Wednesday, April 23, 2014
Round-up of some reactions to/reports on today's notable sentencing developments
My blogging cup runneth over today as I try to find time to read and process the Supreme Court's big child porn restitution in Paroline (basics here) and DOJ's new clemency guidelines (basics here). Before I find time to share some of my reactions and perspectives (which may take a couple of days as I head on the road), I figured I can and should round-up here some of the reactions and perspectives of others of note:
Reactions to Paroline child porn restitution ruling:
From victim "Amy" here, "Disappointment at the Supreme Court – Amy’s Reaction"
From the National Center for Victims of Crime here, "Child Pornography victims need a roadmap to restitution, and Congress can provide it"
From the National Crime Victim Law Institute here, "Mixed Message From U.S. Supreme Court to Crime Victims"
From Paul Cassell at The Volokh Conspiracy, "The Supreme Court promises child pornography victims full restitution 'someday.' How long is that?"
From Rick Hasen at the Election Law Blog here, "Shorter Supreme Court in Child Pornography Case: Congress, Please Override Us"
Reactions to/reports on DOJ's new clemency guidelines:
From CNN here, "Rules change means more drug offenders eligible for clemency"
From Families Against Mandatory Minimums here, "Clemency Project 2014 Praises Justice Department for Breathing New Life Into Clemency Process"
From FoxNews here, "Krauthammer: Justice Department clemency initiative is 'lawlessness'"
From MSNBC here, "Justice finally comes to the pardons office and perhaps to many inmates"
April 23, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)
Split Fourth Circuit panel hold that Confrontation Clause does not apply in penalty phase of federal capital case
Today in US v. Umaña, No. 10-6 (4th Cir. Apr. 23, 2014) (available here) a Fourth Circuit panel affirms a federal capital conviction and sentence over numerous challenges. Here is how the panel majority opinion starts:
Alejandro Enrique Ramirez Umaña shot and killed two brothers, Ruben and Manuel Salinas, at point-blank range in a restaurant in Greensboro, North Carolina, because Umaña perceived that the brothers had insulted Umaña’s gang, Mara Salvatrucha, commonly known as MS-13. A jury convicted Umaña of all counts for which he was charged, including two counts charging him with murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1), and two counts charging him with committing murder while using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and (j)(1). The convictions on those charges subjected Umaña to a maximum sentence of death.
Following the verdict of conviction, the same jury returned a verdict that Umaña was death eligible on the four capital counts, as provided in 18 U.S.C. §§ 3591-3596. The jury found that two statutory aggravating factors applied: (1) that Umaña had created a grave risk of death to one or more persons in addition to each victim, and (2) that he had killed more than one person in a single criminal episode.
Finally, in the sentence selection phase of trial, the jury imposed the death penalty, finding that four additional nonstatutory aggravating factors applied: (1) that Umaña had killed the two brothers to protect and maintain the reputation of MS-13 and to advance his position in that gang; (2) that Umaña had caused injury and loss to the brothers’ family and friends; (3) that Umaña had earlier intentionally committed several murders in Los Angeles; and (4) that Umaña posed a continuing and serious threat to the lives and safety of others, as evidenced by his lack of remorse, his allegiance to MS-13, his lack of rehabilitation, and his pattern of violence. The jury also found several mitigating factors. After weighing the aggravating and mitigating factors, the jury imposed the death penalty.
On appeal, Umaña challenges every phase of the proceedings below. After carefully considering each of Umaña’s arguments, we reject them and affirm the convictions and sentence.
Here is how the dissent by Judge Gregory gets started:
The majority opinion denies Mr. Umaña the right to confront his accusers in a jury proceeding to determine whether he lives or dies. The right to confront one’s accusers is a right as old as it is important. Cf. Acts 25:16 (“[I]t is not the Roman custom to hand over anyone before they have faced their accusers...”). The Sixth Amendment guarantees a defendant the right “to be confronted with the witnesses against him” “in all criminal prosecutions.” U.S. Const. amend. VI. It also guarantees the right to an attorney, jury factfinding, notice of the crimes of which a defendant is accused, and a trial in the venue where the crime was committed. Id.
The last four of these Sixth Amendment rights -- counsel, jury, venue, and notice -- are not at issue today, nor are they controversial. During Federal Death Penalty Act (“FDPA”) proceedings, a defendant cannot be sentenced to death without these Sixth Amendment rights. However, under the majority’s holding today, capital defendants are denied the right to confront their accusers throughout certain stages of an FDPA proceeding. In contravention of the history and text of the Confrontation Clause, and in spite of modern Supreme Court jurisprudence emphasizing the importance of the Confrontation Clause, the majority strips Umaña of the Sixth Amendment right most important for ensuring the accuracy of trial outcomes during the most important proceeding of his life.
Justice Department formally announces its clemency initiative plans and guidelines
Announcing New Clemency Initiative, Deputy Attorney General James M. Cole Details Broad New Criteria for Applicants
As part of the Justice Department’s new clemency initiative, Deputy Attorney General James M. Cole announced six criteria the department will consider when reviewing and expediting clemency applications from federal inmates.
We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates, candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.
SCOTUS reinstates Kentucky death sentence based on AEDPA deference
Via a 6-3 opinion in White v. Woodall, No. 12-794 (Apr. 23, 2014) (available here), the Supreme Court this morning reversed a Sixth Circuit opinion reversing a Kentucky death sentence. Justice Scalia wrote the majority opinion which starts and ends this way:
Respondent brutally raped, slashed with a box cutter, and drowned a 16-year-old high-school student. After pleading guilty to murder, rape, and kidnaping, he was sentenced to death. The Kentucky Supreme Court affirmed the sentence, and we denied certiorari. Ten years later, the Court of Appeals for the Sixth Circuit granted respondent’s petition for a writ of habeas corpus on his Fifth Amendment claim. In so doing, it disregarded the limitations of 28 U.S.C. §2254(d) — a provision of law that some federal judges find too confining, but that all federal judges must obey. We reverse.
Because the Kentucky Supreme Court’s rejection of respondent’s Fifth Amendment claim was not objectively unreasonable, the Sixth Circuit erred in granting the writ. We therefore need not reach its further holding that the trial court’s putative error was not harmless. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Justice Breyer authored a joined by Justices Ginsburg and Sotomayor, which starts this way:
During the penalty phase of his capital murder trial, respondent Robert Woodall asked the court to instruct the jury not to draw any adverse inferences from his failure to testify. The court refused, and the Kentucky Supreme Court agreed that no instruction was warranted. The question before us is whether the Kentucky courts unreasonably applied clearly established Supreme Court law in concluding that the Fifth Amendment did not entitle Woodall to a no-adverse-inference instruction. See 28 U. S. C. §2254(d)(1). In my view, the answer is yes.
SCOTUS splits the difference for child porn restitution awards in Paroline
The Supreme Court handed down two criminal law opinions this morning, and the big one for sentencing fans is Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here). Intriguingly, Justice Kennedy authored opinion of the Court with Justices Ginsburg, Breyer, Alito and Kagan joining.. Chief Justice Roberts, Jr. issued a dissenting opinion joined by Justices Scalia and Thomas, while Justice Sotomayor issued a distinct a dissenting opinion. Here is the heart of the majority's ruling:
In this special context, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but but where it is impossible to trace a particular amount of losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims.
There remains the question of how district courts should go about determining the proper amount of restitution. At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.
Good luck with that, district courts! Snide comments aside, this ruling confirms my sense that these are really hard issues and that a majority of the Justice were uncomfortable with either a complete victory (which Justice Sotomayor urges) or a complete loss (which CJ Roberts urges) for child porn victims. Lots more on this ruling after I have a chance to process it fully.
"Are female sex offenders treated differently?"
The title of this post is the headline of of this new Salon article which carries this subheadline: "A light sentence for a teacher suggests courts still don't get it about women predators." Here is how the piece begins:
It’s an all too common story – a high school teacher facing sex abuse charges involving students admits to the wrongdoing and faces the criminal justice system. But was a sentence of just one month in custody at a Community Correction Center sufficient punishment for a 39-year-old educator who has sex abuse investigations dating back six years? And could the slap on the wrist sentence have anything to do with the fact that in this case, the teacher sentenced is a woman, and the victim is a boy?
In a case that involves charges of abuse from two male students, Oregon teacher Denise Keesee has acknowledged multiple sexual encounters in 2008 with a then 16-year-old student, and currently faces a $5.1 million lawsuit from another male student. According to Oregon Live, court documents show that “Keesee told detectives she kissed [the other student] several times in 2012 when they were alone in her classroom. She also reportedly admitted to sending him photos of herself, including one of her naked.” Because that student was 18, no criminal charges were filed.
The justice system doesn’t lack for stories of male abusers who get off with relatively light punishments. And it’s important to note that every story involving sex abuse is unique. But at the same time that Denise Keesee is facing just 30 days of confinement for what happened between her and a 16-year-old, a male teacher in her same state was last week sentenced to nearly three years in prison for “an inappropriate sexual relationship” with a 16-year-old female student. Last month in Idaho, a special education teacher was sentenced to five to 20 years in prison for sexually abusing two adolescent girls.
President Bartlet urges Congress to pass the Smarter Sentencing Act
I am pleased and intrigued to learn via this Mother Jones piece, headlined "Martin Sheen Reprises His 'West Wing' Role — for a Sentencing Reform PSA," that a high-profile celebrity is making the case for federal sentencing reform. Here are the details (along with links):
On Tuesday, Brave New Films released a new PSA calling on Congress to pass the Smarter Sentencing Act. The proposed sentencing-reform legislation aims to reduce prison populations and costs by creating less severe minimum terms for nonviolent drug offenders. (On Monday,Yahoo News reported that President Obama could grant clemency to "hundreds, perhaps thousands" of nonviolent drug offenders by the end of his second term.) The video was produced in partnership with the ACLU and Families Against Mandatory Minimums (FAMM), and stars actor Martin Sheen. It's titled "President Bartlet has a message for Congress," in reference to Sheen's role on Aaron Sorkin's political drama The West Wing.
"When BNF joined with FAMM and the ACLU to rally support for the Smart Sentencing Act, we couldn't think of a better spokesperson than Martin Sheen," Brave New Films president Robert Greenwald said. "When he portrayed President Bartlett on The West Wing, his character commuted the sentences of nonviolent drug offenders. In the real world, Martin Sheen has been an advocate for sentencing reform and alternatives to the harsh, long prison sentences we give to nonviolent drug offenders."
Tuesday, April 22, 2014
Ohio prosecutors author lengthy minority report assailing work of death penalty task force
As reported in this local article, headlined "Critics: Supreme Court task force's death penalty recommendations would create legal 'nightmares'," Ohio prosecutors involved with the work of a task force created by the Ohio Supreme Court and the Ohio Bar Association have now circulated a lengthy draft minority report in response to the lengthy draft task force's report recommending 56 modifications to the administration of capital punishment in the state. The local article provides this summary the basics of this capital battle, along with links to both documents:
A series of capital punishment reforms being considered by a state Supreme Court task force would “render Ohio’s death penalty inoperable,” according to a draft report being circulated by critics on the panel, including many county prosecutors.
Earlier this month, the task force released a list of draft recommendations that, among other things, called for limits on when the death penalty could be sought, heightened evidence requirements, and the creation of a panel that would have to approve death penalty charges before cases could proceed.
According to the task force’s draft minority report, released Tuesday by the Ohio Supreme Court, many of the recommendations “would establish a series of procedural and legislative nightmares.”
“Some of the recommendations would tie the death-penalty system up in knots, creating procedural and litigative traffic jams that would potentially tie up particular cases in litigation even more than is already occurring,” the report stated.
Franklin County Prosecutor Ron O'Brien, along with representatives of Cuyahoga County Prosecutor Timothy McGinty and Hamilton County Prosecutor Joseph Deters, were involved in preparing the task force's dissent.
Here are are the first two paragraphs from the opening of the draft minority report:
The Joint Supreme Court/Ohio State Bar Association Task Force to Review the Administration of Ohio’s Death Penalty (hereinafter “Task Force”) was tasked with the assessment of whether the death penalty in Ohio is administered in the most fair and judicious manner possible; and to determine if the administrative and procedural mechanisms for the administration of the death penalty in Ohio are in proper form or in need of adjustment. The Task Force’s mandate specifically provided that “[t]he task force shall not review or report on the issue of whether Ohio should or should not have the death penalty.”
In several of its recommendations, however, the Task Force veered off its narrow mandate and is making recommendations that are anti-death penalty. The work of the Task Force was strongly influenced by a pro-defense majority bent on an agenda of abolition, not fairness.
Intriguing SCOTUS split over reasonable suspicion for traffic stop based on 911 call
The Supreme Court handed down two notable opinions this morning, and the one that should interest criminal justice fans is sure to get less attention than the one concerning state affirmative action laws. Nevertheless, the split of the Justices alone is intriguing in the 5-4 Fourth Amendment ruling in Navarette v. California, No. 12-9490 (Apr 22, 2104) (available here). Writing for the Court, here is how Justice Thomas's opinion begins and ends:
After a 911 caller reported that a vehicle had run her off the road, a police officer located the vehicle she identified during the call and executed a traffic stop. We hold that the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated....
Like White, this is a “close case.” 496 U. S., at 332. As in that case, the indicia of the 911 caller’s reliability here are stronger than those in J. L., where we held that a bare-bones tip was unreliable. 529 U. S., at 271. Although the indicia present here are different from those we found sufficient in White, there is more than one way to demonstrate “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U. S., at 417–418. Under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road. That made it reasonable under the circumstances for the officer to execute a traffic stop. We accordingly affirm.
Justice Scalia authored a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor and Kagan. Here is how it begins and ends:
The California Court of Appeal in this case relied on jurisprudence from the California Supreme Court (adopted as well by other courts) to the effect that “an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver” provides without more the reasonable suspicion necessary to justify a stop.... Today’s opinion does not explicitly adopt such a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated; it purports to adhere to our prior cases, such as Florida v. J.L., 529 U. S. 266 (2000), and Alabama v. White, 496 U.S. 325 (1990). Be not deceived.
Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures. I would reverse the judgment of the Court of Appeal of California....
The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.
Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of single instance of careless driving. I respectfully dissent.
"'Not Just a Common Criminal': The Case for Sentencing Mitigation Videos"
The title of this post is the title of this notable new paper by Regina Austin now available via SSRN. Here is the a abstract:
Sentencing mitigation or sentencing videos are a form of visual legal advocacy that is produced on behalf of defendants for use in the sentencing phases of criminal cases (from charging to clemency). The videos are typically short (5 to 10 minutes or so) nonfiction films that explore a defendant’s background, character, and family situation with the aim of raising factual and moral issues that support the argument for a shorter or more lenient sentence. Very few examples of mitigation videos are in the public domain and available for viewing.
This article provides a complete analysis of the constituent elements of these videos, particularly their narrative structure. It raises strategic considerations that are pertinent to the decision to use a video during the sentencing process and explores questions of image ethics that can arise when a defendant’s children and parents are enlisted as video witnesses. Finally and most importantly, it addresses the hearsay challenges that not only present obstacles to the admission of sentencing videos in formal sentencing proceedings, but also impact the weight they are accorded in general.
Short federal sentence for cocaine offense when "'Breaking Bad' meets 'Walter Mitty'"
A remarkable federal drug sentencing case culminated in a short prison sentence as reported in this local article headlined "'Breaking Bad' meets 'Walter Mitty' in Alachua County contractor's cocaine sentencing." Here are the details:
The judge said the criminal case seemed to be more like a movie than an actual court proceeding. But on Monday the strange saga of an Alachua County man who went to Puerto Rico to try and dig up 11 pounds of cocaine ended in a short prison sentence and a pledge to volunteer with Habitat for Humanity.
U.S. District Judge Timothy Corrigan sentenced Rodney Hyden, 56, to 60 days in prison, one year of home detention and five years of supervised release. In imposing the sentence, Corrigan said it was one of the most difficult decisions he’d had to reach in a long time. He said he’s struggled with what the proper sentence should be.
Hyden, who owns his own construction company, will also be required to volunteer an average of 20 hours a week at Habitat for Humanity during his home detention and supervised release and will also be expected to build a Splash Park for the city of Newberry, where he lives.
Hyden could have faced 10 years in prison, but prosecutors waived the minimum mandatory laws and said the crime didn’t mandate a sentence that long. The head of Habitat and the mayor of Newberry also wrote letters to Corrigan saying they were comfortable with Hyden providing his services.
Defense Attorney Mark Rosenblum argued that his client should be let off without jail time and required to do the community service with Habitat for Humanity and Newberry. Federal prosecutor Tysen Duva asked for 30 months of prison. “Rodney Hyden is a good man who made a bad mistake,” Rosenblum said. “Luckily for him, the government was represented by an honest prosecutor and the case was presided over by an extremely fair judge.”
A neighbor of Hyden’s in Newberry told him that when he lived in Puerto Rico he found cocaine washed up on the beach and buried it near the trailer where he lived at the time. Hyden talked to several people about getting the cocaine, but he didn’t know that one of those people, Daniel Jimenez, was working as an informer for the Alachua County Sheriff’s Office.
Two undercover agents posing as narcotics traffickers met with Hyden and offered to help him get the drugs to Northeast Florida. Hyden went to Puerto Rico twice seeking the drugs, but couldn’t find them. He ended up giving a treasure map of where he thought the drugs might be to the undercover agents. Police found the drugs, which had degraded to the point of being worthless, and arrested Hyden.
During the trial, Rosenblum argued that his client had been entrapped by the government and never would have gone after the drugs if people working for the government hadn’t encouraged it. Jurors rejected that argument.
Hyden was convicted of a serious crime, but at the same time there was no real victim in the case, and even if he’d managed to retrieve the drugs he could not have sold them because they had degraded so much, Corrigan said. Corrigan said the seriousness of the drug crime mandated some prison time, but not a lot.
The judge also dropped some pop culture references. “If this case wasn’t so serious it would make a great movie,” Corrigan said. “It’s a combination of ‘Breaking Bad’ and the ‘Secret Life of Walter Mitty.’”
Monday, April 21, 2014
Split Oklahoma Supreme Court stays executions based on drug secrecy concerns
As reported in this AP article, headlined "Oklahoma Court Stays Executions of 2 Inmates," a lack of transparency about execution drugs has prompted court action in the Sooner state. Here are the basics:
A sharply divided Oklahoma Supreme Court on Monday stayed the execution of two death row inmates who have challenged the secrecy surrounding the source of the state's lethal injection drugs.
In a 5-4 decision, the state's highest court issued the stays just one day before death row inmate Clayton Lockett was scheduled to be executed for the 1999 shooting death of 19-year-old Stephanie Nieman. The second inmate, Charles Warner, was convicted in the 1997 death of his roommate's 11-month-old daughter. He was scheduled to die on April 29.
Oklahoma County District Judge Patricia Parrish last month struck down the state's execution law in a ruling that said the protocol that prevented the inmates from seeking information about the drugs used in lethal injections violated their rights under the state constitution....
On Friday, the Oklahoma Court of Criminal Appeals denied the inmates' request for a stay in spite of a ruling by the Supreme Court earlier in the week that the appeals court had the authority to issue a stay or reschedule an execution.
"The 'rule of necessity' now demands that we step forward," the Supreme Court's majority opinion says. "We can deny jurisdiction, or we can leave the appellants with no access to the courts for resolution of their 'grave' constitutional claims.
"As uncomfortable as this matter makes us, we refuse to violate our oaths of office and to leave the appellants with no access to the courts, their constitutionally guaranteed measure."
The full opinions in this matter appear to be available at this link.
Is Prez Obama likely to grant clemency to "hundreds, perhaps thousands" of imprisoned drug offenders?
The question in the title of this post is prompted by this notable new and lengthy Yahoo News article headlined "Obama plans clemency for hundreds of drug offenders: Barbara Scrivner's long quest for mercy tests a president's will — and her own faith." The article begins with focus on a woman deep into "serving a 30-year sentence in federal prison for selling a few ounces of methamphetamine," but goes on to discuss drug sentencing more generally. And these excerpts quoting a "serious administration official" really caught my attention:
Now, in his final years in office, Obama has trained his sights on prisoners like Scrivner, and wants to use his previously dormant pardon power as part of a larger strategy to restore fairness to the criminal-justice system. A senior administration official tells Yahoo News the president could grant clemency to "hundreds, perhaps thousands" of people locked up for nonviolent drug crimes by the time he leaves office — a stunning number that hasn't been seen since Gerald Ford extended amnesty to Vietnam draft dodgers in the 1970s.
The scope of the new clemency initiative is so large that administration officials are preparing a series of personnel and process changes to help them manage the influx of petitions they expect Obama to approve. Among the changes is reforming the recently censured office within the Justice Department responsible for processing pardon petitions. Yahoo News has learned that the pardon attorney, Ronald Rodgers, who was criticized in a 2012 Internal watchdog report for mishandling a high-profile clemency petition, is likely to step down as part of that overhaul. Additional procedures for handling large numbers of clemency petitions could be announced as soon as this week, a senior administration official said, though it could take longer....
When it came to using his only unfettered presidential power — to pardon felons and to reduce the sentences of prisoners — Obama was incredibly stingy in his first term. Vanita Gupta, deputy legal director of the American Civil Liberties Union, calls his record on mercy "abysmal." He pardoned just 22 people — fewer than any modern president — and commuted the sentence of just one. An applicant for commutation like Scrivner had just a 1-in-5,000 chance of getting a reduced sentence with Obama in his first term — compared with a 1-in-100 chance under Presidents Reagan and Clinton, according to an analysis by ProPublica.
According to former and current administration officials, the fault for this lay mostly at the feet of the Office of the Pardon Attorney, a small corner of the Justice Department that sifts through thousands of pardon and commutation petitions each year. The pardon attorney, former military judge Ronald Rodgers, sends his recommendations of whether or not to grant the petitions to the Deputy Attorney General’s office, which then sends them on to the White House. The pardon attorney was recommending that the president deny nearly every single petition for a pardon or a reduced sentence, according to one senior official in the Obama administration....
But even though the president was almost certainly aware that the pardon process was deeply flawed, he took no steps to fix it. In 2009, Obama’s top lawyer, Gregory Craig, drafted a proposal urging a more aggressive use of the presidential pardon and clemency power, and calling the current system broken. One of Craig's recommendations was to take the pardon attorney's office out of the Department of Justice entirely, so that the people vetting clemency petitions were not so close to the system that put prisoners away in the first place. "I was of the belief that the current system for making pardon decisions was broken and it needed to be reformed," Craig said. His suggested reforms weren't implemented, and he left the White House that year....
Near the end of his first term, Obama expressed his frustration with how few positive clemency petitions were landing on his desk. He began meeting with White House Counsel Kathy Ruemmler and Holder to discuss how his pardon power could fit into his larger strategy of making the criminal-justice system fairer. (In mid-December, Holder followed up with a memo to Obama laying out his priorities for a second term in which he endorsed a more robust use of the pardon power as part of a broader criminal-justice reform initiative.) Over a series of five or 10 discussions, the president said he wanted more recommendations for pardons and commutations getting to his desk. The president complained that the pardon attorney's office favored petitions from wealthy and connected people, who had good lawyers and knew how to game the system. The typical felon recommended for clemency by the pardon attorney was a hunter who wanted a pardon so that he could apply for a hunting license....
[In] February, the Justice Department announced a new push for clemency for nonviolent drug offenders — an initiative that came out of Obama's meetings with Ruemmler and Holder. Deputy Attorney General Jim Cole solicited private defense attorneys around the country for more petitions for mercy from prisoners serving lengthy sentences for drug crimes that would most likely be prosecuted differently today, due to changes in the law. A group of advocates have created "Clemency Project 2014" to organize the petitions and send them to the Justice Department — they expect thousands to pour in....
But questions still remain about whether the pardon attorney's office is actually capable of fairly and quickly processing Scrivner's and the thousands of other expected petitions. Holder has asked for seven additional staffers for the office in his 2015 budget request, but it's unclear when they would start.
Meanwhile, more than a year after pardon attorney Rodgers was called out by the Justice Department for misrepresenting Aaron's petition to the White House, the former prosecutor and military judge is likely to finally be pushed out and replaced, a senior administration official tells Yahoo News. Rodgers was not present in a March meeting of the Justice Department, White House officials and advocates about "Clemency Project 2014," suggesting that he was already being internally marginalized.
Advocates have long been skeptical that a significant number of clemency petitions will actually get processed quickly if the current pardon attorney remained in place, given the entrenched culture there. A former pardon attorney's office employee said he believes the office could try to run out the clock on the petitions, knowing full well that the president has only a few years left. New leadership could change that....
Last month, the president walked into the East Room to greet dozens of U.S. attorneys who traveled to the White House to discuss criminal-justice issues. The president told them he was expecting an influx of clemency applications for his new push, and warned that he wanted them to personally examine them all and not "reflexively" deny them. "I take my clemency authority very seriously," he told them.
With just a few years left of Obama's presidency, Scrivner, and others, will soon find out if he means it.
A few of many recent and older posts concerning federal clemency practices:
- "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
- Deputy AG Cole's remarkable remarks to the NYSBA
- Curious DOJ clemency campaign continues through meeting with defense groups
- "How to Awaken the Pardon Power"
- New Slate pitch for Prez to use clemency powers to address crack sentencing disparities
- "Clemency Reform: We're Still Waiting"
- New York Times editorial assails Prez Obama's considerable clemency failings
- Updated numbers on President Obama's disgraceful clemency record
- ProPublica reveals more ugliness in federal clemency process
- Reflecting on Obama Administration's latest "half-way" approach to clemency
- Terrific upcoming NYU Law conference on "Mercy in the Criminal Justice System"
- Prez Obama commutes 15-year sentence for marijuana offender down to 11.5 years
- Critical reflections on the Cantu commutation ... aka why some federal prosecutors perhaps deserve to be demonized
UPDATE: Though balky blogging software precluded adding comments and updating this post, I can finally now post this link to an official statement from the Justice Department and AG Holder about still-emerging clemency plans. here is how it starts:
In an important step to reduce sentencing disparities for drug offenders in the federal prison system, Attorney General Eric Holder on Monday announced that the Justice Department will soon detail new, more expansive criteria that the department will use in considering when to recommend clemency applications for President Obama’s review.
In anticipation of the increase of eligible petitioners, the Justice Department is preparing to assign lawyers -- with backgrounds in both prosecution and defense – to review the applications. “The White House has indicated it wants to consider additional clemency applications, to restore a degree of justice, fairness and proportionality for deserving individuals who do not pose a threat to public safety,” said Attorney General Holder in a video message posted on the department’s website. “The Justice Department is committed to recommending as many qualified applicants as possible for reduced sentences.”
Later this week, Deputy Attorney General James M. Cole is expected to announce more specific details about the expanded criteria the department will use and the logistical effort underway to ensure proper reviews of the anticipated wave of applications.
SCOTUS takes up two criminal cases, including yet another ACCA application question
As reported here at SCOTUSblog, the Supreme Court this morning granted cert on three new cases, two of which involve criminal justice matters:
The Supreme Court agreed on Monday to rule on whether the president has the sole power to decide on the nature of the U.S. government’s formal relations with Israel. That issue arises out of a dispute between the White House and Congress over whether Israel should be noted as the place of birth of a U.S. citizen born in Jerusalem....
The Court granted two other cases, the first dealing with the constitutional implications of a police traffic stop that turned out to be based upon a mistake by the officers (Heien v. North Carolina), and the second focusing on whether possession of a shotgun should be treated as a violent felony for purposes of federal criminal sentencing (Johnson v. United States).
Since I was lamenting earlier this month in this post that the Justices seem to have little interesting in criminal justice issues of late, I suppose I should be excited by these two new grants. But my excitement is surely tempered by the fact that the new sentencing issue in Johnson is just yet another variation on the statutory questions surrounding the reach and application of the Armed Career Criminal Act. That said, because even a ACCA sip of sentencing water is refreshing in a SCOTUS desert of a docket, I am still intrigued and grateful there iare some new SCOTUS cases for criminal justice and sentencing fans to now follow closely.
Sunday, April 20, 2014
"WWJD? Reform Alabama's horrible criminal sentencing laws"
The title of this post is the headline given to this provocative commentary authored by Sue Bell Cobb, a retired Alabama Supreme Court Chief Justice. Here are excerpts:
As the former Chief Justice of Alabama, I am proud to have devoted my career to the cause of justice in our state. But as a lifelong United Methodist, it shames me to know that if Jesus came to our state today, he would chastise me and every other Alabama Christian for our nearly complete silence on a terrible injustice taking place under our noses and in our names every day: ineffective, absurdly harsh sentencing laws that lead to overcrowded, dangerous prisons that breed more crime. What would Jesus do? Fix our criminal sentencing laws.
Our shame should be all the greater because we cannot pretend that we do not know the truth. In poll after poll, we say that we understand that there are cheaper and more effective ways to punish non-violent, drug-addicted offenders than by locking them up in prison. Virtually every Alabama newspaper has reported on our state's horrendously overcrowded prisons.
It is undisputed that no state in the nation has prisons as over-crowded and underfunded as ours. Alabama prisons have almost twice the number of inmates they were designed to hold and far too few correctional ofﬁcers guarding them. They are terrible, deadly violent places that truly decent people would not tolerate in our midst.
The Alabama Legislature recently completed another legislative session and did nothing to remedy this deplorable situation. Why did the legislature fail to act? A lack of leadership is an easy answer, but it is also a tremendous cop out. As Christians, do we need politicians to show us the way? No. In Alabama today and everywhere, except for Senator Cam Ward of Shelby County, politicians are followers, not leaders. It falls to us, as people who profess to be passionate about true, meaningful justice to be visible and vocal on this issue. We must lead our politicians onto the path of justice. Thus far, we have failed to do so....
Every dollar we misspend and waste on inappropriately locking up a non-violent offender, is a dollar that is desperately needed for prevention of child abuse and neglect, mental health services, education, parks, libraries healthcare and our deteriorating infrastructure. Prevention programs are much more cost-effective with lasting beneﬁts that improve the quality of life for everyone.
By locking up low risk, nonviolent offenders with higher risk offenders, we are making ourselves less safe. There are less expensive, more effective community alternative punishment programs which appropriately punish an offender without sending them off to prison. Model drug courts, the replication of which was a major priority of mine during my tenure as Chief Justice of the Alabama Supreme Court, HOPE courts, mental health courts, expanded community corrections and work release, intensive probation services, and evening juvenile reporting centers are examples of ways to hold offenders accountable, yet also try to ﬁx the issues that initially lead them to a life of crime.
It is the Easter season, and Christians like me will ﬁll our churches to hear the story of a prisoner who suffered a terrible and unjust punishment. Our hearts will swell with shame over the sacriﬁce that Our Lord made for us -- "while we were yet sinners." We will rededicate ourselves to serve Him.
And then we will go home and say and do nothing about the thousands of injustices in Alabama courts and prisons carried out in our name every day.
As I contemplate what that "prisoner" from 2,000 years ago would say about those prisons, I am inspired to act. And I tremble in fear about how He will judge me if I do not.
A few headline highlights concerning those celebrating different high holy day
A busy holiday weekend and balky blog software precluded me from making much of the strange tradition of making 4/20 a special day on the calendar for marijuana fans. But with the mainstream media so interested in this matter this year, I though a round-up of some notable headlines might be justified. So here goes:
From the AP here, "Colorado pot law frustrates Nebraska law officers"
From CBS News here, "Pot holiday goes mainstream in Colorado"
From The Christian Science Monitor here, "420 festival: How far and fast could legal marijuana spread?"
From CNN here, "With sales now legal, cannabis lovers take Denver's 420 weekend to new highs"
- From Politico here, "The highs and lows of legal pot"
Gov Chris Christie talking up drug sentencing reform as a pro-life commitment
As reported via this entry at Mediate, last week New Jersey Governor Chris Christie connected drug sentencing reform to another social issue frequently stressed by Republican officials and politicians. Here are the interesting details:
New Jersey Gov. Chris Christie delivered a message to his fellow members of the Republican Party on Thursday: being pro-life means reforming America’s drug laws and criminal sentencing procedures. Christie has long advocated for drug treatment programs as a means of reforming the country’s prison system, but Christie took a new tactic on Thursday when he framed that advocacy as a pro-life argument.
“I’m pro-life, and I believe strongly in the sanctity of life,” Christie told an audience in Jersey City on Thursday. Addressing his fellow Republican governors, Christie said that “it’s great to be pro-life, but you need to be pro-life after they get out of the womb, too.”
“If we believe in the sanctity of life, then we need to believe in how life is precious for every moment that God gives us,” the governor continued. “If, in fact, that we believe life is precious — and I do — then the life of the drug-addicted teenager who has been arrested for the sixth time is just as precious as the life of any one of my children.”
Christie said that conservatives don’t want violent people on the street, and there is a “class of people” who deserves to be incarcerated, but there is another “class of people” who will benefit more from “help” than punishment. “I don’t believe this is a conservative, or moderate, or liberal issue,” Christie concluded. “I don’t believe this is a Republican or Democrat issue. Because, let me tell you, I know as many drug-addicted Republicans as I know drug-addicted Democrats.”
Some older and recent posts on the "new politics" of sentencing reform:
- Notable talk of sentencing reform at CPAC conference
- "G.O.P. Moving to Ease Its Stance on Sentencing"
- Notable inside-the-Beltway discussion of modern sentencing politics
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- Conservative group ALEC joins the growing calls for sentencing refom
- Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
- Effective Heritage analysis of federal MMs and statutory reform proposals
- "Holder and Republicans Unite to Soften Sentencing Laws"
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
Saturday, April 19, 2014
"Blackstone's Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States"
The title of this post is the title of this notable new article by Suja Thomas now available via SSRN which should be of special interest to fans of juries. Here is the abstract:
When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently — as an integral part of government in both England and the colonies.
This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury. Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government — to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority. Of course, the jury has arguably not fallen or has risen through other changes. This topic will be introduced later in this chapter and developed in a future chapter. As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.
Friday, April 18, 2014
Should Prez Obama create a "Presidential Commission on Mass Incarceration"? Who should be on it?
The questions in the title of this post are prompted by one of the executive actions suggested earlier this week the Brennan Center for Justice in this new report titled "15 Executive Actions to Overcome Government Dysfunction." Notably, as listed here, at least three of the suggested actions are focused on criminal justice matters that should be of special interest to sentencing fans:
9. Create a Presidential Commission on Mass Incarceration, modeled after the “Kerner Commission.”
10. Issue an executive order directing federal agencies to recast their criminal justice grants in a Success-Oriented Funding model.
11. Direct the Justice Department to identify federal prisoners to whom the Fair Sentencing Act would retroactively apply, and recommend commutations for all those eligible, barring exceptional circumstances.
The first proposal of these three struck me as especially novel and interesting, and here is part of the full report's discussion of the proposal:
With only 5 percent of the world’s population, the United States has 25 percent of its prisoners. More than 2 million Americans are behind bars. A quarter of the nation’s adult population has a criminal record. The prison population has increased sevenfold since 1970. The country spends a quarter of a trillion dollars a year on criminal justice, but true costs are wider: Economic and social impacts on families and children can continue for generations. The explosion in our correctional population extends far beyond prison: pre-trial detention, parole and probation supervision, and those with arrest records.
Public safety does not compel incarceration of this scope. More than half of prisoners are serving time for drug or nonviolent crimes. One in four new prison admissions are for violations of parole. 106 One in five people behind bars are simply awaiting trial.
Yet, the epidemic of mass incarceration hides in plain sight. Most Americans are unaware of it. Those who are aware are not mobilized to act.
Progressives and conservatives have begun to seek action. Several states have taken up reforms in recent years. Momentum is increasing in Washington. Last year, Attorney General Eric Holder announced the “Smart on Crime” initiative, calling for federal prosecutors to seek harsh sentences only for the most serious drug traffickers and other reforms.
These federal and states fixes, however, have been piecemeal rather than systemic. Full change is not possible without wide public support. Mass incarceration must be identified as a national problem requiring national attention. Though jurisdictions vary in the minutia of their justice systems, the overall drivers of the incarceration explosion are similar across the country.
Federal legislation to create a national commission on criminal justice has failed to pass repeatedly. This year, Congress created the Chuck Colson Task Force, named after the founder of Prison Fellowship. It will aim to study the federal prison system to alleviate overcrowding. A similar assessment should be made of the far broader problem.
The president can help make mass incarceration visible by creating a National Commission on Mass Incarceration of leading bipartisan policymakers and civic leaders. He can do so through an executive order or a presidential memorandum. And he can avail himself of a high profile venue, such as a commencement address, to announce the commission.
Such a panel could be modeled after the National Advisory Commission on Civil Disorders (chaired by Illinois Governor Otto Kerner, Jr.). President Lyndon B. Johnson created the “Kerner Commission” to study the causes of urban riots. The National Commission on Mass Incarceration should similarly study the current drivers of the growth in federal and state prison and jail populations. It should examine the accompanying economic and societal toll. And, it should issue concrete policy recommendations to achieve a measureable goal — for example, cutting the nationwide incarcerated population by 25 percent by 2025.
Proposals should focus on “front-end” changes that help stem the influx of people into the pipeline to prison.
The Kerner Commission’s members included New York City Mayor John Lindsay, Sen. Edward Brooke of Massachusetts, Litton Industry founder Charles Thornton, NAACP head Roy Wilkins, and Atlanta police chief Herbert Turner Jenkins. These prominent public figures helped bring national attention to the issue of race. The National Commission on Mass Incarceration should include similar public and civic leaders. Such a commission would draw the nation’s attention to this overlooked issue and, most importantly, catalyze action.
Regular readers will not be surprised to hear I like both the style and substance of this proposal. Thus, to answer my own post-title question, I do think Prez Obama should create a Presidential Commission on Mass Incarceration. (And, of course, I think I should be on this Commission along with Bill Otis and perhaps many other (but not all other) frequent commenters on this blog.)
Effort to repeal death penalty in New Hampshire falls one vote short
As reported in this New York Times piece, headlined "Measure to Repeal Death Penalty Fails by a Single Vote in New Hampshire Senate," a tie vote yesterday in the Granite State will keep the death penalty alive there for now. Here are the details:
In a tie vote, the New Hampshire Senate deadlocked Thursday on whether to repeal the death penalty, leaving the current law intact and New Hampshire as the lone state in New England that allows the execution of anyone convicted of a capital crime.
Only one person here is on death row, but his fate had as much to do with the vote as anything else. That inmate, Michael Addison, was convicted in 2008 in the shooting death of a Manchester police officer in 2006.
Proponents of the death penalty want him executed, but his case has been tied up in legal appeals. State senators opposed to the death penalty said that they understood the visceral feelings against Mr. Addison and that their measure would still allow his execution even as it abolished the law authorizing it. Death penalty supporters said that the bill posed constitutional problems and that Mr. Addison’s life could end up being spared.
“Trying to have it both ways was problematic for proponents of the bill — execute one person but repeal it prospectively,” Senator Jeb Bradley, a Republican and the majority leader, said in an interview after the vote. “That was a bridge too far for a lot of people,” said Mr. Bradley, who opposed repeal....
New Hampshire’s action on Thursday stalled for now what had appeared to be momentum toward the abolition of the death penalty. The State House of Representatives approved the repeal 225 to 104 last month, and Gov. Maggie Hassan, a Democrat, had been prepared to sign it. Repeal would have made New Hampshire the 19th state to abolish the death penalty and the last in New England. And it would have been the seventh state in seven years to do so. New Hampshire’s last execution was in 1939.
But the State Senate, where Republicans outnumber Democrats 13 to 11, split 12-to-12 on Thursday, and tie votes are considered defeats. Party leaders had freed their members for what they said would be a vote of conscience. Two Republicans broke with their party and voted for the repeal, and one Democrat voted against it....
Death penalty opponents were disappointed and said they would continue to lobby senators in hopes of bringing up the bill again before the legislative session ends June 30. Arnie Alpert, spokesman for the New Hampshire Coalition to Abolish the Death Penalty, said that many people “evolve” on the issue over the years and that there was still hope of changing minds.
Senator Bette Lasky, a Democrat and the chief sponsor of the bill, said she regretted that she did not have a chance to talk to all of her colleagues. “Many senators were so inundated, even when it came to colleagues talking to them, that they shut down,” she said.
Ms. Lasky said she would bring the bill up again if she knew she had the votes to pass it. Mr. Bradley, the majority leader, said it was hard to say whether supporters of the repeal could get enough votes to bring the measure back. “At 12-12, it could come off the table, but I suspect it won’t,” he said.