March 12, 2012
En banc Ninth Circuit finds Millennium Bomber sentence substantively unreasonable
Because I am on the road, I only have time to note without comment until later this big Ninth Circuit en banc ruling in US v. Ressam, which starts this way:
The government appeals the sentence imposed by the district court upon Ahmed Ressam, the so-called “Millennium Bomber,” as substantively unreasonable. We review a challenge of that nature under what the Supreme Court has described as “the familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).
Ressam was convicted by a jury on nine counts of criminal activity1 in connection with his plot to carry out an attack against the United States by detonating explosives at the Los Angeles International Airport, commonly known and referred to by its airport code “LAX.” His plan was for the attack to occur on the eve of the new millennium, December 31, 1999. The advisory Sentencing Guidelines imprisonment range for Ressam’s convictions was calculated by the district court to be 65 years to life. That calculation has not been challenged by either party. The district court sentenced Ressam to a term of imprisonment of 22 years, plus five years of supervised release.
Upon our review of the record, we have a definite and firm conviction that the district court committed a clear error of judgment in sentencing Ressam as it did. As a result, we conclude that the sentence imposed by the district court was substantively unreasonable. We vacate the sentence and remand the case to the district court for resentencing.
The full opinion (which includes a concurrence and a dissent) runs 73 pages and is likely to justify future posts once I am back at my desk.
March 12, 2012 in Booker in the Circuits, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Taking stock of Michigan's interests in JLWOP issues before SCOTUS
A week from tomorrow, the US Supreme Court will hear oral argument in Jackson v. Hobbs and Miller v. Alabama, two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole. As I have said before, all the primary briefing and amicus briefing in Jackson (linked here) and Miller (linked here) suggest that many SCOTUS Justices are likely to find these cases quite vexing in the wake of their Eighth Amendment work in Roper and Graham.
And, as a new series of articles appearing in local papers, there are many states beyond these involved in the prosecutions before SCOTUS that will be following these cases very closely. In particular, as this article from Michigan highlights, a few states that never before had to worry much about the Supreme Court's Eighth Amendment jurisprudence might have its criminal justice world rocked by Jackson and Miller. The article appears to be the first in a week-long series gearing up for the SCOTUS arguments, and it is headlined "Judgment Day for Michigan's juvenile lifers: The U.S. Supreme Court considers banning life without parole for minors." Here are some excerpts:
He was 14 years, 11 months and 1 day old. That night TJ Tremble rode his bike to the home of Peter and Ruth Stanley. He had the .22-caliber rifle given him by his dad. He had alcohol in his belly, some also from his dad. And, police say, he had murder on his mind.
Before daylight, the Michigan youth would be behind bars for the rest of his life. Or maybe not. Next week, the U.S. Supreme Court will hear arguments on whether mandatory life sentences are too cruel for anyone so young. It will be exactly 14 years, 11 months and 1 day since Tremble got on his bike.
Now 29, is it possible he has changed in the second half of his life, or that he can change with more time? Should he at least have the consideration to one day walk free? Or does death make it different?
In a state with more “juvenile lifers” than almost any other, the answers will resonate throughout Michigan as the high court addresses this: Are life sentences, without any chance of parole, unconstitutional even for juveniles who commit unthinkable crimes? If the court’s earlier rulings are an indication, the answers could be yes....
An MLive Media Group investigation last November detailed how mandatory sentencing laws and get-tough reforms propelled Michigan near the top of the nation in juvenile lifers. Only Pennsylvania has more.
Nearly two dozen inmates were profiled. Several had not committed the killing, but were present. Sometimes the accomplices got more time than the killer, a quirk of mandatory sentencing laws, rejected pleas and juries.
In the midst of the series, the Supreme Court announced it would consider whether juveniles are too impulsive, their brains too underdeveloped, their remaining lives too long to receive the same sentences as adults in death cases.
This story, and stories to come this week, are meant to explore what that could mean for Michigan. At present, 359 inmates are serving life in the state for crimes committed as minors, one out of seven nationally, according to MLive’s updated analysis. The number was one higher until last month, when a prisoner from Kalamazoo was resentenced to a parolable term -- 33 years after he fled a grocery store robbery. His partner stayed behind and killed the owner.
Six of Michigan’s 359 were 14 at the time of their crime -- the same as two inmates whose cases are being considered by the Supreme Court....
The nation’s youngest lifers are small compared to the 2,500 overall. Seventy-three were 14 and 13 at the time of their crimes, according to Supreme Court filings. The six serving time in Michigan for crimes as 14-year-olds are all males, as are most of the state’s juvenile lifers. Unlike others, they are equally split between blacks and whites, and rural and urban backgrounds.
That’s contrary to the state’s juvenile lifer population overall: 69 percent black and largely from urban areas, according to MLive’s analysis. Most were 17 at the time of their crime, but 45 percent were 16 and younger. Wayne County sentenced the most, 41 percent, followed well back by Oakland, Genesee, Kent and Saginaw counties.
Of the class of 14-year-old lifers, all were sentenced after Jan. 1, 1997. That’s when the age group was added to those who prosecutors could automatically try as adults for serious crimes.
Some recent related posts on Jackson and Miller cases:
- Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!
- Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
- Briefs available, and jurisprudential challenges clear, in Jackson and Miller JLWOP cases
- Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller
- "Graham on the Ground"
- Does Graham create constitutional problems for juve LWOP for murder accomplice?
- "Teen killers get inconsistent sentences"
- "The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"
- "Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"
- Great early commentary on SCOTUS taking "Another Bite at the Graham Cracker"
- "The Lives of Juvenile Lifers: Findings from a National Survey"
- Lengthy new New Yorker piece on juve LWOP and 14-year-old Michigan murderer
Making the case for the use of the federal death penalty
Long-time readers may recall that I believe there are some uniquely strong arguments for use of the death penalty in extreme cases by the federal criminal justice system. I am thus intrigued and pleased to see this new piece on SSRN by Michele Martinez Campbell, which is titled "Federalism and Capital Punishment: New England Stories." Here is the abstract:
Application of the federal death penalty to crimes committed in states that have abolished capital punishment is a tiny problem with a disproportionately powerful scholarly impact. Federal death sentences represent only 0.53% of death sentences imposed in the United States. Even more striking, only six individuals, out of 3,242 on death row nationwide, currently await execution on federal capital charges for crimes committed in states that have abolished capital punishment. Yet, in an era of alarmism over the federal government’s role in enforcing criminal laws, an increasing body of scholarly literature has focused on the federalism concerns posed by this rare capital punishment practice. Overwhelmingly, scholars have argued that federal death sentences should be constitutionally impermissible for crimes committed within the borders of abolitionist states strictly on federalism grounds.
This Article examines the prevailing scholarly view that federalism concerns trump Supremacy Clause arguments and render the federal death penalty unconstitutional when applied within the boundaries of abolitionist states and offers a different view. It argues that, contrary to prevailing scholarly wisdom, courts have correctly permitted the federal government to dictate its own sentencing practices given prevailing Supremacy Clause precedent; and moreover that there are two major policy advantages in having federal authorities bring capital charges when particularly egregious cases arise in abolitionist states. First, federal capital prosecution can serve as a “safety valve,” insulating local communities from political pressures that might otherwise lead to more widespread application of capital punishment or derail state abolitionist movements. And second, federal capital charges provide opportunities for uniformity of application that may address longstanding concerns regarding racial inequities in the imposition of death sentences.
Recent and older related posts:
- The federalization of the death penalty
- More support for an exclusively federal death penalty
- Context-free ruminations on the federal death penalty
- Debating the death penalty as bargaining chip
- Research on capital punishment's impact on plea deals
- Another example of the death penalty as an effective plea bargaining tool
- Great new (though still dated) examination of the death penalty and plea bargaining
- A poster child for the (federal) death penalty?
- The federal law gap in the NJ death penalty report
- The federal death penalty in America's paradise
- The federal death penalty in NY and elsewhere
- Ashcroft's death penalty "legacy"
- Wondering about the state and fate of the federal death penalty
- "Cruel and Unusual Federal Punishments"
- Split Sixth Circuit reverses federal death sentence on interesting grounds
- "The Racial Geography of the Federal Death Penalty"
- Federal prosecutor in Western NY (wisely?) recommending lots of capital prosecutions
March 11, 2012
Could and should defendants and their attorneys seek to "crash" justice system by demanding trials?
The question in the title of this post is prompted by this provocative opinion piece by my colleague Michelle Alexander, which appears in today's New York Times. The piece is headlined "Go to Trial: Crash the Justice System," and here are excerpts:
After years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”
The woman was Susan Burton, who knows a lot about being processed through the criminal justice system....
I was stunned by Susan’s question about plea bargains because she — of all people — knows the risks involved in forcing prosecutors to make cases against people who have been charged with crimes. Could she be serious about organizing people, on a large scale, to refuse to plea-bargain when charged with a crime? “Yes, I’m serious,” she flatly replied.
I launched, predictably, into a lecture about what prosecutors would do to people if they actually tried to stand up for their rights. The Bill of Rights guarantees the accused basic safeguards, including the right to be informed of charges against them, to an impartial, fair and speedy jury trial, to cross-examine witnesses and to the assistance of counsel.
But in this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.
“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.
In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.
The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment.
No wonder, then, that most people waive their rights....
On the phone, Susan said she knew exactly what was involved in asking people who have been charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?”
The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”
Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.
In telling Susan that she was right, I found myself uneasy. “As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children,” I said. “I truly can’t imagine risking life imprisonment, so how can I urge others to take that risk — even if it would send shock waves through a fundamentally immoral and unjust system?”
Susan, silent for a while, replied: “I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”
"States reject offer to buy prisons: Trend moving away from once-popular privatization"
The title of this post is the headline of this notable new AP article, which includes these excerpts:
The nation’s largest private prison company made an enticing offer to 48 states that went something like this: We will buy your prison now if you agree to keep it mostly full and promise to pay us for running it over the next two decades. Despite a need for cash, several states immediately slammed the door on the offer, a sign that privatizing prisons might not be as popular as it once was.
Corrections Corporation of America sent letters to the prison leaders in January, saying it had a pot of $250 million to buy facilities as part of an investment. The company is trying to capitalize on the landmark deal it made with Ohio in the fall by purchasing a facility, the first state prison in the nation to be sold to a private firm.
Prison departments in California, Texas and Georgia all dismissed the idea. Florida’s prison system said it doesn’t have the authority to make that kind of decision and officials in CCA’s home state of Tennessee said they aren’t reviewing the proposal. The states refused to say exactly why they were rejecting the offer....
Critics of private prisons called the offer a backdoor way to delay the sentencing reform movements that have sprung up in many states looking to cut prison budgets. Lawmakers in many conservative states that once eagerly passed tough-on-crime laws are now embracing alternative sentences for low-level offenders who would otherwise be locked up.
CCA said selling a prison to a private firm doesn’t block states from pursuing sentencing reform. The company also said it was still too early to say whether any state would take them up on the bid. “It was an outreach letter making them aware of these offers, it’s yet another tool in the toolbox,” said company spokesman Steve Owen. “We can design and build and own facilities from scratch or manage government facilities, but this is a third business model.”...
The private prison industry boomed in the late 1980s and 1990s as states sought cheaper ways to jail people and voters began resisting building more prisons. But efforts to privatize prisons have become highly-charged political debates in many states, partly because a sale often requires legislative approval by the governor.
In Louisiana, lawmakers last year defeated Gov. Bobby Jindal’s proposal to privatize and sell several state prisons to generate $90 million. Relatives of prison employees aggressively fought the move, fearing that they would get lower pay and less benefits working for a private firm. An effort to privatize a chunk of Florida’s prisons also met stiff opposition from lawmakers in February. They blocked what would have been the largest prison privatization in the U.S.
Reductions in "The Gray Box" another silver lining of lean corrections budgets
On the front-page of my New York Times today is this lengthy article headlined "Prisons Rethink Isolation, Saving Money, Lives and Sanity." The piece reinforces my sense that a down economy and lean budget times have had a number of positive impacts on criminal justice system, and here are excerpts:
The transformation of the Mississippi prison has become a focal point for a growing number of states that are rethinking the use of long-term isolation and re-evaluating how many inmates really require it, how long they should be kept there and how best to move them out. Colorado, Illinois, Maine, Ohio and Washington State have been taking steps to reduce the number of prisoners in long-term isolation; others have plans to do so. On Friday, officials in California announced a plan for policy changes that could result in fewer prisoners being sent to the state’s three super-maximum-security units.
The efforts represent an about-face to an approach that began three decades ago, when corrections departments — responding to increasing problems with prison gangs, stiffer sentencing policies that led to overcrowding and the “get tough on crime” demands of legislators — began removing ever larger numbers of inmates from the general population. They placed them in special prisons designed to house inmates in long-term isolation or in other types of segregation.
At least 25,000 prisoners — and probably tens of thousands more, criminal justice experts say — are still in solitary confinement in the United States. Some remain there for weeks or months; others for years or even decades. More inmates are held in solitary confinement here than in any other democratic nation, a fact highlighted in a United Nations report last week.
Humanitarian groups have long argued that solitary confinement has devastating psychological effects, but a central driver in the recent shift is economics. Segregation units can be two to three times as costly to build and, because of their extensive staffing requirements, to operate as conventional prisons are. They are an expense that many recession-plagued states can ill afford; Gov. Pat Quinn of Illinois announced plans late last month to close the state’s supermax prison for budgetary reasons.
Some officials have also been persuaded by research suggesting that isolation is vastly overused and that it does little to reduce overall prison violence. Inmates kept in such conditions, most of whom will eventually be released, may be more dangerous when they emerge, studies suggest.
Christopher B. Epps, Mississippi’s commissioner of corrections, said he found his own views changing as he fought an American Civil Liberties Union lawsuit over conditions in the prison, which one former inmate described as “hell, an insane asylum.”
Mr. Epps said he started out believing that difficult inmates should be locked down as tightly as possible, for as long as possible. “That was the culture, and I was part of it,” he said. By the end of the process, he saw things differently and ordered the changes. “If you treat people like animals, that’s exactly the way they’ll behave,” he now says.
Coincidentally, the Dart Society, which describes its mission as seeking "to connect and support journalists worldwide who advance the compassionate and ethical coverage of trauma, conflict and social injustice," has its Spring 2012 issue devoted to the topic of solitary confinement via a multimedia investigation titled "The Gray Box." The video and article in the series make a fitting and moving companion to this notable new piece from the New York Times.
Some recent and older related posts:
- "States start reducing solitary confinement to help budgets"
- Great NPR series on solitary confinement
- "Prolonged Solitary Confinement and the Constitution"
- More on Supermax, human dignity, and public safety
- Seventh Circuit ruling spotlighting Supermax realities
- Inaugural rhetoric about freedom and liberty in prison nation
- Why isn't there more constitutional litigation over the "hellhole" that is extended solitary confinement?
- My latest (academic?) musings about progressive punishment perspectives