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June 4, 2011

Montana murder defendant raising Ring challenge to state's death penalty

As detailed in this local article, which is headlined "Tyler Miller murder case: Attorneys challenge death penalty," the lawyers "for accused double murderer Tyler Michael Miller are asking a Flathead District judge to rule that Montana’s death penalty statutes are unconstitutional."  Here is more:

Miller, 34, has been charged with two counts of deliberate homicide for the Christmas Day shooting deaths of his ex-girlfriend Jaimi Hurlbert and her 15-year-old daughter Alyssa Burkett.  The Flathead County Attorney’s Office filed amended charges March 9 indicating it would seek the death penalty for Miller.

Miller’s attorneys Ed Sheehy and Noel Larrivee submitted a motion Wednesday stating that Montana’s death penalty statutes are unconstitutional because sentencing powers are vested in judges rather than juries.  The 19-page filing argues that the procedure violates the sixth and 14th amendments to the United States Constitution, which require that “other than prior convictions, any fact increasing the statutory maximum (sentence) must be submitted to a jury and proven beyond a reasonable doubt.”

The attorneys wrote that the Montana Code Annotated is flawed because it allows judges to evaluate whether or not there are mitigating or aggravating circumstances to support the death penalty and gives them the ultimate power to decide whether or not to pronounce a capital sentence.

June 4, 2011 in Blakely in the States, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

June 3, 2011

"Dizzying Price for Seeking the Death Penalty"

The title of this post is the headline of this very interesting piece in today's New York Times.  Here are excerpts:

In the middle of February, 300 men and women of voting age answered a special summons for jury duty at the federal courthouse in Cadman Plaza in Brooklyn. They were ushered into a grand ceremonial courtroom to see if they might be candidates to serve as jurors in the case of the United States of America v. Vincent Basciano. His nom de mob is Vinny Gorgeous.

Over the next few days, an additional 800 people would be brought to the courtroom for the same purpose. Each was paid the ordinary juror fee of $40 for a day’s service. Multiplied by 1,100 people, the federal government paid $44,000 just to find people who might — possibly, maybe — end up as jurors in the Basciano case.

It was as much a bonfire of cash as a trial, consuming, by reasonable estimates, more than $10 million in public money for a single murder case. More than a year ago, the federal judge presiding over the case said it would be expensive and futile — that is, a waste of time and money — for the government to seek capital punishment for Mr. Basciano. Whatever happened in the trial, he would never leave prison alive.

As the judge, Nicholas G. Garaufis, pointed out in his letter, Mr. Basciano already was serving life without parole for other crimes “under extremely restrictive conditions in one of the nation’s most secure penal institutions.” The judge’s letter was received, to no apparent effect. The decision to go for the death penalty had been made by the Justice Department when George W. Bush was president, and ratified by the Obama administration.

The murder trial concerned the shooting, on the orders of Mr. Basciano, of another gangster who had run up many infractions of some code of good mobster behavior. In due course, after other mobsters testified against him, Mr. Basciano was found guilty. This week, the jury voted unanimously that he should serve life without parole.

It took them just two and a half hours to decide that he should not be executed. The jurors filled out an eight-page verdict sheet, and it is worth the attention of people in Washington who make decisions whether to seek the death penalty. The jurors’ decision was rooted in a sense of fairness: all 12 jurors, in deciding against capital punishment, noted that at least three other people had been directly involved in the same murder ordered by Mr. Basciano, and none of them faced execution. The victim was a violent criminal, a circumstance that contributed to his death. And Mr. Basciano would be in a federal “super-max” prison, confined to a cell for 23 hours a day. “The jurors were able to see this in two and a half hours,” said Richard Jasper, one of Mr. Basciano’s lawyers. “Some of the informants had murdered a whole football team of people. Why was Basciano death-penalty-worthy and these other characters weren’t? Because he didn’t cooperate?”...

The final bills for the defense have not been submitted, but as of April, they had reached $4.3 million. The trial transcript ran to more than 9,000 pages, and it was provided to lawyers every day.

The jury of 18 people, six of them alternates, sat through a trial that ran more than five weeks. They were taken out of their daily lives; in at least some cases, the businesses continued to pay their salaries.

How much did the case cost the government? It is safe to say that the four prosecutors on the case put in just as much time as the defense. They may not have been paid $187 an hour, but then again, their services are part of the overhead borne by the taxpayer. “We don’t prosecute cases based on what it costs,” said Robert Nardoza, a spokesman for the United States attorney’s office in Brooklyn. “We just don’t put a price tag on it.”

And we wonder why the US has a record debt!?!

June 3, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (42) | TrackBack

Media reporting that John Edwards is to be indicted today

Because sentencing issues arise the moment a defendant gets indicted and has to think about plea possibilities, I see sentencing issues in this ABC News story, headlined "John Edwards to Face Indictment Today."  Here are excerpts that include a sentencing prediction:

Unless a last-minute deal comes through, John Edwards will be indicted today on criminal charges after a two-year investigation seeking to connect the former senator to an allegedly illegal scheme to cover-up his extra-marital affair, ABC News has learned.

The case against Edwards, which called on more than 100 witnesses, will seek to prove that hundreds of thousands of dollars were allegedly used illegally to seclude and support his mistress Rielle Hunter, so Edwards could continue his campaign for the presidency in 2008....

If he were to agree to a deal today, Edwards will not be required to serve any time in prison -- but the former high-flying trial attorney he will almost surely lose one thing he holds very dear.

Edwards has stated that he hopes to move back into legal work once this case is behind him.  However, in North Carolina, if he pleads guilty or no contest to a criminal offense, he must go before the State Bar -- putting his license to practice law on the line.

UPDATE: The Justice Department on Friday released this press release about the Edwards' indictment, which can be read in full at this link

June 3, 2011 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (7) | TrackBack

June 2, 2011

"Jerry Brown says state needs more time to implement Supreme Court prison ruling"

The title of this post is the headline of this Los Angeles Times report.  Here are the particulars:

Gov. Jerry Brown said Thursday he would likely ask federal judges for more time to reduce the state's prison population by more than 30,000 inmates.

The U.S. Supreme Court ruled last week that California's overcrowded prisons violate the constitutional rights of state prisoners, and gave officials two years to slash the number of inmates.  The Brown administration has to submit a plan to a three-judge panel by next week, outlining how it intends to move those prisoners out of state facilities. 

But Brown said Thursday the timelines offered by the high court were unrealistic. "It's going to take more than two years," Brown told reporters Thursday.  When asked if he planned to ask federal judges for more time to comply with the Supreme Court ruling, he said, "I'm looking at that option."

Brown's budget calls for a massive prisoner shift to county jails -– a shift that would be funded by tax extensions Brown wants voters to ratify later this year.  Under Brown's plan, the state prison population would come close to the targets set by the Supreme Court, but that plan would take four years to implement.

Prior posts on the Plata ruling:

June 2, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Duggard kidnappers get notable (and disaprate?) state sentence

A high-profile California kidnapping case wrapped up with a high-profile state sentencing today, as reported in this Los Angeles Times article headlined "Jaycee Dugard's kidnappers sentenced to prison."  Here is how this report starts:

Nearly 20 years after Jaycee Lee Dugard was abducted while walking to a school bus stop, the couple who pleaded guilty in her kidnapping and rape were sentenced Thursday to prison terms that could keep them behind bars for the rest of their lives.

Phillip Garrido, a 60-year-old convicted rapist, was sentenced to 431 years to life in prison. His 55-year-old wife Nancy was sentenced to 36 years to life in prison.

In recommending that Garrido receive a sentence of 431 years to life in prison, El Dorado County Dist. Atty. Vern Pierson described the serial rapist as “a sexual predator who stole the childhood and innocence from an 11-year-old child. Defendant Garrido’s actions caused her mother Terry Probyn to have to endure an 18-year-long nightmare.”

Before the Garridos' sentencing Thursday in a Placerville courtroom, a tearful Probyn addressed the court. "How could someone take away the one person in the world I loved so deeply? Where is she? Is she hungry? Is she cold? Is she hurt? My baby was gone and all my dreams turned to nightmares. She was a vulnerable child and I was unable to help her.

"During 18 years away, I could hear her crying, not with my ears, but with my heart. I could feel her pain, not with my body, but with my heart.... I lived in hell on earth. It was you Nancy Garrido and Phillip Garrido that broke my heart."

Probyn then read a statement from her daughter, who did not attend the hearing: "To Phillip Garrido, I hated every second of every day of 18 years because of you. To you Nancy, I have nothing to say."

Before sentencing Phillip Garrido, Judge Douglas C. Phimister said the "defendant lacks a soul. What you have done is beyond horrible. May you think long and hard about what you did."

June 2, 2011 in Offense Characteristics, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Informed criticisms of Justice Department's proposed limitation on crack retroactivity

I have received feedback from a a number of informed and thoughtful folks that there are real problems with the Justice Department's proposed limits on who should get the retroactive benefits of the new lower crack guidelines (basics here).  Margaret Colgate Love gave me permission to reprint her comments on this score here:

The Justice Department's proposal to categorically disqualify from relief individuals with a criminal history score higher than 3, and anyone in a lower criminal history category whose sentence was enhanced for gun possession, would weed out upwards of 60% of those otherwise eligible for early release.  It would also reduce the projected savings by as much as 70%, since those in higher criminal history categories would potentially qualify for a much larger reduction in their prison terms.  Many witnesses [at the USSC hearing on June 1] -- as well as several Commissioners -- pointed out that criminal history category or gun bump is an imperfect proxy for dangerousness or likely recidivism.  For example, the Commission's new recidivism study of the 2007 crack releasees shows that CH 4 has a lower recidivism rate than CH 3.  Also, it can be pretty easy to get into a high criminal history category with very minor priors, and guns are frequently attributed to defendants who never touched much less fired them.

The comparatively low recidivism rates of those released under the 2-level drop enacted in 2007 in every criminal history category indicates that the judges who made case-by-case decisions under that authority did a good job of weeding out individuals who were likely to be a danger upon release.  Almost everyone who testified [at the USSC hearing] thought judges could be relied upon to make these decisions again with the smaller cohort of individuals eligible for release under the new guidelines.  As if more were needed to discredit the Justice Department's recommendation, the Acting Director of BOP departed from his written testimony to remark on the management and public safety problems that might be created by disqualifying so many prisoners from a shot at early release when they have been working hard to earn it.

Recent related posts:

UPDATE Margaret Love also passed along for posting another informed observer's reflections on the USSC crack retroactivity hearing:

As you may have heard, Attorney General Holder was the first witness.  He stated that DOJ favors retroactivity with limitations.  DOJ would exclude those in Criminal History Categories IV, V and VI, and anyone with a weapon enhancement or a weapon conviction (e.g., 924(c)). (This would be well over half of the 12,000 or so inmates that the Commission believes to be eligible.)  After he left, the US Attorney for Northern Iowa elaborated on the Department’s position in her testimony.  The Commissioners grilled her on how these limitations (especially those based on criminal history) could be so important to public safety for those already sentenced when the Department did not request them prospectively. Her answers did not seem to satisfy the Commissioners.

She also was pressed hard on a broader recommendation to the Commission that it make retroactivity even more rare in the future given that judges can always vary to account for problems that the Commission later decides to fix.  This was not well received either, partly because the same logic should have led the Department to oppose retroactivity for the FSA amendments and partly because it would require the Commission to admit that it has become nearly irrelevant in the sentencing process.

It is always hard to predict based on questions at a hearing,... but I suspect that the Commission will rely on the favorable 2007 experience to make the current amendments retroactive without exclusions.  They also seemed to see a need to clarify the circumstances when it may not be appropriate to grant a reduction (i.e., the language it now has about the general inappropriateness of a reduction if the original sentence was a downward variance under 3553(a)).  The purpose there was to avoid a double dip in those cases where the judge already applied a ratio at least as favorable to the defendant as 18:1.  Because the person best situated to know whether that will be an issue is the sentencing judge, we asked the Commission to clarify the purpose so that judges can do their jobs.  I suspect that it will.

In addition, Michael O'Hear has still more observations on the hearing at his Life Sentences blog here and FAMM's twitter feed has even more on the hearing.

June 2, 2011 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Latest OSJCL issue with lots of deep punishment and sentencing thoughts

I am very pleased to report that the Spring 2011 issue of the Ohio State Journal of Criminal Law is now fully available on-line. There are an especially large number of terrific pieces in this issue, which includes not only a thoughtful article symposium on "Political Theory and Criminal Punishment" but also an awesome commentary symposium on "The HBO Series The Wire." I am eager to praise and promote every piece in this new OSJCL issue, though here I will spotlight just a few of the pieces that ought to be of special interest to sentencing fans:

Zachary Hoskins, Deterrent Punishment and Respect for Persons, 8 Ohio St. J. Crim. L. 369 (2011).

Mary Sigler, The Political Morality of the Eighth Amendment, 8 Ohio St. J. Crim. L. 403 (2011).

Roger Lane, Taking the Mystery Out of Murder Rates: Can It Be Done?, 8 Ohio St. J. Crim. L. 553 (2011).

William H. Pryor, Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011).

June 2, 2011 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1) | TrackBack

Equal justice concerns prompt federal jury to quickly reject death sentence for crime boss

This New York Times piece, headlined "For Mobster, a Life Term, Not His First, Offers Relief," reports on a high-profile federal jury decision to reject a death sentence for a high-profile federal defendant. Here are the details in a report that concludes with an interesting account of a likely explanation for the jury's decision:

On Wednesday afternoon, the federal Bureau of Prisons Web site suggested something of an uncertain future for Vincent J. Basciano, known in some circles as Vinnie Gorgeous for his stint as the proprietor of a Hello Gorgeous beauty salon in the Bronx: It listed his release date (“actual or projected”) as “unknown.”

But the fate of the onetime acting boss of the Bonanno crime family, who in fact was already serving life in prison, had already been decided earlier that day by a federal jury in Brooklyn, which concluded the penalty phase of his racketeering and murder trial, his second racketeering case in the same courthouse in recent years.  The panel, after deliberating for less than two hours, chose a sentence of life without parole over death for the dapper, carefully coifed crime figure.

A lawyer for Mr. Basciano, Richard Jasper, said after the verdict that his client was relieved. Robert Nardoza, a spokesman for the United States attorney in Brooklyn, Loretta E. Lynch, said that she respected the verdict and appreciated the jury’s service.

Mr. Basciano, 51, had been facing the death penalty after his conviction for ordering the killing of Randolph Pizzolo, a Bonanno associate whose murder, according to prosecutors, was payback for a drunken tirade that angered Mr. Basciano....

At the trial another Bonanno turncoat, Dominick Cicale, a former high-ranking member of the family, testified that he had helped Mr. Basciano kill Mr. Pizzolo, and that Mr. Basciano had once plotted to kill a prosecutor.

But Mr. Cicale’s appearance may have worked against the government’s push for a death sentence.  Defense lawyers pointed out in court that Mr. Cicale and other mobsters who were culpable in the death of Mr. Pizzolo were not facing the death penalty, and argued that Mr. Basciano should also be spared.

The jury apparently agreed. On their verdict sheet, a majority of the jurors listed it as one of their mitigating factors.  “There are other members of organized crime that have admitted to an equal or greater number of serious crimes that are not facing the death penalty, much less incarcerated,” they wrote.

June 2, 2011 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

If concerned about border enforcement, why are Arizona's Republican Senators so slow on judicial nominations?

The question in the title of this post is prompted by this new piece at Politico, which is headlined "Arizona weighs judicial woes."  Here are excerpts:

“The situation in Arizona is dire,” the chief federal judge in Arizona, Roslyn Silver, told POLITICO. “We are very frustrated and impatient.”

Since 2009, the Obama administration has been beefing up federal law enforcement in southern Arizona. The influx of 2,000 additional Border Patrol agents on the southern frontier over the past two years has led to a 65 percent boost in criminal cases — many involving illegal immigration.  That surge would clog most federal courts, but Arizona faces an even more serious challenge: three vacancies for federal judges in Tucson.  As a result, the remaining judges there each currently have about 1,200 criminal cases pending.  The 9th Circuit Court of Appeals, which oversees Arizona, recently declared a “judicial emergency,” slowing the speedy trial requirement in criminal cases for the first time since Manhattan federal courts did so after the Sept. 11 attacks.  “They have been underwater even before the unfortunate murder of Judge Roll,” Alex Kozinski, the chief judge for the 9th Circuit, told POLITICO. “Arizona, being a border district, has a very serious case control problem.”

Presidents usually ask home-state senators for names of acceptable district court nominees prior to a nomination, because of a long-standing Senate custom that allows senators to block judicial nominees from their states.

However, The Arizona Republic reported that at the time of Roll’s death, Sens. Jon Kyl and John McCain, both Republicans, had yet to submit any names to the White House. Four months later, there are few public signs of progress.

“We’ve been working with the congressional delegation and other state leadership to identify nominees of great intellect, mainstream views and a commitment to the rule of law. And we should be in a position to nominate in short order,” White House spokesman Eric Schultz said....

The dean of the Arizona House delegation, Democratic Rep. Ed Pastor, said he and his House colleagues have proposed a series of candidates. “Names have been forwarded to the White House that would fill the three current vacancies, starting a year ago and — most recently a couple of months ago — we gave them the last name,” Pastor said. “We’re also wondering what the hell is happening.” Silver said she is loath to guess why the senators and the White House have yet to come to a resolution. “I don’t know what the problem is. I just know there’s a problem.”

“The latest I know is there has been no nomination,” said Kozinski, a Reagan appointee. “This is very disconcerting. I have the impression it took a very long time to get names to the White House. … We’ve pleaded with senators to hurry up the process, and I’m sure they’re doing [the] best they can.”

June 2, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

"Prison Vouchers"

The title of this post is the title of this new piece by Alexander Volokh available via SSRN.  Here is the abstract:

School vouchers have been proposed as a way to bypass the political pathologies of school reform and improve school quality by transforming students and parents into consumers. What if we did the same for prisons -- what if convicted criminals could choose their prison rather than being assigned bureaucratically?

Under a voucher system, prisons would compete for prisoners, meaning that they will adopt policies valued by prisoners.  They would be more flexible as a constitutional matter -- faith-based prisons would be fully constitutional, and prisons would also have increased freedom to offer valued benefits in exchange for the waiver of constitutional rights.  As far as prison quality goes, the advantages of vouchers would plausibly include greater security, decent health care, and good educational and vocational opportunities -- features that are also valued by prison reformers and have rehabilitative value.

The counterarguments are twofold. “Market failure” arguments hold that, because of informational or other problems, prisoner choice would not succeed in improving overall prison quality.  “Market success” arguments, on the other hand, hold that prison choice would im-prove prison quality too well, satisfying inmate preferences that are socially undesirable or diluting the deterrent value of prison.  These counterarguments have substantial force, but it is still possible that these disadvantages are outweighed by the socially desirable improvements.

I conclude with thoughts about the politics of prison vouchers, both before and after their adoption.

June 2, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Texas completes another lethal injection using pentobarbital

As detailed in this Reuters article,"Texas on Wednesday executed a man who shot and killed a security guard during a 1988 robbery at a Dallas grocery store.  Gayland Bradford, 42, was the fourth person executed in Texas this year and second put to death using a new drug, pentobarbital, which is often used to euthanize animals."  As the article further explains, "Bradford's execution was the 20th in the United States this year.  There are three more executions scheduled this month in Texas."

June 2, 2011 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

June 1, 2011

Lamar Smith's (deeply misguided) statement about crack retroactivity debate

Via the Main Justice blog I came across a notable, and in my view deeply misguided, statement issued by House Judiciary Chairman Lamar Smith concerning today's US Sentencing Commission hearing about whether to make its new crack guidelines retroactive. Here is the statement:

“The Sentencing Commission is poised to once again overstep its role and enforce laws not as enacted by Congress, but as the Sentencing Commission believes they should be enacted.  Congress did not create the Sentencing Commission to legislate or amend the laws passed by Congress.  But that is precisely what the Commission is considering with the Fair Sentencing Act of 2010.  Nothing in the Act nor in the congressional record implies that Congress ever intended that the new crack cocaine guidelines should be applied retroactively.  And yet, the Sentencing Commission may release thousands of crack traffickers before they have fully served their sentences.

“I’m also disappointed by the Obama administration’s position supporting the release of dangerous drug offenders.  It shows that they are more concerned with wellbeing of criminals than with the safety of our communities.  This sends a dangerous message to criminals and would-be drug offenders that Congress doesn’t take drug crimes seriously.

“The members of the Sentencing Commission are unelected and therefore are not accountable to the American people.  Time and again, the Sentencing Commission has chosen to usurp the authority of Congress and impose its will on our communities.  It is time for Congress to restore accountability to our sentencing laws and ensure that the Sentencing Commission cannot continue to create law without Congressional approval.”

There are so many troubling aspects of this statement with respect to the work of the US Sentencing Commission, I am not sure where to begin.  Most critically, everything that the US Sentencing Commission does is always subject to subsequent rejection by Congress, so the notion that the USSC does lots of stuff without at least tacit congressional approval is just wrong.  More specifically, there are in fact parts to the Fair Sentencing Act of 2010 and lots in the congressional record to suggest that Congress did expect and intend that the new crack cocaine guidelines could and should be applied retroactively by the USSC. 

As for the pot-shots at the Obama Administration, this rhetoric is even worse and even more irresponsible.  As reported here, the Obama Administration's position on crack retroactivity is expressly that "dangerous drug offenders" should not get the benefit of the new lower crack guidelines.  Moreover, to assert that Justice Department is "more concerned with wellbeing of criminals than with the safety of our communities" itself sends a "dangerous message" that the House Judiciary Chair doesn’t take seriously the challenge of responsible public policy decision-making and instead has a greater interest in sound-bite demagoguery.

Recent related posts:

June 1, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Interesting new federal sentencing data to mine from USSC

I am pleased to see that the US Sentencing Commission has now already posted another round of fresh new sentencing data on its website.  The USSC's latest data report, which can be accessed here, is described this way:

Second Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first half of fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.

The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that around 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases. 

Interestingly, the latest quarter of data reveal an apparent nadir in the percent of within-guideline sentences (53.5%) driven by a record high percent of government-sponsored below-guideline sentences (27.2%).  The latest data also show that in the first half of FY11, only just over one-third of all child porn sentences are within-guidelines (36.8%) while over 60% involve  government-sponsored (18.6%) or judge-initiated (42.8%) below-guideline sentences.  This further reinforces my view that, generally speaking, in a mine-run case a below-guideline sentence rather than a within-guideline sentence complies with the 3553(a)(6) statutory instruction to sentencing judges to avoid unwarranted disparities.

June 1, 2011 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Big international report calling global drug war a failure

A helpful reader altered me to this notable website reporting on the forcoming work of this Global Commission on Drug Policy, which claims to be dedicated to bringing "to the international level an informed, science-based discussion about humane and effective ways to reduce the harm caused by drugs to people and societies."  Here is what this group's latest press release previews:

The Global Commission on Drug Policy will host a live press conference and teleconference on Thursday, June 2 at the Waldorf Astoria Hotel in New York City to launch a new report that describes the drug war as a failure and calls for a paradigm shift in global drug policy.

The Commission is the most distinguished group of high-level leaders who have ever called for such far-reaching changes in the way society deals with illicit drugs -- such as decriminalization and urging countries to experiment with legal regulation.  The Executive Director of the global advocacy organization AVAAZ, with its nine million members worldwide, will present a public petition in support of the Global Commission’s recommendations that will be given to the United Nations Secretary General.

UPDATEThis report is now available at this link, and here is the start of the report's executive summary:

The global war on drugs has failed, with devastating consequences for individuals and societies around the world. Fifty years after the initiation of the UN Single Convention on Narcotic Drugs, and 40 years after President Nixon launched the US government’s war on drugs, fundamental reforms in national and global drug control policies are urgently needed.

Vast expenditures on criminalization and repressive measures directed at producers, traffickers and consumers of illegal drugs have clearly failed to effectively curtail supply or consumption. Apparent victories in eliminating one source or trafficking organization are negated almost instantly by the emergence of other sources and traffickers. Repressive efforts directed at consumers impede public health measures to reduce HIV/AIDS, overdose fatalities and other harmful consequences of drug use. Government expenditures on futile supply reduction strategies and incarceration displace more cost-effective and evidence-based investments in demand and harm reduction.

June 1, 2011 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Justices Kennedy, Alito, and Sotomayor and the future of the SCOTUS docket and sentencing jurisprudence

The title of this post is an idea for an article that I have had banging around my head since this recent post about the Supreme Court's distinct sentencing docket this Term.  The idea emerges not only because my docket post has already generated some Justice-specific comments, but also because the troika of Kennedy, Alito, and Sotomayor seem right now to be the most motivated and engaged Justices on a range of sentencing issues.

I predicted (and hoped) in this 2008 article about the SCOTUS docket that Chief Justice Roberts and Justice Alito replacing Rehnquist and O'Connor might lead to a decline in the number of capital cases taken up by the Court.  That prediction appears to be coming to pass, at least in recent Terms, and the addition to Justices Sotomayor and Kagan in place of Souter and Stevens may be furthering this trend (though it is probably still too early to guess Justice Kagan's cert interests here based on her work to date).  But I may be data-mining a story that appeals to me based on my own parochial interests and a relatively quiet Term on most fronts this season.

I could go on and on with ruminations about my ideas tied to the title of this post, but for now I really want just to foster reader input.  Do folks share my instinct that Justices Kennedy, Alito, and Sotomayor are to be the chief forces driving the criminal justice side of the SCOTUS docket and that they possibly could reshape the direction of sentencing jurisprudence in many important ways in the Term to come?

Some recent and older posts on these general topics:

June 1, 2011 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive

June kicks off with big US Sentencing Commission doings:  the agency today has been conducting a full-day hearing to consider whether and how its new reduced crack sentencing guidelines prompted by the Fair Sentencing Act should be made retroactive.  A few weeks ago, the USSC released this impact analysis of what FSA crack guidelines retroactivity might be, and late yesterday the USSC posted this recidivism analysis reporting on its study of the reoffense rates for offenders who got released a bit earlier from prison due to the last round of reduced crack guidelines that were made retroactive.

Meanwhile, as reported in this Bloomberg piece, Attorney General Eric Holder personally testified before the USSC this morning and he indicated support for (partial) retroactivity of the new reduced crack guidelines:

Holder described the Obama administration’s position today at a hearing before the U.S. Sentencing Commission in Washington, which establishes sentencing policies and is considering whether the shorter sentences should be retroactive.  Applying the measure to those previously sentenced could affect about 12,000 inmates....

“We believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law,” Holder said.  Retroactive reductions in sentences shouldn’t apply to those who possessed or used weapons in committing their crimes or offenders with “significant” criminal histories, Holder said.

The full text of AG Holder's written testimony and of many others testifying today before the USSC are linked from this page.  Here is a key passage from AG Holder's testimony:

The Commission’s Sentencing Guidelines already make clear that retroactivity of the guideline amendment is inappropriate when its application poses a significant risk to public safety -- and the Administration agrees.  In fact, we believe certain dangerous offenders -- including those who have possessed or used weapons in committing their crimes and those who have significant criminal histories -- should be categorically prohibited from receiving the benefits of retroactivity, a step beyond current Commission policy.

The Administration’s suggested approach to retroactivity of the amendment recognizes Congressional intent in the Fair Sentencing Act to differentiate dangerous and violent drug offenders and ensure that their sentences are no less than those originally set.  However, we believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law.

This effort by Holder and DOJ to differentiate dangerous and violent drug offenders from non-violent drug offenders seems sound to me (though the devil can and will often be in the details).  I will not be at all surprised if the USSC adopts some version of what the Justice Department is advocating here.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

June 1, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sixth Circuit rejects Atkins and Graham attack on 15-year ACCA mandatory minimum

A Sixth Circuit panel this morning has an interesting little opinion rejecting an Eighth Amendment attack on a mandatory 15-year prison term for a gun possession offense by a career criminal.  Here is the start and excerpts from the opinion in US v. Moore, No. 09-5935 (6th Cir. June 1, 2011) (available here):

Defendant Martino Moore, a four-time convicted felon, possessed a firearm one night in 2007. That event carried with it serious ramifications.  It meant as an Armed Career Criminal he was subject to a mandatory minimum penalty of 180 months’ imprisonment. Moore argues on appeal that the imposition of this mandatory minimum sentence, as applied to him, violates the Eighth Amendment.  We disagree and thus affirm....

Moore argues that his mandated minimum sentence of fifteen years’ imprisonment violates the Eighth Amendment’s ban on cruel and unusual punishment.  At the heart of his argument is the belief that a unique mitigating factor — his reduced culpability resulting from mental retardation — transforms an otherwise constitutional sentence into an unconstitutional one. In United States v. Tucker, we held that “[i]mposing a mandatory minimum sentence on a defendant with limited mental capabilities does not violate the Eighth Amendment ban against cruel and unusual punishment.”  204 F. App’x 518, 521 (6th Cir. 2006).  We see no reason to depart from Tucker.  Further, all of the circumstances of this case, including Moore’s mildly diminished mental capacity, convince us that the district court’s sentence was not grossly disproportionate to the crime committed.

June 1, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Still more notable commentary about Plata and its prisoner release order

Not surprisingly, the Supreme Court's major California prison ruling in Plata last week (basics here) continues to generate a lot of important and interesting commentary in the MSM and in new media.  Here is a round-up of some newer pieces that have caught my eye:

In addition, though not technically focused on Plata, Sasha Volokh is starting to blog at The Volokh Conspiracy about his interested new article about creating prison vouchers that would provide defendants with a kind of prison choice akin to what school vouchers provide as a form of school choice for parents. His first two posts on this interesting (and crazy?) idea are here and here.

I am very pleased to see the Plata decision (and its dissents) getting lots of early attention from the media.  I hope that academics will give all the opinions sustained attention in forthcoming law reviews, because the case raises far too many important and dynamic stories about courts and prisons to be effectively covered in short forms.

Prior posts on the Plata ruling:

June 1, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Missouri Supreme Court upholds judge-imposed death sentences against Ring claims

As reported in this Kansas City Star piece, the Missouri Supreme Court yesterday rejected an effort by two death row defendants to overturn their judge-imposed death sentences. Here are the basics:

The Missouri Supreme Court on Tuesday rejected appeals from two Kansas City inmates on death row for the kidnapping, rape and killing of 15-year-old Ann Harrison in 1989.

Lawyers for Michael Taylor and Roderick Nunley argued in January that each man had a constitutional right to have a jury decide whether he should be put to death.  Both men pleaded guilty in 1991 and opted to have a judge determine their sentence, rather than have a jury make the decision.  Judges subsequently sentenced both men to death.

Since then, courts have ruled that jury sentencing in death cases is a constitutional right. However, the Missouri Supreme Court ruled Tuesday that those rulings do not apply retroactively to Nunley and Taylor.  Both men, judges concluded, waived their right to jury sentencing because they thought that a judge would be more likely to sentence them to life in prison.

“Nunley cannot strategically plead guilty and waive jury sentencing in order to be sentenced by a judge knowing he had the right to jury sentencing and then claim that his constitutional rights were violated when he received his request,” Chief Justice William Ray Price Jr. wrote.

In her opinion on Taylor’s case, Judge Mary R. Russell wrote that ruling in his favor would encourage “game-play” by criminal defendants. “It essentially would encourage a defendant to waive his jury rights, take his chances with a judge and then, if he does not receive the leniency he expected from the judge, later feign confusion about having waived his right to jury sentencing so he could take his chances again before a jury,” Russell wrote.

The lengthy rulings in this case from the Missouri Supreme Court can be accessed here and here.

June 1, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

May 31, 2011

First Circuit affirms Douglas, holding lower FSA crack minimums apply in pipeline cases

I am quite pleased (and a bit surprised) to be able to report this afternoon that a panel of the First Circuit today has unanimously affirmed US District Judge D. Brock Hornby important ruling in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (opinion here; blogged here), which had concluded that a defendant guilty of committing a crack offense back in 2009 but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act‘s altered mandatory minimums apply to such a defendant as well."  Here are a few notable passages from today's big circuit ruling in US v. Douglas, No. 10-234 (1st Cir. May 31, 2011) (available here): 

None of the Supreme Court cases squarely governs this case.  Two of those cases (invoked by Douglas), United States v. Chambers, 291 U.S. 217 (1934), and Hamm v. City of Rock Hill, 379 U.S. 306 (1964), overrode section 109 in problematic situations.  While the analytical explanation given in each case has little bearing on this one, the cases do suggest that some sense of the "fair" result, arguably helpful to Douglas in light of the reformist purpose of the FSA, sometimes plays a role in applying section 109. See Goncalves, 2011 WL 1631649, at *6-7.

Perhaps closer to this case from a factual standpoint is Marrero (relied on by the government); it held that Congress' creation of parole eligibility for serious drug offenders, overturning a prior statutory bar, would not apply retroactively to those serving sentences for crimes committed prior to the new statute.  Marrero, 417 U.S. at 663-64. Still, the conflict between an 18:1 guidelines sentence and a 100:1 mandatory minimum may seem to some more pronounced than making the availability of parole depend on whether the prisoner committed the crime before or after an amendment allowed parole.

Further, the imposition now of a minimum sentence that Congress has already condemned as too harsh makes this an unusual case.  It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums. The purity of the mandatory minimum regime has always been tempered by charging decisions, assistance departures and other interventions: here, at least, it is likely that Congress would wish to apply the new minimums to new sentences.

Finally, while the rule of lenity does not apply where the statute is "clear," e.g., Boyle v. United States, 129 S. Ct. 2237, 2246 (2009), section 109 is less than clear in many of its interactions with other statutes, and that is arguably true in the present case as well.  Our principal concern here is with the "fair" or "necessary" implication, Marrero, 417 U.S. at 659 n.10; Great N. Ny. Co., 208 U.S. at 465, derived from the mismatch between the old mandatory minimums and the new guidelines and to be drawn from the congressional purpose to ameliorate the cocaine base sentences.  But the rule of lenity, applicable to penalties as well as the definition of crimes, adds a measure of further support to Douglas.

In addition to being very big news for many crack defendants in the First Circuit, this new Douglas ruling creates a crisp circuit split because the Seventh Circuit has come to a different view on this issue and has already rejected en banc review of its ruling that the new lower FSA minimums do not apply to not-yet-sentenced defendants.  Consequently, the oft-needed circuit split to foster SCOTUS review is now in place (and I would not be too surprised if the SG's office seeks cert from this Douglas ruling in light of the Seventh Circuit's contrary opinion).

Some posts on this FSA issue:

May 31, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack