Hat Tip: Everyone who probably blogged about this a month ago when it was published, sorry I wasn’t paying attention at the time:

Incarceration reduces former inmates’ earnings by 40 percent when compared to demographically similar counterparts who have not been imprisoned, according to a new report from Pew’s Economic Policy Group and the Pew Center on the States.

The report estimates that after being released, former inmates typically work nine fewer weeks a year, and their annual earnings drop to $23,500 from $39,100. Not surprisingly, given the stigmatizing effect that a criminal record can have on a job applicant’s résumé, former inmates enjoy less income mobility than counterparts who did not serve time.

I’m going to go look up that report… more soon, unless, as always, I don’t bother to get around to it.

Overheard a bench conference about a motion to revoke a felony probation while standing in line waiting to talk to the judge this week. Putting the pieces together, the story went something like this:

The defendant was on a possession of controlled substance probation, and had mucked it up in several different ways. Probably at least one dirty U/A along the way, had absconded (fancy legal talk for “disappeared/not reported” for a few months), and was generally speaking not winning any awards for probationer of the year. As far as I could tell, no arrests for new offenses, but… what are you going to do?

Continue Reading Case Closed

From The Tao Of Criminal Defense Trial Lawyering, No Balm In Gilead:

Up through law school, we’re taught that the American criminal justice system is a wonderful thing. The organized bar—the ABA, local and state bar associations—pushes the same propaganda. It’s a lie.

The truth is that, while it may be better than any other system yet created, the U.S. criminal justice system objectively sucks. Factually-innocent people get punished every day. Pleas are coerced. Insane people get punished for doing insane things. Crappy lawyers take people’s lives in their hands. Children get treated as adults. Adults with the minds of children get treated as adults. Wealthy defendants get more justice than poor defendants. [emphasis added]

That’s a Tiger Woods crazy-long list of serious problems for a system that might be the best in the world. Worse still, it’s non-exhaustive, easily modifiable by the phrase “including, but not limited to”. So are we the best?

Continue Reading America: We’re Number One!

Via How Appealing, The Montana Town That Wanted to be Gitmo:

Two years ago, Hardin, Montana, population 3,600, celebrated the completion of the state-of-the-art private jail capable of holding 464 inmates.

Convinced that it would provide steady employment for over 100 locals, as well as accompanying economic benefits, the residents financed it through the sale of revenue bonds and turned it over to a for-profit prison-management corporation.

On a 40-acre field at the edge of town where pronghorn antelope once grazed, they built it. But nobody came.

Other criminal law bloggers already weighed in last month when the news reported that two juvenile court judges in Pennsylvania took millions of dollars in bribes to automatically send juvenile offenders to private detention centers, in other words, to prison.

In a fit of disgust combined with blogging laziness I refrained from writing about the story at that time. (Blog envy may have had something to do with it as well. Fellow Austin criminal lawyer Lance Stott had already summed it up best with the succinct comment: “You know, there’s really got to be a special place in the afterlife for taking kickbacks to send kids to jail.” Once someone hits the nail on the head, there’s no need to continue.)

Then yesterday, Ian Urbina’s article “Despite Red Flags About Judges, a Kickback Scheme Flourished” was published in the Times. Urbina reported that in this particular juvenile courtroom:

Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day — even before hearings to determine their innocence or guilt.

Two minutes. Seems like a long time considering you know in advance you are going to max the kid out. But I guess you’ve got to keep up appearances.

Lawyers told families not to bother hiring them. They would not be allowed to speak anyway.

My first thought was to blog about a concept I encountered twenty years ago in some undergrad cognitive psychology class: learned helplessness. Honest lawyers told parents not to hire them because there was nothing they could do in that court to help improve the child’s outcome. And unlike the animal psychology experiments by Seligman and Maier, no one ever could or did turn off the shock collars. Everyone really did go to prison. What’s the use of getting a lawyer?

But then for some reason, this part of the article struck me as odd:

On Thursday, the State Supreme Court ordered that the records be cleaned for hundreds of the 2,500 or so juveniles sentenced by Judge Ciavarella, and in the coming weeks, the two judges will be sentenced, under a plea agreement, to more than seven years in prison.

Other reports had very specifically said 87 months.

This was a federal case. The article stated that the defendants plead to “tax evasion and wire fraud”. A quick check on PACER confirmed that, yes, the information charged them with violations of federal law: 18 USC § 1343 (wire fraud), § 1346 (honest services), and § 371 (conspiracy to defraud the United States – that is, the “tax evasion”).

Federal crimes and a guilty plea = guessing game when it comes to the guidelines, right? Heck, Doug Berman makes a pretty good blog-living just from his frequent “everyone weigh in to guess what sentence So-and-So will get” posts.

And yet the papers were predicting the sentence exactly. Usually you’ll see some sort of namby-pamby mumbo-jumbo about “could get up to 20 years in prison”. Or whatever the maximum sentence could be. Ubiquitous background check availability on the internet still can’t guarantee that a journalist will accurately predict criminal history category.

And I’d bet even the best federal criminal defense lawyers are occasionally caught off guard by increases to the base offense level suggested by Probation in the Pre-Sentence Report. And even if you know the criminal history and the offense level, there’s still a range. Predicting an exact sentence in a federal criminal case is impossible.

With one exception. Federal Rules of Criminal Procedure 11 (c) (1) (C). Eliding, we get:

Rule 11. Pleas

(c) Plea Agreement Procedure.

(1) In General.

…If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will…

(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

Another few clicks on PACER and my suspicions were confirmed. The defendants had entered into an 11 (c) (1) (C) agreement. They aren’t going to face the vagaries of the Federal Sentencing Guidelines; assuming the judge will approve the plea bargain, they already know exactly what they are getting.

The usual course of business when representing a lawyer, a doctor, a professor, a “professional” in a criminal sentencing matter is to beef up that “boy-scout packet” and argue to the judge that your client had always been an upstanding and contributing member of society. Except for this one little hiccup. Can’t you use your discretion to ignore those no-longer-mandatory guidelines and sentence us below them?

Of course, the flip side of Booker is that the judge is also free to “tailor the sentence” above the guidelines. And who is a judge going to hammer, if not some scumbag whose actions disgrace his own profession?

Still, it’s ironic, isn’t? These men who held the fate of thousands in their hands being afraid to leave their own sentences “up to the judge”. I find myself thinking like a victim’s rights advocate.

Wouldn’t it have been more appropriate if they had to walk into court, like their victims did, shaking in their boots and not knowing what their own fate would be?
 

Via email:

Hello I recently accepted probation. I wanted to ask is it unconstitutional in Texas for me to be given a contract where I give up my right to a trial by jury when I accept probation?

I’m assuming “contract” means the plea paperwork and the portion of it that says, in legalese and this is obviously not verbatim, “You know you have the right to a jury trial, you know you have the right to a jury trial, you know you have the right to a jury trial…”

So, to answer the question, “No. It’s not.”  Without the contract(admonishments)?  Maybe.  But with the contract?  I doubt it.
 

The Orlando Sentinel ran a story about Florida death row inmates dying before they could be executed. Apparently the grim reaper himself often appears in the fourteen year wait between sentencing and government sponsored execution. In the last ten years, it’s been a 50/50 proposition as to which comes first. From “Justice denied? On Florida’s death row, many lives end — but not by execution”:

Such figures don’t surprise experts because death-penalty cases can take years — even decades — to work through the legal system.

While the condemned wait, they can fall victim to ailments traceable to years of unhealthy living before their convictions, including drugs and alcohol abuse.

It’s doubtful that accurate statistics are kept on how far below average the health habits of future prison inmates compare to the general population, but I’m willing to accept that partial explanation on common sense grounds. But I’d also bet that every year in the joint ages a man at least twice as fast as a year outside. At least twice, probably more.

One inmate committed suicide and therefore didn’t die “strapped to a gurney with witnesses watching through a glass window as the court ordered.” One of his victim’s family members said that while he didn’t feel cheated, he felt no relief either.

Any folks out there sweating Death as their loved one’s murderer appeals his way out of punishment? But of course. For example, one woman whose cousin was murdered (by a man related to her by marriage) said:

[S]he does not oppose appeals, in general, because she wants the "right bad guy" punished. She wants her family to be able to live without the fear that Hitchcock could someday go free, however.

"I do not want him to die of natural causes," Meadows said. "I want him to know the fear of taking that walk to his final destination on earth."

Before my server explodes with angry emails about “how would YOU feel IF…” let me go on record right now:

If you killed one of my family members I would not want you to feel the fear of waiting for the Government to kill you back. Instead, I would want you to feel absolute and total terror as I personally strangled, stabbed, shot, and otherwise tortured you into Hell.

However, I like to think I could acknowledge that “how I felt about it” shouldn’t be the only public policy consideration in determining your punishment. Or, for example, whether or not we stopped to have a trial before we punished you in the first place. But I admit I haven’t been there and hope never to be.

But why so long? Why must it take so damn long to get through the process, right? That’s what concerns most of us. The article finishes with – or is that gives short shrift to? – just one of many examples of a man who was rightly saved by the length of the process:

Former death-row inmate Juan Roberto Melendez, 58, says he’s alive because he had the time to appeal.

He was sentenced to die for the 1983 murder of Auburndale beauty-salon owner Delbert Baker.

It took 17 years, eight months and a day before his attorneys uncovered evidence that would have cast doubt on Melendez’s guilt. Polk County prosecutors elected to drop the charges.

On Jan. 3, 2002, he became a free man.

"In trying to get the Ted Bundys and child killers, innocent people get caught up in the net," he said by phone from where he lives in New Mexico. "The system is not perfect."

The system is not perfect. Therefore decreasing the time between sentencing and death necessitates increasing the wrongfully executed. So pick your poison, and live with the consequences either way.

[Hat Tip: Sentencing Law & Policy Blog]
 

Scanning the search terms, I come across:

Bored of Pardons and Parole

As in.. “We’re bored with pardoning and paroling folks, so we just decided not to do that anymore”?