Sentencing Law and Policy

"Court reluctant on plea bargains after sentencing"

The title of this post is the headline of this AP report on the oral arguments today in the big Sixth Amendment cases of Lafler v. Cooper and Missouri v. Frye (previewed here).  Here are snippets from the AP account:

The Supreme Court seemed reluctant Monday to allow criminals to ask for a previously offered plea bargain after they've been sentenced, despite the inmates' claim of misconduct by their lawyers including neglecting to tell their clients that a deal had been offered.

Asking judges to go back and figure out on appeal whether a suspect would have taken a plea deal before a trial, whether a judge would have accepted it, whether a prosecutor would have withdrawn it or whether the negotiations would have fallen apart "is simply unworkable," said Justice Anthony Kennedy, who is often a tiebreaker votes on divisive issues....

In both cases, the criminals' lawyers are not arguing for new trials, a position the court seemed to agree with. "The remedy of giving a new trial when the person has already had a fair trial makes zero sense," Justice Samuel Alito said.

But Cooper's lawyer, Valerie Newman, said they should have a chance to go back and consider the plea offer. "I'm saying it's unfair to go to trial when your attorney tells you, 'You can't be convicted.'"

"You are saying it's unfair to have a fair trial; isn't that correct?" Kennedy said.

Several justices seemed concerned about how changing the plea system would affect prosecutors and judges. For example, it's easy for a criminal facing a decade in prison to say he would have taken a plea deal for one year after a judge has sentenced him to 10 years in prison, justices noted.

But the negotiations are going on before trial, and by "not accepting it he has a chance of going scot-free" if a jury finds him not guilty, Chief Justice John Roberts said. After conviction and sentencing, Roberts said, "presumably the defendant will always say, 'I would have taken that deal, because it's better.' So how is a judge supposed to go back and decide whether that's true or not" on appeal?"

Everyone can now read the full transcript in both these cases via this links provided by SCOTUSblog: the transcripts from today’s arguments in Lafler v. Cooper and Missouri v. Frye can be found here and here.

The US Sentencing Commission new mega-report on mandatory minimums now available

I am pleased to see that the US Sentencing Commission has succeeded in releasing its massive new report on mandatory minimums, which has the formal (and oh-so-exciting) title "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System."  This official press release provides the basics on this important report:

Today the United States Sentencing Commission submitted to Congress its 645-page report assessing the impact of statutory mandatory minimum penalties on federal sentencing.

Judge Patti B. Saris, chair of the Commission stated, “While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”

In the report, the Commission recommends with respect to drug offenses that Congress reassess certain statutory recidivist provisions, and consider possible tailoring of the “safety valve” relief mechanism to other low-level, non-violent offenders convicted of other offenses carrying mandatory minimum penalties. It also recommends that Congress examine and reevaluate the “stacking” of mandatory minimum penalties for certain federal firearms offenses as the penalties that may result can be excessively severe and unjust, particularly in circumstances where there is no physical harm or threat of physical harm.

The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent. Saris noted, “The number of federal prisoners has tripled in the last 20 years. Although the Commission recognizes that mandatory minimum penalties are only one of the factors that have contributed to the increased capacity and cost of inmates in federal custody (an increase in immigration cases is another), the Commission recommends that Congress request prison impact analyses from the Commission as early as possible in the legislative process when Congress considers enacting or amending federal criminal penalties.”

The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory. The comprehensive report contains the most up-to-date data and findings on federal sentencing and the application of mandatory minimum penalties compiled since the Commission released its 1991 report. The Commission reviewed 73,239 cases from fiscal year 2010 as well as its data sets from previous fiscal years to conduct the data analyses in the report and support the findings and conclusions set forth.

Here are some of the report's key findings that are noted in the press release (with my emphasis added to spotlight data I found especially interesting and important):

• More than 27 percent of offenders included in the pool were convicted of an offense carrying a mandatory minimum penalty. 
• More than 75 percent of those offenders convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense.
• Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by Black offenders (31.5%), White offenders (27.4%), and Other Race offenders (2.7%).
• Almost half (46.7%) of all offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such penalty at sentencing for assisting the government, qualifying for “safety valve” relief, or both.
• Black offenders received relief from a mandatory minimum penalty least often (in 34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other Race (58.9%) offenders. In particular, Black offenders qualified for relief under the safety valve at the lowest rate of any other racial group (11.1%), compared to White (26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their criminal history or the involvement of a dangerous weapon in connection with the offense. 
• Receiving relief from a mandatory minimum penalty made a significant difference in the sentence ultimately imposed.  Offenders subject to a mandatory minimum penalty at sentencing received an average sentence of 139 months, compared to an average sentence of 63 months for those offenders who received relief from a mandatory minimum penalty.

The full 645-page(!) report is linked from this USSC webpage, and a 25-page executive summary is available at this link.  Lots and lots of posts about this report and the mass amount of data and analysis it reflects will follow through the days and weeks ahead.

Pam Karlan notes "The Cost of Death" for SCOTUS and the legal profession

Professor Pam Karlan has this notable new commentary in the Boston Review on "The Cost of Death" that puts an extra little spin on the arguments concerning the extraordinary resources spent (and arguably wasted) on capital cases in the United States.   Here are excerpts:

Samuel Johnson famously remarked, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.”  But precisely because it so concentrates the public mind, capital punishment has distorted the criminal justice system.  Over the past 40 years, while the Supreme Court has been “tinker[ing] with the machinery of death,” in Justice Harry Blackmun’s haunting phrase, other components of the system have broken down untended....

The [Supreme] Court’s rules single out capital cases for special treatment, directing that the notation “CAPITAL CASE” appear at the beginning of any such request for review and mandating that the government, which often waives its right to reply, file a response.  The clerk’s office has a special staff attorney charged with overseeing the voluminous, often last-minute filings in death penalty cases.  The justices and their law clerks often scrutinize the filings with great care.  The bar has also responded: death row inmates typically receive superb legal assistance before the Supreme Court.  Former Bush Administration Solicitor General Gregory Garre is now representing [Cory] Maples.  Current Solicitor General Donald Verrilli previously represented several death row inmates pro bono before the Court.

But the concentration on capital cases comes at a cost.  Ineffective trial lawyers, inconclusive evidence, inconsistent testimony, and impenetrable procedural thickets are hardly unique to capital cases.  Nonetheless, the Court is far less likely to pay attention to these claims when the consequences to the defendant seem less harsh....  And while the Court has repeatedly considered whether a death sentence is proportionate to a particular class of crimes —for example, barring death sentences for non-homicide offenses or for juvenile or mentally retarded defendants — it has set virtually no limits on the severity of prison sentences.  In the 40 years that the Court has been actively policing capital punishment, prison sentences have lengthened and the U.S. prison population has skyrocketed.  With execution at the top end of the scale of punishment, a life sentence begins to look something like leniency, and other sentences are inflated in turn.

Capital cases also consume thousands of hours of legal services from some of the finest legal minds in America. The time those lawyers spend challenging death sentences of inmates whose guilt is not seriously in doubt could be spent preventing and remedying wrongful convictions, ensuring that all defendants receive prompt appointment of competent counsel, and attacking draconian prison conditions, not to mention providing civil justice to poor and disenfranchised people.  But as long as the death penalty is with us, superb and committed lawyers at organizations such as the Southern Center for Human Rights, the Equal Justice Initiative, and the NAACP Legal Defense and Educational Fund will find themselves defending the lives of a few while the lives of many others continue to be ruined by pervasive flaws in our criminal justice system.

Regular readers know I have great affinity for the sorts of points that Professor Karlan is making here (and I am grateful she notes my work in a portion of this commentary I have not quoted).  Regular readers also know that I express my concerns by often urging SCOTUS and others int he legal profession to try to avoid getting too obssessed with and/or distracted by capital cases.  Of course, Professor Karlan is urging the most direct route to ensuring American lawyers stop too obssessed with and/or distracted by capital cases — namely, that through legislative repeal, we collectively stop having any American capital cases.

Split Eighth Circuit affirms reasonableness of 48-year sentence for juve who pleaded to second-degree murder

An interesting (and unusual) reasonableness appeal produced an interesting split of opinion today in US v. Boneshirt, No. 10-3108 (8th Cir. Oct. 31, 2011) (available here).  Here are snippets from the relatively lengthy majority opinion authored by Judge Smith:

Brian Boneshirt pleaded guilty, pursuant to a written plea agreement, to one count of second degree murder, in violation of 18 U.S.C. §§ 1153 and 1111. The district court sentenced him to 576 months' imprisonment.  On appeal, Boneshirt challenges the substantive reasonableness of his sentence.  We affirm....

In his sentencing memorandum, Boneshirt objected to the allegation that he had participated in a plan to escape from jail.  He also objected to the PSR's denial of the reduction for acceptance of responsibility and application of the enhancement for obstruction of justice.  In addition, Boneshirt argued that the court should impose a below-Guidelines sentence in light of the 18 U.S.C. § 3553(a) factors. Specifically, he argued for leniency based on his youth and intoxicated state at the time of the offense, his difficult childhood, and his alcohol-related neurodevelopmental disorder....

After a careful review of the sentencing record, we conclude that the district court did not abuse its discretion in sentencing Boneshirt to 576 months' imprisonment.  Both the sentencing hearing transcript and the court's statement of reasons explaining its sentence demonstrate that the court considered all of Boneshirt's arguments and the § 3553(a) factors, ultimately imposing the sentence based on the "nature of the offense, the nature of post-offense conduct, and the need to protect society from Mr. Boneshirt."...

In sum, the record indicates that, over the course of a six-hour sentencing hearing, the district court thoroughly considered all of Boneshirt's arguments, the facts, and the law in attempting to fashion an appropriate sentence.  The resulting sentence is harsh but is within the calculated Guidelines range and hence may be considered presumptively reasonable.  Frausto, 636 F.3d at 997.  Presumptively reasonable, however, does not mean unassailable. Yet this record is lacking in a demonstration of sentencing error on the part of the district court.  Many reasonable minds may have imposed a lesser sentence, but we conclude that the district court did not abuse its discretion and impose an unreasonable sentence by selecting a high but within-Guidelines sentence for a homicide offense.

Here is a passage from the relatively lengthy partial dissent authored by Judge Bright:

Boneshirt's forty-eight-year sentence is substantively unreasonable because the district court unreasonably weighed the facts at issue in the case. The district court failed to give proper weight to the fact that Boneshirt was a juvenile when he committed the crime, especially when his age is considered with his background and upbringing. And further, the district court’s sentence placed too much weight on a plan to escape by Boneshirt when he was pending sentencing.

Split SCOTUS summary reversal in California shaken-baby case involving sufficiency and habeas review

The Supreme Court this morning issued a summary reversal in Cavacos v. Smith, No. 10–1115 (S. Ct. Oct. 31, 2011) (available here), which starts and ends this way:

The opinion of the Court in Jackson v. Virginia, 443 U. S. 307 (1979), makes clear that it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court.  The federal court instead may do so only if the state court decision was “objectively unreasonable.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5) (internal quotation marks omitted).

Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.  The Court of Appeals in this case substituted its judgment for that of a California jury on the question whether the prosecution’s or the defense’s expert witnesses more persuasively explained the cause of a death. For this reason, certiorari is granted and the judgment of the Court of Appeals is reversed....

It is said that Smith, who already has served years in prison, has been punished enough, and that she poses no danger to society.  These or other considerations perhaps would be grounds to seek clemency, a prerogative granted to executive authorities to help ensure that justice is tempered by mercy.   It is not clear to the Court whether this process has been invoked, or, if so, what its course has been.  It is not for the Judicial Branch to determine the standards for this discretion.  If the clemency power is exercised in either too generous or too stingy a way, that calls for political correctives, not judicial intervention.  

The decision below cannot be allowed to stand.   This Court vacated and remanded this judgment twice before, calling the panel’s attention to this Court’s opinions highlighting the necessity of deference to state courts in §2254(d) habeas cases.  Each time the panel persisted in its course, reinstating its judgment without seriously confronting the significance of the cases called to its attention.  See Patrick v. Smith, 550 U. S. 915 (vacating and remanding in light of Carey v. Musladin, 549 U. S. 70 (2006)), reinstated on remand, 508 F. 3d 1256 (2007) (per curiam); 558 U. S. ___ (2010) (vacating and remanding in light of McDaniel v. Brown, 558 U. S. ___ (2010) (per curiam)), reinstated on remand sub nom. Smith v. Mitchell, 624 F. 3d 1235 (2010) (per curiam).  Its refusal to do so necessitates this Court’s action today.

A lenthy dissent authored by Justice Ginsburg and joined by Justice Breyer and Sotomayor starts and ends this way:

The Court’s summary disposition of this case, in my judgment, is a misuse of discretion.  I set out below my reasons for concluding that discretion, soundly exercised, would have occasioned denial of California’s petition for review...

In sum, this is a notably fact-bound case in which the Court of Appeals unquestionably stated the correct rule of law.  It is thus “the type of case in which we are most inclined to deny certiorari.” Kyles v. Whitley, 514 U. S. 419, 460 (1995) (SCALIA, J., dissenting). Nevertheless, the Court is bent on rebuking the Ninth Circuit for what it conceives to be defiance of our prior remands. See ante, at 8. I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.

But even if granting review qualified as a proper exer­ cise of our discretionary authority, I would resist summary reversal of the Court of Appeals’ decision.  The fact­ intensive character of the case calls for attentive review of the record, including a trial transcript that runs over 1,500 pages.  Careful inspection of the record would be aided by the adversarial presentation that full briefing and argument afford.  See, e.g., R. Fallon, J. Manning, D. Meltzer, D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1480 (6th ed. 2009) (posing question whether summary reversal would “smack of unfairness to the losing party unless an opportunity were afforded for the filing of briefs on the merits”);  Gressman, Supreme Court Practice §6.12(c), p. 417, and n. 46 (ques­tioning the Court’s reliance on its own examination of the record in summarily reversing, without at least affording the parties, “particularly the respondent,” an opportunity to brief the critical issue and identify the relevant portions of the record).  Peremptory disposition, in my judgment, is all the more inappropriate given the grave consequences of upsetting the judgment below: Smith, who has already served ten years, will be returned to prison to complete a sentence of fifteen years to life.  Before depriving Smith of the liberty she currently enjoys, and her family of her care, I would at least afford her a full opportunity to de­ fend her release from a decade’s incarceration.

For some back-story on this remarkable case, check out this Los Angeles Times piece from last year headlined "A pawn in a legal chess match: Shirley Ree Smith spent 10 years behind bars for the death of her grandson before her conviction was overturned. Now she waits on skid row as the courts sort out whether a jury's verdict — even if wrong — must prevail."

Scary hard cases confronting bad plea advice, prejudice and Sixth Amendment remedies

As previously noted in this week in preview, this morning the US Supreme Court will hear arguments in Lafler v. Cooper (10-209) and Missouri v. Frye (10-444), two cases dealing with claims of ineffective assistance of defense lawyer for advice to reject a plea offer and either plead guilty or go to trial.  Here are some effective previews from effective court reports:

• From SCOTUSblog here, "Argument preview: Remedy for ineffective assistance of counsel during plea bargaining?"
• From NPR here, "Cases Tied To Dubious Legal Advice Reach High Court"
• From the New York Times here, "Supreme Court to Weigh Effects of Bad Plea Advice"

Because 95% of all criminal convictions are obtained through plea deals (and because plea offers are usually proposed even in this 5% of cases resulting in convictions via trials), these cases have the potential to be blockbusters both as to of the number of past and future cases they could impact and also as to the future direction of the Sixth Amendment and constitutional regulation of the plea bargaining process.  And, as the title of this post and the SCOTUSblog preview spotlights, these cases raise super-hard issues of prejudice and remedies that were conveniently dodged in Padilla v. Kentucky, the major Sixth Amendment plea advice ruling last year.

Especially because Chief Justice Roberts and Justices Alito, Sotomayor, and Kagan are relatively new voices and seem to be relatively uncertain votes on these hard issues of modern criminal procedure, I am going to be especially interested in reviewing the transcripts in Lafler and Frye to see how they all engage with this issue at oral argument today.

Trick or Treat?: What will new USSC report on mandatory minimums say and advocate?

Among the exciting activities I have planned for today, the last day of October, is to start reading the US Sentencing Commission's new report to Congress discussing mandatory minimum sentencing statutes in the federal sentencing system.  This report has been in the works for two years, and is expected to be released later today.  

According to Judge Patti Saris, the Chair of the US Sentencing Commission whom I had the pleasure to hear speak at an event in Ohio on Friday, this report is going to run more than 600 pages.  Judge Saris also indicated that the report will assert that some mandatory minimum sentencing statutes apply too broadly and are too severe.  But she also suggested that the report will not categorically assert that all mandatory minimum sentencing provisions are bad policy in all circumstances.

Remarkably, it has been more than two decades since the USSC issued a report to Congress on mandatory minimum sentencing.  Way back in August 1991, the USSC produced this important document, titled "Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System," which reached these important conclusions:

Despite the expectation that mandatory minimum sentences would be applied to all cases that meet the statutory criteria of eligibility, the available data suggest that this is not the case.  This lack of uniform application creates unwarranted disparity in sentencing, and compromises the potential for the guidelines sentencing system to reduce disparity....

In 35 percent of cases in which available data strongly suggest that the defendant's behavior warrants a sentence under a mandatory minimum statute, defendants plead guilty to offenses carrying non-mandatory minimum or reduced mandatory minimum provisions.  Since the charging and plea negotiation processes are neither open to public review nor generally reviewable by the courts, the honesty and truth in sentencing intended by the guidelines system is compromised....

The disparate application of mandatory minimum sentences in cases in which available data strongly suggest that a mandatory minimum is applicable appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum; and to the circuit in which the defendant happens to be sentenced, where defendants sentenced in some circuits are more likely to be sentenced below the applicable mandatory minimums than defendants sentenced in other circuits.  This differential application on the basis of race and circuit reflects the very kind of disparity and discrimination the Sentencing Reform Act, through a system of guidelines, was designed to reduce.

Whereas the structure of the federal sentencing guidelines differentiates defendants convicted of the same offense by a variety of aggravating and mitigating factors, the consideration of which is meant to provide just punishment and proportional sentences, the structure of mandatory minimums lacks these distinguishing characteristics.  Under the guidelines, offenders classified as similar receive similar sentences; under mandatory minimums, offenders seemingly not similar nonetheless receive similar sentences. It thus appears that an unintended effect of mandatory minimums is unwarranted sentencing uniformity.

Our analyses indicate that the guidelines system established by Congress, because of its ability to accommodate the vast array of relevant offense/offender characteristics, and its self-correcting potential, is superior to the mandatory minimum approach....   Accordingly, we conclude that the most efficient and effective way for Congress to exercise its powers to direct sentencing policy is through the established process of sentencing guidelines, permitting the sophistication of the guidelines structure to work, rather than through mandatory minimums.  There is every reason to expect that by so doing, Congress can achieve the purposes of mandatory minimums while not compromising other goals to which it is simultaneously committed.

Of course, in 1991 the federal sentencing guidelines were mandatory; now they are advisory.  Nevertheless, I do not think this change in the formal legal status of the guidelines should radically change the themes and prescriptions concerning mandatory minimum statutes that the USSC set forth 20 years ago.  It will be interesting to just how the new MM report echoes or revises some of the conclusions stated the last time around.

Big coming week for sentencing geeks (like me)

This new week has so many events for which I have marked my calender, I am getting a bit concerned I might have a sentencing geek break-down before the week is through.  Of particular note (as I will discuss in a subsequent post), I have on lots of good authority that the US Sentencing Commission on Monday will be releasing its long-awaited (and apparently 600+ page long) report to Congress on federal mandatory minimums.  And, the next day, November 1, marks the day the new guideline revisions go into effect and the new reduced crack guideline become officially retroactive.

Meanwhile, as well detailed in this new SCOTUSblog post, a number of important criminal justice cases are to be argued before SCOTUS this coming week.  Here is the schedule via that post:

Monday, Oct 31:

Lafler v. Cooper (10-209) — claim of ineffective assistance of defense lawyer for advice to reject a plea offer and either plead guilty or go to trial (new question on remedy added by the Court)

Missouri v. Frye (10-444) — issues parallel  to those in Lafler; the cases are being argued in tandem by order of the Court

Tuesday, Nov. 1:

Rehberg v. Paulk (10-788) — scope of immunity for government official who initiates a criminal case then testifies falsely to a grand jury

Minneci v. Pollard (10-1104) — right to sue for damages for constitutional violations by private employees working for the government under contract

Wednesday, Nov. 2:

Perry v. New Hampshire (10-8974) — challenge to use of questionable eyewitness identification as criminal evidence

Gonzalez v. Thaler (10-895) — timing for appeal in federal habeas case after state conviction has become final 

Is Mountain Dew really a lot more dangerous than mary jane?

The provocative question in the title of this post is prompted by provocative new research appearing in this forthcoming article due to be published in the peer-reviewed journal Injury Prevention.  (Many thanks to a kind reader for forwarding to me the link to this piece.)  The article carries the title "The ‘Twinkie Defense’: the relationship between carbonated non-diet soft drinks and violence perpetration among Boston high school students."  Here is the abstract:

Objectives: To investigate the association of carbonated non-diet soft drink consumption and violence perpetration in a sample of Boston adolescents.

Methods: In a survey of Boston public high schools, respondents were asked how often they drank non-diet soft drinks and whether they had carried a weapon or engaged in physical violence with a peer.  Regression analysis was used to determine the role of soft drink consumption in these behaviours.

Results: Adolescents who drank more than five cans of soft drinks per week (nearly 30% of the sample) were significantly more likely to have carried a weapon and to have been violent with peers, family members and dates (p<0.01 for carrying a weapon and p<0.001 for the three violence measures).  Frequent soft drink consumption was associated with a 9–15% point increase in the probability of engaging in aggressive actions, even after controlling for gender, age, race, body mass index, typical sleep patterns, tobacco use, alcohol use and having family dinners.

Conclusions: There was a significant and strong association between soft drinks and violence.  There may be a direct cause-and-effect relationship, perhaps due to the sugar or caffeine content of soft drinks, or there may be other factors, unaccounted for in our analyses, that cause both high soft drink consumption and aggression.

I do not recall having ever seen behavioral research that shows a "significant and strong association" between pot consumption (as opposed to pot sales) and violent behavior.  That is why my post title seriously wonders whether those seriously concerned about reducing violent crime ought to be perhaps more interested in pop prohibition than pot prohibition.  

At the very least, this research indicating a "significant and strong association between soft drinks and violence" could and should (1) provide some additional support for a "soda tax" added to all drinks with high sugar and caffeine content, and (2) prompt anyone who has previously criticized Michelle Obama's healthy eating campaign to recognize there could be important connections between reducing unhealthy consumption by young people and reducing violent behavior by young people.

UPDATE:  A helpful reader points me to this 2004 Rand working paper on marijuana and crime, which reviews some prior research on pot and crime and makes lots of interesting additional points.  Here was one notable portion of the Rand discussion:

Overall the findings from the reduced form models would suggest that marijuana use is positively associated with property and income-producing crimes and that no causal association exists between marijuana use and violent crime.

Another Texas execution and still another Texas pre-execution innocence debate

While I was on the road the last few days, two notable Texas death penalty stories made these headlines:

• From CNN, "Man convicted of killing cop, wife put to death in Texas"
• From the AP, "Prosecutors, lawmakers ask Perry, others for DNA tests for inmate before November execution"

I cannot help but speculate about how Texas Governor Rick Perry's recent drop in the GOP presidential polls might impact how he responds in the days ahead to the request for DNA testing by death row inmate Hank Skinner, who is now scheduled to be executed on November 9 for the 1993 killing of his girlfriend and her two sons.  I suspect an effort by Perry to enable DNA testing might get him lots of good (liberal?) media attention, but that will not obviously help his cause (and could even hurt him) in the minds of GOP primary voters.

I think if Gov. Perry was slick and politically shrewd, he might try to make the Skinner case a topic of considerable attention in an effort to force his rivals like Mitt Romney and Herman Cain to speak on the death penalty.  Gov. Perry has a record on death penalty issues that, when considered in total, should warm the hearts of most GOP voters, while Romney and Cain might make some political blunders if forced to talk about these kinds of issues at some length.

Sentencing Mad Max finally able to say thanks

After a whirlwind sentencing road warrior three days which included three amazing sentencing get-togethers in three different locations (in three different federal circuits), I am finally back at my home office with a few free moments that finally allow me to say a hearty thanks to all the amazing people who helped put together three amazingly effective and engaging events.  My head is still swimming with all that I learned at each of the events; I am also still giddy not only about victories by the Cards and the Buckeyes while I was a road warrior, but also about the fact that I was able to get out of Philly and home to Ohio in the midst of the October(!?!) snowstorm that has hit the East Coast this weekend.

So much happened at each of the events — and so many people were responsible for treating me so well — that I am certain I will not be able to effectively blog about everything worthy of commentary nor will I be able to adequately thank and congratulate all the lovely people responsible for my terrific experiences.  I can here report, however, something that ought to especially intrigue regular blog readers: for the very first time, I finally met the man behind Supremacy Claus in person (at the Penn Law Review event on Saturday)!

Genuine questions about retributive justice after another (efficient) LWOP plea for mass murderer

This CNN story out of Florida, headlined "Man admits murdering 4 relatives on Thanksgiving, gets life in prison," reports on another notable mass murderer coping a plea to avoid a death sentence.  As I prepare to hit the road again and head off line, I am hopeful this post might prompt some extended engagement from fans of retributive justice about whether they would call this case an example of justice or injustice.   First, the basics:

A Florida man pleaded guilty Thursday to murdering four relatives on Thanksgiving Day in 2009, avoiding a possible death sentence after reaching a plea deal with prosecutors. After hearing from relatives of the victims, Palm Beach County Circuit Judge Joseph Marx sentenced Paul Merhige to seven life terms. As part of the agreement, the defendant agreed to waive any rights of appeal.

"You'll never see the light of day," Marx told the 37-year-old Merhige on Thursday, in front of a packed West Palm Beach courtroom....

Merhige was arrested in January 2010 at a Florida Keys motel after an "America's Most Wanted" viewer recognized him.... Merhige was then charged with four counts of premeditated murder and three counts attempted first-degree murder in the Thanksgiving night shooting deaths of his twin sisters, a 6-year-old cousin and a 79-year-old aunt at a family home in Jupiter, Florida.

One of the victims -- Lisa Knight, 33, who was one of Merhige's sisters -- was pregnant. Her husband, Patrick, was one of two other family members who survived after being wounded in the shooting rampage, authorities said. Family members suggested in interviewers that Merhige "had ongoing resentment" for some of his relatives, Jupiter Police spokeswoman Sally Collins-Ortiz said shortly after the shootings.

Patrick Knight, who was shot in the stomach, was among the family members who told the judge Thursday that he approved the plea deal. He explained that he wanted to "pick up the pieces" and did not want to endure "20 years" of appeals.   But Jim Sitton, whose 6-year-old daughter, Makayla, was among those gunned down, objected to the agreement as he wanted Merhige to go on trial and potentially face the death penalty....

The start of Merhige's trial had been set for January.  His public defenders had filed court documents expressing their intent to defend him using an insanity defense. After Thursday's court proceeding, State Attorney Michael McAuliffe released a statement in which he said that -- "after careful evaluation and consideration" -- he decided to accept Merhige's plea, having determined it is "an appropriate resolution to the case."

Noting the disparate opinions among the victims' family members and about the death penalty generally, McAuliffe said he felt it sufficient that Merhige "will have no hope of having favorable rulings by a court" and "will have no ability to affect ... the lives of those he harmed. I believe that seven consecutive life sentences recognize the heinous nature of the crimes and adequately punish the defendant," he said.

I am interested in retributivist perspectives on this case in part because I think fans of utilitarian theory could and should be pleased or at least content with how this tragic case has been resolved.  Due to this plea deal saving great time/energy and the imposition of an LWOP sentence, it is not hard for a committed utilitarian to believe and assert that adequate crime control benefits have been achieved here at limited costs.  (Of course, strong utilitarian believers in DP deterrence may be troubled a death sentence was not sought, but the lurking insanity issue should prompt a thoughtful utilitarian to acknowledge that an LWOP sentence was a likely actual or functional final outcome of this case even if death had been vigorously pursued.)

But I have no sense at all about how those committed to retributivist perspectives on punishment would now assess this case.  I assume some (many?) retributivists who agree with Kant that justice demands execution of all murderers may be troubled that Merhige will not be killed by the state.  And yet, I assume that even hard-core Kantians make some exception for truly insane killers, through it is unclear whether Merhige was truly insane when he committed his murders.  

Meanwhile, I know that there are some (many?) other retributivists who think nobody ever deserves a death sentence no matter how horrific the crime.  Are these retributivists happy abut the outcome here, or are they instead deeply troubled that Merhige pleaded guilty based on the threat of an (unjust) death sentence?  

And, for all retributivists, how much should the fact that Merhige killed so many people factor in to the justice analysis?  How about the fact that the victims were Merhige's relatives (i.e., does that make him more or less blameworthy)?  And where and how in the retributive justice analysis does the different sentiments of the surviving victims factor in?

As my post title is meant to make clear, my questions here are all very genuine because it is cases like this one that for me raise the most questions about how retributive justice should be assessed in real hard cases involving mass murderers with some arguments in mitigation.  I can readily understand how fans of utilitarian theory unpack and assess this kind of hard case (and other kinds of hard cases), but I am truly eager to hear comments from fans of retributivist theory about how unpack and assess this kind of hard case (and other kinds of hard cases).

"Tribal Court Convictions and the Federal Sentencing Guidelines: Respect for Tribal Courts and Tribal People in Federal Sentencing"

The title of this post is the title of this interesting new paper on SSRN by Barbara Creel discussing a small, but very interesting, part of the federal sentencing world. Here is the abstract:

This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendant’s criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an “upward departure” to increase the Native defendant’s overall federal sentence.

Washburn’s proposal seeks to gain “respect” for tribal courts, based upon a premise that tribal convictions must be afforded the same weight and treatment as federal and state criminal convictions under the Federal Sentencing Guidelines. This Article explores the idea of respect for tribal courts and convictions in the context of their history and connection to tribal peoples and communities. Ultimately, this Article concludes that respectful treatment would not tolerate placing a tribal defendant in such a powerless position within the federal sentencing hierarchy.

A proposal that would negatively impact only Native American defendants in a foreign justice system in the name of respect warrants critical review. As an Assistant Federal Public Defender, I had the opportunity to view the application of federal criminal laws from the front and the back end of the criminal justice system, from trial to post-conviction. As a Native woman, I have seen the impact of crime, justice, and federal sentencing on tribal people, families, and whole communities.

It is from this perspective that I focus the lens of respect on the work of tribal courts and criminal justice in Indian Country, and ultimately oppose any amendment in federal sentencing to count tribal court convictions to increase federal sentences for Native criminal defendants. A review of the historical diminishment of tribal authority over crime and punishment on the reservation, as well as the disparate impact of crime and punishment on Native peoples, leads to a rejection of counting tribal court convictions in federal sentencing. This Article proposes an alternative view that both respects Native American individuals caught in the criminal justice system and elevates tribal sovereignty.

UK debate over new sentencing structures continuing

All persons interesting in structured sentencing laws ought to be keeping an eye on the interesting debates taking place in the UK now over a new set of proposed mandatory sentencing rules.  Here are links to two pieces from papers across the pond, both with telling headlined, that provide some of the details:

• From The Guardian, "Judges to be given get-out clause on mandatory prison sentences; Ken Clarke proposes legislative amendments allowing judicial discretion for special circumstances"

• From The Telegraph, "New sentences will see hundreds fewer serious criminals go to jail; Kenneth Clarke was last night accused of putting the public at risk as it emerged his new sentence reforms will see at least 2,500 fewer dangerous criminals go to prison"

"Madoff says he is happier in prison than free"

The title of this post is the headline of this news report discussing a recent interview of Bernie Madoff from prison.  Here is how the piece starts:

Financial swindler Bernard Madoff said that he is happier in prison than he was on the outside because he no longer lives in fear of being arrested and knows he will die in prison, TV journalist Barbara Walters said on Thursday.

Walters, who spent two hours at the prison with Madoff two weeks ago, also told ABC's "Good Morning America" program that Madoff said that while he had contemplated suicide during his early days behind bars, he lacked the courage and never thinks about killing himself now.

Madoff is serving a 150-year prison term for bilking investors out of billions of dollars in a decades-long Ponzi scheme that is considered the biggest financial fraud in U.S. history.

Sentencing road-warrior...

is what I am calling myself as I travel to three distinct locales to participate in four distinct sentencing events over the next 55 hours.  I fear blogging will be very light during this time, though I am hoping to have a little down time to report on any major sentencing news before the weekend.

"Sex Offender Fined $200 For Licking and Fondling Cardboard Woman in Rite Aid"

The title of this post, which is the headline of this report from Gawker drawn from a local news report, describes the notable recent offense and sentencing of a Massachusetts sex offender.  Befitting the amusing crime, here is the amusing Gawker account:

How many times have you come across a life-sized standee in a movie theater lobby or department store, and not thought to yourself, "If only our ass-backwards society didn't disapprove of inter-dimensional dating, this cardboard cutout of Nikita and I could probably be pretty happy together." Well, Charlie J. Price of Pittsfield, Ma., doesn't abide by musty precepts like "social mores" or "not licking cardboard ladies in public."

On Saturday evening, an intoxicated Price waltzed into a Rite Aid and locked eyes with the sunglass-display model of his dreams. According to a Pittsfield Police report, he then "grabbed hold of the sunglass display, hugged it tightly and then began to lick and kiss the face of the female party on the display." This went on for about a minute, police said, and ended with the two star-crossed, partially laminated lovers rolling around on the floor, blissfully unaware of the terrified customers inching away around them.

Price, whose lack of self-control and inhibition has gotten him into serious trouble before (he's a Level 3 sex offender, which apparently is very sex-offendery), was detained by police and soon found himself in front of a judge. He was fined $200.

Though I am certain it is not PC to make light of a drunk sex offender behaving badly at the local drug store, I promise not to be offended if commentors have some light-hearted reaction to this story.

Hardest case (ever?!) for anyone categorically opposed to capital punishment

As set forth via this local news report (and this related video), which is headlined "Robert: death penalty is the only way to ensure I don't kill again," a murderer's own testimony offered in a death penalty proceeding in South Dakota sounds almost like a law professor's hypothetical because it presents, in my view, perhaps the toughest set of facts for anyone categorically opposed to the death penalty.  Here are the details: 

After hearing the emotional testimony from the family of Officer Ronald Johnson on Wednesday morning Eric Robert took his turn at the stand.  Robert testified to the court that he is most deserving of a death sentence. "I deserve to die, Mrs. Johnson said it best I'm a coward, I killed her husband with a pipe from behind." Said Robert.

Robert's words were clear and direct as he testified to the court that he knew exactly what he was doing the day he killed Officer Ronald Johnson [while attempted to escape from prison].  On April 12th it was a war to me, it was the staff's duty to ensure I stayed in prison for the rest of my life and it was my duty to defeat them."

Robert also hinted that this anger and hatred is something that will never leave him telling the judge, "If you were to sentence me to life I think you'll read in the future that I've killed again and that's on you."

Robert showed no emotion throughout his testimony and says the death penalty is the only way to ensure he doesn't kill another human being.  He was even so bold as to threaten the judge himself. "Brad Zell if you stood between me and the door to freedom I would kill you, if I sat in your chair I would execute me... Do the right thing." Said Robert.

Robert has wanted death all along but that sentence has not been given. Judge Zell informed Robert that the court does not make it's decision based on passion or a wish. "It (the court) must take all the evidence, weigh it and make a determination in this case whether death or life is appropriate." Said Judge Zell.

Eric Robert told the court he chose against a jury trial because he did not want 12 everyday people carrying the weight of this responsibility of life or death.  That decision is now left up to Judge Zell who will announce his decision sometime in the coming days.

I have long thought that murders of officers by inmates already serving life terms while trying to escape present the most compelling of all cases for the death penalty, in part because merely imposing another life sentence functionally means the inmate will suffer no additional punishment for the murder and in part because the inmate would then also have no reason not to again try to escape and kill in the process (unless we are prepared to allow prison officials to torture the inmate instead of executing him).  In this case, not only has the defendant killed as part of an escape attempt, he is stating directly that he will do so again if he is not sentenced to death.

Another notable review of "The Collapse of American Criminal Justice"

In this post a few days ago, I blogged about former SCOTUS Justice John Paul Stevens' review the final book written Professor Bill Stuntz, titled "The Collapse of American Criminal Justice."  I am pleased now to link to another review by another notable former jurist, Paul Cassell, this one appearing in the Wall Street Journal.  This review carries the headlined "Crimes, Courts And Cures: Why the justice system does a bad job of separating defendants who deserve punishment from those who don't."  The whole review is a must-read, and these final insights close the piece:

"The Collapse of American Criminal Justice" concludes that our system suffers "from the rule of too much law and the wrong kind of politics."  Mr. Stuntz recommends a host of reforms, including decentralization that would encourage local control responsive to local crime. He also argues for expanding city police forces — because the increased police presence would discourage the commission of crimes.

But he seems to back away from his argument that excessive proceduralism is part of the problem.  While critiquing decisions such as Mapp and Miranda, Mr. Stuntz never urges that they be overturned or restructured, even though such changes could lead to the decentralized decision-making that he supports.  Instead, he singles out for overruling Supreme Court precedents limiting equal-protection argument by defendants.  He targets United States v. Armstrong, for example, which barred drug dealers from arguing that prosecutors must be racially discriminating when statistics indicate disparities in charges being brought.  But overturning the law would lead to precisely the kind of procedural litigation that Mr. Stuntz deplores.

Nonetheless, the overarching themes of "The Collapse of American Criminal Justice" deserve wide discussion, and the book as a whole can be rightly seen as the capstone to a distinguished legal career.  Americans may debate whether our criminal-justice system has truly collapsed, but few would argue that it can't be improved.

Corrupt lobbyist gets prison term 20 months instead of the 20 years first sought by feds

As detailed in this AP report, a "former lobbyist who was a rising star under Jack Abramoff's tutelage was sentenced Wednesday to nearly two years in prison for giving public officials meals and event tickets."  Here are the particulars, which suggest some measure of sentencing equity prevailed in this case:

Kevin Ring argued up until his emotional sentencing hearing that he was operating in a corrupt Washington environment controlled by people with money and that he did not break the law.  "I found a ridiculous system full of gray areas and I manipulated it," a sobbing Ring told the judge in asking her not to lock him up.  It was the first time he spoke about the charges in court after three years of prosecution, including two trials in which he decided not to testify.

U.S. District Ellen Segal Huvelle said Ring's conduct was not nearly as egregious as ringleader Abramoff or some of the others involved in a scandal that resulted in stricter lobbying rules in Washington.  But the judge gave Ring a sentence of 20 months, one of the stiffest terms among the 21 defendants in the investigation.  Most others involved cooperated with prosecutors and got plea deals that avoided prison.

Huvelle said she had to order prison "to respect the jury's verdict and promote respect for the law."  Ring has 14 days to appeal, and the judge said he could remain free pending the outcome.

Ring, a 41-year-old father of two from Kensington, Md., was convicted after two trials of five felony counts including conspiracy, payment of a gratuity and honest services wire fraud.  The first jury couldn't agree on his guilt so he had a second trial that led to his conviction in November 2010.

Prosecutor Nathaniel Edmonds asked the judge for four years imprisonment, saying a sentence without jail would invite future offenders.  He said Ring's showering of gifts on public officials "is not business as usual in Washington — that is a crime."

The Justice Department initially suggested a 17-year to 22-year sentencing guidelines range for Ring.  Huvelle rejected that and suggested it appeared to justify Ring's suggestion that he was being retaliated against for exercising his constitutional right to trial.

Ring claimed in a letter to the judge that prosecutors charged him in a 10-count indictment after he refused to accuse his former boss, ex-Rep. John Doolittle, R-Calif., of being corrupted by his gifts.  "Saying these things would have been a flat-out lie," Ring said.

Prosecutors deny he was pressured to lie and say he was offered a plea deal to admit his guilt without being required to testify against Doolittle or anyone else.  "Unfortunately for Ring, 12 jurors decided beyond a reasonable doubt that Ring did have the intent to corrupt public officials, including Congressman Doolittle," the prosecutors wrote....

Huvelle said she did not consider Ring's conduct as nearly bad as that of Abramoff and his business partner, Michael Scanlon, who bilked their American Indian tribal clients out of $20 million in fees, or former Rep. Bob Ney, who accepted golf and gambling trips, tickets to sporting events, free meals and campaign donations.

She also noted that unlike those three, Ring did not benefit financially from his crimes but instead helped enrich his clients.  She noted that the case has left Ring in financial ruin with more than $2 million in legal fees and that he went from making $600,000 at the height of his lobbying career in 2003 to now making $5,000 a month working for two nonprofits.

But Abramoff, Scanlon and Ney all reached plea agreements with prosecutors that helped cut their sentences while Ring fought at trial.  His sentence ranks with theirs — Abramoff got 48 months, Ney 30 months and Scanlon also was sentenced to 20 months.

Related recent posts:

• Severe "trial penalty" seemingly urged by feds in sentencing of Jack Abramoff aide
• Important sentencing ruling in favor of lobbyist involved in Abramoff scandal
• Washington Post editorial call for "Fair sentencing in the Abramoff case"