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March 24, 2012

Perspectives on the import and impact of Lafler and Frye

23plea-graphic-articleInlineThe New York Times yesterday published this effective piece, headlined "Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals," discussing the Supreme Court's important rulings this week in the Sixth Amendment rulings Lafler and Frye. Here are excerpts:

For years, the nation’s highest court has devoted the majority of its criminal justice efforts to ensuring that defendants get a fair day in court and a fair sentence once a trial is concluded. But in two decisions on Wednesday, the Supreme Court tacitly acknowledged that it has been enforcing an image of the system that is very different from the real, workaday world inhabited by prosecutors and defense lawyers across the country.

In that world, 97 percent of federal cases and 94 percent of state cases end in plea bargains, with defendants pleading guilty in exchange for a lesser sentence.  Courtroom trials, the stuff of television dramas, almost never take place.

Ronald F. Wright, a professor of law at Wake Forest University, said that for generations plea bargains have been the rule rather than the exception, “and the Supreme Court has, until the last two or three years, found a way to ignore that.” Professor Wright likened the court’s decisions on Wednesday to “Rip Van Winkle waking up.  He looks around and says, ‘Wow, when I went to sleep the world was full of trials.’ ”...

Taken together, the rulings greatly expand the supervisory reach of judges to include plea bargaining, a process that has traditionally been conducted informally and with so little oversight that one law professor, Stephanos Bibas of the University of Pennsylvania, has compared it to a Turkish bazaar.

Reacting to the decisions, legal scholars on Thursday used words like “huge” and “bold” to describe them. “I can’t think of another decision that’s had any bigger impact than these two are going to have over the next few years,” Professor Wright said.  Perhaps how bold was reflected in the intensity of Justice Antonin Scalia’s scathing dissent, which excoriated the court for elevating the “necessary evil” of plea bargains into “a constitutional entitlement.”

But what legal experts seemed to agree on was that it was difficult to gauge what concrete effects the rulings would have on everyday legal practice.  Professor Bibas said that they would probably lead to a flurry of postconviction filings by people who believed their lawyers were at fault for their failure to get a better deal.  “But very few of them will succeed,” he said. “Courts are very good at tossing these cases out.”

The rulings, he added, might also result in requirements that plea offers be put in writing — something that Justice Kennedy noted was already the case in Arizona.  While many states require plea agreements to be written and presented before a judge, plea offers are often verbal and made in informal settings.

More significant, Professor Bibas said, was the symbolic importance of the court recognizing the need for closer monitoring of pretrial negotiations.  “I’m not a big fan of plea bargaining,” he said, “but the least we can do is to clean up the messy way it’s practiced.”

However, Nancy King, a law professor at Vanderbilt University, worried that the court’s rulings would distract states from more important issues.  “Ironically, by beefing up the resources devoted to postconviction litigation, the court may have actually made it more difficult for states to provide competent legal assistance to those indigent defendants who should never be convicted in the first place,” she said....

Steve Banks, attorney in chief for the Legal Aid Society in New York, noted that in 15 states, including New York, prosecutors are not required to turn over their evidence or witness lists to the defense until just before trial, making it difficult for defense lawyers to properly assess the merits of a plea offer.  “Now that the Supreme Court has said that you are entitled to effective assistance at the plea-bargaining stage of the case,” Mr. Banks said, “It’s hard to imagine how prosecutors in states like New York, with antiquated discovery statutes, can continue to withhold critical information.”

But one former prosecutor sided with Justice Scalia.  The implication of the decisions is that defendants should be rewarded with the lesser sentences afforded by plea bargains simply because “the squeezed economics of the system virtually demand that almost all cases be processed by watered-down negotiation rather than by trial,” said William G. Otis, a former c Appellate Division chief at the United States attorney’s office in the Eastern District of Virginia.  “That view of the system is perverse,” Mr. Otis said, “a virtual tip of the hat to cynicism sailing under the flag of practicality.”

Recent related posts:

March 24, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Vacated death sentence cuts number of women on federal death row in half

As reported in this AP piece, a ruling by a federal district judge earlier this week "removed one of the two women on federal death row Friday, saying lawyers for the Iowa woman convicted in the 1993 execution-style murders of five people failed to present evidence about her troubled mental state that could have spared her from capital punishment."  Here are the basic details from a mega-ruling:

In a 448-page ruling, U.S. District Judge Mark Bennett threw out Angela Johnson's death sentence, saying her defense lawyers were "alarmingly dysfunctional" during the 2005 trial that made her the first woman to be sentenced to death in the federal system since the U.S. Supreme Court reinstated the punishment in 1976....

Bennett's ruling doesn't throw out her convictions — he said evidence of her guilt was overwhelming. Johnson and boyfriend Dustin Honken committed the murders to thwart a federal investigation that threatened to end Honken's reign as one of the Midwest's largest methamphetamine kingpins, and buried the bodies to cover them up.

After separate trials, jurors sentenced Honken to death for the two children's murders while Johnson was sentenced to death on four counts.... The bodies of the victims — drug dealers-turned-government witnesses Terry DeGeus and Greg Nicholson; Nicholson's girlfriend, Lori Duncan; and Duncan's daughters, Kandi, 10, and Amber, 6 — were found in shallow graves near Mason City in 2000. They were discovered after Johnson, serving time on drug charges, sketched out a locator map to a jailhouse informant....

Bennett said that he understands his ruling will upset victims' families, but Johnson's defense was so riddled with missteps that her rights were violated. "I believe that I have done my duty, in light of what is required by the Constitution — the foundational document of our Nation's enduring freedoms, including the right not to be put to death when trial counsel's performance was so grossly constitutionally inadequate," he wrote.

During the penalty phase of Johnson's trial, Bennett said defense lawyers failed to present expert testimony about her mental health at the time of the murders that could have helped explain her involvement to jurors.  He said they should have presented evidence about the impact of serious brain impairments, personality disorders and her prior methamphetamine use.

Bennett said defense lawyers also failed to present evidence that could have undercut the prosecution's claim that she participated in DeGeus' killing out of revenge, because of their prior relationship's abusive nature.  He said they should have had experts argue she was suffering from battered woman's syndrome and wouldn't have wanted him dead....

Iowa does not have the death penalty, and Bennett said few lawyers in the state had expertise in capital punishment.  He said he tried to assemble "dream team" of lawyers for Johnson — including Alfred Willett, of Cedar Rapids; Patrick Berrigan of Kansas City, Mo.; and Dean Stowers of Des Moines — but they performed poorly. Willett and Berrigan didn't return messages Friday. Stowers agreed the defense team was dysfunctional. "I'm happy she's going to get a new shot at things because she deserves it," he said.

Bennett, appointed to the bench by President Bill Clinton, has acknowledged his personal opposition to the death penalty.  In a 2006 speech about the two capital murder cases, he said he set aside his personal beliefs in the interest of fairness.  But he added he had "grave concerns" the death penalty could be applied unfairly.

The full 448-page opinion, which concludes by noting that the defendant prevailed "on only four of the sixty-four grounds that she asserted," can be accessed via this link.

March 24, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Could the upcoming Roger Clemens retrial impact the upcoming MLB season?

The question in the title of this post is inspired in part by this recent story on MLB.com headlined "Pretrial motions filed in Clemens perjury case," and in part because I am about to spend the day thinking too much about the coming MLB season as I participate in my annual fantasy baseball team auction/draft.  Here are some basics, with a bit of sentencing spin:

Government prosecutors filed a number of pretrial motions Monday in preparation for the federal perjury trial of Roger Clemens, while the defense served notice it would not submit motions because any issues should have been resolved before the first attempt to try the former pitcher....

The retrial of Clemens will begin April 16 in Walton's courtroom at the U.S. District Court for the District of Columbia.... In the first attempt to try Clemens last July, Walton declared a mistrial on the second day of testimony after the government showed inadmissible evidence to the jury.

Prior to that attempt to try Clemens, Walton ruled on several issues via pretrial motions from both sides -- including one ruling that an affidavit from Andy Pettitte's wife, Laura, saying she'd heard her husband tell her that he'd discussed with Clemens using performance-enhancing drugs could not come into evidence unless the defense attempted to attack Andy Pettitte's credibility. It was after the prosecution allowed that evidence before the jury that Walton granted a defense motion for mistrial....

The government ... pointed out several issues brought out during the defense's opening statement that they now say should not be allowed in the retrial, including the mention of possible penalties Clemens is facing, the fact that none of his baseball heroes ever took performance-enhancing drugs and statements that Clemens had given speeches to children about staying away from performance-enhancing drugs.

In reference to the prosecution's request that the previous trial be inadmissible, the government wrote, "At best, references to the prior trial only could foster confusion and sympathy" and that the government "respectfully requests that any prior trial testimony introduced at trial be referenced as testimony from a 'prior proceeding' and that the Court bar all other references to the previous trial."

Baseball fans know that Andy Pettitte is trying a comeback with the NY Yankees, and I do think this trial can and will be a distraction to Pettitte and perhaps to some other players who have connections to Clemens and the steroid controversies.  I doubt this reality will impact my on-going fantasy auction/draft much, but one never knows.  (Also, as always, I welcome comments with suggested sleepers to help me fill out my fantasy roster.)

March 24, 2012 in Celebrity sentencings | Permalink | Comments (2) | TrackBack

"Battling Collateral Consequences: The Long Road to Redemption"

The title of this post is the title of this new and timely article by Joann Sahl, which is available via SSRN.  Here is the abstract:

Mississippi Governor Haley Barbour issued 193 controversial pardons on January 10, 2012, his last day in office. Former Ohio Governor Ted Strickland, who left office in January 2011, also faced criticism when he granted 280 pardons.  Both governors publicly acknowledged that they granted most of their pardons to rehabilitated ex-offenders who sought to overcome the civil consequences of their criminal convictions.  These consequences, known as collateral consequences, impede the ability of millions of ex-offenders to find employment, housing or other important benefits.

This Article explores the increasingly important, but controversial, role that governors play in the battleground of collateral consequences.  Their use of their redemptive pardon power has become critical to ex-offenders to overcome the collateral consequences of their convictions so they may reintegrate into society.  This Article examines the redemptive pardon process through the lens of two ex-offenders who made the journey from conviction to pardon.  As their stories reveal, the pardon process is long and arduous.  This Article recommends that governors adopt an expedited process for redemptive pardons so ex-offenders may have more timely relief from the burden of their collateral consequences.

The redemptive pardon serves an important role for ex-offenders who seek a second chance, but it is impossible for governors to consider and to grant the pardon applications of millions of ex-offenders. States must offer other remedies to ex-offenders that can also serve to ameliorate the impact of collateral consequences.  This Article recommends changes to judicial expungement statutes, using Ohio as a model, to offer this needed relief.

The redemptive pardon and judicial expungement process will help ex-offenders in their ongoing struggle with the collateral consequences of their convictions, but true relief can only occur if there is an end to collateral consequences.  This Article urges states to abolish collateral consequences and it highlights Ohio’s efforts as a model for this change.

March 24, 2012 in Clemency and Pardons, Collateral consequences, Who Sentences? | Permalink | Comments (1) | TrackBack

March 23, 2012

The Machinery of Criminal Justice #3: Hiding Punishment Behind Prison Walls

[Stephanos Bibas, guest-blogging]

In my last two guest-blog posts on my new book, The Machinery of Criminal Justice, I described a couple of the key features of colonial-era punishments: the room they left for showing mercy and for reintegrating defendants after they were punished. Now I'll start to describe a couple of key changes that happened in the nineteenth century with the shift to imprisonment as the dominant punishment. In this post I'll focus on how prison hid punishment from public view.

An ideological change led to the great prison experiment. Reformers no longer saw the roots of crime in weakness of free will or in the devil's temptations. Rather, they blamed wrongdoer's families, associates, and vice-filled cities for dragging wrongdoers down into crime. The solution seemed to be to remove them from their criminogenic environments and to instill new, law-abiding habits and discipline.

After a few failed experiments with hard labor in public or having the public come into prison to watch prisoners work, a newer vision took hold, starting in Philadelphia and New York. The Pennsylvania system kept each inmate in solitary confinement, separate from one another and in complete silence. If each man was kept in silence, with only a Bible as his companion, optimistic reformers believed that his inner light or reason would convict his conscience and lead him to repent and reform.

New York's Auburn prison was less austere, as inmates worked together in silence each day but slept alone at night. Both the Pennsylvania solitary system and the New York silent system involved at least some isolation, as well as almost military structure and discipline. Both had as their central aims to reform wrongdoers through structure, and in some cases through work.

These reformers were far too optimistic about human nature. Penitentiaries did not breed penitence but crime. Solitary confinement without work drove some inmates insane or to suicide and did not reform them. True solitary confinement also proved too costly and difficult. Crime kept rising, leading to double-bunking and more cells. Once prisoners talked and bunked together, prison became a school for crime, providing criminal networks and contacts.

Though prison had failed, few people could stomach going back to bloodier punishments, and there was no obvious alternative. Thus, prison has remained our default punishment for the last two centuries. Inertia triumphed. Prison bred everything from abusive guards to gang violence to rape, but these brutalities were out of sight and mind.

One of the biggest barriers to reentry was the prisons bred idleness, not job skills and responsibilities. Though at first work had been central to prison administrators' ambitions to reform inmates, prison labor dwindled between 1870 and 1940. The fatal blow was not humanitarian but economic, as labor unions and small businesses opposed potential competition and got Congress to outlaw interstate transportation or sale of prison-made goods, choking the market for prison labor.

Today, prisoners can work for private firms only at prevailing local wage rates. That requirement, on top of the added security costs in prison, makes prison labor uneconomical for private firms. Prisoners can instead produce goods for state governments' internal use, but that internal market is too small to keep most prisoners busy. As a result, only about 1/9 of state prisoners and 1/6 of federal prisoners work in an industry or farm. Far more waste their days in mind-numbing idleness, watching television or killing time.

March 23, 2012 in Criminal Sentences Alternatives, Guest blogging by Professor Stephanos Bibas, Prisons and prisoners | Permalink | Comments (6) | TrackBack

Should Florida's Gov have appointed a black (or Hispanic) prosecutor to take over the Trayvon Martin case?

AngelaCoreyI have not yet blogged about the (still-growing?) controversy over how Florida law and officials have been handling the high-profile shooting case that has been the subject of much media attention.  But, as the question in the title of this post reveals, I have a provocative query in the wake of the latest development in the case. This local story, headlined "Gov. Rick Scott appoints special prosecutor for Trayvon Martin case," provides some of the basics:

Under the glare of protests and the national media spotlight, the Sanford police chief and the Brevard-Seminole County prosecutor both stepped aside Thursday in the case of a neighborhood watch volunteer who fatally shot an unarmed black teenager. 

Gov. Rick Scott appointed Angela B. Corey, state attorney for the Jacksonville area, as special prosecutor to head the state investigation of the Feb. 26 slaying of Trayvon Martin, 17, of South Florida.  Scott also announced that a task force headed by Lt. Gov. Jennifer Carroll will study Florida's "stand your ground'' law.  The government's statement suggested that Brevard-Seminole State Attorney Norm Wolfinger was forced out....

George Zimmerman, 28, was the neighborhood watch captain at the Retreat at Twin Lakes, a townhouse complex in the small town north of Orlando.  A Hispanic former insurance agent with a history of reporting the presence of black men to police, Zimmerman shot Martin in the chest.


The killing came after Zimmerman called police saying he saw someone in a hoodie walking too slowly in the rain, peering at houses.  After the shooting, he told police he was attacked and fired in self-defense....


The Sanford Police Department is under fire for its handling of the investigation and for accepting the shooter's self-defense claim. Accused of lying to reporters and Trayvon's parents, protecting the shooter and ignoring key witnesses, Lee decided to step aside Thursday. His decision came a day after a 3-2 Sanford City Commission vote of "no confidence" in the chief....

Martin's parents said that the chief's stepping down wasn't enough and that Zimmerman should be taken into custody. "We want an arrest, we want a conviction and we want him sentenced for the murder of my son," Martin's father, Tracy, said to fiery crowd of about 1,000 supporters in downtown Sanford.... 

Scott said the task force led by Carroll will take a closer look at the 2005 "stand your ground" law, and other issues surrounding the case. "After listening to many concerned citizens in recent days, I will call for a Task Force on Citizen Safety and Protection to investigate how to make sure a tragedy such as this does not occur in the future, while at the same time, protecting the fundamental rights of all of our citizens — especially the right to feel protected and safe in our state," Scott said in a release.

The task force will convene after the investigation takes place, and will include public hearings. In addition to Carroll, the Rev. R. B. Holmes Jr., pastor of the Bethel Missionary Baptist Church in Tallahassee, has agreed to be the vice chair of the task force. Attorney General Pam Bondi and the Legislature's Republican leadership — some of whom co-sponsored the "stand your ground" law — also supported the new task force.

The Justice Department and FBI have opened a civil rights investigation, and a grand jury will meet April 10 to determine whether to charge Zimmerman.  Before the rally, Martin's parents met with the U.S. attorney for Florida's Middle District, the deputy assistant attorney general for civil rights in Washington and the head of the FBI's Tampa office to discuss the investigation.  "We listened carefully to the concerns of the family and their representatives," Special Agent Dave Couvertier, an FBI spokesman, said in a statement. "We continue to extend our deepest condolences to Trayvon's family for their loss."

I have posted the pictures of the two persons given new responsibilities in this matter by Florida's governor, as well as titled this post with a provocative question, in large part because race (and arguably gender) has much to do with this particular case and the large issues that it raises about self defense law and practice.  I especially do not envy Angela Corey's challenge to deal with both the uncertain facts and the certain identity politics surrounding this case.

In this press story, I also find notable (and quite troublesome) that Trayvon Martin's father is not merely demanding an investigation and arrest, but also saying at a rally that "we want a conviction and we want him sentenced for the murder of my son."  That quote leads me to believe and fear that this case will continue to be the source of significant controversy and racial tensions in Florida (and elsewhere) no matter what the new prosecutor and task force does in the weeks and months ahead.

UPDATE:  And this new AP story, headlined "Obama says shooting death of Fla. teen a 'tragedy'," reinforces my sense that this story is going to be making lots of headlines for lots of reasons for quite some time.  Consider these comments by President Obama, in particular, as we think about the importance of optics on the operation and the perceptions of our criminal justice system:

Obama expressed sympathy for the parents of 17-year-old Trayvon Martin, who was shot on Feb. 26 in Sanford, Fla., a suburb of Orlando, by a neighborhood watch volunteer who said he was acting in self-defense. "I can only imagine what these parents are going through, and when I think about this boy, I think about my own kids," Obama said, calling the case a "tragedy."

The nation's first black president aimed his message at Martin's parents, saying, "If I had a son, he'd look like Trayvon. I think they are right to expect that all of us as Americans take this with the seriousness that it deserves, and we're going to get to the bottom of what happened."

Obama said that "every parent in America should be able to understand why it is absolutely imperative that we investigate every aspect of this and everybody pulls together, federal state and local, to figure out exactly how this tragedy happened."

"What happened to Trayvon Martin is a tragedy. There needs to be a thorough investigation that reassures the public that justice is carried out with impartiality and integrity."

March 23, 2012 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (22) | TrackBack

"Ravi media tour carries risks at sentencing, experts say"

The title of this post is the headline of this interesting local article spotlighting some of the potential sentencing pros and cons of a high-profile defendant going to the media after a high-profile conviction.  Here are excerpts:

As Dharun Ravi embarks on high-stakes media interviews — an attempt to tell his story, recast his image and perhaps influence his sentencing in the wake of a guilty verdict — the path is riddled with risk, legal and public relations experts say.

The 20-year-old former Rutgers student from Plainsboro, who did not take the stand during his criminal trial, is now making his case to the public, his attorney by his side. While this could galvanize support, it also positions Ravi for missteps and miscalculations, the experts say.

“There is a lot of risk of backfiring,” said Louis Raveson, a professor at Rutgers School of Law in Newark, who added that he was surprised that Ravi granted interviews. “It depends both on the content of what he says and how he comes across.” Raveson added, “To me, it’s an act of desperation.”

In his two interviews so far, Ravi maintains his innocence while expressing remorse and disavows direct responsibility for Tyler Clementi’s death while acknowledging that he “wasn’t thinking.” Ravi said he was not motivated by anti-gay sentiment when he invited others to view a planned webcast of Clementi, his freshman-year roommate, and a male companion, identified only as M.B.

“At that point, I got caught up in what I thought was funny, and my own ego,” Ravi told The Star-Ledger in an interview that was published on Thursday. “I never really thought about what it would mean to Tyler. I know that’s wrong, but that’s the truth.”

But Ravi told the ABC television network news program “20/20” in several excerpts released on Thursday that the trial convinced him that his webcam spying did not directly lead to Clementi’s death. “After all this time and reading his conversations and how and what he was doing before, I really don’t think he cared at all,” Ravi said in the interview, which will be broadcast tonight. “I feel like I was an insignificant part to his life. That’s giving me comfort now.”...

A carefully worded interview generally poses less risk than a cross-examination at the hands of a prosecutor. “Sitting down with newspapers and television does give Mr. Ravi the opportunity to put a much more human face on the defense than I think came through during the course of the trial,” said Robert A. Mintz, a Newark lawyer and former federal prosecutor, who felt Ravi came off as more “compassionate” in his interview with The Star-Ledger.

Still, Mintz said, it’s impossible to know whether these interviews would have any impact on sentencing, which is scheduled for May 21....

Ravi also runs the risk that a media blitz could be perceived as spin. “There are two different courts, the court of law and the court of public opinion,” said Mike Paul, who runs the New York public relations firm MGPŸ&ŸAssociates. In both arenas, Paul said, authenticity is critical.

He draws a contrast between Ravi’s public statements about his own immaturity and his statements about the case. The former, Paul said, seem genuine, clarifying the tremendous discomfort between the two roommates. But the fact that Ravi was interviewed under an attorney’s watch, using legal terminology like “bias” and “plea bargain,” won’t do him any favors, Paul said.

March 23, 2012 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (17) | TrackBack

March 22, 2012

Are SCOTUS rulings in Lafler and Frye as revolutionary as Gideon?

The question in the title of this post is prompted by a quote in Adam Liptak's coverage of the big Sixth Amendment rulings handed down by the Supreme Court yesterday in this front-page New York Times article.  Here are snippets:

Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.

The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers....

The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”

Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.

Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.”

Scholars agreed about its significance.  “The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.

Recent related posts:

March 22, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (33) | TrackBack

Colorado federal prosecutor explains to Boulder DA his pot prohibition plans

As reported in this prior post, Boulder's District Attorney last week wrote to Colorado's federal prosecutor in Colorado to urge him to stop threatening to prosecute medical-marijuana dispensaries abiding by state law.  Now, as reported in this follow-up article, US Attorney John Walsh has written back to explain why he is so eager to have the federal war on drugs waged against some medical-marijuana dispensaries.  Here is more:

In the letter to Garnett, Walsh reiterated that he decided to target dispensaries within 1,000 feet of schools after seeing evidence of a rise in youth marijuana use that coincided with the boom in medical-marijuana businesses in Colorado. "We concluded that our responsibility — as federal law enforcement officials and also as Coloradans living in the very Colorado communities impacted by these alarming trends — required a response," Walsh wrote to Garnett.

More than 20 dispensaries closed or moved after receiving letters from Walsh's office. Walsh told Garnett he plans to send more letters to other dispensaries until no such businesses remain in Colorado within 1,000 feet of schools. "This program," Walsh wrote, "is not at the direction of Washington, D.C., but at my direction as U.S. Attorney and as a Coloradan."

Colorado law places a 1,000-foot buffer between dispensaries and schools but also allows local governments to shrink that distance or grandfather in existing businesses. Medical-marijuana advocates say there is no evidence dispensaries — near schools or otherwise — are illegally selling to kids.

The fascinating full two-page letter from USA Walsh to the Boulder DA can be accessed here

I would LOVE to hear from members of the federal Tea Party caucus (e.g., Michelle Bachmann) or from other Republicans who have stressed states rights to be free from federal overreach and over-regulation about this interesting spat over local pot policies.  This dispute seems like an opportunity to discover whether some on the right who complain about the size and growth of the federal government are really troubled by all forms of big government or only those forms of big government that they do not agree with.

Recent related post:

March 22, 2012 in Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Split Eleventh Circuit panel keeps Alabama lethal injection challenge alive (for now)

As reported in this AP article, the Eleventh Circuit "has revived an Alabama death row inmate's challenge of his state's new three-drug lethal injection protocol."  The per curiam opinion from the Eleventh Circuit panel (available here) ends this way:

To survive a motion to dismiss, Arthur has to plead “only enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic v. Twombly, 550 U.S. 554, 570 (2007). Here, Arthur has alleged enough facts to constitute a plausible Equal Protection claim because he alleges that Alabama has substantially deviated from its execution protocol in a manner that significantly reduces inmate safeguards.  He alleges that Alabama’s lethal injection protocol requires pinching the inmate as the last consciousness check after the initial injection of pentobarbital and prior to injecting the final two lethal drugs.  The consciousness check is performed to reduce or eliminate the risk of excruciating pain that would follow the injection of the second and third drugs in the lethal injection protocol. Arthur alleges that based on eyewitness testimony, the State of Alabama failed to perform the pinch test during the 2011 execution of Eddie Powell, even though Powell’s eyes remained open, his head turned from side to side, and he clenched his jaws.

Arthur alleges that Alabama’s reduction in safeguards burdens his right to be free from cruel and unusual punishment. “[S]ubjecting individuals to a risk of future harm — not simply actually inflicting pain — can qualify as cruel and unusual punishment.” Baze v. Rees, 553 U.S. 35, 49 (2008). Significant deviations from a protocol that protects inmates from cruel and unusual punishment can violate the Eighth Amendment. Indeed, the Sixth Circuit recently affirmed an order to stay an execution because four core deviations from Ohio’s lethal injection protocol, including foregoing mandated vein assessments, burdened the Equal Protection rights of inmates in Ohio. See In re Ohio Execution Protocol Litigation, No. 12–3035 (6th Cir. Jan. 13, 2012), affirming, Cooey v. Kasich, 801 F. Supp. 2d 623, 643-644 (S.D. Ohio 2011) (“We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted.”).

Here, Arthur alleges that Alabama failed to perform a required consciousness check in a recent execution, a significant deviation from its execution protocol. In light of Arthur’s other allegations regarding the veil of secrecy that surrounds Alabama’s execution protocol, it is certainly not speculative and indeed plausible that Alabama will disparately treat Arthur because the protocol is not certain and could be unexpectedly changed for his execution.

Accordingly, accepting Arthur’s allegations as we must at the motion to dismiss stage, we conclude that the district court erred in dismissing Arthur’s Equal Protection claim at this stage of the proceedings and remand for further factual development.

A very lengthy dissent by Judge Hull and Alabama's likely eagerness to go forward with an execution scheduled for next week leads me to believe that this matter may be considered in some way by the full Eleventh Circuit or perhaps even the Supreme Court before long.  In other words, this is a story to keep watching.

March 22, 2012 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

March 21, 2012

The Machinery of Criminal Justice #2: Reintegrative Punishment

[By Stephanos Bibas]

So, after the excitement of the twenty-first-century Supreme Court decisions today, I'm going to flash back to guest-blogging about my new book, The Machinery of Criminal Justice. In particular, I'll return to the story I was describing about what punishments looked like in the colonial era. Today my focus will be on how punishments were much better at reintegrating convicted defendants into the community.

DISCLAIMER: Right now I am engaging in historical description. I am not recommending going back to the practices described below; my mission is simply to contrast the public, communal, reintegrative aspect of colonial punishment with modern punishments. I will not be making normative recommendations until later in this series of posts. SO please don't assume that I am advocating whipping or corporal punishments.

In the colonies, punishment was public, shameful, and even painful, but it was most often temporary. The point was to make the wrongdoer remorseful and get him to make amends, so the victim and community would forgive him and welcome him back into the community. Punishment let wrongdoers pay their material and moral debts to victims and society, wipe their slates clean, and return to the community as equals. It did not create a durable underclass of ex-cons, as our prisons do today.

Today, imprisonment has a near-monopoly on punishment (at least for moderately serious crimes). But in the colonies, imprisonment was not a common sanction. The dominant punishments were fines, corporal punishments, and shaming punishments. Fines were probably the most common punishment. Others included sitting bent over in the stocks or standing in the pillory. Other common punishments included whipping, wearing a letter advertising one's crime, or mock executions (having wrongdoers stand on scaffolds with nooses around their necks for a time). More severe punishments included branding, nailing and cutting off ears, and banishment; these brutal punishments were rare and reserved for repeat or permanently dangerous wrongdoers.

While many of these punishments were downright painful, only branding and mutilation were permanently disfiguring. What burned more than the transient physical pain was the humiliation of public shaming, particularly in small, tightly knit communities, as Nathaniel Hawthorne describes in The Scarlet Letter.

Punishments were extremely visible. Until the nineteenth century, they took place outdoors, typically in or near the town square. OFten there was a procession to the scaffold. Executions in America were not "macabre spectacles" but somber, dramatic rituals. The same was true of noncapital punishments.

These punishment rituals educated viewers about the horrors of crime, drunkenness, and debauchery and reinforced communal moral teachings. Ministers came to preach about the temptations and sins that lurked in each of our breasts and the dangers of giving in to those temptations. The point was not to ostracize and demonize wrongdoers, but to recognize one's own sins too. Everyone needed to repent and seek forgiveness. Condemned criminals were expected to play the same tune.

Those who attended were witnesses to the final act of the morality play, literally seeing justice done. But they were also participants in doing justice, manifesting their disapproval and reinforcing social solidarity by denouncing the transcression and vindicating the victim.

This morality play had a negative side, denouncing the crime. But it also had a positive side, offering forgiveness and redemption to the criminal. Most crime resulted from weakness of will and character, as some fell prey to temptations that assail each of us. The point was to teach a swift, memorable lesson and lead errant brethren to submit, repent, and make amends.

Once wrongdoers did so, the morality play could conclude with forgiving and welcoming them back into the fold. Community members had seen wrongdoers pay their debts to society. Having seen justice done, they were more ready to forgive. (As I mentioned previously, actual executions were rare, and even in those cases there was forgiveness and symbolic reintegration.)

Colonial convicts paid their debts to society and victims, not only symbolically, but also concretely, through restitution, fines, and extra damage. When on occasion wrongdoers were confined, they were put in workhouses and made to labor, to hold them publicly accountable.

Empirical evidence from both Middlesex County, Massachusetts and the Quaker colonies of Pennsylvania and western New Jersey confirms that colonial wrongdoers were reintegrated. They frequently went on to hold town offices, militia offices, and church offices. In sum, by suffering their punishments, wrongdoers paid their debts to society and victims. After that, colonists stood read to welcome them back as members of society in good standing.

Forgiving wrongdoers was particularly important because, then as now, most crimes involved family members, friends, and neighbors. Most people had to go back to living among those whom they had wronged. Besides, a small society could hardly afford to kill, imprison, or exile more than a tiny fraction of its members. Everyone was valuable, too valuable to execute or lock away for years at great expense. Most wrongdoers returned from punishment to society, and remorse, apology, and forgiveness paved the way for their reentry.

That's all for now. In the next few days I'll try to sketch out how punishment changed beginning in the nineteenth century.

Stephanos Bibas, guest-blogging

March 21, 2012 in Guest blogging by Professor Stephanos Bibas | Permalink | Comments (7) | TrackBack

SCOTUS recognizes ineffective-assistance claims in Lafler and Frye!

[by Stephanos Bibas]

As Doug is off romping at LegoLand, I'll have to do my best impression of how he would react to the Supreme Court's rulings this morning in Lafler and Frye: Wowza! Oh boy! Court Fryes prosecutors, gives defendants the last Lafler.

Okay, I guess Doug's style is inimitable and I shouldn't pretend to imitate it. After the arguments in both cases last fall, I and most other observers were pessimistic, predicting that the difficulty of specifying a remedy would deter the Court from recognizing the right. Interestingly, Justice Alito (in dissent) is the only one who appears to have been swayed by that specific concern.

As one could have predicted from Justice Scalia's dissent in Padilla, he argues that the Sixth Amendment's sole goal is to protect the accuracy of verdicts of guilt at trial, so in his view the Sixth Amendment right to counsel has nothing to do with plea bargaining, which would essentially be a matter of executive grace like a pardon. He criticized the majority for constitutionalizing a new "boutique" field of plea-bargaining law. The use of "boutique" is particularly ironic given that plea bargaining has spread like kudzu to take over almost all of American criminal justice. Justice Scalia laments that plea bargaining is a necessary evil and should not be protected as a positive good. That complaint might have more force if plea bargaining were not already so prevalent and if he were willing to be a thorough-going originalist and ban all plea bargaining.

The big surprise is that Justice Kennedy, despite multiple, skeptical questions at oral argument, soundly rejected that approach. He grounded his analysis on the basic fact that today, plea bargaining resolves 97% of federal cases and 94% of state ones. It is not a "boutique" corner of criminal justice; it is criminal justice, and (as I've argued elsewhere) it makes little sense to write rules for 5% of cases while ignoring the possibly perverse effects on the other 95%.

Another crucial area of disagreement concerned sentencing. Justice Scalia views the job of the Sixth Amendment as ensuring that a defendant gets an accurate determination of guilt from a jury. Sentencing doesn't factor into that equation, except to the extent that a jury decides to convict of greater or lesser charges (in ignorance of the penalties it is supposedly authorizing). In recognizing that a heavier post-trial sentence is a cognizable injury, Justice Kennedy's opinion in Lafler quotes my recent California Law Review article to analogize sentences to car prices--only an ill-informed consumer pays full sticker price and suffers harm in doing so, as the going rate is usually a bargain well below the sticker price. Prosecutors implicitly agree that the lesser figure is enough punishment, so the extra post-trial punishment is effectively a penalty for being rash enough to go to trial. (I set aside for now cases in which there is a real chance of acquittal.)

One last surprise: These opinions are fully consistent with Justice Kennedy's vote in Padilla v. Kentucky, recognizing that ineffective assistance of counsel protects a noncitizen defendant's right to accurate information about deportation before he pleads guilty. But they appear in tension with his opinion summarily reversing the Ninth Circuit in Premo v. Moore about a year ago. It is particularly surprising that he viewed the right of ineffective assistance at plea bargaining as so well-established that it could survive deferential review under AEDPA in Lafler. Justice Kennedy's pragmatic understanding of the world of criminal justice today trumps Justice Scalia's eighteenth-century focus on jury trials.

In that vein, the most powerful challenge to the majority came not from Justice Scalia, but from Justice Alito, who noted at oral argument and in his brief opinion that crafting remedies for broken bargains is extremely hard, because neither rescission nor specific performance may fit many cases. In response, the majority suggested that courts could balance factors and retain the post-trial sentence, the offered plea sentence, or something in between. We may have to move to a more flexible remedial model, akin to awarding damages, and away from traditional all-or-nothing remedies. Justice Alito is right to worry that it is unclear how this will work out. But Justice Kennedy is right that we haven't seen a flood of ineffective-assistance claims succeed since Hill v. Lockhart, and skeptical judges are likely to disbelieve defendants who claim ineffectiveness only after they have lost at trial.

Stephanos Bibas, guest-blogging

[Full disclosure: I'm a former law clerk to Justice Kennedy, as well as author of Regulating the Plea Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev. 1117 (2011), which the majority quoted in Lafler.]

March 21, 2012 in Guest blogging by Professor Stephanos Bibas | Permalink | Comments (25) | TrackBack

In 5-4 split, Justice Kennedy give defendants right to counsel wins in Lafler and Frye

I am on the road and thus forced to phone-blog to report today's big SCOTUS news: two wins for defendants in the state cases involving claims of ineffective assistance of counsel during plea bargaining. Links and commentary will follow late tonight once I get a chance to see the opinions.

UPDATE: A great colleague sent me an email to make sure I realized these cases were, in her words, HUGE!

STILL MORE: Now back at a full-functioning computer, I can here now link to the SCOTUSblog summary of these rulings (together with links to the opinions):

Justice Kennedy (the author of four of the Court’s seven opinions this week) announced the first two opinions of the day.  In the first opinion, Missouri v. Frye, the Court vacated the decision of the Court of Appeals of Missouri and remanded the case for further proceedings. By a vote of five to four, the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.

In the second opinion of the day regarding ineffective assistance of counsel at the plea bargain stage, Lafler v. Cooperthe Court vacated the decision of the Sixth Circuit and remanded the case for further proceedings. Also by a vote of five to four, the Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion.

March 21, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Interesting buzz about marijuana reform in New England

The two different news stories about potential pot policy reform in two New England stories caught my eye this morning:

March 21, 2012 in Drug Offense Sentencing, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

How important (and distinct) is harmless error analysis for sentencing?

The question in the title of this post is prompted by the fact that the Supreme Court hear oral argument today in Vasquez v. United States (SCOTUSblog case page here), which concerns the meaning and application of the federal harmless error rules.  The SCOTUSblog folks have an effective oral argument preview in this post, which includes this background and insights:

Vasquez v. United States [concerns] the meaning of the harmless error rule in Federal Rule of Criminal Procedure 52(a) and 28 U.S.C. § 2111. These similarly worded provisions govern appellate review of any trial error to which counsel objected below; they provide that if an error does not affect “substantial rights,” then it was harmless, and an appellate court should not reverse to correct it.  The proper scope of the harmless error rule has divided the courts of appeals.  Many hold that unless the government proves that the error could not have had any material effect on the proceedings below, it cannot be harmless. Others hold errors harmless when the evidence of the defendant’s guilt is overwhelming. Because the harmless error rule governs so many cases, its meaning is one of the most important questions in criminal appellate law....

It will be interesting to see whether the Court regards the harmless error rule as primarily concerned with process, or instead with results.  Vasquez argues that the Seventh Circuit erred because it failed to consider how close the case was, and failed as well to analyze the effect of the error on the overall verdict.  But if the Seventh Circuit had gone through the motions of such an analysis and reached the same conclusion, it is not clear what else Vasquez would say the court was required to do.  The rules set forth by the United States, on the other hand, are more concerned with the outcome of the analysis.

Another interesting question is whether the Court will treat the error in this case as serious or not. Vasquez argues that the error was global -- i.e., that because the tapes suggested that even his attorney didn’t believe in his defense, they tainted the jury’s consideration of the case as a whole.  Respondent argues that the error was minor -- the tapes would have been admitted anyway, and the court’s only error was failure to provide a limiting instruction. Both characterizations have some force to them.

As the Vasquez case itself spotlights, the harmless error rule arises most often (and its stakes are heightened) after a defendant has been convicted at a trial in which an error occurred.  And yet, because the vast majority of convictions and sentencings follow a plea, whether and how harmless error doctrines apply in other contexts will impact how consequential any ruling in Vasquez will become.

In the wake of Booker, I thought that some circuit courts might start making aggressive use of harmless error analysis to reject defense claims of guideline calculation errors.  But, perhaps for good reason given the considerable significance and weight that the guidelines still have in most courts after Booker, there has not developed a robust harmless error sentencing jurisprudence.  But perhaps readers have some distinct sentencing experiences with harmless error rules in other settings.  If so, do tell.

March 21, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

March 20, 2012

Miller and Jackson: The Court Struggles to Frame the Issue

On reading the transcripts in the two juve LWOP cases that the Supreme Court heard today, Miller and Jackson, I'm struck by how confused the Justices are about how to frame the issues. The advocates certainly didn't seem to give the Court the help it was looking for.

Arguing for petitioners, Bryan Stevenson proposed a rule that seemed a bald policy proposal rather than one rooted in any legal authority: a flat ban on life without parole for defendants who were under 15 at the time of the crime, and a ban on automatic or mandatory life without parole for those between the ages of 15 and 18. He tried to rely on several states' having set thresholds of 15 or older for life without parole but had a hard time establishing a benchmark or national consensus, given that 39 states authorize life without parole for at least some juveniles for at least some crimes.

The Court seemed to have no clearer ideas about how to frame the issue. Justice Scalia repeatedly referred to the jury as a safeguard in authorizing the penalty, even though, as Justice Kennedy pointed out, juries cannot be told of the penalty, so the idea that they are authorizing the penalty is a fiction. If anything, Justice Scalia's passion for jury checks upon the government (in the Apprendi line of cases) ought to cut the other way here, where prosecutors' charging decisions trigger mandatory sentences while leaving juries in the dark.

In keeping with his formalism, Justice Scalia (as well as Justice Alito) made some fair points about the dangers of slippery slopes and distinguishing sentences of life from 60 years, 50 years, et cetera. I was surprised that neither he nor anyone else reached back to the common law's benchmarks for youths, in which those under 7 are conclusively incapable of crimes and those under 14 are rebuttably presumed incapable, according to Blackstone. That might roughly track the line Stevenson was trying to draw, except that it would erect only a presumption rather than a flat ban.

Justice Kennedy complained about the false dichotomy proposed by petitioners: that mandatory life without parole was either categorically forbidden or categorically permissible. That framing is in part attributable to Justice Kennedy's prior ruling in Graham, which rejected the Chief Justice's case-by-case approach to categorically forbid life without parole for juveniles who do not kill. I don't see the Court repudiating Graham, but neither do I think the Court will simply extend those precedents.

Justice Sotomayor, interestingly, kept emphasizing the Enmund / Tison line of capital cases limiting which minor actors in a murder can receive the death penalty. The signal seems to be that all the death penalty doctrines, which were previously cabined by the death-is-different line, are now fair game for argument in this area.

In that vein, it struck me that no one did nearly enough with the Woodson / Lockett / Eddings line of death-penalty cases, which require that the trier of fact have some discretion to mitigate penalties based on the particulars of individual cases. From the tenor of the argument, it seemed that many Justices were looking for a safety valve, a way to allow individualization for the least bad juvenile accomplices rather than for a flat ban. Some of the Justices' comments indicated that they recognized that Miller's crime was more heinous than Jackson's and might be looking for ways to differentiate the two.

If the Justices wanted to regulate such decisions, there are subtler ways to do so than extending Graham's ban. They could require that juries be informed of the penalty and affirmatively authorize the sentence, by extending either Simmons v. South Carolina or Apprendi to inform juries and require them to affirmatively authorize the penalty. That could harken back to the colonial tradition (discussed in my last post) of allowing juries flexibility to show mercy. Or the Court could forbid using life without parole as a plea-bargaining chip, so that juvenile defendants don't wind up with the longest sentence simply because they are reckless in choosing to go to trial.

As with Florence v. Burlington County earlier this term, the Court granted certiorari to address what seemed an excess of the criminal justice system, only to discover that trying to fix the problem would entangle the Court in a thicket of arbitrary line-drawing. Perhaps the difficulty of the exercise will scare them off, or perhaps they will embrace Justice Sotomayor's suggestion that the category of life without parole be whittled down further to those who personally kill, intend to kill, or attempt to kill and are not simply lookouts or getaway drivers. Predictions here are too hazardous--the actual outcome is anyone's guess.

Stephanos Bibas

March 20, 2012 in Assessing Graham and its aftermath, Death Penalty Reforms, Guest blogging by Professor Stephanos Bibas, Jackson and Miller Eighth Amendment cases | Permalink | Comments (5) | TrackBack

Seeking policy preferences: no LWOP for younger juves or no mandatory LWOP for all juves?

Today's oral argument in the two big JLWOP cases in the Supreme Court (basics reported here) suggests that some Justices may be drawn to a substantive Eighth Amendment rule precluding any and all very young offenders (say those 14 and under) from ever getting an LWOP sentence, while others may be drawn to a procedural rule precluding a mandatory LWOP sentence for any juvenile.

Putting to one side for now constitutional concerns about the development of Eighth Amendment doctrine for this case and other, I wonder which rule would be preferred simply as a matter of public policy among readers of this blog.

March 20, 2012 in Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

The Machinery of Criminal Justice #1: Colonial-Era Mercy

Hello all. I'm Stephanos Bibas, and I'd like to thank Doug Berman for inviting me to guest-blog about my new book The Machinery of Criminal Justice, just published by Oxford University Press and available here.

(Alas, posts will continue to show Doug's name rather than my own.) Though I can't match Doug's speed and quantity of blogging, if time permits I may throw in a few other posts as well.

In a nutshell, the book is about:

1) how America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers and ever-longer punishments hidden behind prison walls;

2) what we have lost in our quest to process ever more cases efficiently; and

3) how we could swing the pendulum part-way back toward greater transparency, public involvement, and confidence within a lawyer-run system.

I can’t cover the entire book in a week and won’t try to excerpt it. This week, I'll focus specifically on punishments and how we might make punishment more visibly satisfying and less permanent, to better re-integrate ex-cons into society after they complete their sentences.

Today, I'd like to start by sketching out a couple of distinctive features of colonial American punishments that set them apart from our modern punishments. In this post I'll focus on the room left for mercy, and in the next post I'll explore how colonial justice was more open to reintegrating and forgiving convicts.

When we look back at colonial-era punishments, we think of them as promiscuously bloody, far too quick to execute. But while there were many more capital crimes than today, colonial America was much less bloody than England, both on paper and even moreso in practice (with the important exception of slave justice). Even though they were often capital crimes, burglaries, robberies, and thefts very rarely resulted in hangings. Before the Revolution, Pennsylvania convicted fewer than two people per year of capital offenses and executed only about one per year.

Though crimes carried fixed penalties, colonial justice was more lenient in practice because criminal procedure left plenty of room for mercy. One avenue was "pious perjury," in which juries convicted sympathetic defendants of lesser, noncapital offenses, often at the prompting of judges. Judges also interpreted rules loosely to allow sympathetic first offenders to avoid the death penalty. Likewise, juries took convicts' branded thumbs (marks of a first conviction) into account, factoring prior criminal records in deciding whether to convict of the latest offense. No rules of character evidence precluded common-sense inferences about whether a thief was likely to steal again or deserved mercy if he had.

Finally, executive clemency frequently softened sentences, on the recommendations of juries and judges. One of the most important grounds for pardon was the convict's character, including his upbringing, employment, family support, sobriety, honesty, and trustworthiness. While this could introduce some class bias, most pardons occurred without intervention by anyone but a judges, so plenty of poor and powerless people received mercy. Today we exclude much of this evidence as suspect, but it did cast light on the wrongdoer's broader blameworthiness, dangerousness, and prospects for reform. The emphasis was not on formal equality but on fully textured evaluation of everything known about this particular person.

Perhaps the most interesting factor in clemency decisions was the role of remorse. Then as now, one of the most powerful grounds for mercy was a convict's apparent remorse and change of heart. Thus, the colonists left plenty of time between sentence and execution for repentance. Of course, convicts often feigned repentance to postpone or evade the gallows, but then as now, officials saw through much of this fakery.

That's all for the moment. In my next post on the book, I'll discuss how colonial punishment sought not to exile wrongdoers but to reintegrate them into the community. After that, I'll move to how things changed over the past two centuries.

Stephanos Bibas

March 20, 2012 in Books, Criminal Sentences Alternatives, Guest blogging by Professor Stephanos Bibas | Permalink | Comments (11) | TrackBack

Intriguing early report on SCOTUS arguments in today's JLWOP cases

Lyle Denniston in this lengthy post at SCOTUSblog has an interesting and thoughtful report on the oral arguments this morning in the Supreme Court in in Jackson v. Hobbs and Miller v. Alabama, the two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  Here are excerpts of his report:

Moving further along the constitutional line between adults and children in the criminal courts, the Supreme Court on Tuesday turned to life-without-parole sentences for youths who commit murder, and appeared to be reaching for a compromise. If the indications from a one-hour hearing hold, the Court might allow such sentences to be imposed on youths, but not as a mandatory matter for younger teenagers. And it could choose to forbid that penalty at all for some, but where that line might be drawn was far from clear – although it might wind up at 12 or younger.  In more than 90 minutes of argument in two cases, there was no sign that a majority would come together on a flat ban for such a sentence for anyone under age 18 — the preferred outcome sought by two youths’ lawyer....

In the cases of Miller v. Alabama (10-9646) and Jackson v. Hobbs (10-9647), most of the Justices appeared to share the sentiment expressed early by Justice Anthony M. Kennedy that the Court did not want to be forced to choose between two opposite choices: no life-without-parole sentences for any minor, or no limit on the sentence for anyone no matter how young. And there also seemed to be considerable support for Kennedy’s apparent willingness to focus mainly on the question of whether such a sentence should be mandatory and, if so, whether that should be keyed to a specific age. Kennedy’s views may be crucial, since he has been the author of the Court’s key rulings on youths’ sentencing....

Once it is accepted that “death is different,” Scalia commented, there is no basis for having a different age category in determining punishment for one who kills. That, essentially, was the argument made in the two cases by lawyers for the states: if a youth commits the “worst of crimes,” they should be a legally responsible as anyone who does so, the states’ counsel contended....

John C. Nieman, Jr., the state of Alabama’s solicitor general, argued that the fact that there are 39 states that would allow such a sentence for a specific crime without regard to the offender’s age is proof of a “national consensus” that such punishment is not constitutionally excessive. His main difficulty — and it was the same for Kent G. Holt, an assistant state attorney general for Arkansas, in the second case — came from the fact that many of the states in that group make such a sentence mandatory. Justice Stephen G. Breyer led the verbal assault on that proposition, wondering what justification a state could have for not allowing a young offender to make any argument to “mitigate” what Breyer called “this terrible penalty.” Justice Kennedy later wondered the same thing. Kennedy also wondered if there were data that would indicate what proportion of youthful offenders given long sentences are able to be rehabilitated, implying that he might be sympathetic to some option for a youth ultimately to gain release.

Justice Elena Kagan, noting that the Court has insisted upon a focus on the individual offender when a judge is considering a death sentence, wondered why the same approach should not apply to juveniles faced with a life-without-parole sentence. Neiman countered that the Court had made it clear that this was required only in the context of the death penalty, and that states are entitled to have mandatory term-of-years sentences. Justice Breyer suggested that one option might be to require that the individualizing of sentences should be required for any youth who committed murder while under age 18....

When the Court turned to the second case, it found itself examining whether it should make a difference, in a juvenile’s murder case, whether the individual facing a life-without-parole sentence had actually killed someone, or intended that a crime go forward knowing that someone might be killed. Justice Sotomayor, in fact, stepped in before Stevenson even began that argument to ask him how the Court would write an opinion that drew a line against a life-without-parole sentence for a youth who had a role in a murder case but was not the actual killer, and did not intend that there be a murder....

Several of the Justices seemed inclined to regard more sympathetically a youth facing a mandatory sentence, especially one who did not actually kill the victim. But the argument quickly turned back to the Court’s exploration of where a dividing line should be drawn in any juvenile murder case.

Arkansas’s attorney, Holt, urged the Court to keep the focus on the crime that has been committed, not on the offender. Murder, he said, is “the worst of all crimes,” and the law seeks to punish its commission with the heaviest of sentences to show society’s intolerance of taking a human life. "That is the line that society draws,” he argued.  Now that the Supreme Court has barred the death penalty for minors who commit murder, Holt said, any youth who is sentenced to life-without-parole is deserving of that sentence. Life-without-parole, he said, is a “lesser sentence,” so a youth who commits murder should not be allowed to seek “a lesser lesser sentence.”...

In a moment, Justice Ginsburg said that sending a 14-year-old prison to prison under a sentence that means he will die in prison meant that this “essentially makes a 14-year-old a throwaway person.” Holt objected to that characterization, saying that the state wanted him to be put in a position “to realize the enormity of his crime.” And, when Justice Sotomayor wondered what hope such a youth has, the state’s lawyer said that he could apply to have his sentence commuted, despite the fact that he had been sentenced to life-without-parole.

UPDATE:  The SCOTUS oral argument transcripts from Miller v. Alabama is available at this link and from Jackson v. Hobbs is available at this link.

March 20, 2012 in Jackson and Miller Eighth Amendment cases, Offender Characteristics | Permalink | Comments (2) | TrackBack

Via narrow 7-2 ruling for defendant, SCOTUS dodges Sixth Amendment issue in Martinez v. Ryan

In an apparent (and reasonable?) effort to avoid a major constitutional ruling concerning the Sixth Amendment right to counsel, Justice Kennedy today, writing for seven Justices in Martinez v. Ryan (opinion here), adopts "a more narrow, but still dispositive" rule that a "federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review collateral proceeding."  For a variety of reasons, I think this way of resolving Martinez v. Ryan is designed to try to ensure the ruling ends up not being especially consequential.

While others can debate the wisdom of this ruling and the effort to dodge a big Sixth Amendment pronouncement, I will highlight the first paragraphs of the dissent written by Justice Scalia (and joined by Justice Thomas).  In addition to sumarizing what the majority does, the dissent laments where this ruling might lead:

Let me get this straight: Out of concern for the values of federalism; to preserve the ability of our States to provide prompt justice; and in light of our longstanding jurisprudence holding that there is no constitutional right to counsel in state collateral review; the Court, in what it portrays as an admirable exercise of judicial restraint, abstains from holding that there is a constitutional right to counsel in initial-review state habeas.  After all, that would have meant, in a case such as the one before us, that failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, would constitute cause for excusing procedural default.  See Strickland v. Washington, 466 U. S. 668 (1984).  Instead of taking that radical step, the Court holds that, for equitable reasons, in a case such as the one before us, failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, constitutes cause for excusing proceduraldefault.  The result, of course, is precisely the same.

Ah, but perhaps the explanation of why the Court’s action today amounts to praiseworthy self-restraint is this:It pronounces this excuse from the usual rule of procedural default only in initial-review state habeas raising an ineffective-assistance-of-trial-counsel claim. But it could have limited its invention of a new constitutional right to collateral-review counsel in precisely the same fashion -- and with precisely the same consequences. Moreover, no one really believes that the newly announced “equitable” rule will remain limited to ineffective-assistance-of-trial counsel cases.  There is not a dime’s worth of difference in principle between those cases and many other cases in which initial state habeas will be the first opportunity fora particular claim to be raised: claims of “newly discovered” prosecutorial misconduct, for example, see Brady v. Maryland, 373 U. S. 83 (1963), claims based on “newly discovered” exculpatory evidence or “newly discovered” impeachment of prosecutorial witnesses, and claims asserting ineffective assistance of appellate counsel.  The Court’s soothing assertion, ante, at 14, that its holding “addresses only the constitutional claims presented in this case,” insults the reader’s intelligence.

UPDATE: Over at her Habeas book blog, Professor Nancy King has this extraordinary post on the Martinez ruling which concludes with these notable queries:

The decision raises many questions; here are just a dozen that come to mind: (1) Will the limitation to IAC-at-trial claims withstand the inevitable pressure to expand the ruling to Brady, jury misconduct, and other late-discovered claims? (2) Will a substantial showing of IAC in state collateral review also excuse failures to raise claims of IAC on direct appeal? (3) Is the “some merit” test different than “prejudice”? (4) Could a State avoid the rule in Martinez by replacing a rule banning IAC claims on direct appeal with a rule making appellate review of such claims (with or without remand to the trial court for fact development) discretionary? (5) How will Martinez affect federal prisoners? (6) Will this mean more evidentiary hearings in federal court to demonstrate the ineffectiveness of counsel on collateral review? (7) Who will be able to take advantage of this “equitable” pronouncement – will it be retroactively applied? (8) Will Congress react by amending Section 2254(i)? (9) What if a state decides not to review ineffective assistance claims at all? (10) Will the ruling prompt more waivers of the right to bring ineffective assistance claims in state cases, and how will state courts handle those? (11) How will this affect the provision of defense services at the trial level where they are most needed – isn’t it more likely to harm state defendants by stretching thin resources even thinner? (12) What other changes to habeas review can we expect to see from the Court exercising its equitable authority?

March 20, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack