Monday, August 3, 2015
"Let's hear from the presidential candidates on clemency reform"
The title of this post is the headline of this timely new op-ed authored by Rachel Barkow and Mark Osler. Here are excerpts:
On Thursday in Cleveland, Fox News will host the first substantive presidential debate. The moderators will undoubtedly pepper 10 Republican candidates with questions about health care, government spending, foreign affairs and immigration.
For once, they should also ask the participants what they would do with one of the most powerful tools given to the chief executive by the United States Constitution -- the pardon power, which vests the president with the unilateral and unchecked authority to reduce sentences of individuals who are currently incarcerated and clear the records of those who are already done serving their sentences.
Unfortunately, we usually pay attention to clemency only after it has been used in a controversial way. When Bill Clinton pardoned Marc Rich, we suddenly cared about clemency. When George W. Bush commuted the sentence of (but declined to pardon) Scooter Libby, people on both sides of the issue were upset. And no one has forgotten the Nixon pardon.
But the framers intended clemency to perform a systematic function in the constitutional system of checking overbroad laws and correcting injustices in individual cases, and that requires foresight, principles of action, and attention to structure. All of the modern presidents have failed to fulfill the framers' vision. Yet we never ask candidates how they would use this enormous power before they enter office — we just act surprised when they use it.
This is the right time to change that dynamic. President Barack Obama has announced an intention (so far unrealized) to use clemency aggressively to address the over-incarceration of narcotics defendants, raising the profile of this issue. That project has also brought to the surface both underlying policy issues and an unwieldy consideration process that is plagued with as many as seven levels of review.
And given the increasing bipartisan support to address mass incarceration, it is an opening to see how the candidates view the president's role in dealing with that issue. At a Republican debate, it opens the door for the candidates to critique the Obama administration's approach and to reveal what they would do to change what past presidents agree is an inefficient and ineffectual clemency bureaucracy. Republicans often value efficiency and cost savings, and a properly functioning clemency process offers an opportunity for both....
Whatever the answer, it will tell us a great deal about them. We will learn what kind of vision, if any, they have for changing entrenched and failed bureaucracies. And we will learn how seriously they view the problem of mass incarceration and criminal justice supervision in this country.
Our plea to the moderators of this and future debates (Democrat and Republican) is thus a simple one: For the first time, ask the candidates how they would use clemency, that great unchecked power of the presidency. They will certainly ask those who seek to be president how they would use the terrible swift sword of war; they should also be bold in asking the candidates how they would use this powerful tool of mercy in an age of mass incarceration and punitiveness.
Split Fourth Circuit panel finds no means for federal prisoner to challenge collaterally wrongful LWOP
A Fourth Circuit panel on Friday issued a very intricate and thoughtful set of opinions in US v. Surratt, No. 14-6851 (4th Cir. July 31, 2015) (available here). The start of the majority opinion provides this effective overview of the issues in Surratt:
In 2005, after pleading guilty to conspiracy to distribute cocaine, Raymond Surratt was sentenced to life imprisonment. We affirmed his conviction and sentence on appeal, and Surratt’s motion to vacate his conviction and sentence under 28 U.S.C. § 2255 was likewise denied. Neither Surratt’s direct appeal nor his § 2255 motion questioned the legality of his mandatory life sentence.
Several years later, Surratt returned to this Court and asked for permission to file a second or successive § 2255 motion. Surratt’s request was premised on United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), which in turn overruled our prior decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005). Had Surratt been sentenced after Simmons, he would have faced a lower mandatory minimum sentence than the mandatory life term that he actually received. Surratt maintained that this difference entitled him to be resentenced. But Congress set out certain conditions that must be met before a successive motion may be permitted, and Surratt did not meet those required conditions. See 28 U.S.C. § 2255(h). We therefore denied him permission to file a successive motion. See In re Surratt, No. 12-283 (4th Cir. Sept. 13, 2012), ECF No. 6.
In the district court, Surratt had simultaneously filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking the same Simmons-based relief. As a federal prisoner, however, Surratt cannot challenge his conviction and sentence under § 2241 unless 28 U.S.C. § 2255(e) -- also called the “savings clause” -- applies. The district court concluded that § 2255(e) did not in fact confer jurisdiction to consider Surratt’s claim in a § 2241 petition, so it denied Surratt’s petition.
Surratt now appeals from the judgment of the district court. We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence. However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt’s petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241 petition and affirm the judgment below.
The end of the dissenting opinion in Surratt provides this alternative perspective on the case and its disposition by the majority:
I do not doubt that the majority is sympathetic to Surratt. In the end, I suppose we just have fundamentally different views on the role of habeas corpus, as well as the role of the judiciary in granting the writ. I see it as our solemn responsibility to guard against a morbid encroachment upon that which is so precious our Framers ensured its continued vitality in our Constitution. Instead we guard the Great Writ itself, and so closely that Surratt must spend the rest of his life in prison -- against the will of the government and the district court. Our abdication of this responsibility begs the question: quis custodiet ipsos custodies? Who will guard the guards themselves?
It is within our power to do more than simply leave Surratt to the mercy of the executive branch. To hope for the right outcome in another’s hands perhaps is noble. But only when we actually do the right thing can we be just. I lament that today we are not the latter. Neither the plain language of our habeas statutes, our precedent, nor the Constitution demands that Surratt die in prison. I must dissent.
Sunday, August 2, 2015
Rep. Sensenbrenner explains why "Now is the time for criminal justice reform"
The Washington Examiner has published this notable new commatary authored by US Rep. Jim Sensenbrenner under the headline "Now is the time for criminal justice reform." Here are excerpts:
Over the past three decades, America's federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today. Prison spending has increased alongside it, placing a heavy burden on American taxpayers. According to the Pew Charitable Trusts, between 1980-2013, prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable. Currently, the federal prison system consumes more than 25 percent of the entire Department of Justice budget.
This redirects funding from enforcement and other criminal justice programs and reduces our system's efficiency and effectiveness. The growth in prison population and spending, plus the massive human and social costs of mass incarceration, creates an urgent need for federal criminal justice reform.
The current high incarceration rates are a result of sweeping tough-on-crime initiatives, specifically the introduction of drug mandatory minimums in the 1980s. While minimums have proved successful in some circumstances, too often low-level, non-violent individuals have been caught up in the system. Instead of considering the unique circumstances of each case, taking into account the personal and criminal history of the offender, judges are forced to comply with federally mandated minimums that lock up millions of people without discretionary judgment.
Further, the current system lacks the ability to effectively rehabilitate nonviolent offenders, leaving them without the skills, education and training to successfully reintegrate into society. A shocking 50 percent of the federal prison population has substance abuse issues, mental health issues or both. An estimated 53 percent of offenders entering prison are at or below the poverty line, and our current prison population houses a disproportionate number of African-Americans, who account for nearly 40 percent of inmates.
Our prisons have become warehouses that simply lock away offenders, rather than treating the underlying issues that brought them there. This neglect contributes to high recidivism rates and puts a revolving door on the gates of America's federal prisons.
While Congress has remained largely silent on the issue, states have embraced reform — enacting wide-ranging, evidence-based changes that both improve public safety and rein in prison costs. These state programs have succeeded by prioritizing incarceration for violent and career criminals, strengthening community supervision and adopting alternative sanctions for lower-level offenders....
Last year, Congressman Bobby Scott and I led a congressional task force to investigate over-criminalization, which examined the scope of mass incarceration, as well as evidence-based programs for reform. In June, we introduced the Safe, Accountable, Fair, and Effective (SAFE) Justice Act, a comprehensive bill that addresses the major drivers of the federal prison population at the front and back ends of the system.
SAFE Justice promotes targeted sentencing over a one-size-fits-all approach, curtails the ballooning number of regulatory crimes, and includes policies that more effectively change the criminal behavior of the nearly 132,000 people on federal probation and post-prison supervision. The bill, which has been endorsed by House Speaker John Boehner and boasts 36 bipartisan cosponsors, advances research-based sentencing, release and supervision policies, and will enact meaningful reforms that shadow the success seen on the state level.
Our system cannot continue on its current trajectory. It's not only fiscally unsustainable, but morally irresponsible. Now is the time for criminal justice reform, and the SAFE Justice Act delivers the change necessary to enact fairness in sentencing, reduce the taxpayer burden and ensure the increased safety and prosperity of communities across the country.
Prior related posts:
- Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders
- In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform
Prez candidate O'Malley joins chorus of leaders advocating criminal justice reform
This USA Today article reports on the latest presidential candidate's latest discussion of the need for criminal justice reform. The piece is headlined "O'Malley pledges criminal justice reform," and here are the details:
Democratic presidential candidate Martin O’Malley stressed his urban affairs experience as Baltimore mayor as he pledged Friday to improve race relations and the criminal justice system. The nation has moved toward racial justice, “but we are not there yet,” the former Maryland governor told a National Urban League presidential forum, citing recent killings and abuse involving police officers. “In our country, there is no such thing as a spare American,” O’Malley said.
While other candidates have talked about criminal justice reform, O’Malley said, “I have actually done it.” In outlining a criminal justice agenda, O’Malley pledged to change sentencing laws so that punishments fit crimes and to end racial disparities in sentencing, including crimes involving crack and powder cocaine. O’Malley, who is lagging far behind in Democratic polls, also called for an end to the death penalty.
Saturday, August 1, 2015
Notable recent state criminal justice reforms highlighted by Pew
The Pew Charitable Trusts has done a lot of important criminal justice reform work at the state level in recent years. These notable recent Pew discussions of state reforms provide an effective review of encouraging reform developments from a state-level perspective:
Symposium Introduction: "Vulnerable Defendants and the Criminal Justice System"
The title of this post is drawn from the title of this introductory essay authored by Tamar Birckhead and Katie Rose Guest Pryal now available via SSRN. Here is the abstract:
The News and Observer (Raleigh, N.C.) recently reported that, on a national scale, “studies estimate between 15 and 20 percent of jail and prison inmates have a serious mental illness.” However, due to lack of state and federal resources and a punitive rather than treatment-oriented approach to misconduct, the mentally ill are often incarcerated rather than provided with appropriate therapeutic care. Indeed, the mentally ill represent one of the most vulnerable groups that interact with the criminal justice system.
Other particularly fragile groups caught up in the criminal justice system include people of color, undocumented immigrants, the physically and developmentally disabled, the homeless, and LGBTQ persons, including those who identify with more than one of these broad categories. Defendants from these groups face the challenge of not merely defending their liberty from the prosecutorial power of the state but attempting to do so from a place of extreme vulnerability.
Another vulnerable group is juveniles — those who are under the age of eighteen and charged with criminal offenses. According to recent data, 1.5 million cases are prosecuted in juvenile court annually. Large numbers of these child defendants have suffered abuse, neglect, or other maltreatment; are from impoverished families; or suffer mental or emotional disabilities. Tens of thousands of these young offenders are ultimately prosecuted in criminal court, with sentences to adult prisons where they are at risk of physical, sexual, and psychological victimization by adult inmates and guards. Adolescents transferred to the adult system can also experience harmful disruptions in their social, emotional, and identity development.
"Vulnerable Defendants and the Criminal Justice System," the symposium that gave rise to this issue of the North Carolina Law Review, explored these and related issues, including the following: How does the criminal justice system handle vulnerable offenders from the moment they are initially processed through to the conclusion of their sentences? Why are these groups overrepresented within our courtrooms and prisons? Can we identify and propose strategies for reform?
Latest reform news means still more waiting for those eager for federal sentencing reform
This new NPR piece, headlined "Despite High Expectations, Sentencing Reform Proposals Still On Ice," confirms my persistent fear that a long and uncertain slog remeains in Congress before anyone should expect to see a major sentencing reform bill on Prez Obama's desk for signature. Here is why:
Advocates and inmates working to overhaul the criminal justice system will have to wait at least a little longer for congressional action.
The Republican leader of the Senate Judiciary Committee, Charles Grassley, said he won't hold a public event on sentencing reform proposals until after the August recess, as language is still being drafted by a bipartisan working group. And in the U.S. House, lawmakers and their aides will spend at least the next five weeks making adjustments to a sweeping bill sponsored by 40 Democrats and Republicans, sources told NPR Friday....
Earlier this week, Texas Sen. John Cornyn, a member of the GOP leadership team, suggested that a hearing and markup on proposals could be imminent. "This seems to be another area where there's a lot of common ground, where a lot needs to be done, and I'm reassured by the bipartisan support we've seen, an optimism that we can get something important done," Cornyn said Tuesday.
But multiple sources from Capitol Hill, the executive branch and the advocacy community said concrete language on sentencing and criminal justice overhauls is still being hotly debated behind closed doors in both the Senate and the House. The Obama administration, including Deputy U.S. Attorney General Sally Yates, has been pressing to relax mandatory minimum sentences for certain drug crimes....
The principles on the table now in the Senate would not eliminate all mandatory minimums, and, in fact, some Republicans are pressing to create new ones, for other crimes. Another key issue is how the bill will come to define crimes of "violence," which could exclude thousands of prisoners from taking advantage of the legislative changes.
And in the House, a massive bill called the SAFE Justice Act, co-sponsored by Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., got a boost this month when House leaders confirmed it would get time on the floor this year. But what the bill will look like by then is an open question, after the Justice Department and some police groups expressed concerns about its scope. Lawmakers are working to tweak the language over the next couple of months.
Congressional sources say they're moving carefully, to avoid falling into the same traps as they did in debate over the landmark 1994 crime bill, which imposed tough mandatory criminal penalties on defendants, incentivized states to build more jails and prisons, and barred inmates from being awarded grants to pursue education. All of those issues are now being rethought, more than two decades later.
As each week passes without consensus building around any specific reform proposal in the House or Senate, I am growing ever more worried that the considerable eagerness for enacting major reforms may, at least in the short term, continune to stall or ultimately prevent getting a even minor reforms into law. (For the record, I already think this dynamic undercut the prospects of enacting, many months ago, less-controversial-but-consequential aspects of the Smarter Sentencing Act.) I sincerely hope I am wrong to see the same forces that brought down the SSA at work here creating a growing risk that the "sentencing reform best" ends up becoming a problematic enemy of the "sentencing reform good enough to get actually enacted."
Friday, July 31, 2015
Politics of pot continuing to heat up (and partially chronicled at Marijuana Law, Policy & Reform
A new Politico article suggests that Congress is in the midst of a "summer fling With marijuana," and that suggesion only reinforces my view that marijuana should definitely be a topic raised during next week's big GOP debate in Cleveland. And any and everyone interested in the modern politics of modern marijuana reform — which is burning hot at the local, tribal, state and international levels as well as in Congress — should be sure to check out my efforts to keep on top of some of the top stories at Marijuana Law, Policy & Reform. Here are links to some recent posts of note from MLP&R:
ABA Journal spotlights continued child porn federal sentencing challenges
This article in the August 2015 issue of the ABA Journal, headlined "Minors Sentence: Courts are giving reduced terms to many child-porn defendants," provides an review of the enduring difficulties federal courts face when sentencing certain offenders convicted of using new technologies to download illegal dirty pictures. Here is an excerpt:
Courts’ reaction to child pornography sentencing is part of a pushback against sentencing guidelines after U.S. v. Booker and U.S. v. Kimbrough, two Supreme Court opinions filed in 2005 and 2007 that found the federal sentencing guidelines advisory, not mandatory. As a result, courts have undercut child pornography sentencing guidelines when the images are taken from P2P programs.
According to one study cited in a 2012 U.S. Sentencing Commission report, 85.3 percent of child pornography distribution convictions in the first quarter of fiscal year 2012 involved P2P programs. Of offenders who used the programs, 55.6 percent distributed images solely with an open P2P program.
The study also found that the rate of known sexual recidivism for nonproduction offenders was 7.4 percent. The agency suggested that Congress revise the nonproduction child pornography sentencing scheme, because crimes stemming from downloads involve less culpability.
If prosecutors think that a child pornography defendant’s mental health contributed to the crime, and that the individual is sincere about rehabilitation and is not a child predator, they will agree to diminished incarceration plea agreements, says Raymond Cassar, a Farmington Hills, Michigan, defense lawyer....
One such case involved Nicholas Dubin, who has Asperger’s syndrome. According to a government sentencing memo, the FBI logged on to a P2P network in 2010 and identified 12 files on Dubin’s computer. More than half contained child pornography. The government obtained a search warrant for his home and found “several hundred to 1,000 images” of child pornography on his computer....
At the time of his arrest Dubin was the dean of students at a high school. In 2013, he pleaded guilty to one count of child pornography possession, and his sentencing range under the guidelines was between 97 and 120 months. The government, however, agreed to sentence Dubin to one day in federal custody, with credit for time served, and five years of supervised release. A 2013 sentencing memo submitted by the Eastern District of Michigan’s U.S. attorney’s office notes that people with autism spectrum disorders often have limited intimate relationships. The document also asserts that Dubin, who had no prior criminal record, was remorseful about his actions and had focused his therapy to understand why his crime was harmful.
“A sentence of one day time served does not, in any way, adequately reflect the seriousness associated with the possession of child pornography,” the government wrote. “However, in this exceptional case, a noncustodial sentence will effectively promote respect for the law and provide just punishment.”
To some, child pornography offenders may not seem as dangerous anymore, because their profile has changed, says Melissa Hamilton. A visiting criminal law scholar at the University of Houston Law Center, her research focuses on violence, sex crimes and sentencing. “Going to a physical location and buying child pornography off the shelf or sending away money to get it by mail,” she says, involves more culpability than searching for it online. The sentencing guidelines, she adds, were written before the uptick in prosecutions involving child pornography from P2P programs, and it’s unlikely that they’ll change in the near future.
“It’s a political hot potato to say that people who view child pornography aren’t that dangerous,” Hamilton says. “I have noticed some instances where very senior judges, who are reflecting [on the defendants they sentence] sometimes write long opinions saying that the child pornography downloaders don’t look as scary and risky, in terms of other violent offenders before them.”
Executive facing "unprecedented" LWOP sentence for food-poisoned peanut butter
I just came across this AP story from last week reporting on a notable sentence being urged by federal guidelines in a notable white-collar case. Here are the details:
Federal court officers have recommended a sentence of life in prison for a peanut company executive convicted of selling salmonella-tainted food, a move that attorneys on both sides called “unprecedented” for a food-poisoning case. The potential life sentence for former Peanut Corporation of America owner Stewart Parnell was disclosed by prosecutors in a court filing Wednesday. Parnell, 61, is scheduled to be sentenced Sept. 21 by a federal judge in Albany, Georgia....
Stewart Parnell ran the now-defunct company from his Bedford County home, just outside Lynchburg city limits. Parnell's defense attorneys confirmed the recommendation Thursday to The Associated Press, calling the possible punishment “unprecedented.” Bill Marler, a lawyer for victims sickened by peanut butter from Parnell's southwest Georgia plant, used the same word.
In fact, Marler and other experts say the trial of Parnell and two co-defendants last year was the first federal food-poisoning case to be tried by an American court. A jury convicted Parnell of 71 counts including conspiracy, obstruction of justice, wire fraud and other crimes related to a salmonella outbreak in 2008 and 2009. The Centers for Disease Control linked the outbreak to nine deaths and 714 illnesses. It prompted one of the largest food recalls in U.S. history.
Justin Lugar, one of Parnell's defense attorneys, confirmed Thursday that the recommendation before Judge W. Louis Sands is for life in prison, with no lesser range. Parnell's lawyers are trying to persuade the judge to disregard numbers used as aggravating factors to boost the suggested sentence to its maximum: an estimate that Parnell's customers suffered $144 million in losses as well as health officials’ tally that 714 people got sick....
“That recommendation is truly absurd,” said Ken Hodges, an attorney on Parnell's defense team. “We hope the judge will see that Stewart Parnell never meant to hurt anyone. He ate the peanut butter himself. He fed it to his children and to his grandchildren.”...
“Life in prison, especially in a food case, it's frankly unprecedented,” said Marler, who has represented victims of food-borne illnesses for two decades. “But the case itself, on a factual basis, is unprecedented.” Marler said he suspects the judge and prosecutors will think carefully before deciding to pursue a life sentence for Parnell. Still, he said, even the possibility of such a stiff sentence sends a message to food companies....
Even if objections raised by Parnell's attorneys to the sentencing recommendation are denied, it's still possible the judge could impose a lighter sentence. Federal judges are required to consider recommendations based on complex sentencing guidelines, but they are not bound by them.
Parnell and his co-defendants were never charged with sickening or killing anybody. Instead prosecutors used the seven-week trial to lay out a paper trail of emails, lab results and billing records to show Parnell's company defrauded customers by using falsified test results to cover up lab screenings that showed batches of peanut butter contained salmonella. The tainted goods were shipped to Kellogg's and other food processors for use in products from snack crackers to pet food.
Prosecutors wrote that court officers “correctly calculated” Parnell's recommended sentence, but stopped short of saying whether they plan to ask the judge to impose a life sentence. A spokeswoman for the Justice Department in Washington, Nicole Navas, declined to comment.
Prosecutors’ legal briefs also noted stiff sentences were recommended for Parnell's two co-defendants. Punishment of 17 to 21 years in prison was recommended for Parnell's brother, food broker Michael Parnell, who was convicted on fewer counts. The recommendation for Mary Wilkerson, the Georgia plant's quality control manager, was eight to 10 years. She was convicted of obstruction of justice.
Thursday, July 30, 2015
What accounts for decline in federal white-collar prosecutions (and should we care)?
The question in the title of this post is prompted by this new data report from Syracuse University's Transactional Records Access Clearinghouse (TRAC), which is titled "Federal White Collar Crime Prosecutions At 20-Year Low." Here are some details from the start of the report:
Federal prosecution of individuals identified by the government as white collar criminals is at its lowest level in the last twenty years, according to the latest data from the Justice Department.
The available records show an overall decline that began during the Clinton Administration, with a steady downward trend — except for a three-year jump early in the Obama years — continuing into the current fiscal year.
During the first nine months of FY 2015, the government brought 5,173 white collar crime prosecutions. If the monthly number of these kinds of cases continues at the same pace until the end of the current fiscal year on September 30, the total will be only 6,897 such matters — down by more than one third (36.8%) from levels seen two decades ago — despite the rise in population and economic activity in the nation during this period.
The projected FY 2015 total is 12.3 percent less than the previous year, and 29.1 percent down from five years ago. These counts are based on tens of thousands of case-by-case records obtained from the Executive Office for United States Attorneys (EOUSA) under the Freedom of Information Act (FOIA) by Syracuse University's Transactional Records Access Clearinghouse (TRAC).
The decline in federal white collar crime prosecutions does not necessarily indicate there has been a decline in white collar crime. Rather, it may reflect shifting enforcement policies by each of the administrations and the various agencies, the changing availabilities of essential staff and congressionally mandated alterations in the laws.
White collar crimes — as defined by the EOUSA — involve a wide range of activities including the violation of health care, tax, securities, bankruptcy, antitrust, federal procurement and other laws. Because such enforcement by state and local agencies for these crimes sometimes is erratic or nonexistent, the declining role of the federal government could be of great significance.
"Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity"
The title of this post is the title of this timely piece available via SSRN and authored by Beth Caldwell. Here is the abstract:
Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment. Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided. The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule. The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive. However, Miller’s rule is not clearly substantive or procedural.
This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner. I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature. The Miller decision has sparked a transformation in juvenile sentencing across the country. Directly in response to Miller, eight states have passed legislation expressly outlawing LWOP sentences for juveniles. Nine other states have created new resentencing or parole procedures that go far beyond the requirements of Miller to offer juvenile offenders more meaningful opportunities for release at younger ages. Given the widespread changes the opinion has inspired, it should be categorized as a watershed rule and should apply retroactively.
July 30, 2015 in Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Recent capital developments prompts query: "Is the death penalty dead in Washington?"
The question and quote in the title of this post is from the headline of this new notable local article reporting on a notable new death penalty developments in Washington state. Here are the details:
Some believe prosecutor Dan Satterberg's announcement Wednesday will have far reaching implications. "Today I am announcing my decision to with withdraw the notice of intent to seek the death penalty in the case of the State vs. Michele Anderson.
"These sorts of the decisions reverberate all over the state," said criminal defense attorney Todd Maybrown.
Maybrown believes Wednesday's announcement about Anderson, along with the jury's decision to spare Joseph McEnroe's life for the Carnation killings, and another jury who last week sentenced cop killer Christopher Monfort to life in prison, point to a turning of a tide.
"There have been many points along the way here when it seemed clear that the time has come that we as a community say we don't need the death penalty," Maybrown said. "We get no benefit from the death penalty, and resources are so scarce that we have to be more thoughtful."
"I pretty much reject the 'It's too expensive argument,'" said Snohomish County Prosecutor Mark Roe. "The reason I reject it is because the same people who are making (the argument) are the same people who are pursuing a strategy to make it expensive."
Roe is reluctant to generalize about the death penalty because every case is different. Out of more than 30 aggravated murder cases, he was in favor of seeking the death penalty on only three of them. "I think what it really shows is prosecutors and jurors in the state of Washington are really careful. And thoughtful about when they seek the death penalty and jurors, and when they vote to carry it out," Roe said.
Will Senator Grassley's (still-developing) sentencing reform bill make it to the President's desk in 2015?
The question in the title of this post is prompted by this new National Journal article providing the latest news on the on-going Senate discussions of a new sentencing reform bill spearheaded by Senate Judiciary Chair Charles Grassley. The piece is (misleadingly?) headlined "Chuck Grassley's Closer Than Ever to Giving in on Mandatory-Minimum Reform," and here are excerpts:
Grassley could be just days away from unveiling a major bipartisan justice-reform package that would seek to reduce recidivism and give inmates the chance to reduce their sentences with good behavior. The bill also will offer changes to the way judges dole out mandatory minimums.
Grassley has moved on the issue of mandatory minimums. While a bipartisan group of senators is still working on the final bill, it's clear that the Republican from Iowa has come a long way. "The points of negotiation are the ones you would expect, about in what areas mandatory minimums should be adjusted and to where they should be adjusted," says Democratic Sen. Sheldon Whitehouse, a key negotiator for justice reform in the Senate.
Unlike four months ago, today it is understood that any justice-reform package will include provisions that give judges more flexibility on sentencing. Behind the scenes, Grassley has fought to ensure that the provisions in the bill are not just rehashes of the Smarter Sentencing Act he was opposed to, but changes in mandatory minimums are coming. "It's not as far as I would like, but we are getting somewhere," Sen. Patrick Leahy, a sponsor of the Smarter Sentencing Act, told National Journal.
On mandatory minimums, Grassley insisted earlier this year that senators negotiate from scratch. "It was a long process, and he came in insisting on a different approach and we said, 'All right, let's take your approach and see how close we can come to our goal.' And he has worked in good faith with us and we're close," says Minority Whip Dick Durbin.
At this point, senators on both sides of the aisle report negotiations are closer than they have ever been. Senators have agreed that high-risk offenders, who are considered dangerous either because they deployed a weapon in a crime or have a history of violence, won't be eligible for the so-called safety valve. A narrow subset of nonviolent drug offenders will be.
"What we are trying to do is to make sure that those who are guilty of drug offenses do not have other aggravating factors such as using a gun, violence, or gang activity. We are working through the language very carefully on that," Durbin said. "How do we get the gang leaders and the brains of the gang separated from the rank and file?"
Many of the so-called back-end reforms that focus on giving prisoners a better chance of success after incarceration are borrowed from Republican Sen. John Cornyn and Sen. Whitehouse's Corrections Act.... The proposals in the Corrections Act focus on giving inmates the opportunity to get jobs and exhibit a propensity for success. Some low-level offenders can even work their way up to qualifying to serve the final weeks and months of their sentence supervised in the community.
Even once the new bill is introduced, however, there will still be changes made to it. And any legislation that makes it to the floor of the U.S. Senate will likely undergo a vigorous amendment process.
Other senators who have worked on criminal-justice reform before already see the upcoming legislation as an opportunity to advance their own causes. Sen. Tim Scott, a Republican from South Carolina, has introduced a bill to grant local law enforcement agencies $500,000,000 for body cameras over a five-year period. Scott says that arming agencies with cameras will help stem tensions between police and the communities they patrol. The floor may be another place for senators to add more stringent reductions in mandatory minimums.
Though Senator Grassley has been promising that "his" bill will be ready for prime time before the Senate takes its August recess, I remain fearful that the press of other legislative activities (as well as enduring opposition from the tough-and-tougher crowd) may prevent any significant federal sentencing reform from getting done before the end of the year. I hope my pessimism in this area is proven wrong; but given that we have already had more than two years of "momentum" and bipartisan talk of federal sentencing reform while no bill has even made it out of one congressional chamber, I am not going to count any sentencing reform chickens until they are doing the chicken dance on a desk in the Oval Office.
Wednesday, July 29, 2015
Based on Alleyne, Michigan Supreme Court declares its state guidelines unconstitutional and now advisory
As reported in this local press article, "the Michigan Supreme Court ruled Wednesday that the state’s sentencing guidelines that mandate prison terms are unconstitutional, and that judges should use them only in an advisory capacity." Here are excerpts from the state of the majority opinion in Michigan v. Lockridge, No. 149073 (Mich. July 29, 2015) (available here):
This case presents the question whether the Michigan sentencing guidelines violate a defendant’s Sixth Amendment fundamental right to a jury trial. We conclude that the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficient. That deficiency is the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the “mandatory minimum” sentence under Alleyne.
To remedy the constitutional violation, we sever MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory. We also strike down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure.
Consistently with the remedy imposed by the United States Supreme Court in United States v Booker, 543 US 220, 233; 125 S Ct 738; 160 L Ed 2d 621 (2005), we hold that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness. Booker, 543 US at 264. To preserve as much as possible the legislative intent in enacting the guidelines, however, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. Id.
Two of the seven Michigan Supreme Court Justices dissented from the majority opinion, and a lengthy dissent authored by Justice Markman ends this way:
I conclude that under the Sixth Amendment a criminal defendant is not entitled to a jury determination of facts necessary to establish his or her minimum parole eligibility date. Under Michigan’s sentencing system, the jury has the authority to render a defendant subject to the statutory maximum punishment, and the judge has no influence over this authority or any authority to usurp it. The judge’s exercise of judgment in establishing a parole eligibility date does not infringe the authority of the jury and does not violate the Sixth Amendment of the United States Constitution. Furthermore, Michigan’s indeterminate sentencing guidelines do not produce “mandatory minimum” criminal sentences, and because Alleyne only applies to facts that increase “mandatory minimum” sentences, Alleyne is inapplicable to our state’s guidelines. Therefore, I conclude that Michigan’s sentencing system does not offend the Sixth Amendment and would therefore affirm the judgment of the Court of Appeals.
Sentencing reform group propounds "The Dangerous Myths of NAAUSA"
In this post last week, I linked to this white paper produced by the National Association of Assistant US Attorneys titled "The Dangerous Myths of Drug Sentencing 'Reform'." This week has now brought this response from Families Against Mandatory Minimums (FAMM) titled in full, "The Dangerous Myths of NAAUSA: A Response to the National Association of Assistant U.S. Attorneys’ Paper Titled 'The Dangerous Myths of Drug Sentencing Reform'." Here are excerpts from the executive summary, introductory paragraph and conclusion of this FAMM response paper:
The National Association of Assistant U.S. Attorneys (NAAUSA), which represents neither the U.S. Department of Justice nor a significant percentage of assistant U.S. attorneys, opposes mandatory minimum sentencing reform on the basis of several unfounded and patently false claims. This paper rebuts those claims with data and facts...
The National Association of Assistant U.S. Attorneys (NAAUSA) recently released a white paper in which it purports to respond to the myths of sentencing reform advocates. Before addressing its substantive points, it is important to keep in mind who NAAUSA represents — or, more important, who it does not represent. NAAUSA does not represent federal prosecutors or the offices in which its members work. The U.S. Department of Justice (DOJ), which represents all federal prosecutors and prosecutes all federal cases, supports mandatory minimum drug sentencing reform. NAAUSA does not even speak for all assistant U.S. attorneys; only 28 percent of the nation’s assistant U.S. attorneys are members of NAAUSA, according to the group’s website. Former federal and state prosecutors now serving in Congress, including Senators Ted Cruz (R-TX), Mike Lee (R-UT), and Patrick Leahy (D-VT), are leading sponsors of federal mandatory minimum sentencing reforms opposed by NAAUSA.
While advocates from all points of the political spectrum, law enforcement groups, members of both parties of Congress, House Speaker John Boehner, the Department of Justice, and President Barack Obama all agree that significant mandatory minimum drug sentencing reform is needed — and the sooner the better — NAAUSA is using scare tactics and patently false and unsupported claims to attempt to maintain a status quo that indiscriminately incarcerates thousands of nonviolent drug offenders for decades, at the cost of billions of dollars that could be better invested in law enforcement and crime prevention. NAAUSA wants to maintain a sentencing system that is unjust, ineffective, expensive, harmful to families, and depleting law enforcement of limited resources. NAAUSA may call its opposition to mandatory minimum drug sentencing reform many things, but it cannot be called a serious effort to improve public safety.
Hoping GOP debates take up criminal justice reforms (including clemency and marijuana policy)
Next week in Cleveland is the first "real" event of the 2016 Prez campaign: the top ten of the sixteen declared GOP candidates will share the stage for a debate. And, as the title of this post highlights, I am rooting hard (but not really expecting) that a number of criminal justice reform issues, including topics like clemency and marijuana reform, play a big role in this first big debate and in the many future debates sure to follow.
Because I am professionally engaged in criminal justice issues, I am sure it comes as no surprise that I am hoping this first debate takes up these issues. But I also think these issues are especially (1) timely as Prez Obama and Congress start paying more attention to federal sentencing reform, and (2) likely to lead to a number of diverse and insightful discussions among the many GOP Prez candidates. Unlike issues like ObamaCare and the Iran deal, where all GOP voices have fairly comparable records and perspectives, all the GOP candidates (both major and minor) have very different track records and have engaged in very different forms of policy advocacy on criminal justice and sentencing issues.
In a post next week, I may start articulating specific criminal justice reform question that I think would be especially valuable to pose to all GOP candidates. For now, I just wanted to spotight my view and hope that the 2016 campaign, as it reallt gets going, will give considerable and serious attention to criminal justice issues from start to finish.
"Should Therapists Have to Report Patients Who Viewed Child Pornography?"
The quesion in the title of this post is the headline of this intriguing new piece from The Atlantic discussing an intriguing legal and policy issue developing in California. The piece's subheadline highlights one reason the answer to the question should perhaps be no: "A new law meant to protect children could lead to fewer pedophiles getting treatment before acting on their sexual impulses." Here is an excerpt:
Under a California law that went into effect at the beginning of this year, ... any real life therapist who learns that a patient has viewed child pornography of any kind would be required to report that information to authorities. The requirement applies to adults who admit to having viewed explicit images of children. And it even applies to teenage patients who tell their therapists about having viewed images sent to them by a peer engaged in sexting.
Over four decades, “California has expanded the scenarios under which therapists are legally required to break their clients' confidentiality and report to authorities a patient's criminal confessions or threats to hurt someone else,” the L.A. Times reports. “Requirements include disclosing confidential information if patients are an imminent danger to themselves or others; if a patient is a child who is the victim of a crime and reporting is in the best interests of the patient; and if the therapist learns that a child is the victim of neglect or abuse or is in imminent danger.”
Under the old standards, therapists also had to report patients who “knowingly developed, duplicated, printed or exchanged child pornography,” the article notes. “But the statute did not mention viewing or downloading material from the Internet.”
Sean Hoffman, who works for a group that represents Golden State district attorneys, told the newspaper that the law can help police to identify people who view child pornography and create a massive market for material produced through the abuse and exploitation. “If we don't know about it,” he said, “we can't prosecute it." The effect would ostensibly be fewer victims of an abhorrent industry.
But it seems to me that this new standard is likelier to make California more dangerous for children, an unintended consequence some therapists are warning against in a lawsuit they’ve filed in hopes of forcing a return to the previous standard.
July 29, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (17)
Taking stock of the tough-on-crime crowd's "resolute oarsman, pulling with all his might against the current"
A number of helpful readers have already made sure I did not miss this terrific lengthy Slate piece by Mark Obbie profiling Bill Otis. The article is a great read, and it generally gives Bill the respect he has earned and deserved in modern debates over modern sentencing. The piece is headlined "Last Man Standing: Nothing can stop the bipartisan coalition pressing for criminal justice reform. Nothing, except maybe Bill Otis." Here is one of the many great passages from the piece:
In congressional hearings, seminars, and news stories heralding the bipartisan reform movement and the practical inevitability of changes in federal law, Otis serves as the go-to voice for maintaining tough-on-crime sentencing.
Pundits, policy wonks, academics, and journalists seem in lockstep agreement that there really is no debate anymore about whether it’s time to pull back from the extremes that gave America its distinction as the world’s prison warden. As names like Meese, Gingrich, and Koch speak up on the other side of the divide, Otis seems increasingly isolated, the only man fighting a war that ended a long time ago.
But there are compelling reasons — strategic and substantive — not to count Otis and his views out just yet. For all the talk that criminal justice reform has finally reached critical mass, the last Congress failed to act, even when offered the low-hanging fruit of the Smarter Sentencing Act, which would only tinker modestly with the length of sentences for nonviolent drug offenses. This week, Iowa Republican Chuck Grassley, the chairman of the Senate Judiciary Committee and a longtime opponent of reform, signaled that he would finally bow to pressure from all sides and deliver a bipartisan reform bill by the time Congress takes its summer break. But a wide gulf surely separates Grassley’s version of reform from practically everyone else’s, and none of the proposals before Congress are more than a tentative first step toward undoing decades of harsh sentencing policy. Reformers’ best-case scenario is a long slog ahead, with Otis and his arguments dogging their every step.
Tuesday, July 28, 2015
Are "deep red states" really "rethinking the death penalty"?
The question in the title of this post is prompted by this new American Prospect piece headlined "Why Deep Red States Are Rethinking the Death Penalty." Here are excerpts:
[Marc] Hyden, 31, [is] one of the nation’s leading conservative anti-death-penalty activists, a small but growing group that sees the death penalty as antithetical to conservative values and the cause of limited government. Expensive, inefficient, and lethal, execution has come to represent much that’s wrong with big government today in many conservatives’ minds — particularly millennials.
And Hyden is one of their most visible spokesmen. As the national advocacy coordinator at Conservatives Concerned About the Death Penalty (CCATDP), a project at Equal Justice USA, Hyden speaks at Republican conferences and clubs, liaises with the media, attends Tea Party rallies, and is, more generally, part of an insurgency of conservative activists seeking to end capital punishment in deep red states.
That movement has been most visible in Nebraska, where a campaign to ban the death penalty has inspired fierce debate among the state’s deep red electorate. This past May, Nebraska’s heavily Republican legislature voted both to pass LB268, a repeal of the state’s death penalty, and override a veto from Republican Governor Pete Ricketts. But death penalty advocates like Ricketts have vowed not to go down without a fight. On June 1, Nebraskans for the Death Penalty, a recently formed group of the governor’s political allies, filed an initial petition with the Secretary of State to put a repeal of LB268 on the state’s ballot in 2016....
The mere concept of the state putting someone to death is antithetical to the principle of limited government. “There’s no greater power than the power to take a life, and our government currently retains that authority,” says Hyden, “If you don’t trust a government to deliver a piece of mail or launch a healthcare website, why would you trust them to take a life?”...
These conservative arguments against the death penalty aren’t just taking hold in Nebraska. They seem to be having an effect in other deeply conservative states, as well.
One state south, in Kansas, a repeal bill was introduced in the House this year, but it failed to advance. According to Mary Sloan, the executive director of the non-partisan Kansas Coalition Against the Death Penalty, the bill will carry over into the 2016 legislative session and is expected to have Democratic, moderate Republican, and conservative Republicans sponsors. Sloan is optimistic about the bill’s chances, citing a need to focus on more immediate issues like the budget, and not a lack of support, as the reason for its failure to advance this year.
Tennessee, another conservative state, is not, as Kansas appears to be, on the brink of abolition, but it’s still closer to getting rid of the death penalty than you may think. Stacy Rector, the executive director of Tennesseans for Alternatives to the Death Penalty, says a few years ago she would have said her state was a decade or so away from passing a repeal — now her best guess is three to five years. “It feels like the speed at which things are changing has kicked into high gear,” she says.
The obvious question to ask is, of course, Why now? There’s an argument to be made that it’s, at least in some part, a product of generational change. The more libertarian-leanings of young Republicans are well documented. Sixty-eight percent of millennial Republicans, for example, support the legalization of marijuana, compared to just 47 percent and 38 percent of their Gen X and Boomer counterparts, respectively. The death penalty seems to be another one of those issues in which young Republicans are choosing limited government over the traditional party line.
When he goes out and talks to young people, Hyden definitely notices how receptive they are to his arguments about government overreach. “I love talking to young people,” he says, “They tend to be much more skeptical of government power, in general.”