Tagged: sentencing

Has the Culture of Adversarialness Gone Too Far?

The adversarial system may be the best way for a society to adjudicate criminal charges to a result that will warrant public trust. But sometimes it feels like the US culture of adversarialness is just that – a pervasive method of dealing with everything that comes our way, and not simply in the courtroom. Our current political scene is certainly a reflection of that, as is the political gridlock.

A recent op-ed in the New York Times, titled President Obama’s Department of Injustice by Alec Karakatsanis, raises the question of whether our historical reliance on adversarialness – its intentional use for a good societal purpose – may have become reflexive, or unthinking, or may have simply gone too far.

manatory minimums

On a similar topic, another example of cultural over-reaction, take a moment to view the July 26th episode of Last Week Tonight with John Oliver, in which Mr. Oliver addresses the phenomenon of mandatory minimum sentencing and President Obama’s recent grants (and denials) of clemency to some low level offenders serving mandatory minimums.  In doing so, he “explains why we treat some turkeys better than most low-level offenders.”

Judge Rakoff Addresses Mass Incarceration in the U.S.

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The Honorable Jed S. Rakoff, Senior Federal District Judge serving on the Southern District of New York, is one of the most distinguished federal judges and one of the most outspoken on criminal justice issues. A previous PCJI post reported on Judge Rakoff’s recommendations for the process of plea-bargaining. In November 2014, the judge addressed this issue further in an article he wrote for the New York Review of Books.

Prior to assuming the bench in 1996, Judge Rakoff was a federal prosecutor in the Southern District of New York, where he served as Chief of the Business and Securities Fraud Prosecutions Unit. He subsequently entered private practice and worked, among other assignments, as a defense lawyer on securities law prosecutions.

Judge Rakoff has been a friend of the Pace Law School community. He has on several occasions judged Pace’s Grand Moot Competition. He has also mooted Pace’s International Criminal Court moot court team, drawing on his experience as an advisor to International Criminal Court prosecutors at The Hague.

In an article published in the May 21, 2015 issue of the New York Review of Books, Judge Rakoff thoroughly reviews the issue of mass incarceration in the United States. The judge recently addressed this issue further in a speech he delivered at a conference at Harvard Law School in April 2015.

The judge notes that while the population of the U.S. is about 5 percent of the world’s population, U.S. prisons house nearly 25 percent of the world’s prison population.

Judge Rakoff attributes these statistics in large part to strict sentencing laws adopted, beginning in the 1970s, by Congress and State legislatures. These laws, which included mandatory minimum sentences for both violent and non-violent crimes, were intended to reduce the high rate of violent crime the U.S. was experiencing in the 1960s and 1970s. “The dictate common to all these laws,” the judge writes, “was that, no matter how minor the offender’s participation in the offense may have been, and no matter what mitigating circumstances might be present, the judge was required to send him to prison, often for a substantial number of years.”

In the years following adoption of these laws, the U.S. crime rate significantly declined. “The unavoidable question,” Judge Rakoff says, is whether the decrease in the U.S. crime rate can be attributed – either wholly or at least in some part – to the adoption of these strict sentencing laws. Judge Rakoff reviews several analytical studies that attempt to answer this question. The judge notes that the answer to this question is especially important because of the social effect of these laws: “by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of unemployable ex-cons many of whom have learned in prison how better to commit future crimes.”

Judge Rakoff’s conclusion from the evidence presented, and the claims made, in these studies is that “one cannot fairly claim to know with any degree of confidence or precision the relative role of increased incarceration in decreasing crime.”

To rebut public belief to the contrary, the judge writes that

those whom the public does respect should point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the solution to controlling crime, and why, in any case, the long-term price of mass incarceration is too high to pay, not just in economic terms, but also in terms of shared social values.

Focus on Collateral Consequences of Conviction

BY: Lissa Griffin & Lucie Olejnikova

As attention is drawn to the social impact of excessive sentences, supermax detention, and overcriminalization, it makes sense to look at the same time at the social impact of collateral consequences. What purposes do collateral consequences actually serve? Not allowing someone who has served a sentence or fulfilled a punishment for criminal conduct to vote, drive, get benefits, get work without revealing a conviction, work in human services or other select industries, live in an affordable area, and the like not only holds the convict back from successful reintegration, but also prevents communities from moving on.

NICCCThe ABA has created and launched the NICCC database (National Inventory of Collateral Consequences of Convictions) that collects the law on collateral consequences in the Federal system and each of the fifty states. For review of the database, click here.


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The International Criminal Court Achieves a Landmark

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

June 25, 2014 marked a significant date in the history of the International Criminal Court; the ICC Prosecutor and the Defense for Germain Katanga discontinued their appeals regarding Katanga’s March 7, 2014 conviction on most (but not all) of the charges against him and his twelve year sentence issued on May 23, 2014. The discontinuance of the appeals in this case means that the judgment and sentence against Katanga are now final. This is the first time such finality has been achieved in a case that the ICC Prosecutor pursued to conviction.

The ICC Prosecutor achieved a conviction on March 14, 2012 against Thomas Lubanga Dyilo, and Lubanga was sentenced on July 10, 2012. However, appeals in the Lubanga case are still pending. As noted in a previous post, Germaine Katanga was convicted on charges of war crimes and crimes against humanity relating to the situation in the Democratic Republic of the Congo.

In a statement released on June 26, 2014, ICC Prosecutor Fatou Bensouda said,

This first conviction with finality at the ICC is a clear signal to all those who might seek to perpetrate such crimes, putting them on notice that, sooner or later, justice will be served.

As the next step in the process, the ICC Trial Chamber with responsibility for the Katanga case will consider possible reparations to victims of the crimes for which Germain Katanga was convicted.

Waiver of Youthful Offender Treatment Invalid?

As many of you may know, in June of 2013 the New York Court of Appeals held that a sentencing court must consider the eligibility of a qualifying defendant for youthful offender treatment even if the defendant ostensibly waives that right by failing to request it, as part of a negotiated guilty plea, or as a waiver of the right to appeal.  The Court so held in People v. Rudolph, overruling its 1977 decision in People v. McGowen.

This decision may help Kyle Freda, who waived the right to youthful offender treatment as part of a negotiated plea, and whose attorney did not file a notice of appeal in light of that waiver.   An application to the Appellate Division, Third Department for permission to file a late notice of appeal was granted.  That Court remanded the case to the sentencing court, which has scheduled a sentencing hearing.  While the Rudolph Court made clear that the decision was not retroactive, it does apply to all cases that were on direct appeal as of June 2013.

These decisions may have important consequences in parts of the states where  non-YO guilty pleas are regularly negotiated.

People v. Rudolph, 21 N.Y.3d 497, __ N.E.2d __, 2013 Slip Op. 04840 (June 27, 2013).
People v. McGowen, 42 N.Y.2d 905, 366 N.E.2d 1347, 397 N.Y.S.2d 993 (1977).