written by feminist academic Wendy Elroy whereby she examines the wildly diverging statistics regarding false allegations of sexual assaults.  In trying to reconcile the figure oft cited by feminist activists of 2% and the 40-50% rate cited by men’s advocacy groups, she correctly places credence in the 25% figure cited in a 1996 study published by the U.S. Department of Justice: Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial.   She quotes Peter Neufeld and Barry C. Scheck, prominent criminal attorneys and co-founders of the Innocence Project

Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained, the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive, about 2,000 tests have excluded the primary suspect, and about 6,000 have “matched” or included the primary suspect.

The authors continued, “these percentages have remained constant for 7 years, and the National Institute of Justice’s informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate.”

If the foregoing results can be extrapolated, then the rate of false reports is roughly between 20 (if DNA excludes an accused) to 40 percent (if inconclusive DNA is added). The relatively low estimate of 25 to 26 percent is probably accurate, especially since it is supported by other sources.

Something to think about before judging someone who is charged with sexual assault (or any other crime for that matter) too quickly or too harshly.

 

 

Wisconsin Early Release Was a Wise Move

Given the incredible problems that Florida (among other states) is having as described in Professor Berman’s blog, Wisconsin’s program for early release of non-violent (mainly drug) offenders is looking smarter by the day.  Berman notes a local Florida story:

If only Florida’s economy could grow like its prisons.  The state has more than 100,000 prisoners for the first time in its history. It’s expected to add 14,000 in the next five years, according to the Department of Corrections.  Every 1,500 new inmates need a new prison.  It costs $100 million to build one and $20 million a year to run.  How can a state in a perpetual budget crisis pay for all that?

“It’s currently unsustainable given our fiscal situation,” said Florida Tax Watch general counsel Robert Weissert. Florida is staring at a Texas-sized problem. Fortunately, Texas might also have the solution.

Two years ago that state faced its own prison crisis: house 17,000 new inmates by 2012 at a cost of half a billion dollars.  But Texas never built any new prisons. Instead, for half that amount, it revamped its criminal justice system, reduced its prison population and became a national model for reform.

“We hit the perfect storm at the right time,” Texas legislator Jerry Madden said at the Collins Center for Public Policy’s Justice Summit this week in Tampa.  “We were able to say we can do this for less and, oh, by the way, our results will be better.”

Wisconsin’s program as described here and here allows offenders to earn 1 day of credit for every 3 served.   We currently have 22,000 prisoners and approximately 3-4000 will be released early under the program.

 

The Race To Incarcerate Continues

This National Journal article has me saddened that after literally decades of evidence that massive incarceration does not work – i.e., promote safety or advance the general welfare.  After noting that the Supreme Court just heard arguments on the “cruelty” under the 8th Amendmental of locking up juveniles for life in non-capital cases, our lust for prisons continues:

That is our criminal-justice system’s incarceration of a staggering 2.3 million people, about half of them for nonviolent crimes, including most of the 500,000 locked up for drug offenses.

Forty percent of these prisoners are black, 20 percent are Hispanic, and most are poor and uneducated. This has had a devastating impact on poor black families and neighborhoods, where it has become the norm for young men — many of them fathers — to spend time in prison and emerge bitter, unemployable, and unmarriageable. (These numbers come from studies cited by Marc Mauer, executive director of the Sentencing Project, a reform group.)

America imprisons seven times as many people as it did in 1972, several times as many per capita as other Western nations, and many more than any other nation in the world.

 

Kind of a hair-raising case

I had to laugh out loud when I read this one – I think we are micro-analyzing religious rights a bit.  Or maybe a guys hair really brings him closer to God?  This was in the Religious Clause blog:

EEOC Says TSA Failed To Accommodate Rastafarian’s Dreadlocks

In a decision last week, the Equal Employment Opportunity Commission ruled that the Transportation Security Administration violated Title VII of the 1964 Civil Rights Act when it failed to accommodate the need of a Rastafarian baggage screener at Boston’s Logan Airport to wear long hair. TSA reprimanded the employee and threatened to exclude him from promotions or dismiss him for violating TSA grooming standards. In Brissot v. Napolitano, (EEOC, Nov. 12, 2009), an Administrative Judge in an interim decision concluded that the TSA failed to make a good faith effort to find ways to permit the employee to continue to wear his long dreadlocks as required by his religious beliefs. An ACLU press release says that a hearing on the amount of damages to be awarded in the case will be held in February 2010.

 

Sexting – My How Times Have Changed

It’s obnoxious that teens text non-stop but now that many have chosen to send naked pictures of themselves or others, they are unwittingly committing a crime.  This growing phenomenon is the subject of a new article on the SSRN blog entitled: ‘Sexting,’ the First Amendment and Prosecuting Teens. From the abstract:

‘Sexting’ and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as many as 50%, having illegally received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions, and the statutory penalties are severe. Given the reality of changing social practices, mores and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur when governmental policies and initiatives built on past truths and values collide with new and unanticipated social phenomena.

 

The focus of anti-pornography enforcement in recent years has been the child pornography laws. The landmark cases of New York v. Ferber and Osborne v. Ohio have established and defined a categorical exclusion that denies First Amendment protection to sexually explicit visual depictions of minors. Even though Ferber and Osborne may not strictly speaking require a conclusion that sexting and other autopornography are unprotected speech, at least some lower courts and prosecutors appear to regard them that way.

By contrast, the language and reasoning of the more recent case of Ashcroft v. Free Speech Coalition gives strong reason to believe that the scope of the categorical exclusion for child pornography should be closely aligned with the governmental objectives that Ferber and Osborne relied on – which would mean constitutional protection for teen sexting and autopornography that occur on the teens’ own initiative. Ashcroft strongly implies, though does not quite say, that the categorical exclusion should be limited to materials that are produced by means of criminal child abuse and exploitation. Also, current standards of strict scrutiny for content-based regulations, if applied, would probably prevent (on the present state of the studies and research) self-produced teen materials from being subsumed into the Ferber categorical exclusion. How this issue will be decided, however, remains to be seen.

 

What’s in the freezer?

You may recall William Jefferson – the member of congress who was recently convicted of several corruption charges.  In an article in Roll Call,  headlined “Jefferson’s Sentence Is a Record-Setter,” provides some post-game commentary on this past Friday’s federal sentencing of William Jefferson.  Here are a few highlights:

A freezer full of cash made ex-Rep. William Jefferson a national punch line, and a federal judge on Friday made him a record-holder: The 13-year prison sentence given to the Louisiana Democrat is the longest ever handed down to a former Member of Congress….

Ex-Rep. Duke Cunningham (R-Calif.), who pleaded guilty in March 2006 to accepting more than $2.4 million in bribes from defense contractors, as well as tax evasion and fraud, is serving an eight-year, four-month sentence in a federal penitentiary in Tucson, Ariz.  Prior to Jefferson’s sentencing, Cunningham had the distinction of receiving the longest prison term for a former lawmaker. He is scheduled to be released in June 2013.

At least three other former House Members have also completed their terms of incarceration in federal prisons in the past year or so, including ex-Reps. Jim Traficant (D-Ohio), Bob Ney (R-Ohio) and Frank Ballance (D-N.C.)….

In court documents, [defense lawyers] cited a litany of other previously incarcerated lawmakers, part of an effort to limit Jefferson’s term to no more than 10 years…. [But] federal prosecutors recommended Jefferson receive a prison term of up to 33 years, asserting his “crimes against the people of the United States were exceptional in their sheer number, length, and breadth.”

Even with this “record,” Jefferson’s sentence is actually below what the inflated federal sentencing guidelines recommended!  Funny story – even a record-long sentence is coded as very lenient.

 

Booker lives on….

With the upcoming five-year anniversary of the Supreme Court’s decision in Booker and a new Wall Street Journal piece discussing the enduring challenge of balancing individual and equal justice, I have been thinking lately about increased federal sentencing disparities.  Here are some of my early thoughts:

1. As was rightly expected, there seems to be increased disparity in sentencing outcomes after Booker.  With the guidelines advisory (but with the open-ended 3553(a) standards mandatory), it was all but inevitable that a diverse set of district judges nationwide, who are imposing sentences while subject to a diverse sets of legal, cultural and practical influences in diverse settings, were likely to impose a more diverse set of sentencing outcomes.

2. Increased sentencing disparities after Booker seem most evident where the now-advisory sentencing guidelines are least sound, such as in low-level crack cases, child porn downloading cases and high-loss, white-collar fraud cases.  Especially when first offenders in these cases are facing very high guideline ranges, many sentencing judges (though still not most) believe that 3553(a) demands imposing non-guideline sentences.

3. Increased sentencing disparities after Booker might be reducing overall sentencing injustice in the federal sentencing system given the injustice of certain guidelines.  As the US Sentencing Commission’s own studies suggest, having all crack offenders sentenced to often unjust sentences before Booker may be much worse that having some (but not all) crack offenders now getting different and sometimes more just sentences after Booker.

4. Federal district judges probably merit the least blame for increased sentencing disparities after Booker, as they must in each case try to balance the mandates of the open-ended 3553(a) standards without the help of sound sentencing guidelines in many cases.  Indeed, playing the “blame game,” here is how I would roughly prioritize who merits the most “blame” for increased sentencing disparities after Booker:

A.  Congress — for failing to seek to reform or revise the entire system after Booker

B.  US Sentencing Commission — for failing to revise the most unsound guidelines

C.  SCOTUS and the Circuits — for failing to give reasonableness review any substantive content

D.  Justice Department — for failing to urge Congress or the USSC to do better

Of course, there is additional “blame” to go around for increased sentencing disparities after Booker, as individual prosecutors and defense attorney have surely been “disparate” in their sentencing advocacy over the past five years.  Similarly, there is surely increased post-Booker disparity in sentencing procedures adopted by individual US Attorneys’ offices and probation offices, and differing procedures surely contributes to disparate outcomes.

But as suggested above, I think it unfair (and not especially productive) to blame sentencing actors with case-specific sentencing responsibilities for increased sentencing disparities after Booker. These actors will (and necessarily should) principally focus on achieving individualized justice in the individual cases they address each day.  If there is a broad concern that system-wide justice is not being well-served as we approach Booker’s five-year anniversary, the blame should be principally placed on the system-wide actors who’ve mostly produced and perpetuated the post-Booker system-wide framework.