Tuesday, October 17, 2017

NFL Commish and player write to Senators to "offer the National Football League's full support for the Sentencing Reform and Corrections Act of 2017"

Images (4)In this post yesterday, I noted the report that the NFL was endorsing federal sentencing reform efforts.  One form of that endorsement emerged today in this form of a letter to US Senators.  This ESPN article provides the basics:

NFL commissioner Roger Goodell and Seattle Seahawks wide receiver Doug Baldwin co-signed a letter sent to congressional leaders in support of a bipartisan legislative bill that seeks criminal justice reform.  The letter states the NFL is offering its "full support" of the Sentencing Reform and Corrections Act of 2017, which seeks reforms and targets enhanced mandatory minimums for prior drug felons, increases judicial discretion for sentencing, and reforms enhanced mandatory minimums and sentences.

"The Sentencing Reform and Corrections Act would address many of the issues on which our players have worked to raise awareness of over the last two seasons," the letter, which is dated Oct. 16, reads. "... If enacted, it would be a positive next step in our collective efforts to move our nation forward."...

Asked Monday about a potential pushback from the White House, NFL spokesman Joe Lockhart said he didn't know the President Donald Trump's position on the bill. "I know that this has overwhelming bipartisan support, and we think it's the right thing to do, so that is our focus right now,'' he said.

Baldwin discussed the letter after the Seahawks' practice on Tuesday, saying the letter came about organically and is an important step in unifying the NFL community. "If you look at the players," he said, "we're utilizing the largest platform we have and so now, in a search for using the largest source of resources that we have, which is the NFL -- the NFL has a government affairs office that does a lot of work -- so being able to utilize that resource and make changes that we want to see obviously as players and the causes that we care about so passionately about, I thought that was a step in the right direction of us unifying the NFL community and going in the right direction toward progress."

Having Goodell co-sign the letter was also important, Baldwin said. "I think again the important aspect of it is us having a unified effort.  We don't want to be divided anymore. We don't want to continue with this divisive rhetoric, we don't want to engage with this divisive rhetoric.  We want to start showing our players, the NFL itself, the NFL community that we can be collectively united to seek the changes that we want to see, which are beneficial to the entirety of society.  So I thought it was important that we didn't do this as individuals but we did it as a collective group."

The full two-page letter is available at this link, and here is how it starts and ends:

We are writing to offer the National Football League's full support for the Sentencing Reform and Corrections Act of 2017 (S. 1917).  We want to add our voice to the broad and bipartisan coalition of business leaders, law enforcement officials, veterans groups, civil rights organizations, conservative thought leaders, and faith-based organizations that have been working for five years to enact the changes called for in this comprehensive legislation....

The Sentencing Reform and Corrections Act would address many of the issues on which our players have worked to raise awareness of over the last two seasons. This bill seeks to improve public safety, increase rehabilitation, and strengthen families.  If enacted, it would be a positive next step in our collective efforts to move our nation forward.

Ultimately, we all share a responsibility to find a path towards unity, one that goes well beyond sports.  The National Football League applauds the introduction of this bipartisan criminal justice reform bill as well as your ongoing commitment to upholding America's promise of justice for all.  We stand ready to work with you to advance this important legislation.

October 17, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Lots of criminal justice coverage at start of new Harvard Law Review Blog

Logo_DesktopVia email, I learned of an old institution of legal scholarship trying its hand at a new(?) medium. Here is the explanation via the email text:

We are excited to announce the launch of the Harvard Law Review Blog.

The Harvard Law Review published its first issue more than 130 years ago with the hope that it could “enlarge our field” and be “serviceable to the profession” through thoughtful and relevant legal analysis.  Our Blog continues this effort.  By fostering legal inquiry and argument that is fast-paced and timely, the Blog will strive to complement the long-form, in-depth analysis that has filled our pages for over a century.

Like our print edition and the Forum, the Blog will bring together the scholars, practitioners, and leaders who are on the forefront of today’s biggest legal issues — who are pushing for a deeper understanding of the law. In keeping with our tradition as a generalist publication, our contributors will explore a range of topics, from Chevron deference and civil rights to international trade and immigration law.

In 1887, the editors of the Law Review’s first issue wrote, “It will be our aim to develop the Review on the lines we have indicated, in the hope of deserving the support which we have already received.” Today, we launch the Harvard Law Review Blog in the same spirit.

Notably, a number of the initial posts up on the HLR Blog have a criminal justice focus:

October 17, 2017 in On blogging, Recommended reading | Permalink | Comments (0)

Busting the "myth of the progressive prosecutor"

Much advocacy and debate over modern criminal justice reform has come to give particular attention to the role of prosecutors.  In turn, it sometimes seems that some reform-minded folks seem to believe or suggest that getting the right persons to serve as prosecutors can be a kind of modern magic criminal reform elixir.   Against that backdrop, I found this new New York Times op-ed refreshing and important.  It is headlined "Cyrus Vance and the Myth of the Progressive Prosecutor," and here are excerpts:

[T]he Manhattan district attorney, Cyrus Vance Jr., ... is considered one of America’s most progressive prosecutors and has the accolades to prove it.  In 2015, he helped create the Institute for Innovation in Prosecution at the John Jay College of Criminal Justice.  Two years earlier, Attorney General Eric Holder gave him an award for having developed a partnership between local youths and law enforcement aimed at reducing violence.

Sure, he often says the right thing, as when he told New York Law School’s graduating class in 2015 that he had recognized racism in the criminal justice system “long before the term ‘mass incarceration’ entered the general conversation,” or when he wrote in the black-owned Amsterdam News last month that he has helped to reduce “unnecessary contact with the criminal justice system” among Manhattanites.

However, like many prosecutors across the country who get credit for changing the game while continuing draconian practices, Mr. Vance simply isn’t the reformer he paints himself as.  Look at the data. Manhattan holds less than 20 percent of the city’s population, but on an average day, almost 40 percent of Rikers Island inmates are from the borough.  This disparity has been attributed in part to his office’s zealous prosecution of misdemeanors.  As of 2015, Mr. Vance was more likely to prosecute a misdemeanor charge than any other district attorney in New York City.

And despite lamenting racism in the criminal justice system, Mr. Vance perpetuates worrisome racial disparities.  A 2014 Vera Institute of Justice study found that black and Latino defendants prosecuted by Mr. Vance’s office were more likely to be detained at booking, compared with similarly situated white defendants.  And last year, 51 percent of marijuana cases involving black defendants in Manhattan ended in conviction, while only 23 percent involving whites did.

Nor is Mr. Vance the only faux reformer.  The New Orleans district attorney, Leon Cannizzaro, claims that his office “has worked aggressively to reform New Orleans’s criminal justice system.”  But his actions indicate that he values convictions over his community.  He has locked up rape victims who refused to testify against their assailants and has served fake subpoenas to pressure witnesses to talk. Mr. Cannizzaro defended a sentence in which a 17-year-old was sent to prison for 99 years for an armed car robbery, even though no one was injured during the crime.  His office tried to sentence a man to 20 years in prison for stealing $31 worth of candy.

The Los Angeles district attorney, Jackie Lacey, is a Democrat who has benefited from the public’s perception that she is a reformer.  This is something she has fed herself, bragging to a Los Angeles Sentinel reporter that she has read “The New Jim Crow” by Michelle Alexander and has seen Ava DuVernay’s documentary “13,” about the connection between slavery and mass incarceration.  But Ms. Lacey’s values have consistently lagged behind those of her constituency.  In ballot initiatives, Los Angeles County residents supported shorter sentences for low-level and nonviolent property and drug crimes and wanted to legalize recreational marijuana use for adults. Ms. Lacey opposed both. And although the county voted in favor of abolishing the death penalty, she continues to support it. Last year there were just 31 death sentences nationwide. Ms. Lacey’s office secured four of them....

So it’s especially frustrating that many of those who are praised as change-makers are at best making bite-size improvements.  And because they say the right things, the public gives them a pass: Mr. Vance is running unopposed for a third term, and Ms. Lacey also ran unopposed in her last election.

The progressive bombast is meaningless if prosecutors continue to promote the same harsh practices behind the scenes. Instead, voters must look closely at their policies and hold them to high and specific standards.  We should ask: Are prosecutors opposing new mandatory minimum sentences during legislative debates? Have they declined to request cash bail in a vast majority of cases? Are they keeping children out of adult court and refusing to seek life-without-parole sentences for them?

Over 1,000 prosecutors will be up for election next year in places like Dallas, San Diego, Seattle, Oakland, Calif., and Charlotte, N.C. Voters ought to make sure the people who win these crucial races are actual criminal justice reformers, not just people who say they are.

Over at Simple Justice, Scott Greenfield here also gives attention to this notable op-ed by calling out some more current and former prosecutors for their questionable reform credentials. He also adds these sharp comments that reflect my view that reforming the law is even more critical than reforming who applies the law (though that matters, too):

[E]ven the [progressive prosecutors] who aren’t taking bribes, who can quote Maya Angelou from memory, are still prosecutors. To some extent, the conflict is inherent in the job; prosecutors prosecute based on law. They are not the avenging angels of social justice, but just avenging angels.

The irony of calling for more criminalization in one place (say, revenge porn) while bemoaning criminalization in others (say, marijuana) eludes many. But over-criminalization only seems to register in progressive minds based on fashion trends, forgetting that the crimes they hate today were once just as fashionable as the crimes they love today.

And this is where they fail to grasp how their cries for “justice” make little sense, since “justice” is mostly a matter of whose sad story prevails, the accused or the victim, at any given moment. Ask any victim about “justice” and there is a good chance their foremost concern won’t be educational opportunities in poor urban schools.

But what Duffy makes clear is that there are real ways in which prosecutors can exercise their authority, their discretion, to bring reform to their jobs, by eliminating false confessions, suggestive identifications, Brady violations, junk science, needless bail, abuse of power, covering for killer cops and the big one, not going for death.

October 17, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

You be the Army judge: what sentence for Army deserter Bowe Bergdahl?

The question in the title of this post is prompted by this new AP article headlined "Bergdahl guilty pleas leave room for drama at sentencing." Here is the context for the question:

Army Sgt. Bowe Bergdahl's guilty plea to charges of endangering comrades in Afghanistan has set up a dramatic sentencing hearing that could land him in prison for life.  Bergdahl, who was captured and held by the Taliban for five years after leaving his remote post in Afghanistan in 2009, pleaded guilty Monday in North Carolina to desertion and misbehavior before the enemy, a rare charge that carries a potential life sentence.

Because Bergdahl had no plea deal with prosecutors, his punishment will be decided by the judge, Army Col. Jeffery R. Nance, at a hearing starting Oct. 23.  Bergdahl was thoroughly questioned by Nance at his plea hearing at Fort Bragg, and the soldier acknowledged that his actions — and subsequent military search missions — put fellow service members in harm's way. "I left my fellow platoon mates," he told the judge. "That's very inexcusable."

At sentencing, the judge is expected to weigh factors including Bergdahl's willingness to accept responsibility by pleading guilty, his time in captivity of the Taliban and its allies, and serious wounds to service members who searched for him.  "Pleading guilty before a judge without any protection from a deal is a risky move," said Eric Carpenter, a former Army lawyer who teaches law at Florida International University. "The military judge can sentence Bergdahl to zero punishment, but he can also sentence Bergdahl to life in prison."

The guilty plea brings the highly politicized saga closer to an end eight years after Bergdahl vanished. President Barack Obama brought him home in 2014 in a swap for five Taliban prisoners at Guantanamo Bay, saying the U.S. does not leave its service members on the battlefield. Republicans roundly criticized Obama, and Donald Trump went further while campaigning for president, repeatedly calling Bergdahl a "dirty, rotten traitor" who deserved to be executed by firing squad or thrown out of a plane without a parachute.

Bergdahl, 31, has said he walked away from his remote post in 2009 with the intention of reaching other commanders and drawing attention to what he saw as problems with his unit. "At the time, I had no intention of causing search-and-recovery operations," he said in court. "I believed they would notice me missing, but I didn't believe they would have reason to search for one private."...

Bergdahl's responses to the judge Monday were some of his most extensive public comments yet. He said he tried to escape from his captors 12 to 15 times, with varying degrees of success.  Once, he was on his own for about a week — hoping U.S. drones would spot him — before he was recaptured.  He said he also tried to escape on his first day in captivity. "As I started running there came shouts, and I was tackled by people. That didn't go so well," said Bergdahl, who spoke in even tones and wore a blue dress uniform.

Meanwhile, Bergdahl's fellow service members engaged in firefights that they could have avoided had Bergdahl not gone absent without leave, the judge said.  Those firefights left a Navy SEAL with a career-ending leg wound and an Army National Guard sergeant with a head wound that put him in a wheelchair.

As for the defense contention that Trump unfairly biased the court-martial against Bergdahl, a ruling in February found that the new president's comments were "disturbing and disappointing" but did not constitute unlawful influence by the soon-to-be commander in chief.

October 17, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (8)

Monday, October 16, 2017

"Racial Disparity in U.S. Imprisonment Across States and over Time"

The title of this post is the title of this new empirical article now available via SSRN authored by Walter Enders, Paul Pecorino and Anne-Charlotte Souto.  Here is the abstract:

The overall incarceration rate in the United States is extremely high by international standards. Moreover, there are large racial disparities, with the black male rate of imprisonment being 5.5 times the white male rate in 2014.  This paper focus on how this black-white imprisonment ratio has behaved over time within and across states. We show that the large increase in black imprisonment between 1978 and 1999 was driven by increases in the overall rate of imprisonment, while the smaller decrease which occurred between 1999 and 2014 was driven by reductions in the black-white ratio.

For many states, the black-white ratio turned upward in the mid-1980s, where this upturn may have been linked to the crack epidemic.  Many states experienced a downturn in the black-white ratio starting in the 1990s.  Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment. California’s experience has been strongly counter to national trends with a large increase in the racial disparity beginning in the early 1990s and continuing until near the end of our sample.

October 16, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

NFL endorses federal criminal justice reform bills

I was not familiar with professional sports leagues playing a role in modern legislative debates, but this new Washington Post piece reports that the National Football League has "decided to endorse a bipartisan bill to reduce mandatory minimum sentences for low-level drug offenders, eliminate “three-strike” provisions that require life sentences and give judges more latitude to reduce sentences for certain low-level crimes."  Here are the details:

The National Football League, still in political crosshairs over whether players should take a knee during the national anthem, is throwing its weight behind another cause in Washington’s debate over racial inequality: criminal justice reform.

The NFL’s spokesman said on Monday that the league has decided to endorse a bipartisan bill to reduce mandatory minimum sentences for low-level drug offenders, eliminate “three-strike” provisions that require life sentences and give judges more latitude to reduce sentences for certain low-level crimes.

“We felt that this was an issue over the last months, as we have continued to work with our players on issues of equality and on issues of criminal justice reform, that was surfaced for us, and we thought it was appropriate to lend our support to it,” NFL spokesman Joe Lockhart said Monday during a conference call with reporters.

The owners appear to be seeking middle ground between football players and their critics during a heated national debate over the growing phenomenon of players kneeling during the national anthem to protest police brutality and racial inequality.  It is not clear what effect the NFL’s effort will have on that debate — or on President Trump, who has fueled much of the vitriol against kneeling players through his personal and official Twitter accounts....

On Capitol Hill, spokesmen for the two main sponsors of the criminal justice bill, Sens. Charles E. Grassley (R-Iowa) and Richard J. Durbin (D-Ill.), declined to comment about the timing of the NFL’s endorsement or whether it was intended to quell the heated debate over the players’ continued protests. Both said they welcomed the NFL’s support.

But a spokesman for Grassley added that the NFL had not coordinated with the bill’s congressional sponsors in advance of its decision.  In the meantime, no other sports league has signed on. A spokesman for the NFL Players Association did not immediately return a call for comment about whether the football players’ union would also endorse the bill.

In Congress, it is not clear whether the NFL’s endorsement will help the bill’s chances of passing.  The legislation has already earned the support of some influential groups from across the political spectrum, including the National Association for the Advancement of Colored People, the American Civil Liberties Union, the Charles Koch Institute and Americans for Tax Reform.

In addition, the Grassley-Durbin bill is the result of a five-year, bipartisan effort. Last year, the duo released almost identical legislation backed by 37 co-sponsors, including 17 Republicans. Despite that, sponsors have struggled in years past to secure a full Senate vote for the bill, with Senate Majority Leader Mitch McConnell (R-Ky.) refusing to bring it to the floor.

October 16, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (3)

SCOTUS grants cert on three criminal procedure issues

Before taking a break for the next two weeks, the US Supreme Court this morning issued this new order list with grants of certiorari in four new cases.  There of these cases involve criminal procedure matters, and here are brief accounts via SCOTUSblog (with links thereto):

Currier v. Virginia:  Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

United States v. Microsoft Corp.:  Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider's control, even if the provider has decided to store that material abroad.

Dahda v. United States:  Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge's territorial jurisdiction.

None of these cases get my sentencing blood racing, and the most interesting aspect of the order list for hard-core sentencing fans might be a short opinion by Justice Sotomayor (joined by Justices Ginsburg and Breyer) dissenting from the denial of certiorari in a couple of Florida capital cases in which defendants argued "that the jury instructions in their cases impermissibly diminished the jurors’ sense of responsibility as to the ultimate determination of death by repeatedly emphasizing that their verdict was merely advisory."  

October 16, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Colorado judge finds state's statutory response to Miller unconstitutionally favors certain juve defendants at resentencing

This local article reports on an interesting (and quirky?) ruling from a Colorado state judge last week finding constitutional problems with how the state responded to the Supreme Court's Eighth Amendment ruling in Miller precluding any mandatory LWOP sentencing for juvenile murderers.  The full headline of the article provides the basics: "Colorado law giving a break to some serving life for crimes committed as juveniles is unconstitutional, judge rules: Judge Carlos Samour Jr. ruled state can’t set preferential sentence for offenders convicted of felony murder." Here are more particulars: 

Part of a 2016 Colorado law that offers special sentencing considerations for some of the 50 people serving life without parole for crimes they committed as juveniles has been ruled unconstitutional by an Arapahoe County judge. Chief District Court Judge Carlos Samour Jr. this week entered his ruling in a case filed by Curtis Brooks, who was sentenced in 1997 to life in prison without parole after his conviction for felony murder.

The law, Samour ruled, gives preferential treatment to Brooks and 15 other offenders convicted of felony murder, offering them reduced sentences of 30 to 50 years in prison, while 34 other convicts serving life without parole could get new sentences of life in prison with the possibility of parole.  “Under the circumstances present, the court finds that the challenged provisions grant the 16 defendants a special or exclusive privilege,” his ruling says.

Brooks had applied to have his sentence reduced under the law, which the legislature passed last year. Felony murder holds defendants liable for first-degree murder if they commit or attempt certain felonies, such as burglary or robbery, and someone dies “in the course of or in furtherance of the crime.” In Brooks’ case, the owner of a car was killed by someone else as they tried to steal the vehicle. Brooks was 15.

Although Samour’s ruling is very well-reasoned, it is not binding precedent, said Ann Tomsic, chief deputy attorney for the 18th Judicial District.  Other judges probably will read Samour’s ruling and base their sentencing decisions on what he wrote, she said.... Brooks’ attorneys, including Dru Nielsen, said they could not comment on the facts of the case. Nor would they say whether they would appeal Samour’s decision....

Samour concluded that because the portion of the 2016 law applying only to those convicted of felony murder is unconstitutional, he must sentence Brooks to life in prison with the possibility of parole.

The Colorado legislature said juveniles convicted of felony murder cannot be sentenced to life without parole. Had lawmakers passed a bill that applied equally to all people convicted as an adult for crimes committed as a juvenile, it would have been constitutional, Samour said.  “What the legislature could not do, however, is what it, in fact, did: arbitrarily single out the 16 defendants and bestow preferential treatment upon them,” Samour ruled. Emphasizing his point, he wrote that the legislature cannot act as a sentencing court or a parole board.

I was unable to find on-line the formal opinion in this case, but in doing a bit of research I found this other local Colorado article from August reporting on a similar decision by another state judge which explains that Colorado prosecutors are apparently the ones objecting to the new Colorado statutory rule providing for a lower resentencing range for juveniles previously convicted of only felony murder. Here is how this other article explains the legal dynamics seemingly in play:

In his ruling, Epstein found that the state Legislature exceeded its authority when it provided the possibility of a 30- to 50-year sentence for felony murder convicts. He granted a motion by the El Paso County District Attorney's Office that attacked the law on procedural grounds, arguing that the sentencing range is unconstitutional because the reduced sentence wouldn't be available to anyone convicted of felony murder before or after the 16-year period. One of Medina's attorneys, Nicole Mooney, said prosecutors in at least three other jurisdictions have filed similar motions, and suggested that prosecutors' success in El Paso County could encourage more challenges — and embolden judges to grant them.

Prosecutor Jennifer Viehman, who mounted the successful challenge, said the 2016 law violated the state Constitution's provisions for special legislation by creating a "closed class" of beneficiaries. "You can't just single out a little special class of people, and make laws just for them," she said. "That's what the judge agreed with." Without the chance for parole after 30 years, then only one sentence is available — life in prison with the chance for parole after 40 years.

I surmise from this second article that judges are finding the distinct resentencing provisions for those convicted of felony murder to be a kind of problematic "special" legislation under Colorado constitutional law. Without expertise in state constitutional law, I cannot quite be sure if that is a sound or suspect conclusion.

UPDATE A helpful reader sent me a copy of the 48-page opinion in the Brooks case, which can be downloaded below and has the following section in its introductory paragraphs:

For the reasons articulated in this Order, the Court finds that the defendant must be resentenced, but concludes that the statutory provisions authorizing a determinate prison sentence of thirty to fifty years with ten years of mandatory parole are invalid because they constitute prohibited special legislation under the Colorado Constitution. The Court, therefore, grants the People’s motion to declare the relevant statutory provisions unconstitutional and denies the defendant’s request for a thirty-year prison sentence with ten years of mandatory parole.  In light of these rulings, and based on the legislature’s intent, the Court determines that the defendant must be resentenced to a term of life in prison with the possibility of parole after forty years.

Download Brooks - Post-Conviction Order

October 16, 2017 in Assessing Miller and its aftermath, New USSC crack guidelines and report, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, October 15, 2017

"Attorney hopes to import the best practices of European prisons to the United States"

The title of this post is the headline of this lengthy ABA Journal article from the October 2017 issue. Here is how it starts:

Attorney Donald Specter spent more than three decades working to protect the rights of incarcerated people before he finally saw a prison he believed in.

He was in Europe, having just won perhaps the biggest ruling of his career — a 2011 U.S. Supreme Court decision in Brown v. Plata that required California to reduce its inmate population by more than 40,000. But Specter, executive director of the Berkeley-based Prison Law Office, wasn’t there to celebrate.  He was a co-instructor on a study-abroad trip about correctional practices with University of Maryland students.

This trip included visits to prisons in Denmark, Germany and the Netherlands. Specter says he was blown away. The prisons were nothing like those he had spent his career trying to change in the United States.  For starters, they were physically different — built to resemble life on the outside. Inmates had their own rooms and, in some cases, were allowed to cook in communal kitchens.  But what struck Specter most was that the prisoners were treated differently, too.  “They still regarded the people in prison as members of the community who were going to return to the community,” he says. “That has a whole bunch of implications.”

Specter, who began his legal career as a volunteer at the Prison Law Office, had long been frustrated by the limits of litigation to bring about meaningful change.  In Europe, he began to wonder whether there might be a different way to approach his life’s work.  “By the end of the trip, [the students’] basic question was: Why do we have such lousy prisons when they can be so much better?” he says.  “I started thinking about whether the same kind of transformation could happen with people who were a little older and more experienced — hardened correctional officers and the like.”

In 2013, Specter launched the U.S.-European Criminal Justice Innovation Program, sponsoring weeklong tours of European prisons for U.S. corrections officials, judges and lawmakers. He funds the trips using fees from his lawsuits, including some of the $2.2 million his office was awarded after the high court’s ruling in Brown.  In that case, Specter represented prisoners who challenged the delivery of health care in the California prison system.  The high court affirmed an earlier appeals court ruling that overcrowding was the primary cause of the deficient system and ordered the state to reduce its inmate population.

Specter’s first overseas trip was with representatives from Colorado, Georgia and Pennsylvania and included stops in Germany and the Netherlands. Subsequent tours, including one this fall with officials from Alaska, have focused on Norway, which is known for the freedoms it grants eligible inmates.  So far, officials from eight states have participated, including the executive director, president and vice president of the Association of State Correctional Administrators, which has members who oversee 400,000 correctional personnel and 8 million inmates or former inmates.

Although the United States has the highest incarceration rate in the world — 676 inmates per 100,000 people, according to the United Nations Office on Drugs and Crime — Specter thinks Americans still have a lot to learn about how to prepare prisoners for life on the outside.  (Norway’s incarceration rate is 80 inmates per 100,000 people.)

October 15, 2017 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (4)

"Why kids don’t belong on sex offender registry"

The title of this post is the headline of this recent op-ed authored by Nicole Pittman. Here is how it starts:

California took an important step toward ending the abusive practice of putting kids on sex offender registries when Gov. Jerry Brown signed Senate Bill 384, which allows juveniles to petition for their removal after five or 10 years.

When California became the first state to register children as sex offenders in 1986, there was little known about children who commit sexual offenses. At that time, treating them the same as adults seemed sensible. Today, we have research that tells us that putting them on registries does not prevent future child sexual abuse and can diminish public safety.

Roughly 200,000 people on sex offender registries — including more than 3,500 in California — went on as kids, some for serious crimes but many others for playing doctor, streaking or teenage romances.

Sex offender registration laws stigmatize and isolate the very children they were meant to protect, ensuring their youthful indiscretions follow them into adulthood. Names, photos, and addresses are often made public, leading to vigilante violence, stigmatization, and severe psychological harm. One in five attempt suicide; too many succeed. There’s also now a strong body of evidence demonstrating that very few youth commit more sexual crimes.

October 15, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5)

Pope Francis calling for evolution of formal Catholic teachings on the death penalty as always "inadmissible"

20171011T1434-12147-CNS-POPE-CATECHISM-DEATH-PENALTY-800x500As reported here via Vatican Radio, Pope Francis spoke out against the death penalty in a notable new way while addressing participants attending a meeting celebrating the Twenty-fifth Anniversary of the Promulgation of the Catechism of the Catholic Church.  Here is a translated account of his notable comments (with my emphasis added):

I would like now to bring up a subject that ought to find in the Catechism of the Catholic Church a more adequate and coherent treatment in the light of these expressed aims.  I am speaking of the death penalty.  This issue cannot be reduced to a mere résumé of traditional teaching without taking into account not only the doctrine as it has developed in the teaching of recent Popes, but also the change in the awareness of the Christian people which rejects an attitude of complacency before a punishment deeply injurious of human dignity.  It must be clearly stated that the death penalty is an inhumane measure that, regardless of how it is carried out, abases human dignity.  It is per se contrary to the Gospel, because it entails the willful suppression of a human life that never ceases to be sacred in the eyes of its Creator and of which -- ultimately -- only God is the true judge and guarantor.  No man, “not even a murderer, loses his personal dignity” (Letter to the President of the International Commission against the Death Penalty, 20 March 2015), because God is a Father who always awaits the return of his children who, knowing that they have made mistakes, ask for forgiveness and begin a new life.  No one ought to be deprived not only of life, but also of the chance for a moral and existential redemption that in turn can benefit the community.

In past centuries, when means of defence were scarce and society had yet to develop and mature as it has, recourse to the death penalty appeared to be the logical consequence of the correct application of justice.  Sadly, even in the Papal States recourse was had to this extreme and inhumane remedy that ignored the primacy of mercy over justice.  Let us take responsibility for the past and recognize that the imposition of the death penalty was dictated by a mentality more legalistic than Christian.  Concern for preserving power and material wealth led to an over-estimation of the value of the law and prevented a deeper understanding of the Gospel.  Nowadays, however, were we to remain neutral before the new demands of upholding personal dignity, we would be even more guilty.

Here we are not in any way contradicting past teaching, for the defence of the dignity of human life from the first moment of conception to natural death has been taught by the Church consistently and authoritatively.  Yet the harmonious development of doctrine demands that we cease to defend arguments that now appear clearly contrary to the new understanding of Christian truth.  Indeed, as Saint Vincent of Lérins pointed out, “Some may say: Shall there be no progress of religion in Christ’s Church? Certainly; all possible progress. For who is there, so envious of men, so full of hatred to God, who would seek to forbid it?” (Commonitorium, 23.1; PL 50).  It is necessary, therefore, to reaffirm that no matter how serious the crime that has been committed, the death penalty is inadmissible because it is an attack on the inviolability and the dignity of the person.

“The Church, in her teaching, life and worship, perpetuates and hands on to all generations all that she herself is, all that she believes” (Dei Verbum, 8). The Council Fathers could not have found a finer and more synthetic way of expressing the nature and mission of the Church.  Not only in “teaching”, but also in “life” and “worship”, are the faithful able to be God’s People.  Through a series of verbs the Dogmatic Constitution on Divine Revelation expresses the dynamic nature of this process: “This Tradition develops […] grows […] and constantly moves forward toward the fullness of divine truth, until the words of God reach their complete fulfillment in her” (ibid.)

Tradition is a living reality and only a partial vision regards the “deposit of faith” as something static.  The word of God cannot be moth-balled like some old blanket in an attempt to keep insects at bay!  No.  The word of God is a dynamic and living reality that develops and grows because it is aimed at a fulfilment that none can halt. This law of progress, in the happy formulation of Saint Vincent of Lérins, “consolidated by years, enlarged by time, refined by age” (Commonitorium, 23.9: PL 50), is a distinguishing mark of revealed truth as it is handed down by the Church, and in no way represents a change in doctrine.

Doctrine cannot be preserved without allowing it to develop, nor can it be tied to an interpretation that is rigid and immutable without demeaning the working of the Holy Spirit. “God, who in many and various ways spoke of old to our fathers” (Heb 1:1), “uninterruptedly converses with the bride of his beloved Son” (Dei Verbum, 8). We are called to make this voice our own by “reverently hearing the word of God” (ibid., 1), so that our life as a Church may progress with the same enthusiasm as in the beginning, towards those new horizons to which the Lord wishes to guide us.

I have quoted this extended passage because I am struck by how much of the Pope's advocacy and themes echoes (1) Justice William Brennan's concurrence in Furman v. Georgia in which he stressed human dignity as a reason to find the death penalty per se unconstitutional, as well as (2) much Eighth Amendment jurisprudence which stresses that the "Eighth Amendment has not been regarded as a static concept" but rather has prohibitions that can and do acquire new meaning "as public opinion becomes enlightened by a humane justice" based on the "evolving standards of decency that mark the progress of a maturing society."

Perhaps unsurprisingly, there is not a universal view that the Pope's view on these issues is wise and in keeping with Catholic principles and teaching.  Here are two pieces from LifeSite highlighting why these latest comments on the death penalty by Pope Francis are controversial:

October 15, 2017 in Death Penalty Reforms, Religion, Who Sentences? | Permalink | Comments (3)

LWOP+ sentence imposed for impaired driver who killed two in Florida

Long-time readers know I am sometimes inclined to complain about repeat drunk drivers getting lenient sentences unless and until they hurt someone.  But once an impaired driver starts hurting or killing, sentences then can often get quite severe.  A helpful reader alerted me to this notable local story from Florida reporting on the severest possible sentence imposed on an impaired driver in Texas headlined "Trucker gets life in prison on DUI charges from crash that killed two Naples women." Here are excerpts with emphasis on the sentencing particulars:

It was an impact statement about a moment of impact. “In one single second, my best friend, my wife .. my entire world came crashing down,” Dan Jenkins said, describing the horror as he watched a Kenworth tractor slam into a car driven by his wife on a rural Central Florida road in 2011. And it had the desired impact.

Circuit Court Judge Marcus Ezelle sentenced Michael John Phillips, 52, to life in prison plus 15 years for DUI manslaughter in the deaths of Jennifer Jenkins, 35, and Kathleen O’Callaghan, 34.

The two friends from their days as schoolgirls in Naples were killed as they drove toward Orlando for the birthday party of another friend. Dan Jenkins was following in a second vehicle, the couple’s 2-month-old daughter with him.

Phillips, found guilty by a Hardee County jury in August, could have been sentenced to as little as 25 years, according to state sentencing guidelines. But eight family members and friends gave victim impact statements at Friday’s sentencing, each asking Ezelle to impose the maximum penalty of life in prison. Ezelle went symbolically further, pronouncing a life sentence for one count of DUI manslaughter and an additional 15 years for the second....

In Florida, judges must sentence defendants based on a score tabulated in a pre-sentence investigation. Phillips’ score was 364.4. Had it been 363 or lower, a life sentence would not have been an option. Factors that boosted his score included drug arrests dating 30 years, a refused drug test while free on bond in this case and then absconding on that bond, which delayed the case for several months while authorities searched for him.

Defense attorney Kelley Collier asked Ezelle for a sentence of less than life in prison, in part because Phillips was just over the points threshold. He said Phillips, who tested positive for methamphetamine in his system, basically fell asleep at the wheel of the truck. “He does not have a conscious recollection of the accident,” he told Ezelle.

Falling asleep at the wheel is not a reaction one would expect from using methamphetamine, Collier said. “I would argue that the facts are not the kind of facts that would warrant that kind of (life) sentence,” Collier said.

Ezelle said the fact that Phillips didn’t intend to cause the crash wasn’t relevant. The manslaughter conviction, by its nature, presumes the guilty party didn’t premeditate the crime. Instead, the case was about creating risk that endangered others. “Mr. Phillips, by his decisions, weaponized a commercial vehicle,” Ezelle said.

Collier said he plans to file an appeal of Phillips' conviction, based in part on expert testimony he said should have been disallowed at trial. Family members had been frustrated by the slow pace of the case. It took investigators almost a year to charge Phillips. Friday’s sentencing occurred just two days shy of the fifth anniversary of those charges being formally filed in court....

Dan Jenkins said the life sentence will make it easier to explain the tragedy to his daughter, Ashley, now almost 6, when she asks about her “Momma Jen.” “Now I can tell her the man is in jail for the rest of his life. I can look at her and say that man will never hurt anybody again.”

I am pretty sure that Florida has no parole mechanism for these kinds of cases, so this life+ sentence is truly an LWOP+ sentence.  I am not so sure, but now wondering about, whether this defendant could have and would have received a much lower sentence had he been willing to plead guilty.  Relatedly, it is unclear what particular facts and factors were critical at trial for his convictions and how much "expert testimony" may have made a difference.  Whatever the plea/trial backstory, I now have another example for my students of how relatively common risky behavior can be punished severely when it results in particularly tragic harms.

October 15, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Friday, October 13, 2017

"Financing the War on Drugs: The Impact of Law Enforcement Grants on Racial Disparities in Drug Arrests"

The title of this post is the title of this notable paper authored by Robynn Cox and Jamein Cunningham that I just noticed on SSRN.  Here is the abstract:

We estimate the effectiveness of the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, a grant program authorized under the 1988 Anti-Drug Abuse Act to combat illicit drug abuse and to improve the criminal justice system, on racial bias in policing. Funds for the Byrne Grant program could be used for a variety of purposes to combat drug crimes, as well as violent and other drug related crimes.

The event-study analysis suggests that implementation of this grant resulted in an increase in police hiring and an increase in arrests for drug trafficking. Post-treatment effect implies a 107 percent increase in white arrests for drug sales compared to a 44 percent increase for blacks 6 years after the first grant is received.  However, due to historical racial differences in drug arrests, the substantial increase in white drug arrest still results in large racial disparities in drug arrests.  This is supported by weighted least squares regression estimates that show, for every $100 increase in Byrne Grant funding, arrests for drug trafficking increased by roughly 22 per 100,000 white residents and by 101 arrests per 100,000 black residents.

The results provide strong evidence that federal involvement in narcotic control and trafficking lead to an increase in drug arrests; disproportionally affecting blacks.

October 13, 2017 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Just a handful of headlines from the various front-lines of the opioid epidemic

I could readily fill this blog multiple times a day with tales of the opioid epidemic given the size and reach of the problem and the attention it is getting from many quarters.  In my view, the epidemic is, first and foremost, a public health issue.  But, as I say often on in this space and elsewhere, every major issues of public policy is a criminal justice/sentencing issue in some way.  These recent stories/headlined highlight these realities in various ways: 

October 13, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

"The Federal Rules of Inmate Appeals"

The title of this post is the title of this new paper by Catherine Struve now available via SSRN. Here is its abstract:

The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically.  This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. 

In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management practices that significantly affect inmate appeals.  And, in the 1990s, Congress enacted legislation that produced major changes in inmate litigation, including inmate appeals.

In the coming years, the most notable new driver of change in the procedure for inmate appeals may be the advent of opportunities for electronic court filing within prisons. That nascent development illustrates the ways in which the particulars of procedure in inmate appeals are shaped by systems in prisons, jails, and other facilities -- and underscores the salience of local court practices and institutional partnerships.

October 13, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, October 12, 2017

Texas carries out 20th execution in US in 2017

With only 20 executions carried out in the United States in 2016, last year saw the fewest total nationwide executions in a quarter century.  The national execution pace in 2017 is not much quicker, but an execution completed tonight in Texas means the US will not in 2017 see a decline in total executions for the first time in a number of years.   The Texas execution is number 20 for the US in 2017, and this AP article reports on its particulars:

A Texas inmate convicted in the death of a prison guard has been put to death after the U.S. Supreme Court rejected his lawyer's attempts to halt the execution.

Robert Pruett was given a lethal injection Thursday evening for the December 1999 death of corrections officer Daniel Nagle at a prison southeast of San Antonio. Nagle was repeatedly stabbed with a tape-wrapped metal rod, though an autopsy showed he died from a heart attack that the assault caused. Prosecutors have said the attack stemmed from a dispute over a peanut butter sandwich that Pruett wanted to take into a recreation yard against prison rules.

The 38-year-old Pruett was already serving a 99-year sentence for a neighbor's killing near Houston when he was convicted in Nagle's death. Pruett's execution is the sixth this year in Texas.

This Death Penalty Information Center page indicates that there are nine more serious execution dates in 2017. Even if all these executions are completed (which seems a bit unlikely), there would still be fewer executions in the US in 2017 than in every single year between 1992 and 2014.

October 12, 2017 in Data on sentencing, Death Penalty Reforms | Permalink | Comments (18)

Big new report provides state-by-state guide to expungement and rights restoration

Report-coverAs detailed in this new post over at the Collateral Consequences Resource Center, the folks at CCRC have just published this big new report on state expungement and rights restoration practices under the title "Forgiving and Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights." This CCRC post provides this account of the new report's coverage and goals:

This report catalogues and analyzes the various provisions for relief from the collateral consequences of conviction that are now operating in each state, including judicial record-sealing and certificates of relief, executive pardon, and administrative nondiscrimination statutes. Its goal is to facilitate a national conversation about how those who have a criminal record may best regain their legal rights and social status.

Given the millions of Americans who have a criminal record, and the proliferation of laws and policies excluding them from a wide range of opportunities and benefits, there is a critical need for reliable and accessible relief provisions to maximize the chances that these individuals can live productive and law-abiding lives after completion of their court-imposed sentences. Whatever their form, relief provisions must reckon with the easy availability of criminal records, and the pervasive discrimination that frustrates the rehabilitative goals of the justice system.

It is not the report’s purpose to recommend any specific approach to relief. Rather, our goal is simply to survey the present legal landscape for the benefit of the policy discussions now underway in legislatures across the country. We are mindful of the fact that very little empirical research has been done to measure outcomes of the various schemes described, many of which are still in their infancy. It is therefore hard to say with any degree of certainty which approach works best to reintegrate individuals with a record into their communities. At the same time, we hope that our description of state relief mechanisms will inform the work of lawyers and other advocates currently working to assist affected individuals in dealing with the lingering burdens imposed by an adverse encounter with the justice system.

The title of the report provides a framework for analyzing different types of relief provisions. For most of our history, executive pardon constituted the principal way that persons convicted of a felony could “pay their debt to society” and regain their rights as citizens. This traditional symbol of official forgiveness was considered ineffective by mid-20th century reformers, who sought to shift responsibility for restoration to the courts. The reforms they proposed took two quite different approaches: One authorized judges to limit public access to an individual’s record through expungement or sealing, and the other assigned judges something akin to the executive’s pardoning role, through deferred dispositions and certificates of relief. These two approaches to restoration have existed side by side for more than half a century and have never been fully reconciled.

Today, with a new focus on reentry and rehabilitation, policy-makers are again debating whether it is more effective to forgive a person’s past crimes (through pardon or judicial dispensation) or to forget them (through record-sealing or expungement). Despite technological advances and now-pervasive background-checking practices, many states have continued to endorse the forgetting approach, at least for less serious offenses and records not resulting in conviction. At the same time, national law reform organizations have proposed more transparent judicial forgiving or dispensing mechanisms. While the analytical model of “forgiving v. forgetting” is necessarily imperfect given the wide variety of relief provisions operating in the states, it seems to capture the basic distinction between an approach that would mitigate or avoid the adverse consequences of past crimes, and an approach that would limit access to information about those crimes.

The report organizes relief provisions into six categories: executive pardon, judicial record-closing, deferred adjudication, certificates of relief, fair employment and licensing laws, and restoration of voting rights. The judgments made about the availability of each form of relief, reflected in color-coded maps, are in many cases necessarily subjective, and we have done our best to explain our approach in each case.

More detailed information about different forms of relief is available from the state-by-state summaries that are the heart of the report. Citations to relevant laws and comparisons of the laws of each state are included in the 50-state charts in Appendices A & B. Up-to-date summaries and charts are available from the Restoration of Rights Project, which additionally includes in-depth discussions of the law and policy in its state-by-state “profiles.” This information is updated by the authors on a real-time basis, and we expect to republish this report from time to time when warranted by changes in the law.

October 12, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (1)

"Can Republicans get sentencing reform past Trump and his base?"

The question in the title of this post is the headline of this new Salon article.  Here is how it gets started:

With the presidential election in the rearview mirror, a genuinely bipartisan group of senators, led by Republican Chuck Grassley of Iowa and Democrat Dick Durbin of Illinois, are hoping for real movement on the issue of criminal justice reform.  Last week, Grassley and Durbin introduced a new version of the Sentencing Reform and Corrections Act, a bill Senate Majority Leader Mitch McConnell killed off during the campaign season, seemingly for political reasons.

This coalition that supports reduced sentences for nonviolent offenses even has an audience in the White House: Donald Trump's daughter and son-in-law, Ivanka Trump and Jared Kushner, hosted a bipartisan dinner with prominent senators to discuss the issue.

But even though it's not an election year, there's real reason to believe that this move towards criminal justice reform is opening up fissures in the conservative coalition.  Bluntly put, the more racist forces in the party — the ones that got Trump nominated and elected in the first place — don't like the idea of criminal justice reform and aren't afraid to kick up an intra-party fights in order to maintain the staggeringly high imprisonment levels in the United States.

"Most of the mainstream Republican party, traditional Republican leaders like Chuck Grassley, are very invested in the criminal justice debate. They want to see it done," Ames Grawert, counsel for the Brennan Center’s Justice Program, explained to Salon.  "It’s this insurgency alt-right side, of which I think Jeff Sessions is one iteration, that is opposing sentencing reform to any extent."

The fight against mass incarceration has been largely associated with the left and the Democrats — Hillary Clinton's campaign platform promoted policies aimed at ending the era of mass incarceration, for example — but there's actually been a surprising amount of leadership from Republicans on this issue over the past few years.  Republican-controlled state governments such as those in Texas, Georgia and Kentucky have made real progress in trying to reduce their prison populations through surprisingly progressive reforms.  And most people familiar with the issue say that Republican senators like Grassley, Mike Lee of Utah and Tim Scott of South Carolina are really dedicated to reducing long prison sentences, especially for nonviolent, drug-related offenses.

The reasons for this shift are both moral and pragmatic. "When the fiscal crisis hit," said Inimai Chettiar, director of the Brennan Center's Justice Program said, conservatives "were much more focused on this fiscal angle," but added that a growing church-based effort to reach out to imprisoned populations has also led many Republicans to come to this "from a moral angle and a religious angle."

“When faced with the need to save costs, they couldn’t help but notice the burdens that departments of corrections were creating,” added Kara Gotsch, director of strategic initiatives for the Sentencing Project, in discussing why state-level Republicans have taken the lead on this issue.  Gotsch also feels that mass incarceration is such a widespread problem that it's "hard for anyone not to know someone who’s been touched by the criminal justice system."  This, she feels, is also provoking more compassion from some Republicans.

October 12, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

New Sentencing Project fact sheets on disparities in youth incarceration and comments to USSC on incarceration alternatives

Via email I learned of these two new fact sheets from The Sentencing Project highlighting incarceration disparities among youth of color:

In addition, the folks at the Sentencing Project have recently posted here public comment submitted to the US Sentencing Commission on the USSC's "First Offenders/Alternatives to Incarceration" proposed amendment.  The comments to the USSC starts this way:

The undersigned applaud the Sentencing Commission’s consideration of an amendment to increase the availability of sentences of alternatives to incarceration within the federal sentencing guidelines.  The Sentencing Reform Act of 1984 which created the guideline system wisely recognized the appropriateness of non-incarceration sentences in certain cases.  Since that time criminological research has underscored Congress’s assumptions, and evidence suggests that a broader cohort of people than at present could be sentenced within the federal system more efficiently without incarceration. Doing so would not compromise public safety, but would save tax dollars, preserve families and enhance rehabilitation.

October 12, 2017 in Data on sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, October 11, 2017

"Is Having Too Many Aggravating Factors the Same as Having None at All?: A Comment on the Hidalgo Cert. Petition"

The title of this post is the title of this short commentary authored by Chad Flanders that a helpful reader alerted me to.  Here is a paragraph from the introduction:

[This] paper proceeds in three short parts.  The first part sets out the argument in the Hidalgo petition and explains its claim that having too many aggravating factors is as ineffective as having no aggravating factors.  The second part provides a straightforward critique of the Hidalgo argument along the lines detailed above — that the fact that aggravating factors may cover a large number of actual murders does not say much (indeed, practically nothing in the abstract) about whether those aggravating factors “narrow” the class of the death eligible.  In the third part, I suggest that the “multiple aggravators” argument is in essence a version of the original worry about broad and amorphous aggravating factors.  But this critique means analyzing how aggravators work (individually and together) as a conceptual matter, rather than analyzing whether all murders committed in the state happen to fit under one of the aggravating factors.

October 11, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)