November 1, 2011
"Marijuana: An Answer From The White House"
The title of this post is the headline of this interesting new entry at the WSJ Law Blog. Here are excerpts:
So, the legalize-marijuana crowd finally got a thoughtful answer from the White House — but not one it wanted.
After being ignored or quickly dismissed on multiple occasions, Americans who want to see marijuana legalized found a way to get the White House to take their question seriously. The White House “We the People” project lets anyone submit a petition requesting government action. If the petition gets enough signatures, the White House promises a policy response.
A petition calling for legalization and regulation of marijuana “in a matter similar to alcohol” quickly vaulted into the top position, receiving nearly 75,000 signatures. Four others making similar requests were in the top 10. A total of eight marijuana-related petitions each received more than 5,000 signatures. It turns out that the White House still does not support pot legalization....
Gil Kerlikowske, director of the White House Office of National Drug Control Policy, offered the official White House response on marijuana, saying the administration does not support legalization. He said that research finds that marijuana is associated with addiction, respiratory disease and cognitive impairment and that pot is ever more potent, possibly affecting still-developing brains of people in their 20s. He went on to say that the White House drug control strategy is “balanced and comprehensive, emphasizing prevention and treatment” and “innovative law enforcement.”
Allen St. Pierre, executive director of NORML, which advocates for marijuana legalization and which organized at least one of these petitions, said he was not surprised by the response but said it’s “hard not to be disappointed that the White House solicits–consistently–the views of the general public about specific policy changes via the Internet, and with the same consistency completely rejects the public’s ever-growing wont to see Cannabis Prohibition end in our lifetimes.”
Sadly, from my perspective, I expect this is one (and only?) policy and statement coming from the Obama White House that will be immune from criticism by most of the GOP candidates (save Gary Johnson, perhaps) eager to be the next resident of the White House.
Might there be reason to praise "Lifelong Death Sentences"?
The question in the title of this post is prompted by this new Sidebar piece by Adam Liptak in the New York Times, which is headlined simply "Lifelong Death Sentences." Here are excerpts from a the piece:
In 1978, when he was 27, Manuel Valle killed a police officer in Coral Gables, Fla. In September, when he was 61, Mr. Valle was put to death for his crime. A couple of hours earlier, the Supreme Court had refused to stay his execution — with one dissent. Justice Stephen G. Breyer wrote that the 33 years Mr. Valle had spent on death row amounted to cruel and unusual punishment.
That line of reasoning strikes some supporters of the death penalty as perverse. “It is a very strange argument to say that a murderer can delay justice with protracted appeals for decades and then turn around and claim his own delay as a reason to escape his deserved punishment altogether,” said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation.
But Justice Breyer’s approach has historical support, and it is in line with international opinion. “Our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades,” Justice Breyer wrote in another dissent on the same subject, this one in 1999. English law in the 18th century called for executions to take place on “the next day but one” after sentencing.
Foreign courts have ruled that living for decades under the threat of imminent execution is a form of psychological torment. “There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years,” the Judicial Committee of the Privy Council, which is based in London and hears appeals from former British colonies, wrote in a 1993 ruling in favor of two inmates who had spent more than five years on death row in Jamaica, commuting their sentences to life in prison.
Similarly, the European Court of Human Rights in 1989 ruled that extended periods on death row violated the provision of the European Convention of Human Rights that bars torture or “inhuman or degrading treatment or punishment.”...
Justice Clarence Thomas has said he is not impressed by these international rulings. “I am unaware,” he wrote in response to Justice Breyer’s 1999 dissent, “of any support in the American constitutional tradition or in this court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”
That seeming contradiction misses a larger point, Justice Breyer wrote in his dissent in the Valle case. A capital justice system that cannot be administered without long delays, he said, points to “the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed.”
Here is what is clear: the average prisoner on death row has spent 13 years there, and his odds of growing old in prison are pretty good. About 3,300 inmates are on death row in the United States. Last year, there were 46 executions....
A system that takes 33 years to issue a final decision about whether a defendant should live or die would seem to be broken. “The incentives driving the nation’s process of imposing and reviewing death sentences,” Professor [Jim] Liebman wrote, “are skewed from stem to stern.”
I agree with Professor Liebman that the incentives driving the current system of capital punishment are skewed toward having many more death sentences than actual executions, but I am not sure that this reality — or the fact that most death row defendants in states other than Texas and Virginia are very likely to spend at least 15 years or more before seriously facing execution — means our system is "broken." In fact, given the strong affinity some have for LWOP sentences instead of death sentence AND the reality that the public and sometimes prosecutors and victims are more concerned about the normative symbolism of death sentences rather than the stark reality of executions, one might be able to plausibly assert that "lifelong death sentences" achieve the best of all possible capital punishment worlds.
For starters, I assume the juve and mentally-retarded murderers whose death sentences were finally deemed unconstitutional in Roper and Atkins were glad that a slow review process kept them alive until their sentences were ultimately ruled unconstitutional. Same obviously goes for wrongly convicted death row inmates who have been sure to have ample time to prove their innocence. And though some victims and prosecutors complain about protracted capital case review, some other victims and prosecutors acknowledge that new facts emerge during this lengthy process which impact their views on the appropriateness and value of the original death sentence.
I am not really asserting that the modern administration of the death penalty in the US is truly ideal and truly the best of all possible capital punishment worlds. But I also do not mean to completely mock the possibility of taking a Dr. Pangloss view of the lengthy period between death sentences and execution in most states: though there are obvious costs from these delays, there are also some benefits that ought not be ignored or completely discounted.
States reworking property crimes to reduce prison costs
This recent USA Today article, headlined "Some states rethink felony property crimes," highlights that it is not only low-level drug offenses getting revised to cope with excessive prison costs. Here is how the piece begins:
More than half a dozen states are reclassifying a range of property crimes from felonies to misdemeanors, a change that could spare prison terms for minor offenses and save states jail and prosecution costs.
The changes increase the threshold dollar amounts for crimes such as check kiting, theft and criminal mischief. California, Delaware, Illinois, Montana, Oregon and Washington, among others, have amended their criminal codes in the past two years, aimed partly at deferring hundreds of offenders from costly prison and jail sentences.
State officials and criminal justice analysts said budget crises have forced state lawmakers, sometimes at political risk, to enact less punitive measures for criminal offenders. "Clearly one of the motivating factors is cost," said Alison Shames, associate director of the Center on Sentencing and Corrections for the Vera Institute of Justice, an advocacy group. "States are looking at the numbers of people in prison for property crimes and asking themselves a simple question: Does everybody really need to be there?"
Crimes that do not meet the higher thresholds would be charged as misdemeanors or lower-level felonies. Prior to the new legislation, some offenders could have been prosecuted as felons for thefts of as little as $50 (in Oregon), less than the $62 per day average cost to house a state prisoner in the U.S. In Illinois, the threshold for general felony theft was raised from $300 to $500 and retail theft (theft specifically from retail stores) from $150 to $300.
October 31, 2011
"Court reluctant on plea bargains after sentencing"
The title of this post is the headline of this AP report on the oral arguments today in the big Sixth Amendment cases of Lafler v. Cooper and Missouri v. Frye (previewed here). Here are snippets from the AP account:
The Supreme Court seemed reluctant Monday to allow criminals to ask for a previously offered plea bargain after they've been sentenced, despite the inmates' claim of misconduct by their lawyers including neglecting to tell their clients that a deal had been offered.
Asking judges to go back and figure out on appeal whether a suspect would have taken a plea deal before a trial, whether a judge would have accepted it, whether a prosecutor would have withdrawn it or whether the negotiations would have fallen apart "is simply unworkable," said Justice Anthony Kennedy, who is often a tiebreaker votes on divisive issues....
In both cases, the criminals' lawyers are not arguing for new trials, a position the court seemed to agree with. "The remedy of giving a new trial when the person has already had a fair trial makes zero sense," Justice Samuel Alito said.
But Cooper's lawyer, Valerie Newman, said they should have a chance to go back and consider the plea offer. "I'm saying it's unfair to go to trial when your attorney tells you, 'You can't be convicted.'"
"You are saying it's unfair to have a fair trial; isn't that correct?" Kennedy said.
Several justices seemed concerned about how changing the plea system would affect prosecutors and judges. For example, it's easy for a criminal facing a decade in prison to say he would have taken a plea deal for one year after a judge has sentenced him to 10 years in prison, justices noted.
But the negotiations are going on before trial, and by "not accepting it he has a chance of going scot-free" if a jury finds him not guilty, Chief Justice John Roberts said. After conviction and sentencing, Roberts said, "presumably the defendant will always say, 'I would have taken that deal, because it's better.' So how is a judge supposed to go back and decide whether that's true or not" on appeal?"
Everyone can now read the full transcript in both these cases via this links provided by SCOTUSblog: the transcripts from today’s arguments in Lafler v. Cooper and Missouri v. Frye can be found here and here.
The US Sentencing Commission new mega-report on mandatory minimums now available
I am pleased to see that the US Sentencing Commission has succeeded in releasing its massive new report on mandatory minimums, which has the formal (and oh-so-exciting) title "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System." This official press release provides the basics on this important report:
Today the United States Sentencing Commission submitted to Congress its 645-page report assessing the impact of statutory mandatory minimum penalties on federal sentencing.
Judge Patti B. Saris, chair of the Commission stated, “While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”
In the report, the Commission recommends with respect to drug offenses that Congress reassess certain statutory recidivist provisions, and consider possible tailoring of the “safety valve” relief mechanism to other low-level, non-violent offenders convicted of other offenses carrying mandatory minimum penalties. It also recommends that Congress examine and reevaluate the “stacking” of mandatory minimum penalties for certain federal firearms offenses as the penalties that may result can be excessively severe and unjust, particularly in circumstances where there is no physical harm or threat of physical harm.
The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent. Saris noted, “The number of federal prisoners has tripled in the last 20 years. Although the Commission recognizes that mandatory minimum penalties are only one of the factors that have contributed to the increased capacity and cost of inmates in federal custody (an increase in immigration cases is another), the Commission recommends that Congress request prison impact analyses from the Commission as early as possible in the legislative process when Congress considers enacting or amending federal criminal penalties.”
The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory. The comprehensive report contains the most up-to-date data and findings on federal sentencing and the application of mandatory minimum penalties compiled since the Commission released its 1991 report. The Commission reviewed 73,239 cases from fiscal year 2010 as well as its data sets from previous fiscal years to conduct the data analyses in the report and support the findings and conclusions set forth.
Here are some of the report's key findings that are noted in the press release (with my emphasis added to spotlight data I found especially interesting and important):
- More than 27 percent of offenders included in the pool were convicted of an offense carrying a mandatory minimum penalty.
- More than 75 percent of those offenders convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense.
- Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by Black offenders (31.5%), White offenders (27.4%), and Other Race offenders (2.7%).
- Almost half (46.7%) of all offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such penalty at sentencing for assisting the government, qualifying for “safety valve” relief, or both.
- Black offenders received relief from a mandatory minimum penalty least often (in 34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other Race (58.9%) offenders. In particular, Black offenders qualified for relief under the safety valve at the lowest rate of any other racial group (11.1%), compared to White (26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their criminal history or the involvement of a dangerous weapon in connection with the offense.
- Receiving relief from a mandatory minimum penalty made a significant difference in the sentence ultimately imposed. Offenders subject to a mandatory minimum penalty at sentencing received an average sentence of 139 months, compared to an average sentence of 63 months for those offenders who received relief from a mandatory minimum penalty.
The full 645-page(!) report is linked from this USSC webpage, and a 25-page executive summary is available at this link. Lots and lots of posts about this report and the mass amount of data and analysis it reflects will follow through the days and weeks ahead.
October 31, 2011 in Detailed sentencing data, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10) | TrackBack
Pam Karlan notes "The Cost of Death" for SCOTUS and the legal profession
Professor Pam Karlan has this notable new commentary in the Boston Review on "The Cost of Death" that puts an extra little spin on the arguments concerning the extraordinary resources spent (and arguably wasted) on capital cases in the United States. Here are excerpts:
Samuel Johnson famously remarked, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” But precisely because it so concentrates the public mind, capital punishment has distorted the criminal justice system. Over the past 40 years, while the Supreme Court has been “tinker[ing] with the machinery of death,” in Justice Harry Blackmun’s haunting phrase, other components of the system have broken down untended....
The [Supreme] Court’s rules single out capital cases for special treatment, directing that the notation “CAPITAL CASE” appear at the beginning of any such request for review and mandating that the government, which often waives its right to reply, file a response. The clerk’s office has a special staff attorney charged with overseeing the voluminous, often last-minute filings in death penalty cases. The justices and their law clerks often scrutinize the filings with great care. The bar has also responded: death row inmates typically receive superb legal assistance before the Supreme Court. Former Bush Administration Solicitor General Gregory Garre is now representing [Cory] Maples. Current Solicitor General Donald Verrilli previously represented several death row inmates pro bono before the Court.
But the concentration on capital cases comes at a cost. Ineffective trial lawyers, inconclusive evidence, inconsistent testimony, and impenetrable procedural thickets are hardly unique to capital cases. Nonetheless, the Court is far less likely to pay attention to these claims when the consequences to the defendant seem less harsh.... And while the Court has repeatedly considered whether a death sentence is proportionate to a particular class of crimes —for example, barring death sentences for non-homicide offenses or for juvenile or mentally retarded defendants — it has set virtually no limits on the severity of prison sentences. In the 40 years that the Court has been actively policing capital punishment, prison sentences have lengthened and the U.S. prison population has skyrocketed. With execution at the top end of the scale of punishment, a life sentence begins to look something like leniency, and other sentences are inflated in turn.
Capital cases also consume thousands of hours of legal services from some of the finest legal minds in America. The time those lawyers spend challenging death sentences of inmates whose guilt is not seriously in doubt could be spent preventing and remedying wrongful convictions, ensuring that all defendants receive prompt appointment of competent counsel, and attacking draconian prison conditions, not to mention providing civil justice to poor and disenfranchised people. But as long as the death penalty is with us, superb and committed lawyers at organizations such as the Southern Center for Human Rights, the Equal Justice Initiative, and the NAACP Legal Defense and Educational Fund will find themselves defending the lives of a few while the lives of many others continue to be ruined by pervasive flaws in our criminal justice system.
Regular readers know I have great affinity for the sorts of points that Professor Karlan is making here (and I am grateful she notes my work in a portion of this commentary I have not quoted). Regular readers also know that I express my concerns by often urging SCOTUS and others int he legal profession to try to avoid getting too obssessed with and/or distracted by capital cases. Of course, Professor Karlan is urging the most direct route to ensuring American lawyers stop too obssessed with and/or distracted by capital cases — namely, that through legislative repeal, we collectively stop having any American capital cases.
Split Eighth Circuit affirms reasonableness of 48-year sentence for juve who pleaded to second-degree murder
An interesting (and unusual) reasonableness appeal produced an interesting split of opinion today in US v. Boneshirt, No. 10-3108 (8th Cir. Oct. 31, 2011) (available here). Here are snippets from the relatively lengthy majority opinion authored by Judge Smith:
Brian Boneshirt pleaded guilty, pursuant to a written plea agreement, to one count of second degree murder, in violation of 18 U.S.C. §§ 1153 and 1111. The district court sentenced him to 576 months' imprisonment. On appeal, Boneshirt challenges the substantive reasonableness of his sentence. We affirm....
In his sentencing memorandum, Boneshirt objected to the allegation that he had participated in a plan to escape from jail. He also objected to the PSR's denial of the reduction for acceptance of responsibility and application of the enhancement for obstruction of justice. In addition, Boneshirt argued that the court should impose a below-Guidelines sentence in light of the 18 U.S.C. § 3553(a) factors. Specifically, he argued for leniency based on his youth and intoxicated state at the time of the offense, his difficult childhood, and his alcohol-related neurodevelopmental disorder....
After a careful review of the sentencing record, we conclude that the district court did not abuse its discretion in sentencing Boneshirt to 576 months' imprisonment. Both the sentencing hearing transcript and the court's statement of reasons explaining its sentence demonstrate that the court considered all of Boneshirt's arguments and the § 3553(a) factors, ultimately imposing the sentence based on the "nature of the offense, the nature of post-offense conduct, and the need to protect society from Mr. Boneshirt."...
In sum, the record indicates that, over the course of a six-hour sentencing hearing, the district court thoroughly considered all of Boneshirt's arguments, the facts, and the law in attempting to fashion an appropriate sentence. The resulting sentence is harsh but is within the calculated Guidelines range and hence may be considered presumptively reasonable. Frausto, 636 F.3d at 997. Presumptively reasonable, however, does not mean unassailable. Yet this record is lacking in a demonstration of sentencing error on the part of the district court. Many reasonable minds may have imposed a lesser sentence, but we conclude that the district court did not abuse its discretion and impose an unreasonable sentence by selecting a high but within-Guidelines sentence for a homicide offense.
Here is a passage from the relatively lengthy partial dissent authored by Judge Bright:
Boneshirt's forty-eight-year sentence is substantively unreasonable because the district court unreasonably weighed the facts at issue in the case. The district court failed to give proper weight to the fact that Boneshirt was a juvenile when he committed the crime, especially when his age is considered with his background and upbringing. And further, the district court’s sentence placed too much weight on a plan to escape by Boneshirt when he was pending sentencing.
Split SCOTUS summary reversal in California shaken-baby case involving sufficiency and habeas review
The Supreme Court this morning issued a summary reversal in Cavacos v. Smith, No. 10–1115 (S. Ct. Oct. 31, 2011) (available here), which starts and ends this way:
The opinion of the Court in Jackson v. Virginia, 443 U. S. 307 (1979), makes clear that it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was “objectively unreasonable.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5) (internal quotation marks omitted).
Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold. The Court of Appeals in this case substituted its judgment for that of a California jury on the question whether the prosecution’s or the defense’s expert witnesses more persuasively explained the cause of a death. For this reason, certiorari is granted and the judgment of the Court of Appeals is reversed....
It is said that Smith, who already has served years in prison, has been punished enough, and that she poses no danger to society. These or other considerations perhaps would be grounds to seek clemency, a prerogative granted to executive authorities to help ensure that justice is tempered by mercy. It is not clear to the Court whether this process has been invoked, or, if so, what its course has been. It is not for the Judicial Branch to determine the standards for this discretion. If the clemency power is exercised in either too generous or too stingy a way, that calls for political correctives, not judicial intervention.
The decision below cannot be allowed to stand. This Court vacated and remanded this judgment twice before, calling the panel’s attention to this Court’s opinions highlighting the necessity of deference to state courts in §2254(d) habeas cases. Each time the panel persisted in its course, reinstating its judgment without seriously confronting the significance of the cases called to its attention. See Patrick v. Smith, 550 U. S. 915 (vacating and remanding in light of Carey v. Musladin, 549 U. S. 70 (2006)), reinstated on remand, 508 F. 3d 1256 (2007) (per curiam); 558 U. S. ___ (2010) (vacating and remanding in light of McDaniel v. Brown, 558 U. S. ___ (2010) (per curiam)), reinstated on remand sub nom. Smith v. Mitchell, 624 F. 3d 1235 (2010) (per curiam). Its refusal to do so necessitates this Court’s action today.
A lenthy dissent authored by Justice Ginsburg and joined by Justice Breyer and Sotomayor starts and ends this way:
The Court’s summary disposition of this case, in my judgment, is a misuse of discretion. I set out below my reasons for concluding that discretion, soundly exercised, would have occasioned denial of California’s petition for review...
In sum, this is a notably fact-bound case in which the Court of Appeals unquestionably stated the correct rule of law. It is thus “the type of case in which we are most inclined to deny certiorari.” Kyles v. Whitley, 514 U. S. 419, 460 (1995) (SCALIA, J., dissenting). Nevertheless, the Court is bent on rebuking the Ninth Circuit for what it conceives to be defiance of our prior remands. See ante, at 8. I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.
But even if granting review qualified as a proper exer cise of our discretionary authority, I would resist summary reversal of the Court of Appeals’ decision. The fact intensive character of the case calls for attentive review of the record, including a trial transcript that runs over 1,500 pages. Careful inspection of the record would be aided by the adversarial presentation that full briefing and argument afford. See, e.g., R. Fallon, J. Manning, D. Meltzer, D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1480 (6th ed. 2009) (posing question whether summary reversal would “smack of unfairness to the losing party unless an opportunity were afforded for the filing of briefs on the merits”); Gressman, Supreme Court Practice §6.12(c), p. 417, and n. 46 (questioning the Court’s reliance on its own examination of the record in summarily reversing, without at least affording the parties, “particularly the respondent,” an opportunity to brief the critical issue and identify the relevant portions of the record). Peremptory disposition, in my judgment, is all the more inappropriate given the grave consequences of upsetting the judgment below: Smith, who has already served ten years, will be returned to prison to complete a sentence of fifteen years to life. Before depriving Smith of the liberty she currently enjoys, and her family of her care, I would at least afford her a full opportunity to de fend her release from a decade’s incarceration.
For some back-story on this remarkable case, check out this Los Angeles Times piece from last year headlined "A pawn in a legal chess match: Shirley Ree Smith spent 10 years behind bars for the death of her grandson before her conviction was overturned. Now she waits on skid row as the courts sort out whether a jury's verdict — even if wrong — must prevail."
Scary hard cases confronting bad plea advice, prejudice and Sixth Amendment remedies
As previously noted in this week in preview, this morning the US Supreme Court will hear arguments in Lafler v. Cooper (10-209) and Missouri v. Frye (10-444), two cases dealing with claims of ineffective assistance of defense lawyer for advice to reject a plea offer and either plead guilty or go to trial. Here are some effective previews from effective court reports:
- From SCOTUSblog here, "Argument preview: Remedy for ineffective assistance of counsel during plea bargaining?"
- From NPR here, "Cases Tied To Dubious Legal Advice Reach High Court"
- From the New York Times here, "Supreme Court to Weigh Effects of Bad Plea Advice"
Because 95% of all criminal convictions are obtained through plea deals (and because plea offers are usually proposed even in this 5% of cases resulting in convictions via trials), these cases have the potential to be blockbusters both as to of the number of past and future cases they could impact and also as to the future direction of the Sixth Amendment and constitutional regulation of the plea bargaining process. And, as the title of this post and the SCOTUSblog preview spotlights, these cases raise super-hard issues of prejudice and remedies that were conveniently dodged in Padilla v. Kentucky, the major Sixth Amendment plea advice ruling last year.
Especially because Chief Justice Roberts and Justices Alito, Sotomayor, and Kagan are relatively new voices and seem to be relatively uncertain votes on these hard issues of modern criminal procedure, I am going to be especially interested in reviewing the transcripts in Lafler and Frye to see how they all engage with this issue at oral argument today.
Trick or Treat?: What will new USSC report on mandatory minimums say and advocate?
Among the exciting activities I have planned for today, the last day of October, is to start reading the US Sentencing Commission's new report to Congress discussing mandatory minimum sentencing statutes in the federal sentencing system. This report has been in the works for two years, and is expected to be released later today.
According to Judge Patti Saris, the Chair of the US Sentencing Commission whom I had the pleasure to hear speak at an event in Ohio on Friday, this report is going to run more than 600 pages. Judge Saris also indicated that the report will assert that some mandatory minimum sentencing statutes apply too broadly and are too severe. But she also suggested that the report will not categorically assert that all mandatory minimum sentencing provisions are bad policy in all circumstances.
Remarkably, it has been more than two decades since the USSC issued a report to Congress on mandatory minimum sentencing. Way back in August 1991, the USSC produced this important document, titled "Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System," which reached these important conclusions:
Despite the expectation that mandatory minimum sentences would be applied to all cases that meet the statutory criteria of eligibility, the available data suggest that this is not the case. This lack of uniform application creates unwarranted disparity in sentencing, and compromises the potential for the guidelines sentencing system to reduce disparity....
In 35 percent of cases in which available data strongly suggest that the defendant's behavior warrants a sentence under a mandatory minimum statute, defendants plead guilty to offenses carrying non-mandatory minimum or reduced mandatory minimum provisions. Since the charging and plea negotiation processes are neither open to public review nor generally reviewable by the courts, the honesty and truth in sentencing intended by the guidelines system is compromised....
The disparate application of mandatory minimum sentences in cases in which available data strongly suggest that a mandatory minimum is applicable appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum; and to the circuit in which the defendant happens to be sentenced, where defendants sentenced in some circuits are more likely to be sentenced below the applicable mandatory minimums than defendants sentenced in other circuits. This differential application on the basis of race and circuit reflects the very kind of disparity and discrimination the Sentencing Reform Act, through a system of guidelines, was designed to reduce.
Whereas the structure of the federal sentencing guidelines differentiates defendants convicted of the same offense by a variety of aggravating and mitigating factors, the consideration of which is meant to provide just punishment and proportional sentences, the structure of mandatory minimums lacks these distinguishing characteristics. Under the guidelines, offenders classified as similar receive similar sentences; under mandatory minimums, offenders seemingly not similar nonetheless receive similar sentences. It thus appears that an unintended effect of mandatory minimums is unwarranted sentencing uniformity.
Our analyses indicate that the guidelines system established by Congress, because of its ability to accommodate the vast array of relevant offense/offender characteristics, and its self-correcting potential, is superior to the mandatory minimum approach.... Accordingly, we conclude that the most efficient and effective way for Congress to exercise its powers to direct sentencing policy is through the established process of sentencing guidelines, permitting the sophistication of the guidelines structure to work, rather than through mandatory minimums. There is every reason to expect that by so doing, Congress can achieve the purposes of mandatory minimums while not compromising other goals to which it is simultaneously committed.
Of course, in 1991 the federal sentencing guidelines were mandatory; now they are advisory. Nevertheless, I do not think this change in the formal legal status of the guidelines should radically change the themes and prescriptions concerning mandatory minimum statutes that the USSC set forth 20 years ago. It will be interesting to just how the new MM report echoes or revises some of the conclusions stated the last time around.
October 31, 2011 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack
October 30, 2011
Big coming week for sentencing geeks (like me)
This new week has so many events for which I have marked my calender, I am getting a bit concerned I might have a sentencing geek break-down before the week is through. Of particular note (as I will discuss in a subsequent post), I have on lots of good authority that the US Sentencing Commission on Monday will be releasing its long-awaited (and apparently 600+ page long) report to Congress on federal mandatory minimums. And, the next day, November 1, marks the day the new guideline revisions go into effect and the new reduced crack guideline become officially retroactive.
Meanwhile, as well detailed in this new SCOTUSblog post, a number of important criminal justice cases are to be argued before SCOTUS this coming week. Here is the schedule via that post:
Monday, Oct 31:
Lafler v. Cooper (10-209) — claim of ineffective assistance of defense lawyer for advice to reject a plea offer and either plead guilty or go to trial (new question on remedy added by the Court)
Missouri v. Frye (10-444) — issues parallel to those in Lafler; the cases are being argued in tandem by order of the Court
Tuesday, Nov. 1:
Rehberg v. Paulk (10-788) — scope of immunity for government official who initiates a criminal case then testifies falsely to a grand jury
Minneci v. Pollard (10-1104) — right to sue for damages for constitutional violations by private employees working for the government under contract
Wednesday, Nov. 2:
Perry v. New Hampshire (10-8974) — challenge to use of questionable eyewitness identification as criminal evidence
Gonzalez v. Thaler (10-895) — timing for appeal in federal habeas case after state conviction has become final
Is Mountain Dew really a lot more dangerous than mary jane?
The provocative question in the title of this post is prompted by provocative new research appearing in this forthcoming article due to be published in the peer-reviewed journal Injury Prevention. (Many thanks to a kind reader for forwarding to me the link to this piece.) The article carries the title "The ‘Twinkie Defense’: the relationship between carbonated non-diet soft drinks and violence perpetration among Boston high school students." Here is the abstract:
Objectives: To investigate the association of carbonated non-diet soft drink consumption and violence perpetration in a sample of Boston adolescents.
Methods: In a survey of Boston public high schools, respondents were asked how often they drank non-diet soft drinks and whether they had carried a weapon or engaged in physical violence with a peer. Regression analysis was used to determine the role of soft drink consumption in these behaviours.
Results: Adolescents who drank more than five cans of soft drinks per week (nearly 30% of the sample) were significantly more likely to have carried a weapon and to have been violent with peers, family members and dates (p<0.01 for carrying a weapon and p<0.001 for the three violence measures). Frequent soft drink consumption was associated with a 9–15% point increase in the probability of engaging in aggressive actions, even after controlling for gender, age, race, body mass index, typical sleep patterns, tobacco use, alcohol use and having family dinners.
Conclusions: There was a significant and strong association between soft drinks and violence. There may be a direct cause-and-effect relationship, perhaps due to the sugar or caffeine content of soft drinks, or there may be other factors, unaccounted for in our analyses, that cause both high soft drink consumption and aggression.
I do not recall having ever seen behavioral research that shows a "significant and strong association" between pot consumption (as opposed to pot sales) and violent behavior. That is why my post title seriously wonders whether those seriously concerned about reducing violent crime ought to be perhaps more interested in pop prohibition than pot prohibition.
At the very least, this research indicating a "significant and strong association between soft drinks and violence" could and should (1) provide some additional support for a "soda tax" added to all drinks with high sugar and caffeine content, and (2) prompt anyone who has previously criticized Michelle Obama's healthy eating campaign to recognize there could be important connections between reducing unhealthy consumption by young people and reducing violent behavior by young people.
UPDATE: A helpful reader points me to this 2004 Rand working paper on marijuana and crime, which reviews some prior research on pot and crime and makes lots of interesting additional points. Here was one notable portion of the Rand discussion:
Overall the findings from the reduced form models would suggest that marijuana use is positively associated with property and income-producing crimes and that no causal association exists between marijuana use and violent crime.
Another Texas execution and still another Texas pre-execution innocence debate
While I was on the road the last few days, two notable Texas death penalty stories made these headlines:
- From CNN, "Man convicted of killing cop, wife put to death in Texas"
- From the AP, "Prosecutors, lawmakers ask Perry, others for DNA tests for inmate before November execution"
I cannot help but speculate about how Texas Governor Rick Perry's recent drop in the GOP presidential polls might impact how he responds in the days ahead to the request for DNA testing by death row inmate Hank Skinner, who is now scheduled to be executed on November 9 for the 1993 killing of his girlfriend and her two sons. I suspect an effort by Perry to enable DNA testing might get him lots of good (liberal?) media attention, but that will not obviously help his cause (and could even hurt him) in the minds of GOP primary voters.
I think if Gov. Perry was slick and politically shrewd, he might try to make the Skinner case a topic of considerable attention in an effort to force his rivals like Mitt Romney and Herman Cain to speak on the death penalty. Gov. Perry has a record on death penalty issues that, when considered in total, should warm the hearts of most GOP voters, while Romney and Cain might make some political blunders if forced to talk about these kinds of issues at some length.
Sentencing Mad Max finally able to say thanks
After a whirlwind sentencing road warrior three days which included three amazing sentencing get-togethers in three different locations (in three different federal circuits), I am finally back at my home office with a few free moments that finally allow me to say a hearty thanks to all the amazing people who helped put together three amazingly effective and engaging events. My head is still swimming with all that I learned at each of the events; I am also still giddy not only about victories by the Cards and the Buckeyes while I was a road warrior, but also about the fact that I was able to get out of Philly and home to Ohio in the midst of the October(!?!) snowstorm that has hit the East Coast this weekend.
So much happened at each of the events — and so many people were responsible for treating me so well — that I am certain I will not be able to effectively blog about everything worthy of commentary nor will I be able to adequately thank and congratulate all the lovely people responsible for my terrific experiences. I can here report, however, something that ought to especially intrigue regular blog readers: for the very first time, I finally met the man behind Supremacy Claus in person (at the Penn Law Review event on Saturday)!