Wednesday, September 29, 2010

Panel at Stanford: Reproductive Rights in Prison

Stanford's Shaking the Foundations, at Stanford Law School, offers a series of panels, one of which might be of interest to blog readers:

Locked Up and Locked Out: Reproductive Rights of Women in Prison

Date, Time and Location
October 15, 4:15-5:45 PM

  • Kim Buchanan (Panel Moderator), Associate Professor of Law, University of Southern California, Gould School of Law
  • Sara Ainsworth, Senior Legal & Legislative Counsel, Legal Voice
  • Amy Fettig, Staff Counsel, ACLU National Prison Project; Adjunct Professor of Law, Georgetown Law School
  • Sally Lieber, Former State Assembly Member, State of California
  • Carolyn Sufrin, M.D., M.A., Clinical Faculty, Department of Obstetrics and Gynecology, University of California, San Francisco; Women's Health Specialist, San Francisco Department of Public Health/Jail Health Services.

Tinkering with the Machinery of Death

My colleague David Levine just stopped by and reminded me of Supreme Court Justice Harry A. Blackmun's words, taken from his dissent in Callins v. Collins (1994):

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies... Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness 'in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether.' (Godfrey v. Georgia, 1980) I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessen us all.

Native Hawaiians Over-Represented in Hawai'i's Criminal Justice System

Groundbreaking research shows that Native Hawaiians are more likely to be incarcerated than other racial or ethnic groups in Hawai'i

September 29, 2010


Groundbreaking research shows that Native Hawaiians are more likely to be incarcerated than other racial or ethnic groups in Hawai'i

HONOLULU, HAWAI'I - The Office of Hawaiian Affairs (OHA) released a new report today, The Disparate Treatment of Native Hawaiians in the Criminal Justice System , which examines the impact of the criminal justice system on Native Hawaiians. While detailing how Native Hawaiians are disproportionately impacted at various stages of Hawai'i's criminal justice system, the report also includes first-hand accounts of Native Hawaiian concerns with the criminal justice system and how it affects their families and their culture. Native Hawaiians are the indigenous, native people of Hawai'i. Findings from the report show that the criminal justice system incarcerates Native Hawaiians at a disproportionate rate.

"This crucial research shows the need to address the unfair treatment of Native Hawaiians in our state's criminal justice system," said Clyde Nâmu'o, OHA's chief executive officer. "Native Hawaiians make up almost 40 percent of the populations in Hawai'i's prisons and jails. We are more likely to be sent to prison, and for longer periods of time, than nearly every other racial or ethnic community in Hawai'i. OHA strongly supports a fair justice system and this study sets the course for change."

Additional key findings in the report include:

* Of the people serving a prison term in Hawai'i, approximately 50 percent are housed in facilities on the mainland. Of this population, about 41 percent are Native Hawaiian, the most highly-represented group. While incarcerated out of state, these people are further disconnected from their communities, families and culturally appropriate services for re-entry.
* Native Hawaiians do not use drugs at drastically different rates from people of other races or ethnicities, but Native Hawaiians go to prison for drug offenses more often than people of other races or ethnicities.
* Once released from prison, Native Hawaiians experience barriers that prevent them from participating in certain jobs, obtaining a drivers license, voting, continuing education, obtaining housing and keeping a family together.
* Without a sufficient number of culturally appropriate services, Native Hawaiians are not given the best chance at achieving success upon re-entry into the community.

"In 2009 the OHA Board submitted Concurrent Resolutions to the 25th Legislature noting that a study would be helpful in determining the extent, nature and impact of perceived disparities. The Senate urged with the House of Representatives concurring in HCR27, HD1, that OHA should contract a nationally respected and objective consulting firm to conduct a study of disparate treatment of Native Hawaiians in Hawai'i's criminal justice system. That study is now complete." said OHA Chairperson Apoliona.

The resulting report provides a number of recommendations to reduce the unfair impact of the justice system on Native Hawaiians, including:

* Reform the criminal justice system in Hawai'i to embrace the cultural values of Native Hawaiians. Changing the justice system so it is in line with culturally significant norms and values will help preserve a historic culture and strengthen the Hawaiian community and its identity.
* Develop a targeted plan to reduce racial disparities. One immediate proposal by OHA is the establishment of a task force that will review the findings and recommendations of the report, and formulate policies and procedures to eliminate the disparate treatment of Native Hawaiians in the criminal justice system. Members of the task force will include OHA, government agencies, legislators, prosecutors, public defenders, the state attorney general, the judiciary, public safety and probation officials, the police, a former prisoner and treatment providers.
* Concentrate efforts to reduce the punitive nature of the criminal justice system and fund community-based alternatives to incarceration. Investing in alternatives to incarceration and the investment of funds into re-entry and preventative programs will aid in addressing the disproportionate impact on Native Hawaiians.
* Reduce collateral consequences associated with criminal justice involvement. The current system deprives pa'ahao of full integration into the community. Barriers to education, housing, employment and parental rights only serve to increase the likelihood of future re-imprisonment which would further destabilize families and communities.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System was written at the request of the Hawai'state legislature following the approval of House Concurrent Resolution 27, and was compiled through research by the Washington, D.C.-based Justice Policy Institute (JPI), and experts at the University of Hawai'i and Georgetown University.

To read the Executive Summary and the full report of The Disparate Treatment of Native Hawaiians in the Criminal Justice System visit For more information on OHA, please visit If you are interested in reading additional research from the Justice Policy Institute on racial disparities and efforts to reduce the number of people affected by the criminal justice system, please visit

About OHA

The Office of Hawaiian Affairs (OHA) is a unique, independent state agency established through the Hawai'i State Constitution and statutes to advocate for the betterment of conditions of all Native Hawaiians, with a Board of Trustees elected by the voters of Hawai'i. OHA is guided by a vision and mission to ensure the perpetuation of the culture, to protect the entitlements of Native Hawaiians, and to build a strong and healthy Hawaiian people and nation. For more information, visit

Chemical Expiration Dates? California's Death Penalty is a Farce

Jonathan Simon has a post up in which he criticizes the death penalty for being no more than an extended life sentence under harsh conditions with an end that makes a harsh punishment (life in prison, the sentence for Brown's crimes in Western civilized countries) into a non-punishment.

I have this to add: The absurdity of this week's last-minute litigation is further proof of the farce that the death penalty in the United States has come to be. If you do not believe that the death penalty should be abolished immediately on human rights grounds, you should at least agree that the farcical preoccupation with regulation minutiae and expiration dates of chemicals has completely emptied the death penalty of any possible meaning. Even those of us who still believe that the death penalty functions as some sort of a morality tale, warning people against committing serious crime (an assumption hotly debated between factions of econometric experts: see here and here), should now be able to see straight and acknowledge that its current form is a mockery of these objectives.

In his 2002 book When the State Kills, Austin Sarat discusses the transformation of the death penalty from a public display of monarchical force to a hidden, hypertechnical, bureaucratic procedure, occurring away from the public eye and offering little in the way of a public message. Some conservative commentators, such as Tom Harman, have explicitly stated that if legislators cannot reform the death penalty, in its current form it is untenable.

Of course, a possible reaction to this bureaucratization of state killings could be an outcry to minimize the possibilities of post-conviction review (and by doing so, minimize the opportunity to uncover and undo wrongful convictions) or to shoot or hang death row inmates in the town square. Some of the more disturbing anonymous comments on the internet expressed a willingness to engage in this sort of exercise. If these views are broadly shared (and they are not synonymous with abstract support for the death penalty, which, incidentally, wanes when respondents are presented with the life without parole option), then the American people are getting exactly the sort of justice they deserve.

I want to believe that American citizenry, regardless of where people stand on the death penalty, is better than this. Reflective, socially conscious citizens, whether supportive of the death penalty or not, deserve better than to have human lives on the line due to such hefty considerations as chemical expiration dates. Reflective citizens deserve to air the real issues--retribution, victim positions, acceptable state action--without being bushwhacked by evasive maneuvers on the part of the state.

It's Official: Execution Halted As Per Judge Fogel's Decision

Following the 9th Circuit decision yesterday, Judge Fogel has decided to stay Brown's execution. The full text of his order is here.

As opposed to the previous decision, it is evident from the text that Judge Fogel feels a greater degree of freedom here, and he allows himself to more openly criticize the state's maneuvers here.

[I]n considering, as it was required to do, California’s “strong interest in proceeding with its judgment,” . . . the Court was mindful of the fact that there has been a de facto moratorium on executions in the state since its decision in Morales v. Tilton. . . and it understood that Defendants wished to set other execution dates in the near future. It now appears thatDefendants knew, but did not disclose to the Court, that their existing supply of sodiumthiopental will expire on October 1, 2010, and that additional quantities of the drug will not beavailable at least until the first quarter of 2011. . . At a status conference on September 21, 2010, this Court set an accelerated schedule for resolution of the Morales litigation under which a full review of the new regulations will be completed by the end of this year. Under these circumstances, the only execution that would be impacted either directly or indirectly by a stay is Brown’s, which as a result of a brief reprieve granted by the Governor is now scheduled only three hours before the expiration date of the sodium thiopental.

As required by the 9th Circuit, Judge Fogel assesses the old and new regulations under the Baze standard, which required a "demonstrated risk of severe pain". He finds that the old set of regulations fell beneath this standard. But what about the new regulations? Here's what the state thinks:

Defendants’ position is straightforward. They do not claim that the new regulations are radically different from previous lethal injection protocols; indeed, in most respects the documents are remarkably similar. Instead, they begin with the plurality’s observation in Baze that “a State with a lethal injection protocol substantially similar to [Kentucky’s] would not create a risk that meets [the ‘demonstrated risk’] standard.” . . . They then cite Justice Ginsburg’s approving reference in her dissent to the fact that “[i]n California, a member of the IV team brushes the inmate’s eyelashes, speaks to him, and shakes him at the halfway point and, again, at the completion of the sodium thiopental injection.” . . . They argue that this “consciousness check” alone is sufficient to render the current regulations constitutionally adequate. They present a side-by-side comparison of key provisions of the regulations and the Kentucky protocol found constitutional in Baze, pointing out a number of ways in which the regulations provide greater protection to the inmate than the procedures used in Kentucky. Finally, they assert that subsequent to Baze, several courts have concluded that evidence of problems under preëxisting, superseded execution protocols is insufficient to show a presently existing “demonstrated risk” of a constitutional violation. . .

And here's what Brown thinks:

Although he does not concede that the new regulations are facially adequate under Baze, Brown argues principally that the “pervasive lack of professionalism,” . . . and “lack of reliability and transparency,” . . . that the Court found in Defendants’ actual application of O.P. 770 also has characterized Defendants’ subsequent efforts to revise the lethal-injection protocol. He contends that on the present record, unlike other courts that have had to assess the constitutionality of post-Baze protocols, this Court cannot simply presume that Defendants’ actual application of the new regulations will meet constitutional standards. Citing excerpts from the limited discovery that occurred in the instant case following the 2006 evidentiary hearing (as well as a large volume of exhibits), he argues that Defendants did not come close to conducting the “meaningful review” of the “infrastructure” of executions that the Court concluded was necessary. . . and that notwithstanding what the regulations say on their face, the deficiencies found by the Court in the selection and training of the execution team, the mixing and delivery of the drugs used in executions, and the adequacy and accuracy of execution records under O.P. 770 in fact have not been addressed and are present under the regulations as well.

These are heavy questions, says Judge Fogel. I would like to tackle them in the thorough, exhaustive way the 9th Circuit would like me to, but I cannot do so in the narrow time frame between now and Thursday evening.

[I]n light of the voluminous record in this case and the fact that the Court has been precluded from proceeding with the Morales litigation for more than three years by the pendency of a state-court injunction and the parties’ repeated mutual requests that the state-court litigation be resolved first, it is virtually impossible for the Court to assess other than in a very preliminary way prior to Brown’s scheduled execution date whether Brown can or will be able to make such a showing. Based solely on that very preliminary assessment, it appears that Brown has raised substantial questions of fact as to whether at least some of the deficiencies of O.P. 770 have been addressed in actual practice. Given what is at stake, this Court greatly appreciates the direction of the Court of Appeals that “[t]iming is everything and the district court should take the time necessary to address the State’s newly revised protocol in accord with Supreme Court authority.” . . . Given an execution date of September 30, 2010, the Court simply cannot
comply fully with that directive in time to render a reasoned decision and permit adequateappellate review.

Call this a conspiracy theory, but reading between the lines suggests that Judge Fogel was hoping for a 9th Circuit deus ex machina intervention which would allow him to stay the execution, and this may have driven his previous order. As portrayed in his previous decision, the state's modus operandi in this case has been, perhaps, dishonest and sneaky, but not illegal in the narrow sense of the word; at no point was the state required to ask for permission to resume executions, though given the lengthy process of regulation revision it was not unreasonable of Judge Fogel to expect them to do so. This is his opportunity to resume the review process in an orderly fashion, without being pushed into a race against the expiration date of some chemical.

For more on Judge Fogel and the Morales litigation, read this interesting 2008 piece by him in which he tells of his involvement in the Morales case. It provides some interesting insight into his thought process.

Props to Christoffer Lee for forwarding Fogel's article.

Tuesday, September 28, 2010

9th Circuit Further Delays Brown's Execution

Today, the 9th Circuit intervened in the Brown case, remanding it to the district court for a thorough comparison between the old and new execution regulations. The full text of the 9th Circuit decision is here.

The decision argues that Judge Fogel's compromise, by means of giving Brown a choice between a one-drug and a three-drug execution, is unsubstantiated by law.

The district court’s decision to provide Brown the choice of a one drug option is not consistent with California state law and procedures. California law does not provide the condemned a choice between a three-drug protocol or a one-drug option. The only choice provided is between lethal gas or lethal injection. Cal. Penal Code § 3604 (West 2010). Other states also provide thecondemned a choice of methods of execution. See, e.g., Va. Code Ann. § 53.1-234 (West 2010) (choice between electrocution or lethal injection); Wash. Rev. Code § 10.95.180 (West 2010) (choice between intravenous injection or hanging). The one-drug option was not adopted by the State in response to the conditional order regarding Morales nor in the new procedures revised in response to the Morales litigation. Thus, the State has not, in its protocol, devised or implemented procedures for the single-drug injection. There is a dispute whether the State hassufficient supply to implement such an option. In addition, the State advises that its current supply of sodium thiopental has an expiration date of October 1, 2010. Further, the State has understandably not adopted procedures or implemented training on the one-drug option and claims it would need at least three days to do so. Despite the best of intentions on the part of the district court to fashion a compromise and a choice of methods here, imposing on Brown such a choice between the new three-drug protocol and a one-drug option never adopted by the State places an undue burden on Brown and is beyond the power and expertise of the district court at this juncture. The result in this case should not be driven by compromise nor by the State’s deadlines superimposed on the district court’s already pending review of the new execution protocol.

. . .

For these reasons and in light of this background and the district court’s findings regarding the risk of unconstitutional pain inhering in the prior three-drug protocol, this matter is remanded to the district court to determine whether, under Baze, Brown is entitled to a stay of his execution as it would be conducted under the three-drug protocol now in effect. Specifically, the court should address the similarity between the previous O.P. 770 and Cal. Code Regs. tit. 15 § 3449 et seq., as well as the court’s statement that, with respect to the constitutionality of the State’s previous execution protocol, “it likely would have made the same findings and reached the same conclusions under the ‘demonstrated risk’ standard” adopted by the three Justices in Baze. The district court should also consider the standards for a stay as articulated in Nelson v. Campbell, 541 U.S. 637, 649-50 (2004).

Given this order, and the fact that it is now Wednesday night, my understanding is that there is no execution happening Thursday evening. Please stay tuned.

Monday, September 27, 2010

BREAKING NEWS: Schwarzenegger Delays Brown's Execution

The L.A. Times reports:

Albert Greenwood Brown Jr.’s execution has now been scheduled for 9 p.m. Thursday.

Schwarzenegger allowed the delay so that Brown could exhaust his final appeals, said governor's spokeswoman Rachel Arrezola. She said the governor has yet to make a decision on Brown's request for clemency.

San Quentin, We Have a Problem

There is one more hurdle in the path of CDCR's plans for Wednesday morning: Too small a dosage of sodium thiopental. CBS reports:

It takes five grams of sodium thiopental for each execution and the Department of Corrections only has 7 1/2 grams on hand.
. . .

The shortage does not surprise Santa Clara University Law School Professor Ellen Kreitzberg.

“My understanding from the manufacturer is that they will not have any more of the drug until after the beginning of 2011,” she said. “Other states, like Kentucky have had to put their executions on hold because they do not have any of the dosage. All the doses they have have already expired and they have no ability to access any new, fresh doses of this particular drug.”

Kreitzberg said protocol calls for a backup dose of five grams if there’s a problem with the original dosage.

As it turns out, sodium thiopental is another name for sodium pentothal, which was widely used (in smaller dosage) as an inhibition-lowering "truth serum" in police interrogations, and still used on occasion for this purpose, such as in this Indian case. In 2002, former CIA chief William Webster suggested to revive its usage in the US by administering it to interrogated Guantanamo detainees, but the US denies having done so. In small dosages (a few milligrams) it is in use as a general anesthetic. In countries that allow euthanasia, such as the Netherlands, it is used in conjunction with another chemical to induce a coma.

Sunday, September 26, 2010

Unconstitutionally Medieval: Brown Chooses Not to Choose

The Chron reports:

Lawyers for Albert Greenwood Brown filed court papers to appeal a federal judge's refusal to block the execution, which is set for Wednesday. Brown also let pass a noon deadline set by the judge to choose between a one-drug lethal injection or execution by a three-drug cocktail.

His attorney called such a choice "unconstitutionally medieval."

Brown's refusal to choose means a three-drug cocktail will be used in his execution if the appeals court doesn't block California's first execution in nearly five years.

This absurd situation is exactly why our endless involvement in the technical minutia of state-endorsed killings is not a step toward progress, but rather an amoral and immoral avenue. As Deborah Denno argues in this paper,

[t]he presumed tie between successful lethal injection challenges and abolition can distract legislatures, courts, and prison personnel from examining the actual issue under consideration – the constitutionality of states’ execution protocols. While litigation over execution methods furthers abolitionist goals through the resultant decline in the number of executions, states continue to cling to troublesome execution methods in order to cloak the death penalty’s flaws.

Saturday, September 25, 2010

San Quentin Vigil: September 28, San Quentin

Here are the details, courtesy of ACLU of Northern California:

There are too many legal questions to resume executions in California, and yet the Attorney General and the California Department of Corrections is rushing to execute Albert Brown on September 29 at 12:10 a.m.

Next week might mark the first execution in California in five years! Join us to show your opposition to the dysfunctional death penalty in California! Sign up here to get alerts about two protests happening in Sacramento and at San Quentin State Prison, if the execution isn't cancelled.

State Capitol Building
11th & L Streets
Sacramento, CA
5:00 p.m. - Protest

San Quentin State Prison (Marin County)
East Gate
8:00 p.m. - Protest

Because executions occur just after midnight, these protests will occur on the day before the scheduled execution.

* The protests will be cancelled if the execution is cancelled. Sign up now to stay informed.

Revenue Implications of Marijuana Legalization Prop Unclear to State Analysts

The California State Board of Equalization, which is in charge of taxing various products and currently taxes medical marijuana, is uncertain as to the tax revenue that might result from the adoption of Proposition 19 (legalization of marijuana). Previous testimony by Robert Ingenito, Chief of the BOE Research and Statistics Section, specified that some state revenue was to be expected, but its exact amount would be difficult to estimate. According to the Sac Bee,

[i]n its previous analysis, the BOE heavily based its tax revenues estimate on a $50 per ounce pot tax proposed in state legislation by Assemblyman Tom Ammiano. But no such tax is proposed in Proposition 19.

The initiative leaves it up to local governments to tax and regulate retail marijuana operations. Ammiano, D-San Francisco, has introduced a bill to regulate the sale of recreational pot, but he says he'll likely pick up his push in the Legislature for a statewide pot tax if Proposition 19 is approved.

But until then, BOE officials say, don't expect them to come up with a state pot revenues estimate.

It is, of course, not surprising that the amount of tax revenue is incalculable if we do not know the amount of tax. For various political reasons, the proposition leaves the taxation issue to local jurisdictions. Voters who are inclined to vote for Prop 19 for revenue-enhancement reasons might want to remain active and interested after the election, to guarantee that the proposal actually delivers the tax benefits that were an important part of Ammiano's original proposal.

But, as my colleague Jonathan Simon argues in a brilliant blog post, there are many other excellent reasons to consider voting for Prop 19, including undoing unnecessary criminalization and battling a lethal and unscrupulous cartel. While not oblivious to the costs of the proposition in terms of increased usage, Simon writes:

The best way to prevent and remedy addiction, is through outreach, education, and counseling to the user community. The current state of illegality makes that harder in countless ways. Once legalized, local regulation could require marijuana stores to provide all of those services to their clients, and creative regulators could celebrate innovations and circulate best practices widely.

And this is precisely where marijuana legalization could do the most good. By demonstrating, through empirically tested regulations, that civil governance can remedy the negative consequences of recreational drug use, the legal marijuana regime could help wean us from our dependence on criminal law as a way to govern America.

Friday, September 24, 2010

BREAKING NEWS: Stay of Execution Denied... Subject to Conditions

This just in: Judge Fogel has just issued a decision in the Morales case, which, in 2006, started the quest for reformed lethal injection proceedings in California. The reason for this timing is Brown's impending execution and his own motion for a stay, which makes arguments that are virtually identical to those of Morales. The court, therefore, felt compelled to address the Morales issue because of its direct impact on the Brown case.

The issue addressed by the court has to do with the method of execution, which was the bone of contention in the Morales case. Morales' and Brown's argument focuses on the 8th Amendment implications of choosing to execute inmates using a combination of two chemicals, which arguably cause an unconstitutional level of pain and suffering. Instead, the court required CDCR to rework the execution protocols so as to administer only one drug--sodium thiopental, a barbiturate--instead of two. When Morales raised this argument in 2006, the stay of execution was granted solely because this condition, apparently essential for compliance with the 8th Amendment, was not met.

Therefore, in Brown's case, the fate of this execution basically depends on the method CDCR chooses to adopt. The court believes that CDCR can step up to the task and administer a single-drug execution:

[T]he court is satisfied that the procedure described in Defendants' submission is sufficient to eliminate any "demonstrated risk" of a constitutional violation. The fact that nine single-drug executions have been carried out in Ohio and Washington without an apparent difficulty is undisputed and significant.

So, if the only problem here is which drug we're using, what sort of solution does Judge Fogel have? Apparently, it's all about giving Brown the choice about his method of execution and having CDCR comply. This is the order verbatim:

If Brown timely elects to be executed by the injection of sodium thiopental only, Defendants shall carry out the execution. . . except that they shall do so using sodium thiopental only and in the quality and in the manner described in their submission dated September 23, 2010;

if Brown timely elects to be executed by the injection of sodium thiopental only, and if for any reason Defendants decline to proceed in accordance with that election, a stay of execution shall issue without further order.

I am extremely disheartened about this. Judge Fogel resents the state's decision to schedule an execution, though he admits that there is nothing that legally bars them from doing so. Therefore, all he can do is compel them to go forth with a one-drug injection, which is not the state's preferred method. It is sobering and disappointing that a broad issue eventually gets narrowed down to the question of type of drug. One also has to wonder why it is Brown, of all inmates, who is to be executed on Wednesday. Not knowing the answer to this question, all I can say is that it is particularly difficult to handle this situation when the person in question is not arguably innocent or mentally incompetent.

More Thoughts About Execution Renewal

Albert Greenwood Brown's impending execution has made me think again about the rationales against the death penalty. As I said earlier this summer, there is an inherent problem in framing arguments for public debate. Western democracies have abolished the death penalty based on humanitarian and human rights considerations. A variety of historical and political developments has propelled the U.S. anti-death-penalty advocacy to rely on utilitarian arguments instead, such as deterrence (see this piece by Cass Sunstein and Justin Wolfers), wrongful convictions, and, most recently, costs. Granted, this genre of arguments has the advantage of appealing to a broad scope of commentators, including the Fox News target audience. However, no choice in framing arguments is without its costs, and my concern is that we're throwing the baby out with the bath water.

Brown's prospects on Wednesday are a case in point. Brown is not mentally impaired and clearly cannot be analogized to a juvenile or make any sort of diminished capacity argument. There is also no doubt as to his guilt. So, is he more "worthy" of dying by the hand of the states than other death row inmates? Once we start making such distinctions we are risking a very problematic quantification of human life. It is precisely because this quantification diminishes us as human beings and as a civil society that we must abolish the death penalty for the young and old, for the impaired and the apt, for the arguably innocent and the undeniably guilty.

For those of you who are artistically inclined, the YouTube video includes selections from an opera based on Sister Helen Prejean's Dead Man Walking.

Stay tuned for breaking news from Judge Fogel.

Albert Greenwood Brown Scheduled to be Executed September 29

Albert Greenwood Brown, convicted in 1980 of the abduction, rape and murder of a fifteen year old girl in Riverside, is scheduled to be executed Wednesday, September 29. His lawyers have asked Judge Jeremy Fogel of the Northern District Court to delay the execution in order to examine whether his 2006 order to upgrade lethal injection procedures has been respected. Executions have been barred since 2006 and this will be the first one since Judge Fogel's order. These are the new regulations as they appear on the CDCR website.

More details about Brown, the case, his subsequent appeals, and the execution ban due to the order can be found on the CNN news blog; and here is the 9th Circuit decision rejecting Brown's arguments regarding ineffective assistance of counsel and 8th Amendment arguments regarding lethal injection. For readers unfamiliar with ineffective assistance claims, the appellant or habeas petitioner needs to prove the two-prong "Strickland standard": first, that the attorney's services fell beneath the minimum expected from a professional (the "performance prong"), and also that, had the attorney done his or her job properly, the outcome of the trial would have been different (the "prejudice prong").

Brown's first argument pertained to his attorney's decision to put a psychiatrist on the stand for the penalty phase. The psychiatrist portrayed Brown as someone capable of feeling shame and remorse, suffering from sexual dysfunction, but otherwise subscribing to societal norms. The attorney testifies that, in hindsight, he would have done things differently, but at the time he thought the psychiatrist would humanize Brown and portray him in a more sympathetic light.

Although Myers’s decision to put Dr. Summerour on the stand came with some risks, it came with benefits to Brown as well, in an attempt to explain the genesis of his behavior and portray him as more human and sympathetic to the jury. These benefits were available only if Dr. Summerour were called. We therefore agree with the district court that Myers’s decision to have Dr. Summerour testify “might be considered sound trial strategy,” Strickland, 466 U.S. at 689, as a reasonable attorney could conclude that the positive outweighed the negative[.]

Brown's other argument, regarding the attorney's failure to conduct an appropriate background check (in particular, not inquiring about his history as an abused victim and his military records), was also rejected. The standard for ineffective assistance requires proof that, absent the lawyer's mistakes, the trial outcome would have been different. There is no reason to assume, said the 9th Circuit, that the penalty would have been different had Brown presented evidence of the abuse:

Brown provides no specifics as to the severity, duration, or frequency of these beatings, nor does he offer the testimony of any family member to corroborate his allegation. . . [t]he state, on the other hand, had evidence that Brown had recently raped another young girl [Kelly Porterfield] and had also been involved in a voyeuristic sexual incident with a 12-year-old girl before that. The rape and murder of Susan Jordan was bad enough by itself, but it was also coupled with taunting phone calls to torment her family. The jury deliberated less than three hours before reaching a death verdict. . . [a]t best, the additional information about childhood abuse would have probably bolstered Summerour’s diagnosis, but in light of the other information before the jury, there is no reasonable probability that this information — particularly in the vague manner presented by Brown — could have resulted in a different outcome of the penalty phase of the trial.

The court also rejected Brown's argument about the unconstitutionality of lethal injection:

On appeal . . . Brown attempts to rely on two recent California district court decisions holding that the current lethal injection protocol utilized by California violates the Eighth Amendment: Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006) and Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006). These cases. . . do not hold that lethal injection is cruel and unusual in and of itself (as rown’s petition alleges), but only that the protocol as currently implemented in California may violate the Eighth Amendment because the state does not have procedures in place to insure that inmates are unconscious (from an initial and rather painless injection of sodium thiopental) prior to injecting fatal doses of pancuronium bromide and potassium chloride.

For more of a general picture, the CDCR website offers various demographics on death row population, by gender, age, year and county.

Wednesday, September 22, 2010

Execution Chamber or Real Estate Ad?

The Chron's reporting style on San Quentin's new injection chamber is a bit jarring, to say the least.

The spacious $853,000 center has three brightly lit witness viewing rooms, and each gives a considerably better view than the cramped gas chamber's lone, poorly illuminated viewing room.

In particular, the main observation room for 12 state officials and 17 media witnesses offers four wide, flat windows looking straight into a roomy, open chamber where the lethal injection gurney sits. This makes every angle of the execution visible - unlike the truncated, partially blocked sightlines of the old center.

Sunday, September 19, 2010

CCC's 2nd Birthday

The CCC blog celebrates its second birthday today. This was a very busy year with regard to correctional developments and news. Some good news: Overall, cost-related concerns led to a first-time decline in the U.S. prison population. Crime rates are also dropping nationwide, unrelated to incarceration (and still occurring as a decline in incarceration is evident). The Obama administration appears to be less bent on a tough-on-crime approach for its own sake and has moved toward reducing the cocaine/crack disparity.

In California, some of our top stories involved high-profile litigation; the scofflaws between the three-judge panel and CDCR regarding overcrowding continued, led to a revised state plan which was a combination of release and prison expansion, and eventually led to the current pending case in the Supreme Court (after a wee legal detour), reviewing the panel's order to decrowd California institutions. Budget woes and partisanism led to serious cuts in rehabilitation programs (sigh). California imported more of its inmates to out-of-state privatized institutions. Some of the proposals for decarceration were more outlandish than others. Improvements to the prison health system were hailed by its designers but the data, and some journalistic efforts, revealed mixed results. We were concerned about some conditions in Pelican Bay and in the behavior modification units. Incidentally, not a week goes by without letters from inmates and their families, addressed to CCC, reporting on the hardships of SHU in Pelican Bay. We were also troubled by the juvenile justice system, especially by the crushed hopes regarding a reassessment of juveniles on LWOP. Another troubling topic was the increasingly hostile approach to immigrants, especially with the rise of the "immigrant-criminal". We also linked to some useful information regarding the early releases.

In addition to Plata and Coleman, other constitutional issues regarding corrections were discussed. The 9th Circuit heard Valdivia v. Schwarzenegger and instructed the state to assume reporting responsibility for disabled inmates in county jails. Some interesting prison litigation included the right of inmates to a Wiccan prison chaplain and the right to wear a hijab in a courtroom detention cell. As ALI retracted its support of the death penalty, the three "killer counties" in California were exposed.

In addition, we followed the ideas and plans of some officials you will be voting for and against this coming November: Jerry Brown, Meg Whitman, and Kamala Harris. We also provided an assessment of Arnold Schwarzenegger's correctional legacy.

We covered a variety of other topics, including GPS monitoring, sex offender legislation, the sit/lie ordinance, and the propositions for legalization of marijuana.

Stay with us as we begin our third year following the California correctional crisis. Thank you for your emails, comments, continuous support, and faithful readership.

Street Offense Citation Enforcement: Do We Need Sit/Lie?

Today's Chron's print edition included a piece by C.W. Nevius providing data on the enforcement of street offenses in San Francisco. As debate proceeds on the sit/lie ordinance, which we discussed here and here, it is interesting to see how little difference it makes whether citizens are cited for various sidewalk offenses. According to the data in the story (to which we will link on Tuesday, when it goes online), only about 10 out of 330 fines for street citations issued this summer were actually paid in full. A large percentage of cases got dismissed, either through the regular channels or as part of a treatment plan with the Community Justice Center.

Nevius, apparently, is trying to make the point that the current municipal code is proving ineffective in regulating street behavior. However, I think the lesson to be learned from the data is quite the opposite. It appears that criminalization has not been a stellar answer to making out sidewalks more pleasant. And it appears that the citation recipients are not a good target audience for revenue enhancement.

Perhaps the answer to the problem lies in a mild version of Broken Windows Theory. As a broad zero-tolerance policy, leading to mass incarceration, it has hardly proven effective in controlling crime (my colleagues Bernard Harcourt and Jens Ludwig make a convincing argument to this effect). However, when limited to the issue of environmental maintenance and discouragement of disorder through grooming and beautifying public space, it may be the ticket to the reduction of street sidewalk unpleasantness.

As an aside, one of the protests designed to combat the new ordinance is a mass lemonade sale on city sidewalk this coming Saturday. As Emma Goldman would put it, a revolution without dancing (and lemonade sipping) is not a revolution worth having.

Humonetarianism in Sentencing: Missouri Judges Consider Prison Costs

This is a new development with humonetarianism: Judges taking punishment costs into account while sentencing. The New York Times reports:

Months ago, members of the Missouri Sentencing Advisory Commission, a group of lawyers, judges and others established by state lawmakers years ago, voted to begin providing judges with cost information on individual cases.

. . .

The concept is simple: fill in an offender’s conviction code, criminal history and other background, and the program spits out a range of recommended sentences, new statistical information about the likelihood that Missouri criminals with similar profiles (and the sentences they received) might commit more crimes, and the various options’ price tags.

I strongly recommend reading the full piece. It is rather astonishing that prosecutors object to providing judges with such data. Why should decision makers not be aware of the fiscal implications of their decisions? And, if there is no software to provide such data, what is there to stop inquisitive judges from finding this information out on their own? Moreover, it is not as if judges do not factor in social costs at present; it would hardly appear unseemly for judges to consider the impact someone's sentence might have on, say, public safety, or public opinion. What makes the public wallet any different?

Thursday, September 16, 2010

JPI: FBI Crime Report Shows Crime Drops as Prison Growth Slows

FOR IMMEDIATE RELEASE: September 14, 2010

Contacts: Jason Fenster - (202) 558-7974 x306 /

FBI Crime Report Shows Crime Drops as Prison Growth Slows

National justice research organization points to better use of effective strategies as basis for improving public safety and decreasing incarceration.

WASHINGTON, D.C. - Crime is down in all regions of the country, according to the full 2009 Uniform Crime Report released by the FBI on September 13, 2010. The Justice Policy Institute (JPI), a Washington, D.C. based organization dedicated to justice reform, says that the economic crisis has forced policymakers to make more informed decisions on public safety strategies, yielding decreases in incarceration.

"States and localities have had to make smarter choices with their budgets," said Tracy Velázquez, executive director of JPI. "They've realized locking lots of people up for long periods of time is not only really expensive, it's just not the best way to improve public safety."

According to a fact sheet developed by JPI based on data in the FBI report, the number of violent crimes reported to police dropped by 5.3 percent and property crimes dropped 4.6 percent. While there was some variation, all areas of the country saw drops both in violent and property crime. This decrease in crime comes on the heels of declining prison growth rates in state facilities.

"Jurisdictions are starting to use community supervision in place of incarceration and are developing tools to help focus resources on people who are most at risk of returning to prison," stated Velázquez. Also, more people who are arrested for drug-use related offenses are being diverted to treatment, providing a significantly greater public safety benefit than incarceration while saving scarce taxpayer funds.

"We all want to live in safe and healthy communities," added Velázquez. "Recent reports on declining rates of incarceration and drops in crime show that lowering prison populations and reducing crime and victimization are not mutually exclusive."

"This should be encouraging information for state policymakers," concluded Velázquez. "We hope states continue to assess available data and research and realign their budget priorities to reduce the number of people behind bars and instead focus on programs that build, strengthen and protect communities."

To read JPI's fact sheet on the FBI's 2009 Uniform Crime Report, CLICK HERE. For additional information, please contact Jason Fenster at (202) 558-7974 x306 or For more on JPI's research, please visit our website at

The Justice Policy Institute (JPI) is a Washington, D.C.-based organization dedicated to reducing society's use of incarceration and promoting just and effective social policies.


Wednesday, September 15, 2010

"Half Parole"?

Loren Herzog, whose impending parole after a conviction and a sentence for multiple murders led a California lawmaker to ask for Governor Schwarzenegger's intervention, will be experiencing a rather unique parole experience. The Chron reports that, according to CDCR,

when Herzog is released, he will be kept on the state property belonging to the Susanville prison, but outside of the perimeter of the facility.

I wonder what might explain this peculiar arrangement, and if any of our readers can enlighten us, all the better. Does Herzog not have a place to live? Or, is his release on parole halfhearted because of the extent and heinousness of his crimes? Is this an arrangement made specifically for Herzog, or is this the beginning of a "half parole" netherland for other defendants, too?

Kelso: Sever Prison Health Care from CDCR

Yesterday's Sac Bee featured, in their Viewpoints section, a short piece by Clark Kelso, the federal receiver for the prison medical system. He begins by reporting their success--true to humonetarian principles, starting with savings:

We began the year anticipating our expenditures would be $2.146 billion. During the year, we implemented substantial changes to improve quality of care while simultaneously reducing unnecessary costs. The result? A reduction of $408 million in our expenditures. That is almost a 20 percent reduction and just over 80 percent of what I had forecast 18 months ago. My executive team and staff in the 33 institutions deserve the credit for this success.

However, Kelso also reports the improvement in quality of care:

The 2009 report of inmate deaths shows continued improvement. We have reduced the number of medical lapses by 16 percent, reduced the number of possibly preventable deaths by 26 percent and reduced the number of likely preventable deaths by 83 percent. There are other performance measures that I will be releasing soon. Those measures will reinforce that we are maintaining and improving the quality of care, although much work remains to be done.

Kelso plans a series of pieces on future improvements, the first of which, and most important in his view, is severing health care from CDCR:

The corrections department's mission is not health care. It is maintaining custody and control. The reason we have made so much progress on medical care in the past three years is because we have operated independently of CDCR and that independence let us focus on our health care mission. If responsibility for prison health care returns to the department of corrections after the conclusion of the receivership, the most likely result will be backsliding as the health care mission once again becomes subordinate to custody and control. This is not intended as a criticism of the department of corrections and its executive team or staff. It simply reflects the reality of organizational behavior and culture.

Whether or not one agrees with Kelso, or believes the improvements made to the health system were substantial (Julie Small's report on this matter showed mixed results), he comes off as thoughtful and genuinely passionate about improving prison health care. Moreover, the transparency of data from the receivership is astounding, especially in light of the difficulty of obtaining similar data from correctional sources. What do our readers think--should health services be completely independent of CDCR control?

Monday, September 13, 2010

The Unbearable Lightness of Tasing


Avid followers of the Mehserle trial for the fatal shooting of Oscar Grant at the Fruitvale BART station may recall that his defense consisted of a mistake: Mehserle argued -- and the jury believed him -- that he had intended to use his taser, not his gun, on Grant. This defense argument places an emphasis on the taser as an instrument aimed to minimize the usage of more harmful force. However, we may ask ourselves whether adding this option to the array of devices available hasn't simply escalated law enforcement's response to violations and disorder, without diminishing the number of cases in which guns are used.

The latest installment with regard to these "lesser" devices comes from an NPR story about the usage of zapping devices at the Pitchess Detention Center north of Los Angeles.

"You know when they set their phasers to stun, they did that so they didn't kill people? Well, that's exactly what this is. It does stun you," says Mike Booen, a vice president of Raytheon Missile Systems. The company built the device for the Los Angeles County Jail, a scaled-down version of what it designed for the military.

"I don't care if you're the meanest, toughest person in the world," he says, "this will get your attention and make your brain focus on making it stop, rather than doing whatever you were planning on doing."

Riots are nothing new at this jail. The Pitchess Detention Center has a history of bloody inmate violence. In fact, the latest brawl between 200 inmates broke out two days after the Raytheon device was unveiled.

Dave Judge, the operation deputy for the sheriff's department, says the machine is more effective than their usual methods of firing rubber bullets and tear gas grenades.

"This is tame; this is mild," Judge says." This is a great way to intervene without causing any harm. The nice thing about this is it allows you to intervene at a distance."

With the remote-controlled device, he says, guards can focus on specific targets using a monitor and a joystick.

Whenever new techniques for order maintenance are introduced, the question is whether they might substitute the usage of lethal or otherwise harmful force, or substitute the usage of lesser options. If this is to be empirically assessed, what we need is to examine a number of incidents and count the frequency in which guns, tasers, and less intrusive techniques were used. Calculating the percentages would not be a perfect measure, because each riot and situation is somewhat different; but it would provide us with some measure as to whether the introduction of tasers is ameliorating, or exacerbating, the use of force in the detention context.

Props to Colin Wood for alerting me to the story.

Religious Freedom: Is a Courthouse Holding Cell a "Pretrial Detention Facility"?

While this is not a correctional issue per se, it raises interesting questions. Today's Chron reports:

A panel of the Ninth U.S. Circuit Court of Appeals in San Francisco ruled 2-1 in May that Orange County deputies hadn't violated Souhair Khatib's rights by making her take off the religiously mandated headscarf for security reasons when she was placed in the holding cell.

But the court said Monday that a majority of its 27 judges had voted to set that ruling aside and refer the case to an 11-judge panel for a rehearing in December.

The dispute affects thousands of inmates throughout the nine-state circuit who are taken to holding cells before being brought to court, said Khatib's lawyer, Becki Kieffer. She said it was the first such case to reach a federal appeals court.

Kieffer argued that the majority in the three-judge panel's ruling had misinterpreted a federal law that broadly protects inmates' religious freedoms.

The law prohibits government agencies from imposing a "substantial burden" on the right to practice one's religion in a prison, jail or pretrial detention facility. The issue in the case is whether a courthouse holding cell, where inmates are held up to 12 hours before hearings, is a pretrial detention facility.

9th Circuit: State Responsible for Disabled Inmate Conditions in Jails

Is the state of CA responsible for meeting disabled inmate needs in local jails? The official state position has been to take responsibility only for accommodations in state prisons. However, the Ninth Circuit has expanded this responsibility, and allowed lawyers for disabled inmates to provide evidence of violations in a hearing to be held at a later date. The Chron reports:

The lawsuit dates to 1994 and resulted in a court-approved plan in 2001 to accommodate the needs of disabled inmates in state prisons. Tuesday's ruling applies to inmates who were sentenced to prison for felonies but are now in county jail for drug treatment, or were jailed after being arrested or resentenced for violating their state parole.

Despite assigning those inmates to county custody, the state remains responsible for maintaining equal access to educational and treatment programs and to "the fundamentals of life, such as sustenance, the use of toilet and bathing facilities, and elementary mobility and communication," Judge Stephen Reinhardt said in the 3-0 ruling.

The ruling is important because "the state is contracting out more and more" of its prisoners to local agencies, said Michael Bien, a lawyer for the inmates.

He said the court action was not aimed at requiring the state to provide wheelchairs, sign-language interpreters and other assistance to disabled jail inmates, but instead at ordering state prison and parole officials to notify counties about the inmates and their needs.

A recurring motif throughout this crisis has been the relegation of state responsibility to state facilities. The best example of this is the overcrowding crisis, which according to Governor Schwarzenegger's plan would be remedied, in part, by reclassifying offenses so that inmates would be incarcerated in county, rather than state, facilities. This modest success for the plaintiffs, requiring state actors to be in contact with county facilities, may be one of the first examples of cooperation. Since only joint action will eventually lead to decrowding, it is a step in the right direction.

Obama backing off strict crime policy

[Re-posted from POLITICO because: can you imagine replacing "Obama" with "Schwarzenegger" in this article? Nope, me neither, but it feels good to think about it...]

Obama backing off strict crime policy
by Josh Gerstein

For years, it was one of the GOP’s most potent political epithets — labeling a Democrat “soft on crime.”

But the Obama White House has taken the first steps in decades to move away from a strict lock-‘em-up mentality on crime — easing sentences for crack cocaine possession, launching a top-to-bottom review of sentencing policies and even sounding open to reviewing guidelines that call for lengthy prison terms for people convicted of child pornography offenses.

The moves — still tentative, to be sure — suggest that President Barack Obama’s aides are betting that the issue has lost some of its punch with voters more worried about terrorism and recession. In one measure of the new political climate surrounding the issue, the Obama administration actually felt free to boast that the new crack-sentencing bill would go easier on some drug criminals.

“The Fair Sentencing Act marks the first time in 40 years that Congress has reduced a mandatory minimum sentence,” said White House drug czar Gil Kerlikowske, who billed the new legislation as “monumental.”

Obama’s signing of long-debated legislation last month to reduce the disparity between prison sentences for crack and powdered cocaine is being hailed by some advocates as a watershed moment in the nation’s approach to criminal justice.

And even with a tough election looming, the Democratic Congress is showing a willingness to consider moving away from incarceration and toward rehabilitation and out-of-prison punishments that might have been attacked in the 1990s as the coddling of criminals.

At the urging of a conservative Democrat, Sen. Jim Webb of Virginia , the House passed a bill in July to create a federal commission to study criminal sentences. The measure cleared the Senate Judiciary Committee earlier in the year with little resistance from Republicans.

“I think the political landscape around the issue is shifting and I think that will provide room for the administration to address some of these issues,” said Jennifer Bellamy of the American Civil Liberties Union.

Advocates point to several reasons for the shift toward a less-draconian approach to crime and for its retreat as a hot-button political issue. Crime rates are at some of the lowest levels in a generation. Stories of offenders who got decades behind bars for playing minor roles in drug operations have generated some sympathy in the public. Huge budget woes facing states and the federal government are raising doubts about policies that are causing prison populations and costs to go up.

In addition, Republicans who once accused Democrats of being soft on crime now accuse them of being soft on terrorists. As a result, tinkering with the way run-of-the-mill criminals are treated doesn’t seem to be the political third rail it once was.

Mary Price of Families Against Mandatory Minimums noted that the crack-disparity bill passed in Congress with remarkably little consternation. “I think other concerns have crowded out some of the hysteria around crime,” Price said.

“Republicans could have said, ‘If this passes, we’ll make this an issue in the midterms.’ Nobody said that,” Price observed. “This was not an issue for Republicans.”

While most of the Obama administration’s moves toward rolling back some of the harshest aspects of the war on crime have been tentative, some have been surprising. For instance, a little-noticed letter issued by the Justice Department in June urged a federal commission to review the sentencing guidelines for child pornography offenses — a review that many advocates say would almost certainly result in lowering the recommended sentences in such cases.

“They’re saying, essentially, that they want to level sentences in the middle, but necessarily, leveling in the middle is almost demanding that they bring the guidelines down,” said Doug Berman, a law professor at Ohio State University. “They’ve chosen language … saying we’re open to doing something that is not entirely tough.”

In another sign of the new climate, Attorney General Eric Holder announced a review of criminal sentencing policies soon after he came into office.

“Too much time has passed, too many people have been treated in a disparate manner and too many of our citizens have come to have doubts about our criminal justice system,” Holder said in June 2009. “We must be honest with each other and have the courage to ask difficult questions of ourselves and our system. We must break out of the old and tired partisan stances that have stood in the way of needed progress and reform. We have a moment in time that must be seized.”

The internal review endorsed lowering some crack sentences, something Obama had already promised to do, and publicly offered some vague suggestions on changes to mandatory minimums. Holder also issued a memo giving local federal prosecutors a bit more autonomy in charging decisions.

Another result of that review was a June letter that called for a new look at child porn sentences.

“The time is ripe for evaluating the current guidelines and considering whether reforms are warranted,” Jonathan Wroblewski, director of the Justice Department’s Office of Policy and Legislation, wrote to former judge and FBI director Bill Sessions, who heads the U.S. Sentencing Commission. “Consideration ought to be given to updating many aspects of the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants' criminal conduct with the applicable guideline sentencing ranges.”

Justice’s call for a review came as defense attorneys have been gaining traction with arguments that the guidelines and mandatory minimums set by Congress call for excessively long sentences. Some lawyers contend that defendants who briefly exchange child porn photos or video online can actually get longer sentences than those who seek to molest children.

The Justice Department has disputed those arguments in court, but federal judges have increasingly given sentences below the guidelines. An assistant federal public defender from Missouri , Troy Stabenow, said he thinks the department’s decision is basically a tactical move to stem the slide towards lower sentences.

“It’s just the logical thing they needed to do,” said Stabenow. He said the notion that any politician would wade into the subject on his own volition boggles the mind.

“I would think no sane politician who values being reelected would want to engage in this area,” Stabenow said. “I don’t think there’s any criminal group that yields a more visceral response than the child pornography group.”

A Justice Department spokeswoman stressed that the June letter didn’t endorse higher or lower sentences for child pornography.

“We asked the sentencing commission to comprehensively review and report on the state of federal sentencing and to explore whether systemic reforms are needed,” Justice spokeswoman Laura Sweeney said. “We also asked the commission to review the guidelines for child exploitation and fraud offenses, but did not recommend necessarily higher or lower penalties for either child exploitation [or] fraud offenses.”

One prominent advocate for long sentences in child pornography cases, Ernie Allen of the National Center for Missing and Exploited Children, said he welcomes a review of the guidelines and why judges are often giving lower sentences. However, he said he would oppose any overall reduction in the guidelines and does not think that’s what Justice officials want.

“If that is the implication, clearly, we would differ with that,” Allen said. “These are crime scene photos that re-victimize the child in the photo over and over again, [but] I think both of us recognize that the crime guidelines are dated.”

Despite the tentative moves in the direction of lessening some sentences, there remain numerous signs that Obama and his aides recognize that the issue could still be politically damaging.

When Obama signed the crack disparity bill, only still photographers were allowed in and the president issued no formal statement. The Justice Department’s sentencing review group has indicated it has no plan to issue a formal report that could become a political football. And, 18 months into his presidency, Obama has yet to issue a single commutation or even a pardon to an elderly ex-con seeking to clear his record.

Some advocates note that the crack sentencing bill was not particularly ambitious: it reduced the crack/powder disparity from 100-to-1 to 18-to-1. And it wasn’t retroactive, so some who were sentenced under mandatory minimum laws may not benefit.

Asked whether Obama might grant requests to commute the sentences of those who would have gotten less punishment if they committed their crimes today, an administration official said the crack-disparity bill “reflected Congress’s judgment that the law should not be retroactive, [and] the president believes that the Fair Sentencing Act will go a long way toward ensuring that our sentencing laws are tough, consistent and fair.”

The official also downplayed the notion that Obama might offer some kind of blanket clemency for earlier crack-cocaine offenders, saying that “as a general matter, the president agrees with the Department of Justice’s long-held view that commutation is an extraordinary remedy that should only be granted in extraordinary circumstances.”

But activists are watching Obama on the issue. “Retroactivity will be the next battle,” Price said. “It would be cruelly ironic for us to take lessons learned from those who are currently serving, change the law for people going forward and then say, 'OK, the accident of the calendar you are condemned to serve much longer than people who, because of your experience, are getting out sooner.'”

In the heat of the presidential campaign, Obama sent mixed signals on crime. In the primary, he differed with Hillary Clinton by endorsing shortened sentences for some crack offenders already in jail. As the general election neared, he tacked to the right of the Supreme Court by criticizing the court’s 5-4 decision barring the use of the death penalty for child rapists who don’t kill their victims.

Berman said he thinks Obama and his aides can’t fully break with President Bill Clinton’s approach of trying to look as tough or even tougher than Republicans on crime.

“Obama wants to do something, I think, big on criminal justice and I think he’s absolutely afraid to,” Berman said. “Democrats are right to continue to fear tough-on-crime demagoguery. The lessons of Clinton continues to resonate. … This really is, inevitably, low-priority, high-risk kind of stuff.”

Obama also faces one factor Clinton did not: race. While 58 percent of federal inmates arewhite, Berman said some Americans are sure to have the perception that an African-American president is aiding criminals of his own race.

“Whether consciously or subconsciously, everyone understands that the first black president has to tread particularly cautiously in this area,” Berman said.

Friday, September 3, 2010

Eight Prisons in the Netherlands Close: Undercrowding

I found this interesting NRC Handelsblad story via the MPP blog:

The Dutch justice ministry has announced it will close eight prisons and cut 1,200 jobs in the prison system.

A decline in crime has left many cells empty.During the 1990s the Netherlands faced a shortage of prison cells, but a decline in crime has since led to overcapacity in the prison system. The country now has capacity for 14,000 prisoners but only 12,000 detainees.

Interestingly, this "crisis" in the Netherlands is to be remedied by outsourcing prisoners from Belgium. I leave the analogies and ironic head-shaking to you, gentle readers.

Many thanks to Andrea Lobel-Shainblum for the link.