Sentencing Law and Policy

"How sentencing reform is saving SC taxpayers money"

The title of this post is the headline of this lengthy local article which is, I think, a telling sign of the modern sentencing times. The sub-headline of the article is "Fewer offenders are in jail, more on probation," and the main headline emphasizes savings for taxpayers rather than threats to public safety. It is truly a brave new sentencing reform world, and this article gets started this way:

In 2010 – with the state Department of Corrections running a $27 million deficit – South Carolina projected its prison population would swell by 3,200 inmates by 2014, costing taxpayers $175 million to make room for those inmates and $66 million a year to take care of them.

Instead, the number of inmates imprisoned has dropped by more than 2,700, and the Corrections Department has closed two prisons. And taxpayers saved $3 million in 2012 alone.

The reason, officials say, is sentencing reform -- a sweeping 2010 bill that radically changed how South Carolina treats its criminals. Written by a Democratic state senator and signed by a Republican governor, the law strengthened penalties for violent crimes while offering alternative sentences for nonviolent crimes. Passage of the law put South Carolina “at the forefront of states advancing research-driven criminal justice polices,” according to the Pew Center on the States.

“You see a lot of legislation that’s passed that seems to be tough on crime,” said state Sen. Gerald Malloy, D-Darlington, author of the sentencing reform. “We had to get smart on crime.”

But one state department’s budget blessing is another agency’s fiscal burden. While the prison population is falling, the number of South Carolinians on probation is soaring. Agents at the state Department of Probation, Parole and Pardon services now are supervising 1,409 more offenders than they were two years ago. Each probation agent supervises an average of 97 cases, far above the national average of 50 cases.

To help, Gov. Nikki Haley wants to give the agency $1.2 million in additional money next year to hire 25 new probation agents. It is part of the probation department’s three-year plan to hire 156 new agents to bring the average caseload down to 80 cases per agent.

State lawmakers have $263 million in “new” money – money that should recur in future budget years – to spend in the 2013-14 budget. But nearly all of that will be gobbled up by the state’s Medicaid health insurance program for the poor and disabled, and increases in the cost of state employees’ health insurance.

More money for probation services must be a priority, some state officials say. They say the state is just beginning to see the benefits of sentencing reform. Probation, Parole and Pardon Services plays a crucial role in making the reforms work, they add, and not funding it could set the reforms back.

Report on the US Sentencing Commission's first public meeting of 2013

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) attended yesterday's meeting of the US Sentencing Commission and authored this lengthy guest-post on what he saw:

In its first public meeting of the year, the U.S. Sentencing Commission yesterday voted to publish for comment a series of proposed amendments somewhat heavy on intellectual property issues, and also announced updates on some highly anticipated reports.

INTELLECTUAL PROPERTY OFFENSES

In response to recent legislation, the Commission published for comment proposed amendments regarding counterfeit “pre-retail” medical products, counterfeit military goods, and counterfeit drugs,. These types of offenses are currently referenced to USSG 2B1.1(Fraud) in the case of the medical products, 2B5.3 (Criminal Infringement of Copyright or Trademark) in the case of the military goods, and 2N2.1 (Tampering with Consumer Products) in the case of drugs. While these offenses rarely are prosecuted, apparently there have been some high-profile cases that Congress believes warrants new legislation. The Commission’s proposed amendments propose new specific offense characteristic that would increase the offense level 2 to 4 levels.

In response to a Congressional directive in the Foreign and Economic Espionage Penalty Enhancement Act, the Commission also is seeking comment (as opposed to proposing amendments at this juncture) on matters involving the theft of trade secrets and economic espionage by foreign entities.  Such offenses, while certainly high profile, also are rarely prosecuted.

OTHER MATTERS

The Commission published a proposed amendment in response to the recent Supreme Court case Setser v. United States, which held that a federal court has the discretion to order that a sentence run consecutive or concurrent to an anticipated, but not yet imposed, term of imprisonment.  Courts of course have had the discretion to impose consecutive or concurrent terms of imprisonment to previously imposed sentences that have not yet been discharged.   Setser clarified that this discretion also applies to anticipated sentences.  Accordingly, the Commission is proposed to amend USSG 5G1.3 to apply to apply to Setser situations.

In response to a circuit split, the Commission also published proposed amendments to the tax guidelines at 2T1.1 that would allow (or disallow) a sentencing court to credit a defendant for any credits, deductions or exemptions that the defendant could have claimed at the time the tax offense was committed.

Also in response to a circuit split regarding whether courts have maintain discretion to grant the additional one-level reduction for acceptance of responsibility made on government, the Commission is proposing to adopt the position of the Fifth Circuit that the additional reduction “is the district court’s — not the government’s — even though the court may only do so on the government’s motion.”  United States v. Williamson, 598 F.3d 227, 230 (5th Cir. 2010).  The Seventh Circuit currently goes the other way, holding that upon government motion, a sentencing court must award the additional level reduction. See United States v. Mount, 675 F.3d 1052 (7th Cir. 2012).

UPDATES

Finally, the Commission also announced updates on two highly anticipated reports. The Commission plans to publish a report on the impact of Booker on Federal Sentencing within approximately a month.   A report on Child Pornography sentencing is set to be published shortly after that in late February/early March (which was originally due out by the end of last year).   Rumor has it that the Child Pornography report will be defendant-friendly (and in light of the massive amount of criticism regarding 2G2.2, how could it be otherwise?).

The Commission of course still is looking at issues involving mandatory minimums as well as sentencing for economic crimes (with how loss operates being a central issue). Similarly, expect to see possible proposed amendments or requests for comment on definitions of crimes of violence, aggravated and violent felonies, and drug trafficking offenses, as well as a possible report (or update of prior work) regarding recidivism. Of note in the priorities issued late last year is the “possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons.”  As prison overcapacity and costs of incarceration have been hot topics of late, the Commission hopefully will be addressing these specific issues shortly and in substance as a follow-up to Judge Saris’s letter last summer to the Senate Judiciary Committee.

New resource on location of death sentences handed down in 2012

I was intrigued to see this new information and resource on the top of the Death Penalty Information Center website:

The Death Penalty Information Center is pleased to offer a new resource page on death sentences in 2012.  Seventy-seven (77) people were sentenced to death in 2012, the second lowest number of sentences since the death penalty was reinstated in 1976.  Of those sentenced, 3 were women; 48% were black; 40% were white.  Four states (FL, CA, TX, and PA) were responsible for 66% of the death sentences, and only 9 counties produced over a third of the death sentences in the country.  Information is provided on the name, race, state, and county for each defendant.  A downloadablle spreadsheet enables sorting by each of these categories.  Click here for our Death Sentences in 2012 page.

Lots of new and notable for criminal justice fans in latest SCOTUS cert grants

This time of year, working late on a Friday can sometimes get rewarded with Supreme Court news after its usual Friday conferences: this week brings a Friday afternoon SCOTUS order list with six new cert grants. And, as Lyle Denniston detailed in this new post at SCOTUSblog, half of the grants include cases with notable criminal justice concerns:

The Supreme Court agreed on Friday to decide a major case on the right to remain silent — a case testing whether that right exists for an individual who has not been arrested but is interviewed by police, and was not given Miranda warnings, when that silence was used to help prove guilt at a trial.  That case — Salinas v. Texas (docket 12-246) — was one of six new cases accepted for review.  (The order list is here.)...

Here, in brief, are the other new cases and the issues at stake [from the criminal justice part of the SCOTUS world]:...

** Sekhar v. United States (12-357) — whether the federal anti-extortion act applies to a private individual’s use of a threat in order to get a government authority to withdraw a recommendation that would be adverse to that private individual’s interest in a pension fund.  The issue is whether such a recommendation qualifies as “property” under the Hobbs Act, which makes it a crime to obtain property by threats.

** United States v. Kebodeaux (12-418) — Congress’s authority in 2006 to make it a federal crime for an individual convicted years before of a sex crime to fail to register, after the individual had long since completed a sentence.

Based on this helpful summary, it looks like the new sex offender case, US v. Kebodeaux, should be of greatest interest to sentencing fans. But all criminal cases on the SCOTUS docket, of course, can end up having a sentencing spin or impact.

Great weekend reading for Sixth Amendment fans

My main plans for the coming weekend is to watch a lot of (well-paid) large men running around a small field inflicting brain damage on one another while millions cheer them on while drinking lots of alcohol (aka the NFL divisional playoffs).  But I may also have to spend a little time obsessing over the Sixth Amendment and its application to mandatory minimum sentencing fact-finding because Monday brings the Supreme Court oral argument in Alleyne v. United States (basics and briefing here via SCOTUSblog).

Moreover, as Rory Little spotlights in this new SCOTUSblog post, there is also another distinct type of Sixth Amendment case on tap for the Justices on Monday.  Here is how Rory's preview gets started:

Monday is apparently “Sixth Amendment Day” at the Court.  Most eyes will be on the first case to be argued (Alleyne v. United States), in which the Court will consider whether there an Apprendi right to jury trial for mandatory minimum sentencing facts.  But don’t ignore the second case, Boyer v. Louisiana, which presents a Speedy Trial question that seems increasingly important in a world of rising appointed-counsel costs funded by decreasing government budgets.

When a criminal trial is delayed because there are no funds to pay for the indigent defendant’s counsel, does that delay count against “the state” in a Speedy Trial analysis?  We’ll see whether the Justices can stay focused on this discrete question presented – which would be an important one to answer around the nation — or whether they will take the bait (offered by both sides albeit in opposite directions) to decide whether the right to speedy trial was actually violated on the (always) unique facts of this case?  The normal course would be to answer only the question presented, and then remand for “further proceedings not inconsistent” with the Court’s opinion.  While “bad facts” on both sides in this case might tug for a broader ruling, it seems more likely that the Justices will avoid a decision on the ultimate merits – which still leaves a difficult debate on the narrower question.

In addition to the parties' briefs in both cases, there are two amicus briefs filed in Boyer and six amicus briefs filed in Alleyne.  If the NFL playoff games fail to hold my attention, I likely will pull some of these briefs up on my e-reader; I would greatly appreciate any informed (or even uninformed) recommendations as to which of all these briefs make for the best reads. 

Of course, I am partial to the Alleyne brief I help put together for the New York Council of Defense Lawyers (discussed here), in part because it presents an approach to the Sixth Amendment that does not appear in other briefs.  I suspect that, especially in all the Alleyne case, a lot of similar ground may get covered in all the usual discussion of Sixth Amendment jurisprudence; I am thus especially interested to figure out whether and how any fresh ideas about the Apprendi line of cases have been presented to the Justices in all the briefing.

Recent prior posts on Alleyne case:

• SCOTUS grants cert to reconsider Harris
• NYCDL amicus brief in Alleyne with an offense/offender kicker
• Is Alleyne a stare decisis sleeper about "super-duper precedents"?
• Will 2013 finally bring the demise of Harris via the Alleyne case?

New report urges Texas to save money and improve public safety via drug treatment

As detailed via this article in the Texas Tribune, headlined "Report: Invest in Drug Treatment Instead of Punishment," a detailed new report is pitching Texas lawmakers to spend more resources on treatment for drug offenders. Here is the start of the article (which includes a link to the report):

Instead of throwing drug addicts in jail, the state should invest more money in substance abuse treatment, says a report issued Thursday by the Texas Criminal Justice Coalition, which adds that the move could provide millions of dollars in savings and improve public safety.

“You cannot cure addiction by locking it up,” said Ana Yáñez Correa, executive director of the coalition. “It doesn’t cure it; it makes it worse.” 

In Texas, arrests for drug possession have increased 32 percent in the last decade, and about 90 percent of all drug-related arrests are for possession — not dealing, according to the report. In 2011, the nearly 15,000 inmates in jails and prisons on drug possession offenses statewide cost taxpayers more than $725,000 daily. The coalition argues that providing more state resources for treatment would be less costly and would prevent crimes associated with drug use. 

Since 2007, lawmakers have directed money that would have been invested in building new facilities for a growing inmate population to diversion, probation and treatment programs. As a result, the prison population has fallen so much that in 2011 lawmakers for the first time closed a Texas prison, the Central Unit in Sugar Land. And this year, state Sen. John Whitmire, D-Houston, has said lawmakers should consider shuttering two additional units.

But in the face of a $27 billion budget shortfall in 2011, lawmakers curtailed the growth of some of the diversion and treatment programs that had helped slow the incarceration rate in Texas. Without more investment in those kinds of programs, Texas prisons and jails could again exceed their capacity by 2014, according to the report. 

While Texas has one of the highest incarceration rates nationally, the report notes, it has one of the lowest drug treatment admission rates. In 2009, more than 53,500 outpatient and residential treatments slots were available statewide, and a waitlist with more than 14,000 names. Forcing addicts who are seeking treatment to wait can have dire consequences, including the commission of crimes that land them behind bars.

Is new brain science now suggesting football is more dangerous than marijuana for kids?

As I was working on this post concerning pot prohibition politics, I heard about the news that fomer NFL great Junior Seau was suffering from brain damage when his committed suicide last year.  Parts of this New York Times article, which discusses these matters and recent brain research, prompted me to think about the question in the title of this post:

The former N.F.L. linebacker Junior Seau had a degenerative brain disease linked to repeated head trauma when he committed suicide in the spring, the National Institutes of Health said Thursday.

The findings were consistent with chronic traumatic encephalopathy, a degenerative brain disease widely connected to athletes who have absorbed frequent blows to the head, the N.I.H. said in a statement. Seau is the latest and most prominent player to be associated with the disease, which has bedeviled football in recent years as a proliferation of studies has exposed the possible long-term cognitive impact of head injuries sustained on the field.

“The type of findings seen in Mr. Seau’s brain have been recently reported in autopsies of individuals with exposure to repetitive head injury,” the N.I.H. said, “including professional and amateur athletes who played contact sports, individuals with multiple concussions, and veterans exposed to blast injury and other trauma.”

Since C.T.E. was diagnosed in the brain of the former Eagles defensive back Andre Waters after his suicide in 2006, the disease has been found in nearly every former player whose brain was examined posthumously. (C.T.E. can be diagnosed only posthumously.) Researchers at Boston University, who pioneered the study of C.T.E., have found it in 33 of the 34 brains of former N.F.L. players they have examined....

“What’s been coming out has raised a lot of questions about public health,” said Dr. Walter J. Koroshetz, the deputy director of the National Institute of Neurological Disorders and Stroke, which is part of the N.I.H. and finances traumatic brain injury research. “What we have now is a tip of the iceberg, and we don’t know what’s below.”

The N.I.H. is not the only government organization studying head trauma. In September, the National Institute of Occupational Safety and Health, which is part of the Centers for Disease Control and Prevention, released a study that showed that a disproportionate number of men who played at least five seasons in the N.F.L. from 1959 to 1988 developed Alzheimer’s disease or Lou Gehrig’s disease.  Players in “speed” positions more prone to high-speed collisions were three times more likely to have died as a result of a neurodegenerative disease, according to the study.  The Institute of Medicine, which is part of the National Academies of Science, has also undertaken a 15-month investigation into sports-related concussions sustained by young athletes.

I wonder when Patrick Kennedy and David Frum, who have now started Project SAM because of their purported concerns about the public health consequences of marijuana reform for kids (discussed here; website now here), will start Project SAFE to help promote Smart Approaches to Football Elimination.

Supporting pot prohibition as divining rod pointing toward social conservatives and away from fiscal conservatives

One of my favorite readers forwarded me this recent commentary by Carl Hiaasen of the Miami Herald concerning pot policy which included a sentence that gave me real clarity on why I find the politics of marijuana reform so interesting.  The piece is headlined "War on pot has gone up in smoke," and here are some excerpts with the key sentence emphasized:

The war on marijuana is going up in smoke, and it's about time.  There is no bigger waste of money and resources in all law enforcement.  Failure is too polite a description for the long campaign to eliminate the pot trade in the United States.  A colossal flop is what it is. After four decades and billions spent, marijuana is easier to get, and more potent, than ever.

More than 40 percent of all Americans over 12 have tried it, and at least 30 million people smoke it every year.  The most recent national drug survey found that 18.1 million Americans had used it during the previous month.

Pot is now medically dispensed in 18 states and Washington, D.C.  It's the largest cash crop in the nation's largest agricultural state, California.  A legitimate pain reliever for cancer victims, "medicinal" marijuana is now available for an assortment of other symptoms, some of them conveniently vague and impossible to discount.  It's not terribly hard to get a prescription.

In November, voters in Colorado and Washington dropped the pretense and approved the adult recreational use of weed.  Other states will follow in coming years.

Absurdly, the government still classifies pot as a Schedule I Controlled Substance, the same as heroin and cocaine.  Federal law prohibits medical marijuana use, and the Obama administration has taken action against dispensaries in California.   It's a lost cause, and an expensive one.  Any true fiscal conservative should be outraged by the waste and futility.

States are rewriting their marijuana laws because that's what makes sense.  Regulate it, tax it, and make a ton of money from it.  Another benefit of decriminalization is liberating overworked police and prosecutors, whose talents are being misspent on dumb, dead-end pot cases — 50 plants in a grow house tended by some hapless bozo who doesn't even know where the seeds came from. Most Americans would prefer to see drug agents shutting down meth labs and pill mills, which actually kill people.

Like it or not, marijuana is so deeply imbedded in our culture that it will never go away. You can find it on Wall Street, Main Street or K Street, on any college campus or military base. Some drug experts fear that more lenient laws will increase consumption and abuse. Others believe a lawful marketplace will prove safer.  Regardless, the saturation level of reefer is already high.

In 2011, according to FBI statistics, a marijuana-related arrest occurred every 42 seconds in the United States.  That's how abundant the stuff is.  Some of those who got busted were career criminals who happened to be caught with a joint in their pockets, but many were casual users or small-time sellers.

Those who get prosecuted on minor pot charges disproportionately tend to be Hispanics and African-Americans, not the white college kids who are toking up a storm.  Cannabis laws have always been selectively enforced, and lots of people are sitting in jail who shouldn't be there.

The current useless Congress is unlikely to tackle marijuana reform, but the Justice Department could do all taxpayers a favor by letting each state decide for itself.  Making pot legally available to adults will require caution....  Inevitably, though, more states will ease their marijuana laws. Money is why; potential revenues from taxing pot cultivation and sales are too substantial to forego. Even the boneheads in Tallahassee will one day figure that out.

Watching America's legalization movement with gloom are the Mexican drug cartels, whose vast profits from grass smuggling will wither with the loss of their most lucrative market.  Pot smokers would just as soon buy it from a licensed dispensary, but they will definitely keep buying it, no matter what the government does.

Though I suppose this point should be pretty obvious, the sentence I have highlighted above provides an effective and stark reminder that positions on pot policy now provide an effective means to distinguish social conservatives and fiscal conservatives.   Indeed, for me personally, I suspect it my own deep fiscal conservative instincts — and surely not any 1960s-era, Great-Society-type social liberalism — that leads me to be a sharp critic of the drug war in general and of pot prohibition generally.  More broadly, as this commentary rightly asserts, it is hard to see how any TRUE fiscal conservatives could or would support the status quo of federal pot prohibition.  If one claiming to be a fiscal conservative supports federal pot prohibition, she must at least admit that, as a governing philosophy, she cares more about social issues than economic ones and that she thinks it essential for the federal government to prioritize social issues over economic concerns even while racking up trillions in debt on a yearly basis.

This fiscal vs. social perspective serves, of course, to further link continued support for modern pot prohibition with historic support for alcohol prohibition and similar morals legislation typically advanced by big-government progressive movements.  Historically, it is would-be social reformers who believe government can and should advance a particular social agenda and who will consistently spport bigger and more expensive government if and whenever that government promises to further a (now-government-imposed) social agenda.

In addition to having historical resonance, this perspective makes it easier to understand the seemingly disparate leaders of the new anti-marijuana reform group calling itself Project SAM  (discussed here; website now here).  Project SAM is headed by Patrick Kennedy and its most vocal leader of late has been David Frum, who was a chief speechwriter in the Bush Administration.  (The rest of the leadership team for Project SAM, as reported here, appears to be persons with MDs and PhDs, which supports SAM's claim to be eager to bring a public health focus to the marijuana reform discussion.)   Patrick Kennedy, of course, comes from the political family perhaps most well known in modern Democratic history for supporting big-federal-government, tax-and-spend programs to promote one vision of social welfare without too much concern about whether expensive government-run social programs actually work.  And David Frum comes from a Bush Administration which made its mark by being fiscally irresponsible through big-federal-government, spend-and-spend programming at home and abroad.

It should thus come as no surprise that these kinds of folks will be heading up efforts to continue to support what looks like a failed big-government criminal justice program.  That said, the marijuana part of the drug war can claim, as one very tangible achievement, that it has helped ensured that lots of taxpayer-funded police, prosecutors and prison officials could make healthy public-sector-union salaries and pensions while being able to focus time and energies on what would appear to be among the least dangerous of modern drugs and drug offenders.  And I suppose only time will tell whether and how the long-term financial burdens imposed by the enduring, big-government "war on pot" will hurt our kids more than a regulatory regime which might lead them to make false IDs in the hope of scoring some pot from the local drug store for a high school party.

"Why Has Obama Pardoned So Few Prisoners?"

The title of this post is the headline of this new commentary by Sasha Abramsky which will appear in the January 28, 2013 issue of The Nation. (Hat tip: How Appealing.) The piece gives particular attention to the sad case of my former habeas client Weldon Angelos, and here are excerpts:

Six and a half years ago, I drove out to Lompoc federal penitentiary in the hills outside Santa Barbara to interview Weldon Angelos, a young man who had received the improbable sentence of fifty-five years without parole for selling marijuana, ostensibly while carrying a small pistol in an ankle holster.

A rap artist from Salt Lake City and friend to Napoleon and other eminences of the hip-hop world, Angelos had been ensnared by an informant in a series of undercover marijuana purchases that reeked of entrapment. What might have been a two-bit state pot case became a high-stakes federal case. When Angelos — who denied carrying a gun when dealing — refused to enter a guilty plea, the feds played hardball, piling more indictments onto the original charge.  In December 2003, more than a year after he had been arrested, Angelos was found guilty on several counts, though he was acquitted on others.  Because of mandatory minimum statutes linked to the firearms charges, the presiding judge — a George W. Bush appointee named Paul Cassell — was left with no discretion at sentencing. After asking the prosecuting and defense attorneys to advise him on the constitutionality of the sentence, a distraught Cassell handed down the fifty-five-year term, a punishment he called “unjust, cruel and even irrational.”  In his opinion, he urged then-President Bush to pardon the young father of three and right a clear judicial wrong.

Angelos was 23 when he was arrested.  He was in his mid-20s when I met him. It was such an obvious injustice that I thought the odds were pretty good he’d be out of prison by the time he was 30.  Surely one or another president would pardon him or commute his sentence, either reducing it or allowing him to be released on time served.

But today Angelos is in his early 30s and fast approaching his ten-year anniversary behind bars. Bush didn’t pardon him.  Neither has President Obama — despite earlier pleas on Angelos’s behalf from several ex-governors, dozens of ex–federal prosecutors and judges, and four US attorneys general; despite growing concerns over mandatory minimum sentences from members of Congress; despite the pledge by onetime Salt Lake City mayor and civil rights lawyer Rocky Anderson to “do anything I can to remedy this unbelievable injustice”; despite The Washington Post and other leading publications urging clemency; despite the fact that, at least rhetorically, the Obama administration has moved away from the sensational, fearmongering tactics of the drug war, and that drug czar Gil Kerlikowske doesn’t even like to talk about a “war on drugs”; despite the fact that in late 2012 Obama said the feds had “bigger fish to fry” than prosecuting marijuana users in states moving toward legalization; despite the fact that one state after another has rolled back its most draconian mandatory minimum sentences for small-time drug users and dealers....

So why hasn’t Obama done the right thing? Could it be that Angelos has just gotten lost in the shuffle? Possibly — but if that’s the reason, there would be evidence that Obama has used his pardon and commutation powers wisely in other cases. Unfortunately, that’s not true....

A president who talks the talk about more sensible, nuanced drug policy, and whose oratory frequently invokes what is best in the American political imagination, has shown himself remarkably reluctant to use one of the most important of presidential prerogatives—the power to right judicial wrongs. “This president,” says Anderson, “has been unbelievably timid and disinclined to do justice in cases that scream out for commutation.  There’s not a lot of moral or political fortitude in play.”...

In the long run, when it comes to preventing future unjust sentences like the one given Angelos, Congress and state legislatures should be the ones to roll back the excesses of the drug war.  And there’s no doubt that Obama, a constitutional law scholar, understands how much more powerful legislation is than the willful, even capricious, pardon function of the president. (After all, Clinton was excoriated for what appeared to be pardons issued in exchange for campaign and other contributions.  And Bush was heavily criticized for commuting the prison term of his disgraced adviser Lewis Libby.)  But when there’s a massive miscarriage of justice — as has happened all too often during the forty years of the “war on drugs” — the president’s ability to pardon or commute sentences is vital.

How does one tell Weldon Angelos’s kids that their father will not only never walk them to school but that he will never walk their children to school?  That if he survives fifty-five years in prison, he might get out just in time to walk his great-grandchildren to school. It’s unconscionable that such a sentence should stand.  If Angelos and other drug war prisoners with absurd sentences remain in prison through Obama’s second term, it will be a stain on the president’s legacy.

Latest Gallup poll shows uptick in public support for the death penalty

Despite a sustained political campaign against the death penalty in California and despite repeal of the death penalty in Connecticut and talk of repeal in other states, the latest Gallup poll on public attitudes concerning the death penalty reveals a slight uptick in public support for capital punishment circa the end of 2012.  This Gallup report on its polling, which is headlined "U.S. Death Penalty Support Stable at 63%: Decade-long decline in support after 2001 seen mostly among Democrats," sensibly notes that the latest numbers resulted from polling not long after the Newtown massacre and usefully highlights the long-term stability in many of the polling numbers on this issue over the last decade. Here are excerpts from the Gallup discussion of its polling data:

Americans' support for the death penalty as punishment for murder has plateaued in the low 60s in recent years, after several years in which support was diminishing. Sixty-three percent now favor the death penalty as the punishment for murder, similar to 61% in 2011 and 64% in 2010.

Gallup first asked Americans for their views on the death penalty using this question in 1936, and has asked it at least annually since 1999. The latest results come from a Dec. 19-22, 2012, USA Today/Gallup survey, conducted in the first few days after the Newtown, Conn., school shooting massacre.

Although views on the death penalty have been fairly static since 2010, support has been gradually diminishing since the high point in 1994, when 80% were in favor. By 2001, roughly two-thirds were in favor, and since then it has edged closer to 60%.

The death penalty is not relevant in the Newtown case, given that the lone gunman took his own life after his rampage; however, the tragedy could have influenced Americans' thoughts about capital punishment and may be a reason support for it held steady this year, rather than declining any further....

Despite the moral nature of the death penalty as a political issue, with teachings on it differing among the various faiths, Gallup finds virtually no difference in support for it on the basis of respondents' religious background. Two-thirds of Protestants and Catholics, alike, are in favor of the death penalty as a punishment for murder, as are at least six in 10 adults regardless of whether they attend church weekly, monthly, or less often. Only among those who say they have no religious preference, which would include atheists and agnostics, is there a difference, with a slightly smaller 56% in favor of the death penalty.

There are, however, sharp differences in views about capital punishment by gun ownership. Those who report personally owning a gun are much more likely than those who do not have a gun to favor the death penalty: 80% vs. 55%.

Gallup's annual measurement of death penalty views since 2001 shows that support for it has declined more among young adults (aged 18 to 34) than among those 55 and older, and more among men than among women. Additionally, the trend differs by party ID, with support dropping most precipitously among Democrats, from 59% in 2001 to 51% today....

Americans' support for the death penalty has varied widely over the 77 years Gallup has measured it, and now stands at 63%, which is about average for the full trend. Gallup's initial reading in 1936 found 59% in favor, but support then dipped well below 50% at points during the 1960s, only to surge above 70% in the 1980s. Support remained high through the first part of this century, but has since waned, possibly relating to several states recently imposing moratoriums on executions or abolishing their death penalty statutes altogether.

The future course of public support for the death penalty may depend as much on the impact of unforeseen tragedies such as the Oklahoma City bombing or Newtown shootings, as it does on political campaigns by death penalty supporters and opponents. However, for now, views appear to be at a standstill, with just over six in 10 Americans in favor, essentially unchanged since 2010.

Extended discussion of fast-track sentencing realities in new Seveth Circuit opinion

I have not followed closely of late data or discussions of fast-track sentencing policies in the federal district court, but a new Seventh Circuit opinion brings this always-interesting post-Booker issue to mind again.  Today in US v. Anaya-Aguirre, No. 11-3675 (7th Cir. Jan. 10, 2013) (available here),the Seventh Circuit covers lots of notable ground in the course of rejecting the defendant's complaint he did not prevail on his fast-track disparity argument for a reduced sentence. Here is how the opinion gets started:

Appellant Jose Manuel Anaya- Aguirre violated 8 U.S.C. § 1326(a) by illegally reentering the United States after a prior deportation that had followed a felony conviction in the United States.  He pled guilty and was sentenced to 48 months in prison.  Anaya-Aguirre argued in the district court that he should receive a below-guideline sentence because the Northern District of Illinois did not have a “fast track” program.  Fast-track programs in some districts offer certain categories of defendants — including many in immigration cases — shorter sentences in exchange for very prompt guilty pleas, the waiver of nearly all trial and appellate rights, and other conditions.  While the district court imposed a sentence that was below the guideline range, it is clear that the downward variance was not based on the lack of a fast-track program.  Anaya-Aguirre has appealed his sentence, arguing that the district court erred by rejecting his fast-track mitigation argument.  We affirm. [FN1]

[FN1] At the time of Anaya-Aguirre’s sentencing, none of the districts in the Seventh Circuit had fast-track programs. In January 2012, however, the Department of Justice changed its policy and now requires all districts prosecuting § 1326 violations to institute fast-track programs.  See Memorandum from Deputy Attorney General James M. Cole to All United States Attorneys, Department Policy on Early Disposition or “Fast-Track” Programs (Jan. 31, 2012), available at www.justice.gov/dag/fast-track-program.pdf.

New ACS issue brief on the right to counsel and recent SCOTUS rulings

Via e-mail, I just learned about a new American Constitution Society "Issue Brief" on the right to counsel available via this link.  This new document is titled "Are We Closer to Fulfilling Gideon’s Promise?: The Effects of the Supreme Court’s ‘Right-to-Counsel Term’," and is authored by Christopher Durocher who is Government Affairs Counsel at The Constitution Project.   Here is how the document is described via ACS:

This year marks the 50th anniversary of Gideon vs. Wainwright, the landmark case in which the U.S. Supreme Court rendered a unanimous opinion declaring that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”  Since this decision on March 18, 1963, the right to counsel has evolved, with increased clarification given to the meaning of the Sixth Amendment just last year.  As Durocher explains in the Issue Brief, the “Supreme Court handed down decisions in five cases that open the door to expanding and better protecting the availability of effective counsel in both the pre-trial and post-conviction stages.”  Given the sheer number of cases the Court reviewed in this area of law, Durocher concludes, “the Court’s last term deserved the sobriquet the ‘Right-to-Counsel Term.’”

This Issue Brief examines the five “Right-to-Counsel Term” decisions and subsequent lower courts’ application of those decisions.  Last Term, the Court clarified the constitutional right to effective lawyers during plea negotiations.  Durocher writes, “the Court correctly acknowledged that plea bargaining is now the defining feature of the criminal justice system,” which may have “significant practical impact on the way in which plea bargaining is conducted.”  And though the Court does not recognize a constitutional right to post-conviction counsel, last Term the Court took “incremental step[s] towards establishing some protections in critical post-conviction proceedings,” Durocher finds.

With these additional Sixth Amendment protections, comes increased strain to indigent defense systems, Durocher acknowledges.  “It is well-documented that indigent defense providers across the nation are overworked and have too few resources.”  Lower courts can aggressively apply the Court’s decisions to ensure indigent defendants are adequately represented, giving true meaning to the Sixth Amendment.

"Anchoring the Sentencing Scale: A Modest Proposal"

The title of this post is the title of this interesting article I came across via SSRN, which covers a sentencing issue that I think gets far too little attention given its practical importance.  The piece is authored by Richard Lippke, and here is the abstract:

This paper proposes a partial solution to the anchoring problem in sentencing theory.  After explaining the problem and the importance of a solution to it, I advance what I term the “commensurate harms principle,” according to which the losses and deprivations imposed on convicted offenders as punishment should be kept commensurate with the standard harms their crimes cause victims.  The principle is defended as an aid to setting sentences for core criminal offense types rather than tokens.

Intelligent application of the principle requires us to gain an informed understanding of both the harms caused by crimes and the harms done by criminal sanctions, particularly imprisonment.  The principle is grounded in a justification of legal punishment that involves censure and equalizing hard treatment.  Various objections to the principle are addressed, including claims that victim and penal harms cannot be compared and that the harms produced by crimes and criminal sanctions extend beyond victims and offenders.  I contend that the commensurate harms principle would counsel the sparing use of imprisonment and with many, though not all offense types, support less harsh sentences than are the norm in many countries.

Washington Post editorial urges Maryland to repeal death penalty

The Washington Post is advocating again for Maryland to repeal its death penalty. This lengthy editorial is headlined "Another chance to end the death penalty," and here are excerpts:

By the grace of state Sen. Thomas V. Mike Miller (D-Calvert), Maryland Gov. Martin O’Malley (D) has been handed a second chance — probably his last — to abolish the state’s death penalty.  He should seize it.

Four years ago, in deference to Mr. O’Malley, who opposes capital punishment, Mr. Miller, the powerful president of the Senate and a supporter of the death penalty, allowed the issue to reach the Senate floor.  There, despite cajoling, the governor could not corral the 24 votes needed for abolition. Instead, a bill was enacted that limited Maryland’s death penalty to cases where there is DNA evidence, a videotaped confession or a video linking the suspect to a murder.

Now Mr. Miller has given Mr. O’Malley a green light to try again — if he can find the necessary 24 votes in the Senate.  The good news is that the votes may be within reach. (They’re already there in the House of Delegates, according to nose-counters in Annapolis.)  The puzzling news is that Mr. O’Malley, though he remains as opposed to capital punishment as ever, is balking.

Perhaps the governor is simply being cautious.  According to The Post’s John Wagner, 23 senators are firmly, or relatively firmly, on record as prepared to end capital punishment, and several others are on the fence. But an excess of gubernatorial caution would be a mistake.  Without a push by Mr. O’Malley himself, the status quo will remain unchanged and Maryland's death penalty will remain on the books.

In practice, it is in remission, having been suspended by a ruling from the state’s high court in 2006.  Although five prisoners remain on death row, Maryland hasn’t executed anyone since 2005.

But even if the machinery of death is frozen, there are good reasons to abolish it for good and to eliminate a costly, unjust and dysfunctional system.  In fact, the legislation four years ago codified an even more arbitrary system where the nature of the evidence, rather than the barbarity of the crime, is the crucial factor....

The arguments against capital punishment are refreshed and strengthened every time a capital conviction is overturned.  In September, Damon Thibodeaux was freed after 15 years on Louisiana’s death row — the 18th convict released from prison after analysis of DNA evidence.  As long as the death penalty exists, the nation risks committing the gravest of injustices: killing innocent people.

"Pot opponents regroup following Wash., Colo. votes"

The title of this post is the headline of this interesting new AP article which highlights how the broader public policy conversation over marijuana is starting to transform as a result of the state initiative passed back in November. Here are excerpts:

Kevin Sabet, a former White House drug policy adviser and an outspoken opponent of legalizing marijuana, watched with dismay last fall as voters in Washington and Colorado did just that.

But the next day he got a call from former Democratic U.S. Rep. Patrick Kennedy, who has struggled with alcohol and drug addiction. The son of late Sen. Ted Kennedy was worried that the votes sent the wrong message about marijuana. "The level of his concern impressed me," Sabet recalled. "He said, `We have to do something that is not falling into this false dichotomy of prohibition versus legalization.'"

So began the regrouping of the anti-pot lobby, an effort which on Thursday launches a new organization, Project SAM, for "smart approaches to marijuana." Kennedy is the chairman, and other board members include Sabet and David Frum, a former speechwriter for President George W. Bush.

"Our country is about to go down the wrong road, in the opposite direction of sound mental health policy," Kennedy said. "It's just shocking as a public health issue that we seem to be looking the other way as this legalization of marijuana becomes really glamorous."

The idea is to halt the legalization movement by arguing the U.S. can ease the ills of prohibition — such as the racial disparities in arrest rates and the lifelong stigma that can come with a pot conviction — without legalizing the drug.  Kennedy called marijuana a dangerous drug that lowers IQ and triggers psychosis in those genetically predisposed toward it; critics charged him with distorting the scientific evidence by cherry-picking studies that relate only to a tiny fraction of pot users.

"It's almost `Reefer Madness'-type stuff about marijuana he's saying," said Ethan Nadelmann, executive director of the New York-based Drug Policy Alliance. "There's something remarkable about Patrick Kennedy deciding to go after users of a drug that is by almost all accounts less dangerous than the drugs he struggled with.  Where Patrick Kennedy could have made a really important contribution is by saying that we need a responsible public health model for dealing with legal marijuana."...

The organization hopes to raise money to oppose legalization messages around the country, shape the legalization laws taking effect in Washington and Colorado, promote alternatives to jail time for pot users and speed up scientific research on the effects of marijuana....

Kennedy served 16 years as a congressman from Rhode Island, during which he made mental health treatment and insurance coverage a legislative priority.  He revealed he had struggled with depression and alcoholism, as well as addiction to cocaine and prescription painkillers.  In 2006, Kennedy crashed his Ford Mustang into a security barrier on Capitol Hill. He agreed to a plea deal on a charge of driving under the influence of prescription drugs and received a year's probation.

Low-level marijuana offenders should pay a fine, not go to prison, Kennedy said, but it's a bad idea to make pot more accessible: More people will experiment, including young people whose still-developing brains seem to be most susceptible to addiction.  He said he fears the creation of a huge marijuana industry that might target teens the way the tobacco industry did....

Marijuana remains illegal under federal law, and the Justice Department has not said whether it will sue to try to block the state-licensing schemes from taking effect.

Supporters of Washington's Initiative 502 raised more than $6 million. The measure was sponsored or endorsed by former top federal law enforcement officers in the state, as well as some former public health officials and a University of Washington addiction specialist.

Alison Holcomb, the drug policy director of the state's American Civil Liberties Union chapter and I-502's campaign manager, said she's as concerned as anyone else about the public-health ramifications of legal marijuana, and that's why the initiative requires new surveys of drug use among teens and earmarks money for substance abuse prevention and treatment.

I am glad to learn that Patrick Kennedy and the other high-profile persons involved with Project SAM are eager to ensure that we have a robust public-health conversation about marijuana. In particular, I am especially glad to hear from this piece that Project SAM (which does not yet appear to have a website) is going to work to "promote alternatives to jail time for pot users and speed up scientific research on the effects of marijuana." 

If speeding up scientific research on the effects of marijuana is going to be key part of the mission of Project SAM, I hope it will join other marijuana public policy reformers and activists in encouraging Congress and/or the Obama Administration remove marijuana from Schedule I of the Controlled Substances Act.  It has long been my understanding that scientific research on marijuana by universities and other major research institutions has been virtually impossible because cannabis is listed by federal law as a Schedule I drug under the CSA (background here).  Whatever the other goals and plans of Project SAM, I sincerely hope it will join forces with the marijuana reform community on this critically important "public health" front.

A few recent and older related posts: 

• If force to choose, would you legalize marijuana or prohibit tobacco?
• Intriguing new comments from President Obama on federal pot prohibition policy
• New report on feds' on-going debate over response to pot legalization
• "Marijuana backers court conservatives with appeals on states’ rights, ineffective pot laws"
• Female voters seen as key to success of pot reform initiatives
• "Marijuana: A Winning GOP Issue?" ... and a lost 2012 Romney opportunity
• Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?
• Timely new Cato policy analysis on federal supremacy and pot prohibition reform
• "Will the Feds Crack Down on Pot or Look the Other Way?"
• How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
• "California inspired — and now inspired by — other states' marijuana legalization measures"
• Proof of prohibition's failings?: teens now smoke pot more than tobacco
• "Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization"

"Barack the Unmerciful: Obama's amazingly stingy clemency record"

The title of this post is the headline of this new commentary by Jacob Sollum over at Reason.com. Here are excerpts:

Will Barack Obama go down in history as our least merciful president? With less than two weeks to go in his first term, this reputedly progressive and enlightened man has a strong shot at winning that dubious distinction.

December, a traditional season for presidential clemency, has come and gone, and still Obama has granted just one commutation (which shortens a prisoner’s sentence) and 22 pardons (which clear people’s records, typically after they've completed their sentences). Barring a last-minute flurry of clemency actions, his first-term record looks weaker than those of all but a few previous presidents.

Which of Obama’s predecessors managed to make less use of the clemency power during their first terms? According to numbers compiled by P.S. Ruckman Jr., a professor of political science at Rock Valley College in Rockville, Illinois, just three: George Washington, who probably did not have many clemency petitions to address during the first few years of the nation’s existence; William Henry Harrison, who died of pneumonia a month after taking office; and James Garfield, who was shot four months into his presidency and died that September.

With the exception of Washington's first term, then, Obama so far has been stingier with pardons and commutations than any other president, especially when you take into account the growth of the federal penal system during the last century, the elimination of parole, the proliferation of mandatory minimums, and the concomitant increase in petitions. This is a remarkable development for a man who proclaims that "life is all about second chances" and who has repeatedly described our criminal justice system as excessively harsh....

The one significant way in which Obama followed through on this rhetoric after being elected was by supporting 2010 legislation that shrank the irrational sentencing gap between crack cocaine and cocaine powder (although there was not much political risk in doing so, since the bill passed Congress almost unanimously). But the Fair Sentencing Act did not apply retroactively, and Obama has used commutation to help just one of the thousands of crack offenders serving mandatory minimums that nearly everyone now admits are unjust.

More generally, Obama has granted clemency petitions at a lower rate than all of his recent predecessors. The odds of winning a pardon from Obama so far are 1 in 59, compared to 1 in 2 under Richard Nixon, 1 in 3 under Gerald Ford and Jimmy Carter, 1 in 5 under Ronald Reagan, 1 in 10 under George H.W. Bush, 1 in 5 under Bill Clinton, and 1 in 13 under George W. Bush, per Ruckman's calculations. The odds for commutation are even longer: 1 in 6,631 under Obama, compared to probabilities under the seven preceding presidents ranging from 1 in 15 (Nixon) to 1 in 779 (Bush II).

As Obama embarks upon a second term, he deserves credit for this amazing accomplishment: He has made Richard Nixon look like a softie.

SCOTUS unanimously rules defendants have federal burden to prove withdrawal from conspiracy

As reported in this brief AP account of the ruling, today the US Supreme Court has said "it is up to defendants to prove they withdrew from criminal conspiracies in time to take advantage of a five-year statute of limitations on prosecution." The short unanimous ruling in Smith v. United States, No. 11–8976 (S. Ct. Jan. 9, 2013) (available here), was authored by Justice Scalia and it starts and ends this way:

Upon joining a criminal conspiracy, a defendant’s membership in the ongoing unlawful scheme continues until he withdraws.  A defendant who withdraws outside the relevant statute-of-limitations period has a complete defense to prosecution. We consider whether, when the defendant produces some evidence supporting such a defense, the Government must prove beyond a reasonable doubt that he did not withdraw outside the statute-of-limitations period....

Having joined forces to achieve collectively more evil than he could accomplish alone, Smith tied his fate to that of the group. His individual change of heart (assuming it occurred) could not put the conspiracy genie back in the bottle.  We punish him for the havoc wreaked by the unlawful scheme, whether or not he remained actively involved. It is his withdrawal that must be active, and it was his burden to show that.

Intriguing New Yorker article on child porn, sex offenders and civil commitment

The latest New Yorker issue has this interesting article headlined "The Science of Sex Abuse: Is it right to imprison people for heinous crimes they have not yet committed?". The lengthy article, which rewards taking to time to read it, give particular attention to one particular sex offender's experience with child pornography and federal civil commitment procedures.  Here is an excerpt:

John pleaded guilty to possessing child pornography and to using the Internet to persuade a minor to have sex, and was sentenced to fifty-three months in federal prison — a relatively light sentence by today’s standards.  In the past fifteen years, sentences for possession or distribution of child pornography — a federal crime, since images cross state lines — have increased in length by more than five hundred per cent.  The average sentence is now a hundred and nineteen months, which is about the same as the average punishment for a physical sex crime.

Child pornography didn’t become a priority for federal law enforcement until the mid-nineties, when the Internet, offering a fun-house reflection of the spectrum of human sexuality, exposed a previously invisible population of pedophiles.  Chat rooms have spawned an underground subculture in which social status is based on comprehensive libraries of images.  Many users consider themselves “collectors,” trading pictures until they assemble sets that feature certain children, stars on the Internet, being sexually abused over time.

In a study of child pornography, the historian Philip Jenkins, of Penn State, found that chat rooms foster a kind of “bandit culture.” Self-described “Loli fans” see themselves as part of a subversive fraternity, unified by the pursuit of forbidden pleasures.  There is a hierarchy of users: newbies, lurkers, traders, and, at the top, the pornographers themselves—“kings of the rooms,” as John told me.  He said that the most sought-after images were new and made in America, and showed interracial couplings.  The more taboos broken, the better.  Members reinforced one another’s desires, engaging in communal rationalization. “We’d pull at evidence from the dawn of photography to prove that child sexuality was once acceptable,” John said.  “Then we could say, ‘See, it’s society — not me!’ ”

As Plata ruling welcomed, California seeks modification of prison population reduction order

This front-page article in today's Sacramento Bee, headlined "Halt in inmate releases sought," reports on a significant development in the multi-year -- is it now multi-decade? -- litigation over prison population in California. Here are the details:

Claiming that the state has made substantial progress in solving its prison overcrowding problem, California officials asked a federal court late Monday to dismiss its requirements for huge reductions in inmate populations.

Gov. Jerry Brown's administration, filing court documents just two hours before the court-ordered deadline to explain how the state will reduce inmate populations, said progress made so far is sufficient to warrant the federal court withdrawing its order.   It also said the court-ordered reductions could needlessly force the state to release dangerous or violent inmates.

"The overcrowding and health care conditions cited by this Court to support its population reduction order are now a distant memory," the court papers state.  "California's vastly improved prison health care system now provides inmates with superior care that far exceeds the minimum requirements of the Constitution.

"In the years since the court issued the current population cap order, the state has dramatically reduced the prison population, significantly increased capacity through construction, and implemented a myriad of improvements that transformed the medical and mental health care systems."

A three-judge federal panel had ordered the state to cut population to 137.5 percent of capacity, down from nearly double the prison capacity, and said such reductions were necessary to maintain proper physical and mental health care in the 33 adult prisons.

But Brown's administration said in papers filed late Monday that it has achieved sufficient reductions already through a series of efforts.   "Therefore, this Court must vacate the 137.5 percent population cap order issued when it was believed that quality health care could not be provided at a higher population density," the state contended.

"The population in the state's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population in the record at the evidentiary hearing, and by nearly 42,000 inmates since 2006 when plaintiffs moved to convene the three-judge court....

The court filing was strategically timed.  Facing a Monday deadline at midnight, corrections officials originally scheduled a telephone conference call for this morning to discuss the issue.  But late Monday they scrapped that and announced the governor would hold a press conference this morning to trumpet the effort.   Brown has been at the forefront of inmate reduction efforts since taking office.  The state prison system has been under siege for decades from prisoner lawsuits and federal court orders that have found the state was holding inmates in unsafe conditions.

A year ago, facing unprecedented orders from the federal courts and the U.S. Supreme Court to take action, the Brown administration pushed through its "realignment" plan to shift low-level, nonviolent offenders to the counties. Since then, prison populations have fallen to about 150 percent of capacity, a level still above the court-ordered mandate but one that officials have said they could manage to further reduce.

Monday night, state officials claimed the 137.5 percent limit "cannot be achieved without the early release of inmates serving time for serious or violent felonies."

As stressed in the title of this post, all the rulings with orders for reductions in the California prison population coming from lower courts and upheld by the Supreme Court indicated that California could seek future modifications of the order if and when it took significant steps to remedy the extreme overcrowding problems resulting in unconstitutional prison conditions.  Even without reading the new court papers filed by California, I can say without reservation that the state has taken significant steps in response to the federal courts orders; in turn, this request for a modification in the order seems fully justifiable.

Of course, whether federal courts will embrace or resist this new state to modify existing prison population reduction orders is a distinct question from whether the state's modification request is justifiable.  And it is hard to make a prediction on this front without reading all the papers filed already and sure to be filed later in this litigation.  (That said, I have an inkling some folks may be eager to comment on what has transpired since the SCOTUS Plata ruling without waiting for a chance to read all the latest and future filings.)

"Hate as an Aggravating Factor in Sentencing"

The title of this post is the title of this article which I found via SSRN. The piece authored by Susan Dimock and Mohamad Al-Hakim, and here is the abstract:

Our principal concern in this paper is with the accusation that hate crime legislation violates the principle of proportionality and related principles of just sentencing, such as parity, fair notice, and representative labelling. We argue that most attempts to reconcile enhanced punishment for hate crimes with the principle of proportionality fail. More specifically, it seems that any argument that tries to justify hate crime legislation on the grounds that such crimes are more serious because their consequential harms are worse or their perpetrators are more culpable than their nonhateful counterparts will fail, and thus enhanced punishment will violate the principle of proportionality.

Given the seeming irreconcilable tension between proportionality and hate crime legislation, we turn to consideration of hybrid theories of punishment that permit deviations from strict proportionality when needed to serve other important and legitimate purposes of sentencing. We argue that even if such hybrid theories can justify the enhanced punishments for hate crimes, existing theories cannot provide any principled limit on the extent from which proportionality can be deviated. We suggest such a limit and provide a principled justification for it.

I wonder, with my tongue only partially in my cheek, if we might sometime see a follow-up article titled "Love as a Mitigating Factor in Sentencing."