Monday, September 26, 2016

"Ask the Candidates if They Are Ready to Legalize Marijuana — and, if Not, Why?"

The title of this post is the headline of this recent Nation piece, from which comes these excerpts:

Presidential debates, as organized by the lamentable Commission on Presidential Debates, are deliberately boring. Most of the questions asked of the candidates are little more than invitations to repeat their most shopworn talking points. And, worse yet, there has been a recent trend toward asking candidates to critique their opponents — literally asking for more of the talking-head punditry that extinguishes whatever enthusiasm might be generated by a clash of ideas.

What to do?  Why not ask Hillary Clinton and Donald Trump some pointed questions about legalizing marijuana? Arizona will be voting this fall on whether to legalize the possession and consumption of marijuana by persons who are 21 years of age or older. If passed, Proposition 205 (The Regulation and Taxation of Marijuana Act) would establish a Department of Marijuana Licenses and Control to regulate the cultivation, manufacturing, testing, transportation, and sale of marijuana....

While manufacturers of synthetic painkillers and other corporate interests oppose the measure, it has earned support from educators, physicians, public-health advocates and supporters of criminal-justice reform. Among the statements filed in support of a “yes” vote with the Arizona secretary of state is a reflection from a pair of retired Drug Enforcement Agency agents, Michael Capasso and Finn Selander....

So how about these two questions for Clinton and Trump:

1. Both of you have campaigned in Arizona, where polls suggest the presidential race is close. On the same November 8 ballot where voters will be asked to choose between your candidacies, they will also be asked whether they would like to legalize marijuana and establish a strictly regulated system for its cultivation, manufacturing, testing, transportation and sale. By this point, both of you should be well aware of the arguments for and against legalizing marijuana. If you were voting in Arizona, how would you cast your ballots: “yes” for legalization or “no” for continued prohibition?

2. If either or both of the candidates answer “no,” or try to waffle on the issue, read the statement from the retired DEA agents, and then ask: How do you respond to the arguments of people with experience, such as Agents Capasso and Selander, who write that prohibition doesn’t keep marijuana off our streets or decrease use but that it does does result in billions of dollars in profits flowing to drug cartels? Aren’t there sound domestic and foreign-policy arguments for legalization?

Yes, of course, Donald Trump might still argue that a wall would somehow solve every problem. Hillary Clinton might still try to suggest that settled issues need more study. (And viewers might really start to wish that Libertarian Gary Johnson and Green Jill Stein were on the stage to present alternative views.) But the debate about legalizing marijuana, which has for too long been neglected at the highest levels of American politics, would finally be given the hearing it deserves.

I really like this proposed framing of a marijuana reform question, although first-debate moderator Lester Holt could also find lots of ideas for other sharp marijuana reform questions from a number of these recent posts at Marijuana Law, Policy and Reform:

September 26, 2016 | Permalink | Comments (0)

Looking at the impact of SCOTUS Johnson ruling in the heart of the state in the heart of it all

I live in the center of a state that sometimes uses the tourism slogan "Ohio, The Heart of It All."  Though some might dicker with the formal accuracy of this sloganeering, there is little basis to resist the claim that Ohio is a bellwether state, and that reality makes extra interesting this new Columbus Dispatch article about the impact of the most consequential of Supreme Court sentencing rulings in recent years.  The piece is headlined "U.S. Supreme Court ruling on sentencing law could free hundreds in Ohio," and here are excerpts:

Celia Ward has the menu planned for her son’s welcome-home dinner: fried chicken, cabbage, cornbread and mac and cheese. It’s been a while since Hozae Rodriguez Ward, 39, sat down at his mother’s table.

From 1995 to 2007, he was in the county jail and state prison. Since 2009, he has been in federal prison.  But according to the U.S. Supreme Court, he should have been home five years ago.  Ward is eligible for immediate release after the high court ruled on June 25, 2015, that the Armed Career Criminal Act, under which Ward was sentenced, was too vague.

The ruling probably affects many more than just Ward.  The federal public defender’s office in Cincinnati is conducting an “initial” review of 400 federal inmates sentenced under the act to see if they, too, have been in prison too long.  The office covers only the Southern District of Ohio.  The total number of inmates affected nationwide is unknown, but there are 89 district courts in the 50 states, including two in Ohio.

On Wednesday in Columbus, U.S. District Judge Michael H. Watson ordered Ward’s release, which should occur within 30 days.  Watson sentenced Ward on June 30, 2009, to the minimum mandatory term of 15 years after he pleaded guilty to being a felon in possession of ammunition. “No one is terribly comfortable with that, given your previous record,” Watson said.  “Nonetheless, you’ve served more than twice the guideline range, as recalculated.”  The defense and prosecution agreed that, based on the high court’s ruling, Ward’s maximum sentence should have been 27 months.

The Armed Career Criminal Act imposed a mandatory minimum 15-year prison sentence on felons convicted of a firearm offense who had three previous convictions for violent felonies or serious drug offenses.  The act defined those violent felonies as burglary, arson, extortion and those involving the use of explosives.  The problem, the justices wrote in Johnson v. United States, is that the act continued to add a broad “residual clause” that included crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”  The court ruled that the residual clause violated the Fifth Amendment’s due-process provision because it was too vague and “invites arbitrary enforcement” by judges....

“We’ve had numerous folks who have walked out the Bureau of Prison door,” said Kevin Schad, appellate director for the federal public defender’s office for the Southern District of Ohio.  In addition to his office’s 400 cases, others are being reviewed by attorneys appointed by the court to help, said Schad, who filed the motion in Ward’s sentencing....

Schad said the number of inmates affected by the ruling might grow.  The Supreme Court has agreed to hear an outgrowth of Johnson v. United States.  The petitioners in Beckles v. United States argue that a similarly vague clause exists in other enhanced-sentencing guidelines.  “That opened up a whole number of other cases,” Schad said. 

September 26, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Making the argument for legalization as the best response to the US heroin problems

This new opinion piece by Bonnie Kristian at The Week, headlined "Legalize heroin," makes a full-throated argument for why eliminating criminal law rather than making it more tough would be the best way to deal with the current heroin epidemic. Here are excerpts:

The U.S. government should legalize heroin.  The last five years have seen heroin overdose deaths dramatically spike in the United States, from just over 3,000 in 2010 to more than 10,500 in 2014, the latest year for which the National Institutes of Health provides data. In fact, drug overdose deaths now outpace car crashes in taking American lives, and about half those overdoses are attributable to heroin and other opioids....

Recent history and present practicalities alike make clear that the best way to cut down on heroin abuse is to legalize it — or at the very least, decriminalize it.  The crown jewel of evidence for this point is the experience of Portugal, whose culture and form of government are similar enough to our own to make comparison reasonable.  In 2001, Portugal decriminalized all drugs. All drugs.

A decade later, hard drug abuse had dropped by half.  Drug overdose deaths in Portugal are now all but nonexistent: just three for every million people each year. (Were overdose deaths happening in America at a Portuguese rate, we'd see fewer than 1,000 die annually, more than a 90 percent drop from the current numbers on opioid-related deaths, let alone total overdose deaths.)  Portuguese use of sketchy "legal" substitutes is way down, too, because there’s no need to mess with dangerous unknowns when you’ll only get a small fine and maybe a rehab referral if you’re caught with the real thing. Heroin addiction — suffered by fully 1 percent of Portugal's population pre-decriminalization — is estimated to have dropped by about half, and most of those who are still addicted are on substitution treatment and in no statistical danger of overdose.

By contrast, here in the States, strict prohibition has utterly failed to prevent drug use rates at world-record levels.  Drug war spending is perhaps the only thing to spike faster than heroin addiction, and we have nothing to show for it. In 2016, Rolling Stone notes, "the federal government is spending more than $1,100 per person to combat the habit of America's 27 million illicit-drug users, and 22 million of them use marijuana."  With more than $1.5 trillion down the drain, U.S. addiction rates have utterly failed to improve.

If anything, the drug war makes illicit opioid use more dangerous than it otherwise would be. Heroin abuse often begins as an extension of opioid addiction fostered by over-prescription, and once users get their supply from the street instead of the pharmacy, prohibition produces tainted and mislabeled products that make overdose more likely — just like it did with alcohol nearly a century ago.

Criminalizing the heroin supply chain produces a risky and therefore lucrative market for violent criminals, leading to casualties far beyond the toll of drug abuse itself.  To argue for legal heroin "does not, at first blush, appear to put one on the side of the angels," explains Harvard's Danielle Allen, but "the war on drugs drives violent crime, which in turn pushes up incarceration and generates other negative social outcomes. You just can't move $100 billion worth of illegal product without a lot of assault and homicide."

Prohibition even makes safe treatment less likely for addicts who know they have a problem and actively want to change their lives.  After decriminalization, Portugal saw the rate of people seeking addiction treatment nearly double, because now there is essentially no downside to doing so. With a looming threat of jail or coercive court-mandated rehab stints shaped as much by policy goals than each individual's unique health care needs, the same cannot be said here....

Heroin addicts need relief too — relief from their addiction itself, yes, but also from dangerous products, organized crime, and a government eager to lock them up in a prison environment hardly conducive to improving physical or mental health.  Of course, there is an element of choice in opioid abuse that is missing from a cancer diagnosis.  Still, the heroin epidemic is a health crisis, and legalization is a viable and practical solution that compassion dictates we must consider.

September 26, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, September 25, 2016

"The Under-Policed"

The title of this post is the title of this interesting and provocative new essay authored by I. Bennett Capers now available via SSRN.  Here is the abstract:

While there is much to be said about the problem of mass incarceration and strategies for de-incarceration, the goal of this essay is to bring two things to the conversation. The first is to bring attention to the complex role misdemeanors play in compounding the problem of mass incarceration. The second is to call attention to race, but not in the usual way.

Usually, when we think of race and criminal justice, we think of racialized policing and the overrepresentation of racial minorities in jails and prisons. But what happens when we consider criminal justice not only as an issue of overcriminalization and overenforcement vis-à-vis racial minorities, but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities?

Put differently, in this time when we are again discussing white privilege and the hashtag #Crimingwhilewhite has become a phenomenon, are there advantages to talking about white privilege — or more generally, privilege — and criminal justice?  If there exists what Randall Kennedy calls a “racial tax,” are there benefits to asking who gets a “racial pass”? Are there advantages to talking about the under-policed?  Finally, how might those conversations impact the issue du jour, mass incarceration?  This essay concludes by offering some suggestions for reducing mass incarceration.

September 25, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Can and will California voters "save" the death penalty in the United States?

The quirky question in the title of this post is prompted by this lengthy new press article and its provocative headline: "Death penalty is dying across America. Will California save it?". Here are excerpts:

The last inmate executed in California was 76-year-old Clarence Ray Allen, legally blind and suffering from diabetes, who had his heart stopped with a lethal chemical cocktail as punishment for a triple homicide in Fresno he’d ordered from a Folsom Prison cell a quarter century earlier. It was more than a decade ago when Allen spoke his last words – “Hoka Hey, it’s a good day to die” – and the poisons flowed into his veins at San Quentin State Prison.

Now, with the death penalty dying across America, the nation is watching California as its voters weigh competing initiatives meant to either revive executions or abolish capital punishment. Several states in recent years ended their death penalties through court decisions or legislation, but California is a test of whether voters think executions are worth trying to save....

Proposition 62 on the November ballot would end the death penalty and convert the sentences to life without parole. Proposition 66 aims to speed up executions with – among other things – limits on appeals and deadlines on court rulings. Should both measures pass, the one with the most votes becomes law. California’s decision comes as the death penalty withers in the rest of the nation. There were 28 executions in America last year, the lowest number since the death penalty was reinstated in 1976, and a 70 percent decline from the peak in 1998.

Only six states had executions last year, most of them in the cotton belt. Even America’s execution capital of Texas is slowing down, with a 68 percent decline in inmates put to death over the past 15 years. A new Harvard University study found that just 16 counties in the U.S.’s 3,143 had imposed at least five death sentences since 2010. Supreme Court Justice Stephen Breyer noted last year that “the number of active death penalty counties is small and getting smaller.”

Reasons include legal challenges to death sentences, botched executions – including a 2011 Oklahoma injection where the condemned man writhed and moaned as it took him more than 40 minutes to die – difficulty obtaining lethal drugs from pharmaceutical companies reluctant to play a role in ending lives, and wrongful convictions. More than 150 people on death row nationwide have been exonerated since 1973, according to the Death Penalty Information Center, including three in California. Wrongful convictions doomed the death penalty in Illinois, which passed legislation to abolish it in 2011.

States are also balking at costs of a death penalty case and appeals. Lawmakers in conservative Nebraska voted to join the states shedding the death penalty last year, citing expenses and religious objections. The issue will go to Nebraska’s voters in a November referendum.

The death penalty is on hold in California, Arizona, Arkansas, Colorado, Kentucky, Louisiana, Montana, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania and Washington state as a result of legal challenges or moratoriums imposed by governors. Capital punishment has been abolished in eight other states over the past decade and is in limbo in Florida, which has the nation’s second-most-populous death row after California, following a Supreme Court decision striking down the state’s death penalty statute....

Sacramento County District Attorney Anne Marie Schubert said that regardless of what was happening in the rest of the nation she saw the death penalty as appropriate justice for the “worst of the worst” killers in California. “It’s a policy that Californians continue to support but they want the system fixed,” Schubert said.

?California voters supported keeping the death penalty in 2012 with 53 percent of the vote. Recent polling suggests this year’s initiative campaign to end capital punishment is struggling to win majority support. No state has repealed the death penalty by public vote since Oregon in 1964 – and voters there reinstated it in 1978. While courts and legislatures around the nation are abolishing capital punishment, when it goes to a public vote the hard line tends to have the advantage, said Franklin Zimring, a criminal justice expert at the University of California, Berkeley.

“The question is what do you do with the worst criminals you have?” Zimring said. “And if that ever becomes a question of sentiment the answer is boil them in oil.” California has the largest death row population in the Western Hemisphere, with 746 inmates who are sentenced to die. The nonpartisan Legislative Analyst’s Office estimates that eliminating California’s death penalty would save around $150 million a year, including reduced costs for trials and challenges to death sentences.

According to the study from Harvard’s Fair Punishment Project, five of the 16 U.S. counties in the U.S. that imposed at least five death sentences since 2010 are in Southern California – Kern, Los Angeles, Orange, Riverside and San Bernardino. Riverside County has become the nation’s leader in death sentences – with eight people sent to death row last year alone. Meanwhile, no one is actually being executed in California....

Cal-Berkeley’s Zimring predicts the initiative designed to speed executions in California will have minimal impact if it passes. The main result would be litigation and delay, he said, since the ballot measure has so many pieces open to challenge. That’s disputed by Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento. “The most important reforms of this carefully drafted initiative are virtually bulletproof,” he asserted.

September 25, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Saturday, September 24, 2016

"Originalism and the Criminal Law: Vindicating Justice Scalia's Jurisprudence ― And the Constitutution"

The title of this post is the title of this new paper authored by Adam Lamparello and Charles MacLean now available via SSRN. Here is the abstract (which unfortunately does not seem to flesh out the title or themes of the piece's focus on Justice Scalia's criminal jurisprudence):

Justice Scalia was not perfect — no one is — but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective — namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution — that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.”  Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an ‘unwavering defender of the written Constitution.’”

Justice Scalia’s frustration with the Court was certainly evident at times during his tenure, and understandably so.  In United States v. Windsor, Scalia lamented as follows: "We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better."

The above passage captures the essence of Justice Scalia’s philosophy, and the enduring legacy that will carry forward for many years after his death. At the end of the day, Justice Scalia, whether through well-reasoned decisions, blistering dissents, or witty comments at oral argument, spoke a truth that transcends time: “[m]ore important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly.” And “[h]ave the courage to have your wisdom regarded as stupidity… and have the courage to suffer the contempt of the sophisticated world.” You will be missed, Justice Scalia. You left the Court — and the law — better than it was before you arrived.

September 24, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

US House passes significant update to federal Juvenile Justice and Delinquency Prevention Act

Though it now seems that major federal statutory sentencing reform remains dead at least until the election (as I had thought months ago), this Marshall Project piece highlights that some other federal criminal justice reform has been moving quietly forward.  Here are the details:

Even though the year began with strong bipartisan support for federal sentencing reform, no major changes to the criminal justice system have made it out of Congress thanks to a combination of legislative gridlock, election-year rhetoric about rising crime in some cities, and Republican reluctance to hand President Obama a major victory. But on Thursday, the House of Representatives quietly — and overwhelmingly — passed what might be the most significant justice reform measure to reach Obama in his tenure.

The bill is an update of the Juvenile Justice and Delinquency Prevention Act, which has been expired since 2007. It would withhold federal funding from states that hold minors in adult jails. Unlike previous versions of the law, the new bill would extend that protection to juveniles who have been charged with adult crimes but are still awaiting trial. The legislation would also ban states from locking up minors for so-called status offenses — things that are crimes only because of the age of the offender, such as truancy or breaking curfew.... “I’m delighted, but also optimistic,” said Rep. Bobby Scott (D-Va.), a lead sponsor of the bill. “Getting a law passed on justice issues — one that doesn’t go backward — has been a challenge, to say the least. But we ought to be able to conform the House and Senate versions and get this to the president” before his time in office runs out.

The Senate version of the bill has made it out of committee and has almost unanimous support. But it still faces an obstacle in Sen. Tom Cotton (R-Ark.), who has singlehandedly blocked the measure from being put to a quick voice vote. Cotton’s home state, Arkansas, locks up minors for running away and other status offenses at a disproportionately high rate, Mother Jones reported this week. A spokeswoman said Cotton is concerned the proposed law would erode the power of the bench. “It is prudent to allow states to determine if their judges — often in consultation with the parents and attorneys involved — should have the discretion to order secure confinement as a last-resort option,” Cotton spokeswoman Caroline Rabbitt said.

Sens. Charles Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.), the lead proponents of the bill on the Senate side, have been trying for months to reach a compromise with Cotton. If their effort fails, it would fall to Majority Leader Mitch McConnell (R-Ky.) to take up precious floor time — in a season devoted to reaching a spending deal and funding the fight against the Zika virus — with a debate and vote on the legislation.“Since it so closely resembles the Senate bill, Chairman Grassley is optimistic that it can be passed in the Senate,” said spokeswoman Beth Levine....

The JJDPA law has existed in various forms since 1974 and provides federal grants to states on the condition they adhere to several “core principles” for detaining youth: not in adult facilities, not for status offenses, and not in ways that impact different racial groups differently. But over time, loopholes have been added to the legislation, all of which the new, reauthorized bill aims to close.

States that do not want to comply with the new law, should it pass, could choose to forgo a portion of their federal funding, a modest $92 million per year to be shared across the country — assuming Congress agrees to appropriate the money. The bill also does not contain a key goal for reformers of the juvenile system: restricting the use of solitary confinement in youth prisons.

But the bill would require states to collect new data on racial disparities at every stage of the juvenile system and to present the federal government with a concrete plan for how they will address those divides. It would also require states to ensure that academic credits and transcripts are transferred, in a timely fashion, between schools and juvenile-detention facilities, and that children get full credit toward graduation for any schoolwork they completed while incarcerated. Finally, the legislation would ban the shackling of pregnant girls, provide funding for delinquency prevention and gang-intervention programs, and require states to report data on juvenile recidivism rates and other measures.

September 24, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, September 23, 2016

Eager to hear sharp suggestions for sharp Prez debate questions on criminal justice issues

Next week kicks off the Prez debate season, and I am certainly among the "yuge" number of folks really, really excited to see how Hillary Clinton and Donald Trump will perform and engage with the issues and each other on the big debate state starting on Monday.  Among the reasons I am so excited this season, beyond the obvious and diversely distinctive entertainment value of both candidates, is because it seems quite likely that criminal-justice-related issues will be major topics of discussion (especially, of course, with respect to immigration policy/enforcement and police/citizen encounters).

As readers know, I am regularly rooting for sentencing-specific (and/or "war on drugs/marijuana") topics to take center stage at debates, and I am regularly disappointed that these topics either fail to get raised or get raised in ways that make it too easy for the candidates to respond with only fuzzy rhetoric.  But now because Trump has made "law and order" a focal point of his recent campaign, and especially because both candidates have through the years made notable statements on topics ranging from the death penalty to mass incarceration to drug policy, I am yet again hopeful (though still not really optimistic) that the issues that consume this blog could be end up being discussed at some length and with some real bite at one or more of the coming debates.

Ever eager to help those with the challenging task of planning and moderating the coming debates, I am now eager to hear from readers in the comments throughout the weekend about what criminal justice issues they hope to see raised in the debates.  I would be especially eager, as the title of this post highlights, to read in the comments actual suggested questions that are crafted in sharp ways to try to help ensure the candidates cannot get away with fuzzy answers.   I genuinely doubt that the first debate moderator, Lester Holt, is a regular reader of the comment section of this blog, but you never know.

So, dear readers, my weekend challenge is to urge comment with some sharp suggestions for sharp Prez debate questions on criminal justice issues.

September 23, 2016 in Campaign 2016 and sentencing issues, Who Sentences? | Permalink | Comments (8)

Latest polling suggests California voters could benefit from more information about state's competing death penalty initiatives

This news report on the latest polling concerning the competing death penalty initiatives before voters this fall reinforces my sense that Californians could benefit from a lot more public discussion and debate over the state and possible fate of capital punishment there.  The news piece is headlined "Is a plan to end the death penalty on the ropes in California?," and here are the details (with my emphasis added):

A plurality of likely voters backs the latest ballot effort to repeal the death penalty in California and shutter the nation’s largest death row, but support remains below the 50 percent threshold needed, a new poll shows. The survey, completed jointly by the Field Poll and the Institute of Governmental Studies at UC Berkeley, found Proposition 62 ahead 48 to 37 percent, with 15 percent of likely voters undecided.

Meanwhile, barely a third (35 percent) support Proposition 66, a competing initiative aimed at expediting the death-penalty process. With 42 percent undecided, it appears far less familiar to voters.  Twenty-three percent are opposed.

The see-saw measures come four years after voters narrowly rejected Proposition 34, an initiative that would have replaced capital punishment with life in prison without parole. The Field Poll’s last survey of that measure, taken a week before the 2012 election, found it leading 45 to 38 percent.

Mark DiCamillo, director of the poll, said there are signs of encouragement for death-penalty opponents this time, despite hovering below a majority seven weeks before the Nov. 8 election. “This is not a bad-news poll for Prop. 62,” DiCamillo added....

Proposition 62 would replace death sentences with life in prison without the possibility of parole and apply retroactively to existing death sentences. Proposition 66 endeavors to speed up the process by requiring that appeals conclude within five years of sentencing. DiCamillo said there is “much greater confusion” about Proposition 66, adding, “Voters don’t fully understand what the impact is.” If both measures pass, the one with the most votes will prevail....

California’s last execution was in January 2006, with the state effectively halting executions over challenges to its lethal injection protocol.

Some of many prior related posts:

September 23, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Great new US Sentencing Commission report on "simple possession" federal drug cases raises array of hard follow-up questions

Simplepossession_coverI find crime and punishment data so interesting and so important in large part because (1) even seemingly basic and simple data often can only be fully understood after one takes time to examine closely the backstories that surround that data, and (2) only if and when a researcher or advocate has deep understanding of data can that person even start to appreciate all the challenging policy and practical questions that important data implicate.  These realities are on full display in the context of an interesting and important new report released this week by the US Sentencing Commission titled "Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System." Here is the introduction to the short report, which explains the notable backstories concerning a dramatic recent change in the number of federal "simple possession" cases:

The simple possession of illegal drugs is a criminal offense under federal law and in many state jurisdictions. The offense occurs “when someone has on his or her person, or available for his or her use, a small amount of an illegal substance for the purpose of consuming or using it but without the intent to sell or give it to anyone else.”

Simple drug possession is a misdemeanor under federal law which provides that an offender may be sentenced to a term of imprisonment of not more than one year, fined a minimum of $1,000, or both. However, if an offender is convicted of simple possession after a prior drug related offense has become final, the offender can be charged with a felony simple possession offense.

The number of federal offenders whose most serious offense was simple drug possession increased nearly 400 percent during the six-year period between fiscal years 2008 and 2013. A change of this magnitude over a relatively short period of time triggered further investigation into these cases using data on offender and offense characteristics routinely collected by the United States Sentencing Commission (“the Commission”), as well as additional data collected specifically for this project.

At first, this dramatic increase in the number of offenders sentenced for the simple possession of drugs seems to suggest a substantially increased focus on this offense by federal law enforcement personnel. Further analysis, however, does not support such a conclusion. A closer inspection of the data demonstrates that this increase is almost entirely attributable to a single drug type — marijuana — and to offenders who were arrested at or near the U.S./Mexico border (a group almost entirely composed of offenders from the District of Arizona). For simple possession of marijuana offenders arrested at locations other than the U.S./Mexico border, the median quantity of marijuana involved in the offense was 5.2 grams (0.2 ounces).  In contrast, the offense conduct of simple possession of marijuana offenders arrested at that border involved a median quantity of 22,000 grams (48.5 pounds or 776.0 ounces) — a quantity that appears in excess of a personal use quantity.

In other words, the USSC noticed data showing a huge increase in the charging of misdemeanor federal drug crimes, which at first might suggest a curious new commitment by federal prosecutors to pursue low-level drug offenders. But, upon closer examination, the USSC discovers that what is really going on is that a whole lot of (low-level?) drug traffickers (mules?) found with huge quantities of marijuana are having their cases prosecuted through "simple possession" charges even though that label hardly seems like a factually fitting description of their drug crimes.

I am extraordinarily pleased to see the USSC detailing and explaining this interesting new data trend, and I am extraordinarily interested to hear from readers as to whether they think federal prosecutors in border regions ought to be praised or pilloried for their new misdemeanor approach to dealing with marijuana offenders arrested at the border with an average of 50 pounds of mary jane. This USSC report not only documents one tangible way that state marijuana reforms would seem to be having a profound impact on how the federal government is now waging the so-called "war on weed," but it also prompts a lot of hard questions about whether the new behaviors by federal drug prosecutors are appropriate given the absence of any formal changes to federal drug laws.

September 23, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2)

Lots of notable new content worth checking out at the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere).  So... here are some recent posts of note from CCRC:

Major new federal awards support second chance advocacy

When does the Second Amendment protect a convicted person’s right to bear arms?

Felony Disenfranchisement: Setting the Record Straighter

Indiana courts interpret new expungement law

SUNY bans the box on admissions application

When collateral consequences drive the sentence: The David Becker case

Can the pardon power be revived through procedural reforms?

September 23, 2016 in Collateral consequences, Criminal Sentences Alternatives, Recommended reading, Who Sentences? | Permalink | Comments (0)

Thursday, September 22, 2016

What could it mean politically and practically if — or should I say when — sentencing reform really becomes a "Latino Issue"?

LatinosReportCoverThe question in the title of this post is prompted by this interesting new Atlantic piece/interview authored by Juleyka Lantigua-Williams and headlined "Criminal Justice Is Becoming a 'Latino Issue': Yet there’s still a great deal we don’t know about Latinos and the criminal justice system." Here is how the piece begins:

Immigration has been the signature issue of political campaigns that want to appeal to Latinos, a group that has grown to encompass 17 percent of the population. But the last few years have poked big holes in the idea that Latinos only care about immigration, showing that Latino voters also care about terrorism, social security, and the environment. A growing number of Latinos are also becoming concerned about criminal justice reform, as more join the call for systemic changes at the federal and state levels.

Latinos are overrepresented both among victims of violence and among those behind bars. Latinos under 30 are almost three times as likely to be homicide victims as whites the same age, according to the Tomás Rivera Policy Institute at USC. They are also more likely to be threatened or attacked with a gun. And when Latinos report crimes, the report is less likely to lead to an arrest than the same crimes do when the victims are white.

In a 2014 report, the Violence Policy Center gathered valuable information on the profiles of Latino victims of crime. The homicide rate is more than twice as high as that of whites, and homicide is the second-leading cause of death for Latinos 15 to 24 years old. About 41 percent of Latino homicide victims in 2011 were younger than 24. Among blacks, the rate was 40 percent, and among whites it was 22 percent. In prisons, 20 percent are Latino, according to the Department of Justice, which indicates that if current rates continue, one of every six Latino men can expect to spend time in jail over their lifetime.

Yet a great deal of data that would help policymakers and advocates understand Latinos’ relationship to law enforcement has yet to be collected — there is much more data about whites and blacks’ encounters with the criminal justice system. After hitting some dead-ends in my search for answers about Latinos’ perceptions of, and experiences with the penal institutions and law-enforcement authorities in the country, I reached out to Alex Piquero, a criminologist at the University of Texas, Dallas, with some of my most pressing questions. An abridged and edited version of our conversation follows.

Juleyka Lantigua-Williams: I’m trying to address the question of whether Latinos care enough, or care at all, or should care more about criminal justice reform. What’s your perspective on that?

Alex Piquero: There are two main things that the research evidence is very clear about. The first one is, unfortunately, we do not have a lot of information on Hispanics in the criminal justice system, in general, whether it’s their offending, whether it’s their perceptions of the system. That’s primarily because of the lack of data collection that has occurred in this country for over a hundred years.

We’re getting better, we’re now starting to collect that data. For example, the FBI started to collect that information with arrest statistics. Traditionally, most of the research on criminal justice issues, whether it’s looking at offending patterns or incarceration rates, or people’s perceptions about the criminal justice system and their experiences has been only focused on blacks and whites, because of data constraints. Now we’re starting to get a little bit of a picture with respect to Hispanic and Latino views.

Lantigua-Williams: What do you think has been the effect of this lack of data, specifically on Latinos?

Piquero: We just had no idea what Hispanics felt about with respect to the criminal justice system or their experiences. That’s been one of the very big limiting factors of that area of work, that’s really important to say because we don’t have fifty years of research on a topic like that, whereas we do with respect to whites and African Americans. That said, the most recent research is complicated because there’s a lot of variability within Hispanics.

Cubans, Puerto Ricans, Mexicans, Central Americans, they may not see and/or interpret the criminal justice system in the same way. Sometimes you’re going to see differences within the groups, but we have very little information, for example, on what Puerto Ricans think about the criminal justice system because, typically, those studies have always lumped together the various Hispanic groups. Now, that said, Hispanics care about the criminal justice system just as much as whites and African Americans do. They are interested in it, they have experiences about it, and I think Hispanics are no different from whites and African Americans in that they see needs for reform. There’s no perfect system, but there’s not a lot of variability with respect to what parts of the system they may want to see reformed.

September 22, 2016 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

"Under the Radar: Neuroimaging Evidence in the Criminal Courtroom"

The title of this post is the title of this notable (and quite lengthy) article available via SSRN authored by Lyn Gaudet and Gary Marchant. Here is the abstract (with one line emphasized therein for sentencing fans):

This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013-2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases.

In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual.

As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data.

September 22, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Interesting account of how Mexico invests in keeping its homicidal citizens from being sentenced to death in the US

The Marshall Project has this interesting new article headlined "How Mexico Saves Its Citizens from the Death Penalty in the U.S.: A fund is designated to train, pay and advise American defense lawyers." Here are is how it gets started:

When the body of 25-year old Lesley Hope Plott was found lying in a ditch in Russellville, Ala., in February of 2013, police had little trouble zeroing in on a suspect: hours earlier, a nearby church’s security camera had recorded her being beaten and stabbed by her estranged husband, Angel Campos Nava.

Born in Mexico, Nava, 36, had come to the United States years earlier. He had already been convicted of assaulting Plott on two earlier occasions. A murder conviction could result in the death penalty. It was up to Rebecca Thomason, Nava’s lawyer, to convince the Franklin County district attorney to instead seek a life sentence, or, failing that, to convince a jury to spare his life. It didn’t help that Nava was undocumented, and they were in Alabama, a state with some of the harshest anti-immigration laws in the country.

Then, Thomason received a call offering her something few lawyers in death penalty cases get: money, training, and advice, courtesy of the Mexican government. Nava’s case had caught the attention of the Mexican Capital Legal Assistance Program, created by Mexican officials in 2000 to save the country’s citizens from execution in the United States.

One of the program’s chief purposes is to help defense attorneys construct a biography of the accused—to humanize them. Poverty, family dysfunction, and developmental disability are frequent themes in their clients’ lives. When presented as part of a defense, such themes can encourage mercy among jurors and dissuade them from handing down a death sentence.

To that end, the program arranges for lawyers to go to Mexico to track down school and hospital records and stories about their clients’ lives, either paying for their travel costs or advising them on how to request money from local courts. Under the program, Mexico pays American lawyers up to $220 an hour to track potential death penalty cases around the country—watching court decisions and news stories from the moment of arrest, all the way through the last minute scramble before an execution—and advise court-appointed lawyers like Thomason.

Since 2008, the program has provided these attorneys with an average annual budget of around $4 million to track as many as 135 cases at a time, according to the program’s filings with the Department of Justice.  That comes out to roughly $29,000 per case, per year.  By contrast, the Equal Justice Initiative, which represents numerous inmates on Alabama’s death row, has reported that many of them were sentenced to death after their attorneys’ fees were capped at $1,000 for out-of-court trial preparation.

September 22, 2016 in Death Penalty Reforms, Offender Characteristics, Sentencing around the world, Who Sentences? | Permalink | Comments (3)

Wednesday, September 21, 2016

Federal District Judge reasonably asks "What’s The Deal With White Guys And Child Porn?"

Long-time readers and federal district court aficionados likely know plenty about Senior United States District Judge Richard G. Kopf, a jurist who has never been afraid to say what he is thinking (and who's gotten in trouble a few times for that tendency). As evidenced by this new post at Mimesis Law, the judge has lately been giving thought to kiddie porn and the racial demographics of certain offender groups.  Here are excerpts:

In America, there is no doubt that in most circumstances being white (Caucasian in census terms) is a benefit.... But, at least in one category, it appears that being white is not a really good thing, but rather a predictor for the commission of horrible federal crimes. I refer to the production of child pornography.

The Sentencing Commission has told us that child porn consumers[* footnote] are “overwhelming white.” U.S. Sentencing Commission, Report to the Congress: Federal Child Pornography Offenses, ch. 11 at 308 n. 56 (Dec. 2012). The same thing is true for producers of child pornography. That is: "Production offenders, like non-production child pornography offenders, are a relatively homogenous group demographically compared to federal offenders generally. Among production offenders in fiscal year 2010, the overwhelming majority were male (97.0%), white (85.9%), and United States citizens (97.0%)."

Moreover, child porn producers were very different than the normal federal offender.  They were employed, relatively well-educated and came from a higher socio-economic background. To be specific, ... "like non-production offenders, production offenders on average occupy a higher socio-economic status than federal offenders generally. In fiscal year 2010, 87.7 percent of production offenders were high school graduates, and 46.7 percent had at least some college.  In fiscal 2010, among all federal offenders, the typical offender was not a high school graduate (51.4%), and only 19.9 percent of offenders had at least some college education.  There was a high degree of employment among child pornography production offenders at the time of their arrests.  Of the 197 production offenders sentenced in 2010 for which there was employment data, 76.1 percent were employed."

But in all probability, you don’t know what I mean, at least on a visceral level, by the words “child porn producer.”  So let me give you an example.  Be prepared to puke. The following is an accurate media summary of a child porn production case that started off in Michigan and landed on my docket as well because the united group of producers spanned our nation.

"A November arrest in a child porn case has led federal investigators to a larger ring of suspects accused of working together online to manipulate young girls into engaging in sexual acts on camera. A complaint against a California man filed in Detroit federal court Thursday revealed details of a disturbing and elaborate operation that sought to lure minors into video chatrooms where they would be urged to perform 'dares' while their images were recorded.... Federal investigators learned that members of the group served distinct roles that included 'hunters,' 'talkers,' 'loopers' and 'watchers'."

What happened to these young girls, mostly in their early teens, was horrendous.  Suffice it state that they were cajoled or trapped into violating themselves in the most sickening and humiliating of ways, in one case blackmailed to continue the abuse, and in another case permitted to harm herself for the pleasure of the observers.

My part of this case was simple.  The Nebraska white guy, who was 31, and a hardworking man, with post-secondary education, and respected member of his community, was confronted at his home by the FBI.  He told me that he was relieved when the feds came to the door because he didn’t know how to stop.  He immediately spilled his guts.  I accepted the Rule 11(c) (1) (C) plea agreement, containing an appeal waiver, and requiring me to sentence the defendant to 35 years in prison.  His Guideline range was life.

He was very smart to have accepted the deal because I would likely have imposed a life sentence.  Despite my reservations, I approved the plea agreement to avoid a trial with the kids being forced to testify.  I also sentenced him to a life of supervised release when he gets out of prison as an old man.  He was capable of making, and I required him to pay, a substantial amount of restitution to the children.

As I reflected on the above, I wondered about the word “thug” with all the racial freight that word carries.  I asked myself how I should describe these white child porn producers assuming I see no problem with the word “thug.”  Perhaps I could call them “white devils!”  Anyway, at this point I realized that my mind was wandering, so I returned to the essential question.

What the hell is wrong with white guys?

[* footnote] As I have previously noted in Fault Lines, I have some empathy for child porn consumers as opposed to child porn producers.  See here.

September 21, 2016 in Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

"Assessing Time Served" and the deeply under-theorized problems of criminal history

Patrick Woods has this effective and important new article now available via SSRN titled "Assessing Time Served."  Here is the abstract (which will be followed by a few comments I have about this topic):

This article examines the utility of a new way of determining when increased punishment should be imposed pursuant to “three strikes” laws or other recidivist enhancements. In the past two years, Congress and the United States Sentencing Commission have each considered criminal justice reform measures that would use the length of time an offender spent incarcerated as a proxy for the seriousness of his earlier criminal conduct.  While this reform seems sound at first glance, the article ultimately concludes that its incorporation into current state and federal sentencing laws must be done carefully, if at all, and that doing so now may be premature.

The article compares this new “time served” approach with the current methods of determining the severity of the punishment imposed upon an offender for his prior crime.  Current federal and state laws assess the seriousness of prior punishment using either the maximum statutory penalty — irrespective of the real sentence — or the sentence announced in court by the judge — even if only a small fraction of that sentence was actually served before the defendant was released.  Compared with these methods, determining the severity of a prior punishment using a “time served” measure seems to be an improvement.

Real problems, however, lurk just below the surface.  The article discusses in detail significant challenges with records gathering, defining the term of incarceration, and using the metric in a way that is consistent with due process guarantees.  It suggests how the metric might be employed to minimize each of these concerns, but also concludes that the condition of state and local incarceration records may make use of the metric in the near future impracticable.

This article effectively highlights some of the practical challenges of using time actually served in prison as a metric for recidivist sentencing enhancements, and these practical challenges must be considered against the backdrop of the host of other practical difficulties federal courts have experienced in using other metrics in application of the Armed Career Criminal Act and guideline assessments of criminal history.  Moreover, as the title of this post hints,  I think modern criminal justice theorists and scholars ought to be working a lot more on what the author calls the "philosophical underpinnings" of recidivist sentencing enhancements. (The author usefully brackets this issue because his fundamental project in this article is not conceptual.)  In many ways, I think the "war on drug" has had its biggest impact on modern incarceration through such recidivist enhancements, and I have long thought that the "philosophical underpinnings" of such enhancements can and should be greatly influenced by the types (and especially the motives) of prior offenses.

September 21, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Astute recognition that crime victims have to be integral part of effort to address modern mass incarceration

Greg Berman and Julian Adler have this important new commentary at The Crime Report headlined "Finding Common Cause: Victims and the Movement to Reduce Incarceration." Here are excerpts:

After more than a generation of punitive, “tough-on-crime” rhetoric and policymaking, there is now a fairly broad political consensus in the United States that we have gone too far in our use of incarceration.  Indeed, just a few weeks ago, the White House unveiled the Data-Driven Justice Initiative, a partnership of 67 jurisdictions — big and small, conservative and liberal — committed to using data to reduce incarceration.

The efforts to roll back mass incarceration are laudable, but they will not achieve lasting change if they do not figure out how to incorporate the perspectives of the justice system’s most vulnerable constituents: Victims of crime.

Victims of intimate partner violence in particular often feel sidelined by a criminal justice system that focuses almost exclusively on defendants. And make no mistake: Domestic violence represents a significant percentage of the cases in our criminal courts.  Current estimates show that approximately 10 million people are abused by an intimate partner in the U.S. each year — and this is almost certainly an undercount, given the hidden and unreported nature of a lot of abuse.

But it is not just the criminal justice system that pays short shrift to victims. Reformers do it, too. “Victims have been overlooked in this de-incarceration movement,” said Mai Fernandez, executive director of the National Center for Victims of Crime, in a recent interview with the Center for Court Innovation. Advocates concerned with reducing the use of incarceration typically argue that fewer defendants should be sent to jail or prison, and that there should be more community-based alternatives. Victim support organizations are, by definition, focused on crime victims’ safety. Historically, many have argued for increased accountability — including incarceration — for offenders, particularly in cases involving domestic violence.

Is it possible for victim advocates and jail reduction advocates to find common cause?  To begin to answer this question, the John D. and Catherine T. MacArthur Foundation and the Center for Court Innovation convened a roundtable with policymakers and practitioners from across the country, including judges, prosecutors, defense attorneys, victim advocates, and police officials. The roundtable highlighted a number of tensions.

One obvious tension is the potential conflict between protecting the safety of victims and protecting the constitutional rights of the accused. Many advocates believe that to better serve victims, courts should impose conditions of release—including stay-away orders, monitoring, and participation in specialized services — for domestic violence defendants who are out in the community pending trial. This idea runs up against the strong national push to reduce pretrial detention for those who have been accused—but not convicted — of criminal behavior.

As with much of American life, the challenge of racial, ethnic and gender disparity hangs over this conversation. Black and Latino communities have long histories of being over-policed and over-criminalized in the U.S. At the same time, these communities have been under-protected from the threat of victimization. History tells us that women of color are particularly vulnerable.

Many advocates of jail reduction place great faith in actuarial risk assessment instruments to determine who can be safely released while a case is pending.  But victim advocates are asking some hard questions about these tools: How accurate are they? What can a statistical analysis tell us about what any individual defendant might do?  And how well do risk tools take into account potential lethality?

“Domestic violence defendants are different,” argued Idaho judge James Cawthon in the roundtable. Indeed, there is plenty of evidence to suggest that the presence of a specifically targeted victim changes the equation when it comes to looking at the potential risk — and severity — of re-offending. While some jurisdictions have developed special risk assessment tools for domestic violence defendants, many have not.  In the days ahead, jail and prison reformers will have to wrestle with these and other challenges if they are to win the full-throated support of victim advocacy groups....

A strong body of opinion within the victims’ movement agrees the time has come to take a hard look at “right-sizing” incarceration, which involves figuring out who needs to be behind bars and who does not.  “It’s just simply not the case that all victims of violent crimes, and certainly not all victims of nonviolent crimes, seek a punitive punishment for the offender,” University of Miami law professor Donna Coker tells the Center for Court Innovation.  “What they frequently seek is some assurance that it won’t happen to them again and some assurance that it won’t happen to somebody else.”

Victim advocates and jail reduction proponents may not be able to agree on every issue. But in those areas where they have shared goals — improving the quality of risk assessment tools, reducing racial and gender disparities, and promoting trauma-informed care — they can serve as a powerful voice for change within our justice system.

September 21, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, September 20, 2016

"The Constitutional Right to Collateral Post-Conviction Review"

The title of this post is the title of this new and timely new article authored by Carlos Manuel Vazquez and Stephen Vladeck. Here is the abstract:

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all-but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding — for the first time — that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a state prisoner seeks retroactively to enforce a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was a constitutional one, a holding that, as we explain, was both novel and important.

We next consider which courts — state or federal — have the constitutional obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far-reaching.  To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise.  In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts — even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims.  The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims.  Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.

Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that could have a breathtaking impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.

When I got involved in writing a little commentary about the Montgomery opinion earlier this year, Montgomery's Messy Trifecta, I came to see themes and language in the Montgomery opinion that struck me as very important and very ground-breaking.  Thus, I am especially pleased to discover that I am not the only one who believes (and arguably welcomes) the fact that a "seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review."

September 20, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

What should we make of why and how New Mexico's Gov is pushing hard to bring back the death penalty in her state?

One notable sentencing reform story in the United States over the last decade has been the growing number of states abolishing capital punishment legislatively while no new state has come to (or come back to) embrace the penalty.  Specifically, in the last decade, we have seen legislatures in New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland and Nebraska take their machineries of death off-line.  (The 2015 Nebraska repeal, as regular readers know, might be reversed by voter referendum this November.) 

But as highlighted by this new AP article, headlined "New Mexico Governor Wants Vote on Reinstating Death Penalty," a notable chief executive is now making a notable hard push for bringing the death penalty back in her state.  Here are the latest details:

P>New Mexico Gov. Susana Martinez stepped up pressure on lawmakers Tuesday to consider reinstating the death penalty by promising to add the issue to a legislative agenda for a pending special session that was aimed solely at fixing the state's budget shortfall.

The second-term Republican governor said that she wants the death penalty as an option for convicted killers of police, children and corrections officers.  New Mexico repealed the death penalty in 2009 before Martinez took office by replacing provisions for lethal injection with a sentence of life in prison without parole.  The move by Martinez could compel lawmakers to take a public stand on capital punishment ahead of November elections for the Republican-controlled state House of Representatives and Democrat-dominated state Senate. 

"Cop killers and child murderers deserve the ultimate punishment," Martinez said in a written statement.  "If you kill an officer, you deserve the death penalty. If you kill a child, you deserve the death penalty.  It's time we say enough is enough."...

Her push to restore capital punishment follows the killings in southern New Mexico of two police officers in separate shootings in August and September by wanted fugitives, along with the horrific killing and dismemberment of a 10-year-old New Mexico girl in Albuquerque last month.

New Mexico executed nine men starting in 1933 until more than seven decades later when it abolished the death penalty.  The state's most recent execution in 2001 was its first since 1960.  Former Gov. Bill Richardson, a Democrat, cited flaws in how the death penalty was applied when he signed the legislation that abolished it.  He said the criminal justice system must be perfect if it will be used to put someone to death.

I presume Gov Martinez genuinely believes that justice demands the death penalty for cop killers and child killers (although her strong rhetoric makes me wonder if she shares GOP Prez nominee Donald Trump's view that we should have a mandatory capital punishment for cop killers as well as for child killers).  And yet, given the current timing of her push for bringing the death penalty back to New Mexico, I cannot help but wonder if Gov Martinez  (1) has some strong internal polling numbers suggesting citizens in the state also strongly favor a return of the death penalty, and (2) thinks that the death penalty can be an effective "wedge" issue for her to help get her preferred state legislative candidates elected this fall. 

September 20, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

"Lethally Deficient: Direct Appeals in Texas Death Penalty Cases"

Td2The title of this post is the title of this notable new lengthy report produced by the Texas Defender Service.  The start of this news release provides an overview of the report's contents:

Texas’ system of providing direct appeal representation in death penalty cases is in dire need of reform, according to a new report by Texas Defender Service.  The report, Lethally Deficient, evaluates six years of direct death penalty appeals and concludes that the current system is broken.  The Texas Legislature should, Texas Defender Service recommends, create a capital appellate defender office to handle these appeals, establish a statewide appointment system with caseload controls and uniform compensation, and require the appointment of two qualified lawyers to each death penalty direct appeal.

Lethally Deficient: Direct Appeals in Texas Death Penalty Cases is the first report to engage in an in-depth examination of direct appeals for Texas death penalty cases. Texas law requires all death sentences to be directly appealed from the trial court to the Texas Court of Criminal Appeals.  A direct appeal is based on the trial record and transcript.

“This report documents that, in case after case, most death row inmates are not well represented on direct appeal,” said Kathryn Kase, Executive Director of Texas Defender Service, a nonprofit law firm that works on capital cases and related criminal justice issues. “Texas should do what it did to address the crisis in capital habeas representation: create a public defender office that handles only direct death penalty appeals.”

TDS examined all direct appeals filed in each of the 84 death penalty cases decided by the Court of Criminal Appeals between January 1, 2009 and December 31, 2015.  The study uncovers multiple deficits in capital direct appeal representation. Lawyers submitted briefs that recycled failed legal arguments without updating to reflect current law, failed to meet — and at times, correspond with — their clients, failed to request oral argument, and avoided filing reply briefs and applications for U.S. Supreme Court review.  And while other jurisdictions reported attorneys needing between 500 and 1,000 hours to brief a capital direct appeal, defense lawyers for the cases in the TDS study billed between 72.1 to 535.0 hours for each appeal, for an average of only 275.9 hours.

In the six years – 2009 through 2015 – that these deficiencies occurred, TDS found that the CCA did not reverse a single conviction in a death penalty case on direct appeal.  The CCA affirmed convictions and death sentences in 79 cases, and reversed death sentences in just three cases.

When compared to capital litigants in other jurisdictions, Texas death penalty appellants fare far worse. Death row inmates outside Texas are 2.8 times more likely to have their cases reversed on direct appeal.  TDS reviewed 1,060 capital direct appeal decisions issued by the highest courts in the 30 other death penalty states between 2005 and 2015, and these courts collectively reversed 16.0% of all death sentences.  By contrast, the Texas Court of Criminal Appeals reversed just 5.7% of the death penalty cases heard on direct appeal between 2005 and 2015.

September 20, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)