Sentencing Law and Policy

Seeking comments on what to say in comments to the US Sentencing Commission about its priorities

A wise colleague wisely suggested to me that this year might be an especially wise time to convert all my ideas and concerns about the work of the US Sentencing Commission into formal comments for formal submission to the USSC as a formal response to this formal statement of the USSC's proposed priority policy issues for the amendment cycle ending May 1, 2014.

The USSC's six-page Federal Register statement of tentative priorities lists just about every topic that has consumed the recent work of the Commission, ranging from mandatory minimums to post-Booker sentencing patterns to the child porn guidelines to the drug guidelines to economic crimes and lots of stuff in between (including even some back-end sentencing stuff like the compassionate release guidelines).  Nevertheless, there are still plenty of topics not mentioned that I think should be high on the Commission's agenda, ranging from the impact of sequester on the operation of the federal criminal justice system to the enduring need for serious guideline simplification to the overwhelming problem of undue sentencing severity.

Here is the official statement of the official rules for submitting official public comments to the USSC:

The Commission hereby gives notice that it is seeking comment on [its] tentative priorities and on any other issues that interest ed persons believe the Commission should address during the amendment cycle ending May 1, 2014.  To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority.

Appropriately, the final line in the USSC's notice includes this fitting kicker: "Pursuant to 28 U.S.C. § 994( g), the Commission also invites public comment that addresses the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to a proposed priority."

So, to the extent practicable, I would love to hear from readers about what they think I should make sure to put into my formal comments to the USSC.  I have until July 15 to get this done, but I would very much like to have a document ready to send out not long after I enjoy the rocket's red blare this coming Independence Day.

With overcrowded prisons and under court order, Italy is the California of Europe when it comes to punishment practices

This lengthy new article from the International Business Times prompts my post title because it details how Italy is struggling through prison problems that sound a lot like what California continues to deal with.  The piece is headlined "Italy’s Overcrowded Prisons: A Growing Tragedy Of Epic Proportions," and here are excerpts:

Prisons across Europe are facing an overcrowding crisis -- a manifestation of at least three trends: tougher sentencing by judges (particularly for drug-related offenses), a painfully slow justice system and lack of money to build new facilities to accommodate the excess number of inmates.

This crisis is particularly acute in Italy, where correctional facilities are bursting at the seams with an avalanche of convicted men and women.  According to the Prison Observatory of Antigone, a Rome-based prisoners' rights organization, almost 67,000 inmates are housed in Italian facilities that were designed to hold only 45,000 -- meaning they are at a capacity of more than 140 percent, among the highest rates in the European Union, where the average capacity is just under 100 percent.

The situation in Italian prisons has become so grave that in January of this year, the European Court of Human Rights declared that Italy had just one year to improve conditions in the country's prisons, while ordering Rome to fork over 100,000 euros ($132,000) to seven inmates who raised a test case with the court. “Their conditions of detention had subjected them to hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and violated the European Convention on Human Rights’ prohibition against torture and cruel, inhuman or degrading treatment or punishment,” the court stated.

Italy's president Giorgio Napolitano (who has no real power to influence public policy) agreed with the court's ruling, saying it amounted to "a mortifying confirmation of the persistent failure of our state to guarantee the basic rights of detainees awaiting judgment and serving sentences.” He added that "decisions can no longer be postponed to overcome a degrading reality for the inmates and for the prison guards.”...

Three years ago, having declared a state of emergency in the nation's prisons, the government unveiled a plan to spend 675 million euros ($900 million in 2013 currency) to build 11 new prisons and as well as extensions to existing jails. But the financial collapse has largely scuttled that program.

As in France, many Italians are being jailed for minor crimes -- about 60 percent of convicted prisoners are serving terms of less than three years. Moreover, about 38 percent of all inmates in Italy are drug offenders (versus figures of 14 percent in Germany and France and 15 percent in England and Wales). In addition, 42 percent of Italy’s prisoners are pre-trial detainees (versus a European average of 28.5 percent); while more than one-third of inmates are immigrants.

"There are so many people awaiting trial for six, seven, eight months," said Cesare Cececotto, an inmate at Regina Coeli, a famous prison in Rome. Another inmate named Giuseppe Rampello complained to Reuters about the large number of foreigners in prison. "We are talking about a prison where you can be in a cell with people with six different languages, six different habits, where there is one who prays as an observant Muslim five times a day and another who swears five times a minute," the 63-year-old inmate said....

In northern prisons, foreigners far outnumber Italians – Antigone said that in jails in Milan and Vicenza, more than 60 percent of inmates are foreign, while in the mountain territories of Trentino Alto Adige and Valle d’Aosta, the proportion reaches nearly 70 percent. Cececotto quipped that as the only Italian in his cell, “Thank God, I speak a bit of English and a bit of Spanish.”

In its 2012 report, Antigone declared that "the heart of the prison problem is the penal code.” Napolitano's wish to reform prison sentencing guidelines was compromised by political infighting and the change in government earlier this year. "Something must be done because the prisons are close to collapse," a senior prison official, Margherita Marras, told Reuters....

An inmate named Claudio told Inter Press Service about conditions in his Vicenza facility in March 2013 -- where he had to share a 7.6 square-meter (80 square foot) cell with two other people and stay there 21 hours per day. “Once you excluded the space taken up by beds and drawers, each inmate was left with 90 centimeters (35 inches) to himself. We had to take it in turns to stand up,” he said. “There was no possibility for (inmates) to engage in any activity.”

The crisis in Italy’s prisons is nothing new. As long ago as 1995, the New York Times published an article warning: “Bursting Population Overwhelms Italy’s Prisons.” That piece, written by Celestine Bohlen, noted for example that so many prisoners were housed in Milan’s San Vittorio facility that police were forced to relocate some 400 inmates elsewhere, some to as far away as the isle of Sardinia.

At that time, Italy had 54,000 prisoners in a system designed to hold only 29,000. After almost two decades the problem has only worsened. “The continuous increase in the jails overcrowding and the significant presence of foreign prisoners makes pursuing the rehabilitative aim of punishment extremely complex and often in vain,” Napolitano told the head of the Italian prison administration department....

Ornella Favero, director of Ristretti Orizzonti, said overcrowding could be relieved by providing a significant number of inmates, especially pre-trial detainees and non-violent drug offenders, access to noncustodial sanctions, including alternatives like fines, community service, house arrest and treatment for drug addiction. In Spain, Germany and France, more than 100,000 convicts are outside of prison walls – the corresponding figure in Italy is less than 20,000.

"Lafler and Frye: Two Small Band-Aids for a Festering Wound"

The title of this post is the title this notable new paper by Albert Alschuler now available via SSRN. Here is the abstract:

This article contends that two recent Supreme Court decisions concerning the assistance of counsel in plea bargaining do not warrant the hype bestowed upon them by professors and the press.  Lafler v. Cooper and Missouri v. Frye did not significantly change the law, and even if these decisions had been bolder, they could not have done much to make effective legal assistance more likely.  Our plea-bargaining system both subjects defense attorneys to serious temptations to disregard their clients’ interests and makes it impossible to determine whether defendants have received effective assistance.

Much of the article focuses on a partly empirical, partly jurisprudential issue that divided the majority and dissenting justices: Does plea bargaining reward defendants who plead guilty or instead penalize those who stand trial?  The author of the principal dissenting opinion, Justice Scalia, maintained that plea bargaining enables defendants “to serve less time than the law says [they] deserve[].”  Justice Kennedy responded for the majority that defendants “who take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.”

The article contends that the issue can be resolved and that the majority has it right. America did not achieve the world record for mass incarceration by giving 95% of all convicted offenders less punishment than they deserve.  Indeed, no sane nation would be likely to sentence 95% of its convicts to less than they deserve or than effective deterrence requires.  This nation would be far more likely to impose additional punishment on a small minority to save the cost of trials.  It’s no coincidence that the nation most dependent on plea bargaining is also the nation that incarcerates the highest proportion of its population.  By lowering the cost of imposing criminal punishment, plea bargaining has given America more of it.

The Lafler-Frye majority disregarded the implications of its position when it declared plea agreements beneficial to both parties.  If post-trial sentences are imposed simply for the purpose of inducing guilty pleas (as the Supreme Court recognizes five-to-four), plea bargaining benefits both parties only in the sense that a gunman’s demand for your money or your life benefits you as well as the gunman.  Proposals commonly are treated as coercive when refusing them would leave recipients worse off than they ought to be.

Along the way, the article considers what plea agreements should look like in a system that does what bargaining prosecutors and defense attorneys acknowledge (and boast) that they do, and it criticizes David Abrams’ empirical conclusion that plea bargains really aren’t bargains at all.

After an apology and less than a week in jail, ex-NFL star Chad Johnson gets out

As reported in this new local news and AP report (which includes a video), "Chad Johnson apologized Monday for disrespecting a judge when the former NFL star slapped his attorney on the backside in court last week, and his immediate release from jail was ordered."  Here is more:

Broward County Circuit Judge Kathleen McHugh accepted Johnson's apology and cut his 30-day jail term for a probation violation to the seven days he had already served since the rear-swatting incident. Johnson, a flamboyant wide receiver formerly known as Chad Ochocinco, said in court that he'd had time to think about why his flippant attitude was wrong — especially in a domestic violence case.

"I just wanted to apologize for disrespecting the court last time," said Johnson, wearing a tan jail jumpsuit with his hands shackled at the waist. "I apologize.  I did have time to reflect on the mistakes I made in this courtroom."

McHugh noted that in a previous hearing Johnson had put his arm around a female prosecutor's shoulders, prompting the prosecutor to tell him twice not to touch her.  The judge also pointed out that when Johnson head-butted his then-wife, Evelyn Lozada of the reality TV show "Basketball Wives," she suffered a three-inch gash on her head that required eight stitches. The judge called those injuries horrific.

McHugh also said Johnson failed to appreciate "the gift of probation" after pleading no contest to battery in the altercation last August with Lozada, which prompted her to quickly file for divorce. Johnson, 35, was in court because he had failed to meet with his probation officer for three straight months. "I find that's an arrogant disregard for a court order," the judge said.

McHugh ordered Johnson to perform 25 hours of community service and attend domestic violence counseling sessions twice a week during probation, and she extended his probation an extra three months through mid-October.

The attorney who had his backside slapped, Adam Swickle, said Johnson will fully comply with all probation conditions and hopes to resurrect his NFL career.... "He understands that this is the kind of situation that can derail a person's career," Swickle said. "We're very confident he will do what he should do."

Recent related post:

• Celebrity injustice?: NFL player Chad Johnson gets 30-days in county jail for lawyer butt pat

"The Impact of Neuroimages in the Sentencing Phase of Capital Trials"

The title of this post is the title of this notable new research paper now available on SSRN and co-authored by Michael Saks, N. J. Schweitzer, Eyal Aharoni and Kent Kiehl.  Here is the abstract:

Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and non-expert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images.  Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials.

Two mock jury experiments (n=825 and n=882) were conducted online using nationally representative samples of persons who were jury-eligible and death-qualified.  Participants were randomly assigned to experimental conditions varying the defendant’s diagnosis (psychopathy, schizophrenia, normal), type of expert evidence supporting the diagnosis (clinical, genetic, neurological sans images, neurological with images), evidence of future dangerousness (high, low), and whether the proponent of the expert evidence was the prosecution (arguing aggravation) or the defense (arguing mitigation).

For defendants diagnosed as psychopathic, neuroimages reduced judgments of responsibility and sentences of death.  For defendants diagnosed as schizophrenic, neuroimages increased judgments of responsibility; non-image neurological evidence decreased death sentences and judgments of responsibility and dangerousness.  All else equal, psychopaths were more likely to be sentenced to death than schizophrenics.  When experts opined that defendant was dangerous, sentences of death increased.  A backfire effect was found such that the offering party produced the opposite result than that being argued for when the expert evidence was clinical, genetic, or non-image neurological. But when the expert evidence included neuroimages, jurors moved in the direction argued by counsel.

If you are wondering if marijuana is the next growth industry...

here are three notable recent articles from major news sources that should be on your initial reading list:

• From the AP here, "Is legal pot ready for a “Starbucks” brand? Activists say no, but a businessman tries his luck"

• From Forbes here, "No Profit In Pot Start-Ups, Says Expert"

• From the New York Times here, "Trying to Sell Wall Street on the Value of Marijuana"

First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris

I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely.  But I have three quick reactions about the ruling and its potential impact I wanted to share right away.  I will give this trio of reactions these labels: big, not-so-big, could-be-huge.

The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system.  That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris.  And Harris is now a goner.

The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne.  For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court.  Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.

The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities.  If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term.  (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)

Prior related post on Alleyne ruling:

• Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums

Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums

Big news from SCOTUS today for sentencing fans, with this (abridged) initial report coming from the fine folks live-blogging at SCOTUSblog:

Alleyene: Any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. 5-4 opinion per Justice Thomas.

Majority is Thomas, Ginsburg, Breyer, Sotomayor, and Kagan. Dissent by Roberts, joined by Scalia and Kennedy. Alito dissents separately.... Justice Sotomayor also filed a concurring opinion....

This is a major criminal law ruling on the right to a jury trial. The Court reverses an earlier contrary ruling....

Here is the opinion in Alleyne.

And here is the money quote from the majority opinion: "Because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, overruled." Alleyne, slip op at 15.

Based on a much-too-quick first read, this Alleyne ruling seems to be everything (and not much more) than what should have been expected and predicted when the Court granted cert to reconsider Harris.  With all new Justices filling in the roles and votes of their predecessors, Harris gets reversed now because (and only because) Justice Breyer is no longer willing to prop up the ruling.  And, as he continues to play Hamlet with Sixth Amendment doctrine, Justice Breyer also continues to dump on the whole Apprendi line of case.

As I predicted in this post last November (and especially with speculations precedents inother areas perhaps being in jeopardy), the most interesting and enduring significance of Alleyne is the sparring between Justices Sotomayor and Alito over stare decisis.  I suspect after the con law folks get over their disappointment that we did not get any huge SCOTUS rulings today, there will be some enduring buzz over what all the Justices had to say (and not say) about stare decisis in Alleyne.

"Closing the Widening Net: The Rights of Juveniles at Intake"

The title of this post is the title of this notable new piece by Tamar Birckhead now available via SSRN. Here is the abstract:

Should juveniles have more, fewer, the same or different procedural rights than are accorded to adults?  This question, posed by Professor Arnold Loewy for a panel at the 2013 Texas Tech Law Review Symposium on Juveniles and Criminal Law, requires us to examine our goals for the juvenile court system.  My primary goal, having practiced in both adult criminal and juvenile delinquency forums for over twenty years, is to ensure that the reach of juvenile court is no wider than necessary, as research indicates that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign.  Potential negative consequences of juvenile delinquency adjudications are felt in such areas as housing, employment, immigration and education as well as enhanced penalties for future offenses.  Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized by even the most minimal contact with the juvenile court system.

This Article, the second in a series on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the intake process, which operates as one of the primary gateways to juvenile court.  The Introduction describes a typical case, highlighting the shortcomings of the current process and the risks — short- and long-term — that they pose to juveniles.  Part II presents the nuts and bolts of the intake stage, including details regarding who conducts the screening, its purpose, and the assessment criteria applied.  Part III discusses the procedural rights of juveniles at intake according to the U.S. Supreme Court, state courts and legislatures.  Part IV analyzes what can — and often does — go wrong with the intake process, resulting in a wider net being cast around minorities and low-income children and families.  Part V offers proposals for reform, including providing counsel to children prior to intake; mandatory advising of children and their parents by the juvenile probation officer conducting the intake interview; and introducing an objective rubric for the evaluation of delinquency complaints by juvenile probation officers.

Notable comments and recommendations emerging from Ohio Death Penalty Task Force

As I have mentioned before, I have generally been disinclined to blog about my on-going work as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (background here).  But there was some notable developments at this past week's public meeting of the Task Force which I thought would be of broad interest to readers of this blog.  This report from the Cleveland Plain Dealer, headlined "Task force urges state panel be created to evaluate death penalty prosecutions," provides the highlights:

A state task force is recommending that Ohio create a panel under the state attorney general that would review potential death penalty cases before prosecutors could take them to trial.

Under current Ohio law, the power to decide when to pursue the death penalty rests in the hands of individual county prosecutors.  But the recommendation by the Joint Task Force to Review the Administration of Ohio's Death Penalty would give the new panel authority to disapprove death penalty charges.

The recommendation is an attempt to address disparities in death penalty prosecutions in Ohio, said Ohio Public Defender Timothy Young, who chaired a subcommittee that drafted the recommendation.  “The two biggest disparities my group has dealt with are race issues and geographic issues,” Young said.  In the case of race issues, they revolve around the race of the victim.  “I think it’s vitally important that we do something about disparity and the death penalty,” Young said. “The numbers are overwhelming.”

Once a prosecutor made a decision, the panel -- made up of staff from the attorney general’s office and former county prosecutors appointed by the governor -- would review that decision.  It would look at the circumstances of the case, giving particular consideration to the races of those charged and the victims, said Jo Ellen Cline, government relations counsel to the Ohio Supreme Court and the court’s liaison to the joint task force.  “It would be a significant change in how things operate now,” Cline said.

The task force’s recommendation has a long way to go before it could become reality. It likely will be late in the year before the task force finishes its work, and some recommendations, including this one, would require legislative action to change state law. Given that, not all of the details on how the panel would work, or if a prosecutor would have some recourse if opposed to the panel’s decision, are not nailed down. That specificity would likely come from the General Assembly, Cline said.

Chief Justice Maureen O’Connor, with the Ohio State Bar Association, established the joint task force in 2011. It is charged with determining if capital punishment in Ohio is administered fairly and judiciously and to examine if adjustments are needed....

Far and away the majority of Ohio’s capital cases come from urban areas, Young said. And while they should naturally see more, simply because of population, their numbers are also greater per capita. “We have more than 40 counties that have never brought a death penalty case,” Young said.

There are a myriad of possibilities for why that is the case. The goal of the recommendation is to find more of a common standard, Young said. “Right now you have 88 prosecutors, all well intentioned,” Young said. “Our thought process was that if it went through a central committee that would even out those 88 applications.” Young said there was was significant debate on the recommendation, which was approved by a vote of 8 to 6.

Much of the debate dealt with the impact it would have on what now is a matter of prosecutorial discretion. And Young said he would not be surprised if those opposed to the recommendation write a dissenting opinion for the final report. Cline agreed. “They’re concerned that the prosecutors were elected by the folks in their jurisdictions to make these decisions,” she said.

Other developments in this week's meeting also made news as revealed by this Columbus Dispatch article headlined "Former Justice Stratton says she’s now opposed to death penalty." It starts this way:

In nearly three terms on the Ohio Supreme Court, former Justice Evelyn Lundberg Stratton sided with the majority most of the time when convicted murderers were put to death. From 1996 through the end of last year, spanning the time Stratton was a justice on the court, Ohio executed 49 men by lethal injection.

But nearly six months after leaving the court, the Republican, now an attorney in private practice in Columbus, has changed her views. Stratton yesterday told members of an Ohio Supreme Court task force reviewing administration of the death penalty that she didn’t have a strong feeling about capital punishment while serving on the court.

“I have evolved to where I don’t think the death penalty is effective,” she said in an interview. “I don’t have a moral inhibition ... Overall, it’s just not the best way to deal with it on a number of different levels.”

Stratton said she has long opposed executions involving mentally ill defendants, but she now opposes capital punishment in general because she doesn’t see it as a deterrent and victims’ families don’t gain the finality they seek when the murderer is put to death.

Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case

In this post a month ago, I first reported that a majorty of a Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In that post, I noted that was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA."  In turn, I was not at all surprised when the government, as reported here, assailed the majority opinion in Blewett when seeking en banc review with the full Sixth Circuit a couple of weeks ago.

I am not quite pleased and excited to learn that the Sixth Circuit now seems interested in the Eighth Amendment as I am in Blewett, as evidenced by the text of a letter sent yesterday to counsel in Blewett: 

RE: Case Nos. 12-5226/5582

USA v. Cornelius D. Blewett and Jarreous J. Blewitt

Dear Counsel:

In connection with the prosecution’s Petition for Rehearing En Banc, the United States should submit a brief of not more than fifteen (15) pages by June 28, 2013, addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause.  See Solem v. Helm, 463 U.S. 277, 290 (1983) (striking down imposition of sentence of life without parole for passing a worthless check because “a criminal sentence must be proportionate to the crime for which the defendant has been convicted”).  The Blewetts should also submit a brief of not more than thirty (30) pages in response to the Petition for Rehearing En Banc filed by the United States by June 28, 2013, that includes both their response to the Petition for Rehearing and their argument concerning the Eighth Amendment issue stated above.

Download Blewett Letter

I had been assuming the Sixth Circuit was going to grant en banc review in Blewett, and I had been gearing up to author an amicus brief on Eighth Amendment issues once that proceeding was set up and a briefing schedule set. And while I am now so very pleased to discover that the Sixth Circuit has ordered the parties to brief Eighth Amendment issues as it considers the government's en banc petition, I am now uncertain as to whether I can and should try to file my friendly thoughts on this topic with the Sixth Circuit later this month. Thoughts, dear readers?

Related posts on Blewett:

• On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
• "Crackheaded Ruling by Sixth Circuit"
• How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
• Two weeks later, has there been any significant and noteworthy Blewett blowback?
• As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling

"Records Show Nearly 500 Years In Prison Time For Medical Marijuana Offenses"

The title of this post is the heading of this notable new entry on The Weed Blog, which gets started this way:

In spite of growing public support for medical marijuana, concern about overreach by the U.S. Department of Justice and other federal agencies, and cutbacks in federal spending, the U.S. government’s war on medical marijuana is raging unabated according to a survey of court records by Cal NORML.

On Tuesday, Michigan medical marijuana grower Jerry Duval, a kidney and pancreas transplant patient with severe medical problems, began serving a ten-year sentence in the same prison as the Boston bomber. Duval joins a growing list of defendants in states that allow medical marijuana who have been charged by the Department of Justice for violating federal laws prohibiting medical marijuana.

According to a survey of US court records, news stories, and case reports compiled by Cal NORML (with help from Americans for Safe Access):

• Over 335 defendants have been charged with federal crimes related to medical marijuana in states with medical marijuana laws.

• 158 defendants have received prison sentences totaling over 480 years for medical marijuana offenses. Some 50 are currently in federal prison, while more are waiting to be sentenced or surrender.

• Over 90% of the criminal cases settled to date have resulted in convictions. 10% have been dismissed. A single defendant has been acquitted. Federal law typically prohibits defendants from invoking medical marijuana in their defense.

• 153 medical marijuana cases have been brought in the 4 ¼ years of the Obama administration, nearly as many as under the 8 years of the Bush administration (163).

• Not a single pardon or clemency petition has been granted to a medical marijuana defendant by President Obama or his predecessors.

• One seriously ill defendant, Richard Flor, has died while in federal prison, and two others, Peter McWilliams and Steve McWilliams (no relation) died while being denied access to medical marijuana on bail. Other seriously ill patients who have who have been sentenced to lengthy terms include Dale Schafer, a hemophiliac currently serving 5 years along with his wife Mollie Fry, a cancer patient (pictured above); Vernon Rylee, who served nearly 5 years in a wheelchair (pictured right), and Jerry Duval.

• At least 259 defendants have been charged in California; over 31 in Montana; 6 in Oregon; 15 in Nevada; 12 in Michigan; 2 in Colorado; and 10 in Washington.

A few other recent notable posts on the same blog include the following:

• Obama Has Already Outspent Bush By $100 Million On Medical Marijuana Enforcement
• Prohibition Hurts Science According To Researchers
• Does Marijuana Make You Stupid?

Lots of reasonable debate over the guidelines and reasonable review from Second Circuit judges

With thanks to the readers who alerted me, I wanted to alert everyone else to todays Second Circuit opinion in US v. Ingram, No. 12-1058 (2d Cir. June 14, 2013) (available here).  The per curiam opinion, which affirms a below guideline drug sentence, is not at all notable (and runs only 3 pages). 

But the concurring opinions are both must reads: the first is by Judge Calabresi and runs 14 pages, the second is by Judge Raggi and runs 17 pages to explain why she thinks the prior 14 pages are all washed up.   As a reader put it, the two Second Circuit jurists here "have at it on various psychological, philosophical, and practical matters concerning sentencing under the Guidelines."

"Woman arrested 396 times sentenced to mental health and substance abuse program"

The title of this post is the headline of this notable little local story out of Chicago which provides some more proof concerning the inefficiencies and inefficacies of modern criminal justice systems. Here are the basics:

An Uptown woman who has been arrested 396 times meekly offered her gratitude and apologies to a Cook County judge Monday as she took a plea deal that will send her to a mental health and substance abuse treatment program.

“All of us are reaching out to you and offering you, maybe for the first time in your life, a hand, OK?” Judge Peggy Chiampas told Shermain Miles. “But you’ve got to reach out and grab all of our hands as well.”

Miles, who was dressed in a bright yellow prison jumpsuit, kept her hands behind her back and politely answered Chiampas’ questions. She told the judge, “I just want to thank you.”

“I’m not that person,” said Miles, 51, who has previously been known to shriek in courthouse lockups.

Miles has been at Logan Correctional Center in Lincoln since December.  She’d been released in April 2011 after serving thee years for an armed robbery conviction but was arrested several more times while on parole, triggering her return to prison.

Among the reasons for her later arrests was an alleged attack on Ald. James Cappleman (46th) last summer.  Miles pleaded guilty in that case Monday and in two separate cases of trespassing and drinking alcohol on a public way.

Chiampas sentenced Miles to time served for all three, but she said she only did so because Miles said she’d submit to a mental health evaluation and follow-up treatment, as well as treatment for alcohol abuse, at the Lincoln prison.

A representative from Cappleman’s office attended the hearing, and a prosecutor said the alderman is satisfied with the deal.  Adam Monreal, chairman of the Illinois Prisoner Review Board, also attended the morning hearing but couldn’t immediately say how the deal will affect Miles’ release from prison.

Annoyingly, this story does not explain why or how this woman has managed to get arrested 396 times (and I am actually a little suspect concerning this accounting because it would mean she was getting arrested, on average, at least once a month, every month, of her entire adult life without having faced any serious criminal justice consequences). 

Nevertheless, anyone who gets arrested even dozens of times obviously has major difficulty living as a law-abiding person and likely has mental health and substance abuse problems.  It should not take decades and hundreds of arrests for the criminal justice system to develop some programming that would effectively rehabilitate or more effectively incapacitate a person who is obviously a menace to local law enforcement and perhaps many others.

"The Non-Redelegation Doctrine" with post-Booker sentencing in mind

Now available via SSRN is this intriguing new article from F. Andrew Hessick III and Carissa Byrne Hessick, which is titled simply "The Non-Redelegation Doctrine." Here is the abstract, which highlights why this article should be of special interest to sentencing fans:

In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission.  One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges.  District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.

This Essay argues that, when faced with a decision that implicates a delegation, the courts should not redelegate unless authorized by Congress to do so.  The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns.  Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent’s unique characteristics and preferences.  Although this Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.

SCOTUS holds in Davila judicial involvement in pleas subject to harmless error analysis

Via the fine folks at SCOTUSblog, here are the quick highlights from the one sentencing-related opinion handed down by the US Supreme Court this morning:

US v. Davila. Opinion by Ginsburg for the Court. The decision of the Eleventh Circuit is vacated and remanded. There is a concurrence by Justice Scalia that joins part of the opinion and in the judgment; Justice Thomas joins that opinion.

Under the Federal Rules, vacatur of the plea is not in order if the record shows no prejudice to Davila's decision to plead guilty.  This was a case in which the issue was whether there must be an automatic reversal if the judge played any role in the plea bargaining....

Here is the opinion in Davila.

In Davila, the Eleventh Circuit had ruled that automatic reversal was required, which conflicted with essentially everyone else's ruling.  Federal Rule of Criminal Procedure 11 prohibits judges from participating in plea agreements, but another subsection of the rule also provides that a “variance from the requirements” of Rule 11 is “harmless if it does not affect substantial rights,” so this one did not come as a huge surprise.

Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death

As reported in this Reuters article, a "top Arizona prosecutor said on Wednesday that the state still plans to seek the death penalty for convicted murderer Jodi Arias for killing her ex-boyfriend, after a jury deadlocked last month on whether she should be executed." Here is more:

[T]he same eight-man, four-woman jury that convicted Arias of murder and quickly ruled her eligible for the death penalty subsequently failed to reach a consensus as to whether Arias should be executed, prompting a penalty phase mistrial.

The state of Arizona now has the option of retrying the sentencing phase of the trial, which would require a new jury be empanelled. If there is another deadlock, a judge would sentence Arias to natural life in prison, or life with the possibility of parole after 25 years.

Maricopa County Attorney Bill Montgomery told reporters prosecutors would ask a new sentencing jury to do what the previous one could not - put Arias to death. "At this point, we are still preparing to move forward to retry the penalty phase," Montgomery told a news conference.

After the jury failed to reach a unanimous verdict on May 23, Montgomery said that his office would assess its next steps, but was proceeding "with the intent to retry the penalty phase." A status hearing has been scheduled for June 20. A July 18 court date was set to select a new jury in the case.

Recent related posts:

• After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
• Are there (and/or should there be) special death penalty rules for female murderers?
• Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
• Notable developments in penalty phase of Jodi Arias' capital trial
• Jodi Arias now pleading for a life sentence before sentencing jury

Bipartisan House Overcriminalization Task Force schedules first hearing for June 14

I learned via this NACDL press release that Representative Jim Sensenbrenner Chairman Sensenbrenner has scheduled the first hearing of the Overcriminalization Task Force for this Friday, June 14, 2013, at 9:00 a.m. at 2237 Rayburn House Office Building." Here is more background and details via the release:

On May 7, 2013, The House Committee on the Judiciary voted unanimously to create the “Overcriminalization Task Force of 2013.”  At a press briefing that day, Judiciary Committee and Overcriminalization Task Force leaders expressed agreement on the need to address several important issues, including the erosion of the mens rea (or criminal intent) requirement in federal criminal law, the often unnecessary duplication of state law in the federal code, overincarceration, and the explosion of regulatory offenses that some estimate may now number as high as 300,000, among other issues.  Members also expressed the need to address mandatory minimum sentences.

According to Judiciary Committee Chairman Bob Goodlatte (R-VA), “The task force will be authorized for six months and will be led by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner and Ranking Member Bobby Scott.” It will “conduct hearings and investigations and issue a report on overcriminalization in the federal code, as well as possible solutions.”  The task force is made up of five Democrats and five Republicans, and will include Judiciary Committee Ranking Member John Conyers (D-MI) and Chairman Goodlatte as ex-officio members....

The topic of this first hearing is “Defining the Problem and Scope of Overcriminalization and Overfederalization.” [And here are the scheduled witnesses:]

Mr. Steven D. Benjamin, President, National Association of Criminal Defense Lawyers

Mr. John Malcolm, Rule of Law Programs Policy Director, The Heritage Foundation

Mr. William N. Shepherd, Chair, Criminal Justice Section, American Bar Association

The Honorable George Terwilliger, III, Partner, Morgan, Lewis & Bockius LLP

A webcast of the hearing as well as the written testimony of the witnesses will be made available [at this link].

Not surprisingly, early buzz about a possible plea for Cleveland kidnapper Ariel Castro

As reported in this USA Today article, headlined "Lawyer for Cleveland kidnap suspect hopes to avoid trial," an initial court appearance for Ariel Castro is already leading to talk of a possible plea in this high-profile case. Here are the basics:

The man accused of kidnapping and holding three women for a decade pleaded not guilty Wednesday in Cleveland to hundreds of criminal counts, but his lawyer said after the hearing that some of the charges "cannot be disputed" and that he hoped to avoid a trial.

Charges against Ariel Castro, 52, include murder, rape, kidnapping and torture -- and he could face the death penalty. Defense lawyer Craig Weintraub entered the plea in an arraignment that took about one minute. A pretrial hearing was set for June 19....

"We are very sensitive to the emotional strain and impact that a trial would have on the women, their families and this community," Weintraub said after the hearing. "Mr. Castro currently faces hundreds of years in prison with the current charges and it is our hope that we can continue to work towards a resolution to avoid having an unnecessary trial about aggravated murder and the death penalty."

A Cuyahoga County grand jury's 329-count indictment charges Castro, a musician and former school bus driver, with one count of aggravated murder for allegedly terminating one of his captives' pregnancies, 139 counts of rape and 177 charges of kidnapping, seven counts of gross sexual imposition, three counts of felony assault and one count of possession of criminal tools dating from the time of the first woman's disappearance until February 2007.

County Prosecutor Timothy McGinty has said the investigation is still underway. Additional charges could follow in a superseding indictment. The indictment charges Castro as a "sexually violent predator" who committed the murder and rapes in the course of a kidnapping. Those charges are considered aggravating factors that call for stiffer penalties. The murder charge is tied to one victim's fourth pregnancy, the indictment said.

"A not guilty plea at this stage requires the prosecutor to continue to evaluate their case to determine whether medical and forensic evidence can actually support an aggravated murder conviction, for the death of a fetus, and whether the death penalty is warranted," Weintraub said after the hearing.

The County Prosecutor's Capital Review Committee will consider whether prosecutors should seek the death penalty if Castro is convicted. Castro, who was fired last year from his bus driver job, is being held in the Cuyahoga County jail on $8 million bail....

Police allege in the indictment that Castro chained Knight to a pole in the basement and raped her the day after he took her captive. He allegedly taped Berry's legs and mouth, sexually assaulted her after she tried to escape, chained her to a pole in the basement with a motorcycle helmet on her head, chained her to a radiator in the bedroom, and attempted to strangle her with a vacuum cleaner cord, the indictment says. He also allegedly chained and assaulted DeJesus.

Recent related posts:

• Could and should the death penalty be on the table in the Cleveland kidnapping and sexual torture case?
• Cleveland police report supports Aggavated Murder capital charges against Ariel Castro
• "Why Might the Cleveland Kidnapper Get Charged With Murder?"
• Effective discussion of death penalty prospects for Cleveland kidnapper (and alleged pregnancy terminator) Ariel Castro
• "Man in case of 3 Ohio women held captive faces 329 charges including murder, rape, kidnapping"

"What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration"

The title of this post is the title of this notable new article by Judge Lynn Adelman available via SSRN.  With three new members of the US Sentencing Commission, the piece is especially timely, and here is the abstract:

The United States presently incarcerates about 2.3 million people.  We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners.  Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly.

The federal government contributes significantly to this problem.  Every week it locks up a record number of people, presently about 216,000.  While some states have recently reduced their prison populations, the federal prison population continues to increase.  The principal reason for this is federal sentencing law. Since Congress enacted the Sentencing Reform Act (“SRA”) creating the Sentencing Commission and directing it to establish sentencing guidelines, the average federal sentence has more than doubled.  Federal prisons are now at 138% of capacity and consume an ever-increasing share of the federal criminal justice budget.

There are only two ways that we can reduce the prison population: by sending fewer people to prison and imprisoning people for shorter lengths of time.  Many observers believe that the sentences called for by the federal sentencing guidelines, which were mandatory until 2005 when the Supreme Court decided United States v. Booker and made them advisory, are too severe and could be significantly reduced without endangering public safety.  The Commission, however, has shown no interest in making guideline sentences less harsh. Rather, its principal concern is that since Booker judges are imposing too many below guideline sentences and thereby creating disparity.  Thus, it recently asked Congress to require sentencing judges to give additional weight to the guidelines and provide additional justification for sentences varying substantially from the guidelines, and to require appellate courts to presume the reasonableness of guideline sentences and to strictly scrutinize sentences based on policy disagreements with the guidelines.  These restrictions would, of course, increase the federal prison population.

My essay argues that it serves no useful purpose for the Commission to continue to make its top priority curtailing judicial discretion in the name of reducing disparity.  I contend not only that the system created by the SRA and the guidelines failed but that any system principally designed to reduce disparity will fail.  I argue that, instead of attempting to curtail judicial discretion, the Commission should focus on the problem of over-incarceration.  The Commission is statutorily authorized and institutionally well-positioned to address this problem and, by doing so, it could have a positive impact on the entire American criminal justice system.  I propose that the Commission take such actions as modifying the guidelines to expand the use of probation, reducing the severity of numerous guidelines, developing a release program for elderly prisoners, lobbying Congress regarding mandatory minimum sentences, calling public attention to over-incarceration and others.  I also contend that if the Commission is intent upon reducing disparity, the best way to do so is by making the guidelines less severe and thus making it more likely that judges will follow them.

Some recent related posts:

• Prez Obama makes three great new nominations to the US Sentencing Commission
• If (and when?) confirmed, will Judge William Pryor champion federalism concerns within the US Sentencing Commission?
• "How can a member of the US Sentencing Commission promote federalism?"
• Senate confirms new USSC Commissioners Barkow, Breyer and Pryor