August 20, 2011
Ohio ready to try to get its machinery of death back in operation
As detailed in this local article, which is headlined "Ohio expects OK to execute; Procedures tightened, but judge will rule on lethal injections," yesterday Ohio issues tweaked lethal injection rules in the hope of getting a federal judge to lift the current injunction on the state's execution methods. Here are the details:
Ohio prisons officials say they expect to resume executions next month after submitting a revised lethal-injection procedure to a federal judge. But it will be up to U.S. District Court Judge Gregory L. Frost to make that call.
The 17-page protocol signed by prisons director Gary C. Mohr and submitted yesterday in a state filing with the court makes no dramatic changes. But it “bolsters documentation and clarifies instructions,” said Carlo LoParo, spokesman for the Ohio Department of Rehabilitation and Correction.
“Also, it requires an independent review of each lethal-injection procedure,” he said. “This is intended to assess and ensure adherence to the policy and provide recommendations for improvement." It does not change the drug used in executions, pentobarbital. Ohio is the only state to use a single drug for lethal injection.
On July 8, Frost indefinitely halted the scheduled July 19 execution of Kenneth Wayne Smith, 45, of Hamilton. The judge criticized the state’s adherence to its own procedures and protocol as “haphazard” and unacceptable. The lethal-injection issue prompted Gov. John Kasich to postpone the scheduled Aug. 16 execution of convicted killer Brett Xavier Hartmann, 37, of Summit County, for 15 months.
“The new policy is the result of a comprehensive quality-control review of all aspects of the management of the offender prior to and through the lethal injection procedure,” LoParo said. “It mandates explicit compliance with all aspects of the written policy directive.” LoParo said the agency is moving ahead with plans for the Sept. 20 execution of Billy Slagle of Cuyahoga County....
The new policy adds a “quality assurance review” process to be overseen by a special assistant. After each execution, the reviewer will “evaluate the performance of the execution team, review the conduct of court-ordered executions” and report to the director.
Ohio has executed four men so far this year and 45 since capital punishment resumed in 1999.
It will be very interesting to watch how the Ohio defenders and Judge Frost respond to the new protocol in the weeks ahead. Stay tuned.
Some recent related posts:
- Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
- New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
- Why Smith Equal Protection ruling and execution stay in Ohio is a huge (and national?) new death penalty story
- Ohio's queue for executions now 11 deep and more than a year long
- Ohio decides not to appeal federal district court ruling in Smith halting execution
- In wake of lethal injection ruling and stay, Ohio Governor postpones next execution (for 18 months!?!)
- "Ohio and the Death Penalty"
"Normative Elements of Parole Risk"
The title of this post is the title of this important new paper about parole thoery and practice authored by Professor David Ball, which is now available via SSRN. Here is the abstract:
Parole boards evaluate the public safety risk posed by parole-eligible prisoners to determine whether they should be released. In this Essay, I argue that this process, at least as it operates in California, is fundamentally flawed because it asks the wrong question. Rather than ask whether an inmate poses any public safety risk, parole board officials should instead ask whether this risk is worth taking.
One way to answer this question would be to make our calculations more inclusive of all the costs and benefits of release and comparing them with the costs and benefits of retention. Elementary as this might seem, there is no analysis of costs and benefits in California beyond the requirement that any risk not be “unreasonable.”
But even if we could figure out costs and benefits with a greater degree of precision than is currently possible, quantification of the costs and benefits still does not tell us whether the risk is worth taking. This Essay proposes that our conversations about risk are not merely confined to bloodless, actuarial issues: they need to involve normative issues as well.
I propose, as a means of examining these issues, two contradictory mechanisms for pushing the normative issues to the fore, one systemic, the other individualistic. The systemic mechanism would answer the question by establishing hard numbers for release – such as population or percentage targets. This would push the system as a whole away from individual assessments towards decisions more in line with social costs and benefits. The individual mechanism, on the other hand, would account for the normative elements of parole release, leaving the decision to a body used to fact-intensive inquiries that require moral legitimacy: the jury.
Ultimately, these two proposals highlight the hybrid nature of parole – its mixture of risk and desert. By exploring these two proposals, I hope to deepen the conversation about ways in which the goals and objectives of parole determine the procedures and mechanisms of release.
August 19, 2011
Feds seeking LWOP sentence for priest involved with kiddie porn
This new Kansas City Star article, which is headlined "Federal prosecutors want life sentence for priest in child pornography case," reports on a notable child porn case involving notable defendant. Here are the details:
A Catholic priest accused of producing child pornography should receive life in prison if convicted, federal prosecutors declared Thursday. Prosecutors disclosed their sentencing goals in a motion asking that the Rev. Shawn Ratigan remain in jail pending trial. They filed the paperwork just minutes before Ratigan’s first federal court appearance on 13 counts of production, attempted production and possession of child pornography.
John P. O’Connor, Ratigan’s lawyer, entered not guilty pleas to all the federal charges on his client’s behalf. The priest, dressed in black jail scrubs and still sporting a bushy, full beard, did not speak during his brief appearance.
Because Ratigan has not been able to make bond on three Clay County counts of possessing child pornography, U.S. Magistrate Judge Sarah W. Hays said she would defer ruling on the federal detention motion unless it became necessary.
The court filings also disclosed new information about how leaders of the Roman Catholic Diocese of Kansas City-St. Joseph responded when they learned that troubling photographs had been discovered on Ratigan’s computer. The priest had given that computer to a technician for repair in December.
Ratigan allegedly lied to his supervisors when they asked if he had taken the pictures, court records said. In addition to various “upskirt” and “crotch” photographs, the supervisors asked Ratigan about a “close-up vaginal” photograph found on his computer, court records said. Other court records have described that picture as a girl lying down with her panties pulled aside.
Church officials have not described their initial discussions with Ratigan about the photographs, but have suggested that they weren’t certain that the pictures constituted child pornography. In a statement on May 20, just after Ratigan was arrested on the state charges, Bishop Robert Finn said that he had learned in December about “images of an unclothed child who was not identifiable because her face was not visible.”
The diocese soon described the images to a Kansas City police officer and showed them to a lawyer, Finn said. Both said the images were troubling, but were not child porn because they did not show “sexual conduct or contact,” according to Finn.
Federal prosecutors later concluded that the image that Ratigan denied taking was pornographic and charged him....
Immediately after church officials seized Ratigan’s computer, the priest attempted suicide, received psychiatric care and was assigned to live in an Independence mission house.
Prosecutors disclosed Thursday that in addition to accessing Facebook from a computer in a common area of the house, Ratigan also purchased a computer, which he used in his apartment for about 10 days before his arrest. Images of a 12-year-old girl found on that computer, taken on Easter Sunday, April 24, formed the basis of a charge against Ratigan of attempted production of child pornography.
Plea deal frees "West Memphis Three" now 18 years after their (wrongful?) convictions
As detailed in this New York Times article, which is headlined "Deal Frees ‘West Memphis Three’ in Arkansas," a high-profile, long-running case involving possible wrongful convictions has now been wrapped up through a plea deal. Here are the specifics:
Three men convicted of killing three 8-year-old boys in a notorious 1993 murder case were freed from jail on Friday, after a complicated legal maneuver that allowed them to maintain their innocence while acknowledging that prosecutors had enough evidence to convict them. Related
A district court judge declared that the three men — Damien W. Echols, 36, Jason Baldwin, 34, and Jessie Misskelley Jr., 36, known as the West Memphis Three — who have been in prison since their arrest in 1993, had served the time for their crime. The judge also levied a 10-year suspended sentence on each of the men.
With his release Friday, Mr. Echols became the highest-profile death row inmate to be released in recent memory. The agreement, known as an Alford plea, does not result in a full exoneration; some of the convictions stand, though the men did not admit guilt. The deal came five months before a scheduled hearing was to held to determine whether the men should be granted a new trial in light of DNA evidence that surfaced in the past few years. None of their DNA has been found in tests of evidence at the scene. The Arkansas Supreme Court ordered the new hearing in November, giving new life to efforts to exonerate the three men.
In May 1993, the bodies of the boys, Christopher Byers, Steve Branch and James Michael Moore, were found in a drainage ditch in a wooded area of West Memphis, Ark., called Robin Hood Hills. The bodies appeared to have been mutilated, their hands tied to their feet.
The grotesque nature of the murders led to a theory about satanic cult activity. Investigators focused their attention on Mr. Echols, at the time a troubled yet gifted teenager who practiced Wicca, a rarity in the town of West Memphis. Efforts to learn more about him, spearheaded by a single mother cooperating with the police, led to Mr. Misskelley, a passing acquaintance of Mr. Echols, who is borderline mentally retarded.
After a nearly 12-hour interrogation by the police, Mr. Misskelley confessed to the murders and implicated Mr. Echols and Mr. Baldwin, though his confession diverged in significant details with the facts of the crime known by the police....
Largely on the strength of that confession, Mr. Misskelley was convicted in February 1994. Mr. Echols and Mr. Baldwin were convicted soon after in a separate trial, largely on the testimony of witnesses who said they heard the teenagers talk of the murders and on the prosecution’s theory that the defendants had been motivated as members of a satanic cult....
An award-winning documentary, “Paradise Lost: The Child Murders at Robin Hood Hills,” was released after their convictions, bringing them national attention. Benefit concerts were held, books were written, a follow-up documentary was made and the men’s supporters continued to pursue their freedom. Many residents of West Memphis resented the presumption that outsiders knew the details of the horrific case better than they did. But in recent years some, though not all, of the victims’ families have begun to doubt the guilt of the three men.
"Prison population hits record high in England and Wales"
The title of this post is the headline of this new report from The Guardian about the latest punishment realities across the pond. Here are some of the the details:
The prison population in England and Wales has hit a record high of 86,654 following the courts' decision to remand hundreds charged with rioting and looting in custody. The Ministry of Justice said the prison population had risen by 723 over the past week. Officials are making contingency plans to accelerate the opening of new prison buildings and bring mothballed accommodation back into use.
There are currently only 1,439 spare useable places left in the jail system, but prison chiefs say they remain confident they have enough to cope with those being imprisoned by the courts in relation to the recent riots. "We are developing contingencies to increase useable capacity should further pressure be placed on the prison estate," a Prison Service spokesperson said....
Geoff Dobson, the deputy director of the Prison Reform Trust, said the rapid increase in prison numbers meant that some parts of the system were "becoming human warehouses, doing little more than banging people up in overcrowded conditions, with regimes that are hard pressed to offer any employment or education. The likelihood is that for some first time offenders that will provide a fast-track to a criminal career."
His concerns were shared by Paul McDowell, the chief executive of Nacro, the crime reduction charity, and former governor of Brixton prison, who also warned that rehabilitation work to tackle reoffending would simply go by the board as jails tried to cope with the rapid rise in prisoner numbers.
Labour's prison spokesperson, Helen Goodman, said she was becoming increasingly concerned about the remaining capacity. "The violence that was seen on the streets of Britain last week must be punished, but the Tory-led government also have a responsibility to ensure that the sentences handed down are being served safely," she said.
Noting the achievements of a prison hunger strike in California
Last month I asked in this post, "Can a hunger strike by state prisoners in SHU have an impact?". An answer is now provided by this new local piece from California headlined "California prisoners make inroads with hunger strike." Here are excerpts:
Last month, inmates at Pelican Bay State Prison launched a hunger strike to draw attention to their complaints of being unfairly held in extreme isolation at the Crescent City lockup. Within three weeks, the prison hunger strike had become one of the largest in years, spreading throughout the state corrections system to involve thousands of inmates and sparking a legislative hearing scheduled for next week....
The effort ended July 21, after inmates inside the security housing unit at Pelican Bay were promised changes, including being given wool caps for use during winter months and being allowed to have wall calendars.
Officials with the California Department of Corrections and Rehabilitation also said they will review policies on how the agency determines which inmates are believed to be gang leaders who are then placed in a security housing unit. But they insist that inmates inside the SHU, including several who have identified themselves as leaders of the hunger strike, pose a serious threat to others and are there for very good reasons....
The Assembly's Public Safety Committee has set a hearing for Tuesday on how the corrections agency handles prisoners inside its three security housing units. The panel expects to hear testimony from corrections officials, as well as a former inmate in Pelican Bay's SHU.
Advocates for the inmates contend they are denied basic human rights, are kept in windowless cells, and that corrections officials wrongly label some inmates as gang leaders and banish them to the security housing unit.
They see the seemingly minor concessions made to end the hunger strike as a major step forward for prisoners. "Those things are more substantial to them than they may seem to those of us outside prison, who can take such things for granted," said Isaac Ontiveros, a spokesman for Critical Resistance, an Oakland organization that supported the hunger strikers....
[T]he hunger strike spawned media interest worldwide, and the corrections department found itself on the defensive against critical coverage. On Wednesday, it offered the media a tour of Pelican Bay, and CDCR Secretary Matthew Cate wrote a letter challenging a New York Times editorial that labeled the security housing units as "cruel isolation."
The result is that advocates believe they now have an opening to focus more attention on the treatment of inmates, especially after the U.S. Supreme Court ordered California earlier this year to reduce overcrowding in prisons.
Recent related posts concerning the hunger strike in California prisons:
- Can a hunger strike by state prisoners in SHU have an impact?
- Hunger strike among California prisoners growing
- "Barbarous Confinement"
- Are there First Amendment problems with California officials blocking media access to all hunger-striking prisoners?
- California inmates end hunger strike (after success?)
August 18, 2011
2011-2012 supplement for Sentencing Law and Policy casebook now available
As a new school year approaches, I am happy to be able to share an updated electronic supplement providing additional materials to accompany the second edition of the Sentencing Law and Policy casebook. Anyone can download this 2011-2012 supplement below.
This updated supplement includes edited versions and notes on the 2011 SCOTUS cases of Pepper and Plata (while also retaining versions of the big prior recent SCOTUS cases of Graham, Padilla, Kennedy, Kimbrough and Gall). There are also a bunch of additional notes covering various major sentencing developments from the past few years, including the passage of the Fair Sentencing Act of 2010 and the litigation surrounding the capital punishment administration in North Carolina in the wake of the state's adoption of its racial Justice Act.
As always, my co-authors and I hope that adopters of our text (and others) find this new, updated supplement useful, and we welcome comments and suggestions.
California seeking death for inmate murder by murderer already serving life
As I have said before on this blog, I think the hardest cases for those categorically opposed to the death penalty involve murders by persons already serving a life sentence for murder. As detailed in this local news report, California prosecutors have just decided to pursue a death sentence in just such a case. The piece is headlined "San Jose man charged with killing fellow inmate now facing death penalty," and begins this way:
A San Jose man already serving a life sentence for murdering a homeless man in Willow Glen may now face the death penalty after being charged with another killing. Prosecutors plan to seek the death penalty against Frank Souza, 31, who has been charged with murdering fellow San Quentin inmate Edward Schaefer, the man who killed a Novato girl with his motorcycle, the Marin County District Attorney said Wednesday.
Souza, 31, who is serving a sentence of 60 years to life for the murder of John Carl Riggins in 2007, is eligible for capital punishment because he is charged with two special circumstances: having a prior murder conviction, and "lying in wait" to ambush Schaefer.
Prosecutors notified Souza's lawyer this week that they planned to pursue the death penalty. Souza's defense attorney, Gerald Schwartzbach, said the death penalty decision is "irrational and fiscally irresponsible."
"One, he's never going to be released," Schwartzbach said. "Two, a capital trial, and the preparation for a capital trial, is enormously more expansive, consumes a great deal more time, money and resources. Even if the prosecution were successful and obtained the death verdict, Mr. Souza would likely be on death row -- if the death penalty were to survive as a penalty -- 20 to 25 years."
District Attorney Ed Berberian said there is still the possibility of parole in Souza's prior murder case, or some unforeseen development in the courts. "It's never easy to seek the death penalty on anyone, but he is someone who has killed before," Berberian said. "He's responsible, clearly, for the deaths of two individuals, and I just cannot find that there are mitigating circumstances."
Souza is accused of stabbing Schaefer seven times in a prison yard on July 26, 2010. The attack occurred less than two weeks after Schaefer started his prison sentence for killing 9-year-old Melody Osheroff and maiming her father in a Novato crosswalk during a drunken ride in 2009. "All I got to say is, 9-year-old girl," Souza said after Schaefer's slaying, according to grand jury testimony by a prison Officer William Eberly.
Schaefer, who was convicted of murder, manslaughter and other charges, was not eligible for the death penalty. Schaefer had just arrived at San Quentin from Marin County on July 16 with a 24-years-to-life sentence for second-degree murder and gross vehicular manslaughter while intoxicated, according to prison officials. Schaefer was attacked in the prison's reception center yard and stabbed in the neck and chest with a "bone crusher," a piece of metal fashioned out of bunk bed parts or other objects and shaped like a knife, according to previous news reports.
"What if law schools opened their own law firms?"
The title of this post is the headline of this interesting article in The National Law Journal, which begins this way:
Law schools have been pummeled with criticism for not producing practice-ready attorneys, so two law professors have come up with a novel fix: Law schools should operate their own law firms.
The school-owned firms would provide a training ground for recent graduates, but would function much like a normal firm, Brooklyn Law School Professor Bradley Borden and University of Maryland School of Law Professor Robert Rhee wrote in an article entitled, "The Law School Firm." The piece will appear in a forthcoming issue of the South Carolina Law Review.
Borden and Rhee acknowledged that their idea constitutes a "radical" change from the existing law school model, but they contend that these firms would help recent graduates gain the skills they need to be successful at little expense — and possibly a profit — to law schools.
The firms would be entities distinct from the law schools, and would be professionally managed and generate revenue, although they would be operated as nonprofits. Senior attorneys would be hired to oversee the firms' practice areas, and recent law school graduates would spend fixed periods, perhaps three or six years, at the firm before moving on.
The concept is similar to that of judicial clerkships, Rhee said, in that freshly minted attorneys would spend a fixed amount of time at the firm and face no stigma when they leave. Being in an actual, functioning law firm would offer a far more immersive learning experience than students could find in the classroom or even in a law school clinic, he said.
Of course, if (when?) this idea takes off, I am going to want to make sure that my law school firm has a large sentencing and post-conviction appellate practice.
UPDATE: The law review article reference above is now available at this link via SSRN. Here is the abstract:
This Article introduces the concept of the law school firm. The concept calls for law schools to establish affiliated law firms. The affiliation would provide opportunities for students, faculty, and attorneys to collaborate and share resources to teach, research, write, serve clients, and influence the development of law and policy. Based loosely on the medical school model, the law school firm will help bridge the gap between law schools and the practice of law.
Cross-posted at Law School Innovation.
Oklahoma board recommends commutation of LWOP drug sentence
The fascinating local article, which is headlined "Board recommends leniency for drug dealer sentenced to life without parole," spotlights a very interesting clemency issue now brewing in Oklahoma. Here are excerpts:
The Pardon and Parole Board recommended Wednesday a convicted drug dealer from Kingfisher who is serving life without parole should have his sentence commuted to 42 years.
The recommendation for Larry E. Yarbrough, 61, now goes to Gov. Mary Fallin. Yarbrough has been in prison since 1997. The board recommended a commuted sentence for Yarbrough in 2002, but then-Gov. Frank Keating denied the request.
The five-member board issued a 3-2 split decision at a hearing room packed with Yarbrough's family members and supporters at Hillsdale Community Corrections Center in Oklahoma City.
Two board members voted not to commute the sentence. Two others recommended Yarbrough's sentence be commuted to time served. One member said the sentence should be commuted to 42 years. If Fallin approves the board's recommendation, Yarbrough could be eligible for parole next year.
Yarbrough, a former restaurant owner, was sentenced to life without parole in 1997 on a cocaine trafficking charge. Previously, he served time in prison in the early 1980s on convictions for LSD and marijuana distribution. Yarbrough also received probation for a felony conviction of receiving stolen property.
State law requires a life-without-parole sentence for drug-trafficking charges after prior convictions for two or more felonies.
In a videoconferencing appearance before the board, Yarbrough said he's been a model prisoner who counseled young men entering prison.... Yarbrough's family and supporters said his sentence was too harsh. “He's served his time already, and he just needs to be out,” said Yarbrough's niece, Rhonda Campbell, of Edmond....
Aaron Cooper, a spokesman for Fallin, said the governor would have no comment until she reviews the board's recommendation for Yarbrough.
Mike Fields, the district attorney for a five-county area including Kingfisher County, spoke before the board Wednesday morning. Fields asked them not to commute Yarbrough's sentence. He cited Yarbrough's criminal history and the board's power to consider the commutation of life-without-parole sentences. Fields said the matter should be left to the Legislature.
“In our criminal justice system, there's only one sentence that means exactly what it says, and that's life without parole,” Fields said in a phone interview. “I think the public, victims' families and law enforcement officers should have assurance that life without parole truly means life without parole. They can't have that assurance if the Pardon and Parole Board makes it a routine practice of pulling out life-without-parole inmates and recommending commutation.”
Among those supporting Yarbrough was Dennis Will, of Hennessey, a former juror in Yarbrough's 1997 conviction for cocaine distribution. Will provided a letter to the board detailing his concerns with the jury deliberations. “After I learned he was being given life without parole, I was upset about it,” Will said after the hearing. “I lost it, because we were not told before we voted.” Debra K. Hampton, Yarbrough's attorney, said she has talked to two other members of the jury who shared Will's concerns. The other jurors did not want to reveal their identities out of fear of retaliation, she said.
Sen. Connie Johnson, D-Oklahoma City, said Yarbrough's case is a “poster child” for extreme sentencing guidelines for drug charges. She said it costs the state an estimated $23,000 a year to house an inmate. “Taxpayer dollars are being squandered on sentences for nonviolent crimes,” Johnson said.
Johnson said she plans to reintroduce legislation next year to stop life-without-parole sentences for nonviolent drug crimes. Her prior bills on the matter did not make it out of committee.
This companion piece reports interesting data on LWOP terms in Oklahoma: out of 25,433 total inmates, 764 are serving LWOP terms and 48 of those lifers got LWOP for drug trafficking charges
August 17, 2011
"Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"
The title of this post is the title of this notable new piece by Professor Craig Lerner now available on SSRN. Here is the abstract:
Can the young be held accountable for their crimes? At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years. In Graham v. Florida, the United States Supreme Court rejected this principle, and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. Embedded in the Court’s holding, this Article argues, are a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides, and both this assumption and this claim are demonstrably false in a nontrivial number of cases.
This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that that there are violent juvenile offenders -- fortunately rare -- who are as least as mature and culpable as the typical adult violent offender. The Article also considers lower court applications of Graham and finds, for the most part, marked skepticism. The Supreme Court’s general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court’s central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one’s own experience in the world. Lower court judges have access to a wider data set in reaching contrary conclusions.
More great commentary at The Crime Report
Regular readers by now may be tired of my frequent promotion of content at The Crime Report, but it is commentary and coverage like the stories below that continue to make it a daily must-read for folks interested in serious coverage of a range of cutting-edge crime and punishment issues:
En banc Fourth Circuit (by 8-5 vote) changes view on prior triggering enhanced drug mandatory minimum
The Fourth Circuit today handed down a big en banc sentencing decision in US v. Simmons, No. 08-4475 (4th Cir. Aug. 17, 2011) (available here). The majority opinion begins this way:
After Jason Simmons pled guilty to federal drug trafficking, the district court held that his prior state conviction for marijuana possession, for which he faced no possibility of imprisonment, was for an offense "punishable by imprisonment for more than one year," triggering a sentencing enhancement under the Controlled Substances Act. This enhancement doubled Simmons’s minimum sentence. We affirmed in an unpublished opinion. See United States v. Simmons, 340 F. App’x 141 (4th Cir. 2009). The Supreme Court vacated that judgment and remanded the case to us for "further consideration in light of Carachuri-Rosendo v. Holder," 130 S. Ct. 2577 (2010). A panel of this court then held that Carachuri did not require any change in our prior holding. See United States v. Simmons, 635 F.3d 140 (4th Cir. 2011). We voted to rehear the case en banc, and for the reasons that follow, we now vacate Simmons’s sentence and remand for further proceedings consistent with this opinion.
I am not sure how many defendant's sentences could be impacted by this Simmons ruling, but I am sure that it provides yet another example of how messy federal sentencing law is when it comes to the legal treatment/impact of prior state convictions.
State judge finds Florida drug law unconstitutional
Regular readers may recall the news late last month of a federal habeas ruling in Shelton v. Florida DOC, No. 6:07-cv-839-Orl-35-KRS (M.D. Fla. July 27, 2011), finding unconstitutional the operation of Florida's criminal drug laws. Now, thanks to this post by David Oscar Markus at the Southern District of Florida Blog, I see that now a state circuit judge has relied on Shelton to dismiss indictments against a large group of drug defendants in this lengthy (and amusing) order. Here is how the important order starts and finishes:
The 39 defendants captioned above are similarly circumstanced in that all are charged withviolation of Fla. Stat. § 893.13. In light of the recent decision in Shelton v. Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011), finding 893.13 unconstitutional, all defendants move for dismissal. I have consolidated these cases for purposes of these motions only.
Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essentialthat I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: "If I'd had more time, I could havewritten you a shorter letter."...
The immediate effect of the present order is the dismissal of charges against all movants –- the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, "It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenlyin the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).
Like the court in Shelton, I find that Florida Statute § 893.13 is facially violative of the DueProcess Clause of the 14th Amendment to the United States Constitution; and, accordingly, that any prosecution brought pursuant to that statute is subject to dismissal.
Recent related post:
Texas giving up unilateral branding as sex offenders those not convicted of sex crimes
This interesting piece from the Austin American Statesman reports on notable developments with sex offender designations in Texas. The piece is headlined "Some Texas parolees freed of sex offender label; After losses in court, state changes how it deals with those not convicted of sex crimes," and here are excerpts:
After years of fighting in court against giving parolees a hearing before they are classified as sex offenders, state officials have begun dropping the sex offender designations — in some cases without administrative hearings, according to parole attorneys.
Rissie Owens, chairwoman of the Texas Board of Pardons and Paroles, and Stuart Jenkins, parole director for the Texas Department of Criminal Justice, who have steadfastly defended the past policy in court, could not be reached for comment Tuesday.
The change occurred after an 8-0 ruling by the Texas Court of Criminal Appeals in May affirmed what several federal courts previously had ruled: The parole board cannot unilaterally decide whether to brand a prisoner as a sex offender if he or she has not been convicted of a sexual offense.
By officials' earlier estimates, as many as 6,900 of the 80,600 parolees could be affected by the change. To review those cases would require perhaps as many as 1,000 hearings a week — an impossible number, some parole officials had said.
The change caps more than a decade of court challenges, including at least five high-profile court decisions branding the action without hearings unconstitutional...
Attorneys who have seen parolees' Condition X designations removed said the policy change is long overdue. "This is a huge change," Austin attorney Gary Cohen said. "The law has been clear for years on this. But it just shows the institutional mentality of parole officials: Instead of doing the right thing, they resist and resist and resist and continue losing in court. If they had (changed the policy) years ago, as they should have, they would have saved a lot of money and litigation."
Bill Habern, a Riverside attorney who filed several of the cases that resulted in adverse decisions for parole officials, agreed. "That May decision was the nail in their coffin," he said. "There are thousands of cases that could be affected."
Latest data show health care fraud as federal criminal hot-spot
This new report from the Transactional Records Access Clearinghouse, which is headlined "Health Care Fraud Prosecutions for 2011," highlights that the federal court, especially in southern Florida, are seeing many more health care fraud cases these days. Here is the start of the TRAC report:
The latest available data from the Justice Department show that during the first eight months of FY 2011 the government reported 903 new health care fraud prosecutions. Already the activity this year exceeds the level for all of FY 2010.
Numbers were pushed higher by a series of investigations by the Federal Bureau of Investigations which led to prosecutions for health care fraud. In Puerto Rico alone, 420 defendants have been charged this year. Within the fifty states, the Southern District of Florida (Miami) led the nation in activity accounting for one out of every nine health care fraud prosecutions.
Across the nation if this activity continues at the same pace, the annual total of prosecutions will be 1,355 for this fiscal year. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate is up 85.4% over the past fiscal year when the number of prosecutions totaled 731.
For criminal justice researchers, I think this growing pocket of cases might be especially interesting to try to track from indictment through sentencing. I sense that these health care fraud cases can often have lots of the most dynamic elements of case-processing discretion that can impact sentencing outcomes.
For example, I suspect: that most of these prosecutions result in pleas (and with some defendants cooperating with the feds), but a few defendants go to trial; that these defendants have diverse roles in the crime and diverse backgrounds; that the amount of loss for sentencing purposes can be varied and will often be disputed; that arguments for departures and variances get different receptions in different courthouses.
"Lawyers for Defendant in Giffords Shooting Seem to Be Searching for Illness"
The title of this post is the headline of this interesting new piece from the New York Times. Here is how it starts and ends:
Jared L. Loughner’s grandparents and great-grandparents died years ago, but lawyers defending Mr. Loughner in connection with a Jan. 8 shooting spree outside Tucson are delving into their lives and those of numerous other Loughner ancestors in an apparent effort to show that mental illness runs in the family.
A raft of subpoenas that Reuben C. Cahn, one of Mr. Loughner’s lawyers, issued last month, and then withdrew, indicates that the defense is researching the backgrounds of many of the defendant’s relatives from Illinois, all on his mother’s side....
Legal experts consider the attention on Mr. Loughner’s relatives part of his defense team’s effort to bolster an eventual insanity defense or to argue against the death penalty. “If the defense can show that mental illness runs in the family, they have a stronger case, one that is more convincing to the jury,” said Christopher Slobogin, a professor of law and psychiatry at Vanderbilt Law School. “Short of a brain scan that shows mental defect, a family history of mental illness is the most persuasive evidence that someone had significant mental problems at the time of the crime.”...
Two mental health experts have diagnosed schizophrenia in Mr. Loughner. Because he has been determined a threat to himself and others, Bureau of Prisons psychologists have been forcibly medicating him, which his defense team has strenuously objected to in a series of court filings.
Mr. Loughner’s lawyers have asserted that prison officials may be administering medication to their client so they can prepare him to face the death penalty. “Mr. Loughner has a due-process right to bodily integrity free of unwanted, forcible administration of psychiatric medication,” his lawyers wrote in a recent request for a court hearing on the matter.
Mr. Loughner’s lawyers have also urged the court to order the videotaping of Mr. Loughner’s interviews with prison psychologists. They say he suffers from a condition called echolalia, which makes him repeat whatever is said to him, that the defense wishes to monitor.
August 16, 2011
Is a "revolution" on-going with the death penalty?
NPR has this new story on the administration of the death penalty, which carries the peculiar headline "The Quiet Revolution In The Death Penalty Debate." Here are snippets:
Over the last few years, a quiet revolution has overtaken the death penalty debate. Like many trends, this one started in the states and moved to the federal level, says death penalty expert David Bruck.
"I think it's fair to say that the federal government seeks the death penalty less often now than it did five or 10 years ago, but that's simply part of a national trend," says Bruck, a law professor at Washington and Lee University.
Just consider, Bruck says, a state quite close to the seat of national government. "Virginia — which is the state that's executed the second largest number of people since the death penalty came back in the 1970s — has only added one new defendant to death row in the last three and a half years," he says.
And among those already sentenced to death, a lot fewer are actually being executed. One reason for that is a shortage of sodium thiopental, a main drug that states and the federal system use in executions.
I find the headline peculiar because I think the death sentencing trends, at both the federal and state levels, have been more the subject of an extended evolution rathen than any revolution. Moreover, the assertion that "a lot fewer" persons on death row are now being execution is not really accurate: as this DPIC chart reveals, there were roughly 20% more executions in 2009 and 2010 than in 2007 and 2008. In my eyes, the data reveal not a "quiet revolution," but a a slow and steady death penalty retrenchment since the modern death penalty "peak" in the second half of the Clinton administration.
"Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively"
The title of this post is the title of an important and exciting forthcoming book by Professor Deborah Denno; now posted at this SSRN link is a synopsis of the book's coverage and themes. Here is the posted SSRN abstract:
A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness. Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system. Recent neuroscientific discoveries suggest that some of our previous intuitions about human culpability fail to reflect the reality of how the brain functions. If we ignore these developments, we risk perpetuating a justice system that punishes some people far too much and others too little or not at all.
The intersection of law and neuroscience is a thriving topic, but this book is unique. Many books and chapters in edited books focus narrowly on issues such as the diagnosis and effect of brain abnormalities or the possibility that neuroscience will someday perfect lie detection. Changing Law’s Mind, instead, provides readers with a foundation in both the legal doctrine and neuroscience and then uses that bridge to question the criminal law’s underlying principles and practice, starting from the moment a case is processed in the system to the point at which a defendant is sentenced and punished. Based on this assessment, the book suggests ways in which the criminal law can change -- either quickly by accommodating our new understanding of the human mind into current practice or more fundamentally by incorporating this understanding into long-term modifications of criminal law doctrine.
Intriguing Sixth Circuit opinion spotlights differences between military and civilian sentencing justice
Though the underlying crime is what gets one's attention in today's Sixth Circuit panel ruling in US v. Green, No. 09-6109 (6th Cir. Aug. 16, 2011) (available here) the start of the opinion shines a light on a notable difference between federal military and federal civilian sentencing law:
Steven D. Green was convicted and sentenced to life in prison for participating in a sexual assault and multiple murders while stationed in Iraq as an infantryman in the United States Army. Before senior Army officials became aware that Green and three fellow servicemembers were involved in these crimes, Green was discharged due to a personality disorder. When officials discovered Green’s involvement in the crimes, his three coconspirators were still on active duty in the Army and thus subject to the Uniform Code of Military Justice. They were tried by courts-martial and each sentenced to between 90 and 110 years imprisonment, which rendered them eligible for parole in ten years. However, the Army had no authority to court-martial Green because he had already been discharged. Thus, civilian prosecutors charged Green under the Military Extraterritorial Jurisdiction Act, which extends federal criminal jurisdiction to persons who commit criminal acts while a member of the Armed Forces but later cease to be subject to military jurisdiction. A federal court jury convicted Green of a number of crimes, including murder and sexual assault, and the district court sentenced him to five consecutive life sentences. Green claims that the district court lacked jurisdiction to try him because he was never validly discharged from the Army and thus never ceased to be subject to military law as required by MEJA. Furthermore, he claims that MEJA is unconstitutional because it violates the separation-of-powers principle and the nondelegation doctrine, equal protection, and due process. We find that these arguments fail and thus AFFIRM the decision of the district court.
I always find fascinating when co-conspirators, simply by virtue of being lawfully subject to different bodies of law, end up receiving different sentences for the same crime. Here this story is especially notable because a form of federal law is being applied to everyone; still, Green is fated to die in prison because he was subject to civilian law, whereas his co-conspirators are now only a few years from being able to gear up for a possible parole hearing.
A quick review of the procedural history of Green's prosecution further reveals that he was in a sense lucky only to get life imprisonment. The feds sought, but the jury was unable to reach a unanimous decision on, a death sentence.