April 14, 2012
A quirky constitutional query about quirky sentencing laws
For complicated reasons, I think there are some complicated constitutional issues lurking very deep beneath the Fair Sentencing Act statutory interpretation cases to be considered by the Supreme Court this week in Hill and Dorsey (basics via this detailed account of the cases via SCOTUSblog). Without trying to get to the intricate specifics, I want to get reader reactions to what I think might be a simplified (but imperfect) hypothetical variation of some of these constitutional issues. So here goes:
Would it be constitutional for a state legislature to pass a law that provides, for the next year and only for the next year, all persons committing and convicted of any and all sexual offenses less serious than rape — which the state's penal code still defines as 2d, 3d, and 4th degree felonies — must be sentenced to 20 years in prison while all persons convicted of rape (even those with a lengthy criminal history) — which the state's penal code still defines as a 1st degree felony — must not be sentenced to more than 20 years?
Of course, one might readily wonder why a legislature would ever pass such a law, and I welcome the development of theories about how such a law might ever actually come to happen. But I am also interested in views that do not fight the hypothetical and explore whether and how defendants, specifically those first-offenders subject to the mandatory minimum 20-year term for lesser sex offenses, could or should argue that this legislation is unconstitutional because they were forced to be given sentences that are at least as long as the maximum sentence to be given for more serious sex offenses.
UPDATE: I have added a clarification set off with dashes to respond to a concern mentioned by Daniel in the comments. The idea is NOT that the state legislature has decided to redefine what crimes or more serious, but rather that they decided that for a certain fixed limited period of time certain crimes they otherwise define as less serious will be punished more harshly than certain crimes they otherwise define as more serious.
I am sorry I was not clear on this point, but it is this clarification that help sharpen how my hypo connects to the issues before SCOTUS in Hill and Dorsey. In essence, the appointed amicus in the case has to argue that, through the provisions of the FSA, Congress created a federal sentencing scheme in which, for a fixed limited period of time, certain crack offenses otherwise defined as less serious in federal law will be subject to a harsher punsihment structure than certain crack offenses otherwise defined as more serious in federal law. I think there is a compelling argument that Congress did not mean to create such a scheme, but my quirky query here is to explore whether it would be consitutionally suspect for a legislature to express enact such a sentencing scheme.
"With repeal of state death penalty, death row questions arise"
The title of this post is the headline of this effective local piece out Connecticut spotlighting a number of the legal issues that will be sure to clog up Connecticut's state and federal courts in the years to come. Here are exceprts:
It will be about 10 days before the bill repealing Connecticut's death penalty gets written into its final form by non-partisan legislative staff, then gets shuttled to the Secretary of the State, who will present it to Gov. Dannel P. Malloy.
And around the time ink dries on his signature, the first appeals from the state's 11 death row inmates could be filed -- depending on the tactics of defense lawyers -- to have sentences reduced to life without the possibility of release. "Some lawyer, in short order, should be making an equal-protection claim," said Leonard M. Crone, president of the 300-member Connecticut Criminal Defense Lawyers Association. Even though the legislation was written to make sure those on death row would not be spared execution, once it is adopted, the issue could add another layer of appeals that may further delay death penalties, which already take decades to enact....
[T]here is a pending state Supreme Court decision that could result in a declaration the death penalty itself in unconstitutional. Another case, which has been delayed for years but is set to start later this spring in Rockville Superior Court, will take up the issue of racial disparity in the state's death penalty process. Six of the 11 people on death row are black....
Michael P. Lawlor, undersecretary for justice policy in the state Office of Policy and Management, said Thursday that the reaction from defense attorneys in the state may be more subtle, particularly with many years of traditional appeals ahead of the death-row inmates. "The whole notion of the Supreme Court throwing out the death penalty is not what the law says," he said, stressing that the court traditionally draws a sharp line when new laws exclude those being punished under older statutes....
Malloy on Thursday acknowledged that death row inmates are all in various stages of appeals on other issues. "As you know we have not put a person to death who didn't volunteer for it," Malloy said, citing that both Ross in 2005 and Joseph Taborsky in 1960 chose to end appeals and meet the executioner. "Some of those appeals that go to the fundamental purpose of the statute, which will be changed," Malloy said. "So what happens in those cases I can't tell you."
Senate Minority Leader John McKinney, R-Fairfield, who led opposition against the repeal, said Thursday the way he understands the law, death-row inmates would not have to exhaust traditional appeals before filing constitutional appeals to win life in prison. "Once the governor signs the bill, there is a question as to whether the court would like to breach that issue prior to exhausting appeals," he said, noting that the issue might not be "ripe" in the eyes of the high court.
"Lawyers prefer not to do anything before it's necessary, so the more time the state is without a death penalty, the better the argument may be not to execute one of the 11 on death row," McKinney said. However, he predicted that now, those on death row will never pay the ultimate price for their crimes.
Recent related posts:
- Despite increased public support, Connecticut legislature again discussing death penalty repeal
- Marching bishops perhaps take Connecticut to verge of repealing its death penalty
- Connecticut now far along path to abolish the death penalty after Senate vote
- What are odds any Connecticut death sentences get carried out after "prospective" repeal?
- Connecticut bill to repeal of death penalty to become law with Governor's signature
April 13, 2012
A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
I had the great fortune and honor to be asked by folks at The Daily Beast to expound a bit on themes in this post from earlier this week titled "Could Romney appeal to independents and minorities with bold crime and punishment vision?." The last few paragraphs of this now-published Daily Beast piece of mine adds these ideas to my prior thoughts:
A conservative politician with true conviction on [liberty and limited government] issues could further argue that federal and state governments ought to rely far less on incarceration as a response to less serious crimes, or that the long-running “war or drugs” (which surely restricts individual liberty, personal responsibility, and free enterprise as much as alcohol prohibition did a century ago) suffers from many of the same big-government flaws as other top-down efforts to improve society.
Of course, it may be not only naive but even foolish to expect Romney to pioneer change in this arena. After all, he has not yet shown much boldness in his campaign strategies so far, and I wonder if he has either the political courage or the personal convictions needed to reshape the GOP message on crime and punishment for the better. Indeed, when Romney was governor of Massachusetts, he took heat from both the left and the right when he tried to develop a “foolproof” death-penalty system for the state. That experience, together with the knee-jerk tough-on-crime stance most politicians still readily embrace, may ensure that Romney will see more political risks than rewards on this path.
But there’s a “toe in the water” opportunity here, provided last summer by none other than Ron Paul. Together with outgoing Massachusetts Democrat Barney Frank, Paul introduced a bill that, while allowing the federal government to continue enforcing interstate marijuana smuggling, would let states develop and apply their own distinct laws on marijuana production and use so that individuals could grow and sell it in places that choose to make it legal.
If Romney were to express his support for this bill, he might not only pull in libertarian-leaning independents who have helped fuel the Paul campaign, but he would signal to minority groups — who rightly lament the disparate impact of the drug war on people of color — that he understands and respects their concerns. Further, if Romney adopted this sort of “states’ rights” approach to marijuana laws and regulations, he could reinforce and reiterate the nuanced principles behind his claims in the health-care-reform debate that there are some areas where the federal government ought to butt out.
But Romney’s apparent lack of conviction isn’t his only obstacle. In the last few election cycles, traditional criminal-justice issues have not been a topic of much discussion, perhaps because of recent declines in the crime rate and because, post-September 11, voters seem to care more about how candidates view the war on terror than how they view the war on drugs. Tellingly, Romney’s official campaign website has an Issues page with detailed positions on two dozen topics, none of which address traditional crime and punishment concerns. Yet that same page asserts that the “foundations of our nation’s strength are a love of liberty and a pioneering spirit of innovation and creativity,” and another page champions a “simpler, smaller, smarter government” and asserts that “as president, Mitt Romney will ask a simple question about every federal program: is it so important, so critical, that it is worth borrowing money from China to pay for it?”
The important recent work of many Republican governors on sentencing reform, as well as the existence of prominent conservatives supporting the Right On Crime movement, indicate that many on the right would support and even help champion a commitment to reconsider the efficacy of drug war and to question which parts of the massive federal criminal-justice system are not worth the cost. Perhaps with prodding from those on both sides of the aisle, this election could bring us more real talk about criminal-justice reform from candidate Romney than from President Obama.
April 13, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10) | TrackBack
US Sentencing Commission promulgates new guideline amendments
As reported in this official press release, earlier today "the United States Sentencing Commission promulgated amendments to the federal sentencing guidelines responding to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) regarding securities fraud, mortgage fraud, human rights offenses, drug offenses, and other offenses." Here are some of the specifics via this press release:
The Dodd-Frank Act contained directives to the Commission to review the fraud guideline with respect to securities fraud, fraud on financial institutions, and mortgage fraud. Judge Patti B. Saris, chair of the Commission, noted “Fraud offenses represent almost ten percent of the federal criminal docket annually, and have been the focus of congressional attention as evidenced by the directives to the Commission.” Judge Saris explained, “The Commission’s action today increases penalties for insider trading cases and ensures that no defendant will receive a reduced penalty because of a federal intervention, such as a bailout. The Commission also adopted presumptive rules governing the calculation of loss in mortgage and securities fraud cases.”
“This is the first step in a multi-year review of the fraud guideline,” stated Judge Saris. “We have received feedback from a number of stakeholders that broader review of the operation of the fraud guideline should be undertaken. Specifically, we have heard from the courts, defense attorneys, and prosecutors that the interaction of the loss attributed to an offense and the number of victims in an offense (the loss and victims tables in the guidelines), particularly in high-loss fraud cases, may result in disproportionate or disparate sentences. This is an area of the guidelines that the Commission must continue to review in a comprehensive manner.”...
The Commission also promulgated an amendment to the federal sentencing guidelines to cover substantive human rights violations.... The Commission also promulgated an amendment to the federal sentencing guidelines to address the growing number of federal drug cases involving the stimulant “BZP.”... The Commission also promulgated an amendment that provides a sentence reduction under the guidelines for certain low-level, non-violent offenders convicted of offenses involving precursor chemicals, which parallels provisions already in the federal sentencing guidelines for low-level, non-violent drug offenders who meet certain criteria.
The Commission also resolved a circuit conflict by confirming that for purposes of calculating a defendant’s criminal history under the federal sentencing guidelines, driving while intoxicated, driving under the influence and similar offenses are, without exception, always counted. The Commission’s actions today also resulted in amendments to the guidelines covering contraband cell phones in prison, cigarette offenses, trafficking in fake Indian goods, and animal crush videos.
The Commission must submit its 2011-2012 amendment package to Congress by May 1, 2012. Congress has 180-days to review the amendments submitted by the Commission. The amendments have a designated effective date of November 1, 2012, unless Congress affirmatively acts to modify or disapprove them.
An "unofficial" version of the new proposed amendments can be accessed at this link. They run 62 (fun-loving) pages, and I hope to find time this weekend to try to figure out the biggest story within.
Why talk of "retroactivity" makes me (unjustifiably?) nuts in the FSA pipeline cases
Regular readers know I blogged a lot about the application of the Fair Sentencing Act to what I call "pipeline" crack cases as they worked their way through lower courts over the last two years. But I have not blogged much about this issue since the Supreme Court in November 2011 formally took up, in the cases of Hill and Dorsey, whether the FSA's new mandatory minimum terms apply to initial sentencings that take place after the statute’s effective date if the offense occurred before that date. I have resisted much blogging since the cert grants largely because I have played a role in helping Hill's lawyers develop their briefs for SCOTUS.
But with the Hill and Dorsey cases now due to be argued early next week before SCOTUS, and with Lyle Denniston providing this detailed account of the background and briefing in these cases at SCOTUSblog, I cannot resist discussing one matter of (seemingly important) semantics that continues to make me nutty in these FSA pipeline cases. As the title of this post notes, the word that makes me nuts is "retroactivity" (which Lyle uses in his otherwise terrific argument preview), in part because this term can and has been given lots of meanings and in part because I do not think the issue in the Hill and Dorsey FSA pipeline cases is properly cast as a retroactivity issue.
Because I have not done a comprehensive analysis and deconstruction of the term "retroactivity" in all legal settings, maybe I am misguided to let this term drive me crazy here (and readers should tell me so in the comments). Nevertheless, I do know that in the federal habeas context, the term "retroactivity" has been given a precise meaning and it applies only when a prisoner or defendant is seeking to take advantage of a new legal ruling after his case as become "final" all the way through direct appeals. Stated differently, for habeas purposes, only unless and when a defendant's case is "final" all the way through all direct appeals does that defendant then have to worry about establishing that a new doctrine should apply "retroactivity."
Critically, the defendants in Hill and Dorsey had not even been sentenced at the time the FSA's new sentencing provisions became law, and so any discussion of the term "retroactivity" in their cases is necessarily inconsistent with how this term is properly deployed in the habeas context. Moreover, and to add another layer of nuance (and potential confusion), because they had not yet been sentenced, the defendants in Hill and Dorsey at sentencing technically were not asking a court to "undo" any formal legal determination that had already been made (in contrast to crack defendants already sentenced before the FSA became law but still pursuing direct appeals). Rather, all that these particular pipeline defendants seek is application of the latest (reduced) sentencing law at the time of their sentencing.
Put more directly and specifically, becuase the new law Hill and Dorsey want applied is a sentencing law, I do not think it is fair or accurate to say they are seeking retroactive application of this new law because they had not yet been sentenced under the old law. Becuase they committed their crimes at the time when the old sentencing way was still in place, I understand fully why those eager to prevent them from getting the benefits of the new law are asserting that they are pressing a "retroactivity" claim. But I really do not think that label makes any sense here, especially given that an express key provision of the Sentencing Reform Act, 18 U.S.C. § 3553(a)(4)(ii), calls for sentencing courts generaly to apply the guidelines sentencing law "in effect on the date the defendant is sentenced." I have never heard anyone describe this provision as the "retroactivity" instruction in the Sentencing Reform Act, nor do I think it has ever been seen as a controversial issue of "retroactivity" when defendants the benefit of reduced guideline sentences at the time of their sentencing even when/if they committed their crimes long before.
All that said and terminology concerns aside, I fully urge everyone to catch up to speed on all these issues via Lyle's effective preview at SCOTUSblog, which includes this crisp account of key elements to the dispute put before the Justices:
The briefs on the merits emphasize that the controversy before the Justices is basically one of statutory interpretation — sorting out the 2010 law, of course, but also a law enacted in 1871. The immediate question is which of the two laws should control the retroactivity question. There is, however, an implied constitutional question. Because of the disparate racial impact of the old 100-to-1 ratio, there is a lurking issue of discrimination in the case. That is being invoked by attorneys for the two Illinois men, on the theory that, to avoid confronting the constitutional issue, the Court should not validate new sentences that are based on the old ratio and thus keep a racially tinged system in operation. The Justice Department makes much of Congress’s wish not to perpetuate the disparity with its racial impact, but does not itself raise the “constitutional avoidance” issue directly....
There is no doubt that Congress definitely wanted to make a break from the experience that had prevailed almost since the very beginning of the 100-to-1 ratio in 1986, but there is enough uncertainty about its specific intentions regarding post-Act sentencing for pre-Act crimes as to leave some doubt in the Justices’ minds. Whether the Court would find ambiguity in the exact text of the 2010 law could be crucial. The amicus has gone to considerable lengths to suggest that, as between the 1871 law and the 2010 law, clarity definitely emerges most in the old law. Moreover, the mere fact that the Circuit Courts have divided as deeply as they have tends to suggest that there is no obvious way to make both the 1871 law and the 2010 statute equally operable on the retroactivity issue.
The Court, of course, is well aware, from its own experience with the crack vs. powder controversy, of the racial overtones that have lingered almost from the original enactment of the 100-to-1 ratio in 1986. A decision to keep that ratio in effect, with the continuing prospect that the racial factor will remain a feature of the actual sentences that do get imposed, may be an unattractive alternative for the Court. But if it should side with the Court-appointed amicus’s argument that numerically there won’t be a great many sentences for pre-2010 crimes, this potential may not be so significant.
Federal sentencing, as a general matter before the Court, has been a troubling and sometimes divisive issue for the Justices. What ultimately will make the difference in outcomes in this field is not easy to see in advance. The dispute over the crack vs. powder disparity has now returned to the Court with two very different perspectives laid before the Justices in the briefs. The quality of the oral argument thus might turn out to be critical in framing the response.
"Pot Groups See Obama 2012 Flip-Flop on Medical Marijuana"
The title of this post is the headline of this recent piece from US News and World Report, which gets started this way:
President Barack Obama touted a progressive attitude on medical marijuana on the campaign trail, but since taking office, Obama's administration has hardened its stance and supporters of the drug are crying foul on the flip-flop.
In a March 2008 interview, Obama told the Oregon Mail Tribune that medical marijuana ranked low on his list of priorities. "I think the basic concept of using medical marijuana for the same purposes and with the same controls as other drugs prescribed by doctors, I think that's entirely appropriate," Obama said. "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue."
But the numbers tell another story. Since October 2009, Americans for Safe Access, a group committed to legalizing medical marijuana, estimates the Justice Department has carried out 170 raids on dispensaries and cultivation facilities in nine states. "Every time a dispensary is shut down, there are literally hundreds of people waking up that day wondering where they will get their medication," says Kris Hermes, the spokesperson for the Americans for Safe Access.
Hermes says he's confident that the number of raids since the president took office is actually around 200. "He's broadened his attack," Hermes says. "Until Obama was elected, George W. Bush had the most aggressive posture toward medical marijuana...he's been even more aggressive than his predecessor." Americans for Safe Access estimates that during the entire eight years of the Bush administration, roughly 200 raids were carried out, something Hermes says the Obama administration has accomplished in less than four years....
Pro-marijuana groups say Obama has expanded the attack on medical marijuana from DOJ to a wide array of other federal agencies, including the Internal Revenue Service, which has lead dozens of audits of medical marijuana businesses. The IRS has also aggressively penalized medical marijuana businesses for selling an illegal drug by requiring the businesses to pay federal taxes on gross income, not net income, eliminating the tax break most businesses receive from deducting payroll costs.
The Department of Housing and Urban Development released a memo in 2011that allows public housing agencies to evict tenants who use medical marijuana. The Bureau of Alcohol, Tobacco, Firearms and Explosives also issued a memo in September banning the commercial sale of firearms to medical marijuana patients.
There are 16 states and the District of Columbia that have their own medical marijuana laws. And experts say U.S. attorneys' threats against local and state officials who enact medical marijuana laws in their states have even slowed down the implementation of new laws in Arizona, Montana, Rhode Island, and Washington.
A justifiably(?) long prison term for exteme child-care stupidity
It is really hard to have any sympathy for really mean people who hurt children, but this local sentencing story from Illinois, headlined "Rockford man gets 12 years for burning child with iron," leads me to wonder whether we ought to have perhaps a little sympathy for really stupid people who hurt children. Here are the details:
A man who ironed a shirt while it was on the back of an 18-month-old girl pleaded guilty Wednesday to aggravated battery to a child and was sentenced to 12 years in prison. Elliott Moore, 43, of Rockford was sentenced by Judge Rosemary Collins, Winnebago County State’s Attorney Joe Bruscato announced today.
On Feb. 5, 2010, Rockford police officers were sent to Rockford Memorial Hospital to take a report of aggravated battery to a child. Officers learned that the child had a large, open burn mark in the middle of the back.
The child’s mother reported Moore was her live-in care provider who watched her children while she was at school. The mother said on Feb. 4, 2010, she returned home and found Moore standing in the parking lot holding a bag of his clothes, stating he had to go to work. She said he was very agitated and that she knew he did not need to be at work for quite some time. That evening, the mother indicated her daughter was up all night crying. When she changed the child’s clothing, she noticed a large, open burn on her back, Bruscato said.
During an interview with detectives, Moore said he was watching the child and a sibling and was having difficulty ironing because the child was on his lap. He said that he placed one of his work shirts on the child’s back and ironed. The defendant said the child woke up crying, and he saw that he had burned her back. He said he then put cold water on her back and put the child in a sleeper....
Aggravated battery to a child is a Class 2 felony with a sentencing range of three to seven years in prison. Because of the victim’s age, Moore was eligible for an extended term — a range of three to 14 years in prison.
Perhaps I am naive to take at face value the defendant's account of how he burned this toddler, and perhaps deep evil (rather than deep stupidity) is involved here and justifies a decade+ in a cage for this crime. Still, if the poor child ultimately has no enduring harms and if the defendant truly was just guilty of being huge idiot, I wonder if anyone else questions whether the judge here really needed to nearly max-out the defendant's sentence.
April 12, 2012
Notable final(?) chapter in sad saga of former federal judge Jack Camp
This AP article, headlined "Review finds judge showed no bias," reports on the latest echoes of the (now dated) saga of former Judge Jack Camp who committed remarkable federal crimes while still on the bench. Here are excerpts from the piece, which also reviews the backstory:
Prosecutors say they have found no evidence that mental impairment or racial bias affected any cases handled by a disgraced judge who was sent to prison for buying drugs with a stripper, ending the U.S. Attorney office’s review of the ex-jurist’s legal decisions.
U.S. Attorney Sally Quillian Yates said her office reached that conclusion after examining the cases of 29 defendants who asked for the review after former U.S. District Judge Jack Camp was arrested in October 2010. Camp, who resigned from the bench, was sentenced to 30 days in prison in March 2011 after pleading guilty to drug-related charges.
Yates called for the review after witnesses interviewed as part of the federal investigation into Camp suggested he had a racial bias, and Camp admitted in court filings that a 2000 bicycling accident caused brain damage and led him to use drugs.
“I hope that this demonstrates to citizens we serve that we are committed to justice, not to convictions,” Yates said this week. “When you have a situation that strikes at the heart of our justice system, we have to do everything we can to assure that the public has confidence in the system.”
Camp, who has been out of prison for about a year, said in a statement to The Associated Press that he felt vindicated by the review. “Today, the U.S. Attorney has publicly confirmed what I never doubted throughout this ordeal,” he said. “I am pleased the report vindicates that my decisions were fair, impartial, and true to the law. Just as drug tests by the government had already shown no controlled substances, the report further confirms the fact that my work as a judge was never affected by drugs.”
Camp was 67 when he was arrested in a suburban Atlanta parking lot on Oct. 1 after he handed the stripper $160 to buy drugs from an undercover officer, according to court documents. The stripper was secretly cooperating with authorities.
The married judge, who has two grown children, pleaded guilty soon after his arrest to buying drugs for the stripper, possessing illegal drugs and giving the woman his $825 government-issued laptop. The former judge apologized at the March 2011 sentencing, saying he wanted to pay the debt he owed to society and rebuild his reputation.
Yates recused her office from the criminal case against Camp, but knew her office would need to deal with appeals filed by defendants who believed they were unfairly treated by the judge. Yates said she decided her office would not object to any requests by any defendant sentenced by Camp between March 2010 and September 2010 — when Camp was believed to have been using drugs — for a new sentencing hearing with a different judge.
Of the 12 defendants who did so, six received the same sentence Camp had imposed, and five others’ sentences were reduced. Two of those were reduced when the new judge accepted a request from prosecutors that Camp had rejected to reduce the sentence because the defendants cooperated with authorities. One case is still pending. It’s not unusual for a sentence to be reduced when the details of the case are heard by another judge....
Yates decided her office would consider reviews for the hundreds of cases that Camp heard during his 22-year career on the bench. “We recognize that feelings of racial bias don’t arise overnight,” she said. “We felt it was important to tell any defendant who went before Camp that we would hear their case regardless of when it happened.”
Twenty-nine defendants made the request, and Yates assigned a team of 25 attorneys to review the cases. They spent hundreds of hours reading the trial transcripts, vetting motions and reviewing court filings. Each filled out a nine-page form with details about the case, detailing any potential problems with Camp’s decisions and issues regarding the “fairness or integrity of the judicial process.”
The attorneys went to great lengths to document anything out of the ordinary involving each case, even noting when Camp, who was known as a temperamental jurist, became cranky, lost his train of thought or forgot the name of an attorney trying the case....
Yates said the review brings an end to her office’s vetting of the case. “This closes this chapter. It’s been a very difficult and troubling chapter for everyone,” she said. “But it’s something for us to be mindful of to make sure that the public be treated fairly.”
Camp, for his part, said he’s moving on from the “dark chapter” in his life. “I deeply appreciate the encouragement offered by friends both near and far as I have come to terms with my mistakes, learned to manage my condition, and begun to forge a meaningful path toward the future,” he said in the statement.
Related prior posts (which have generated lots of notable comments):
- "Federal judge charged with buying drugs from stripper"
- Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities
- Sentencing memo for former federal judge urges probation and stresses mental health issues
- You be the judge: what federal sentence would you impose on former judge Jack Camp?
- "Ex-judge Camp sentenced to 30 days in prison"
- Fascinating backstory for why former judge Jack Camp does not even have a felony conviction
Florida appeals court finds 80-year juve prison sentence unconstitutional under Graham
Via this new AP article, which is headlined "Fla. courts struggle with juvenile sentencing," I learned of an interesting new state appellate opinion working through the implications of the Supreme Court's Eighth Amendment ruling in Graham. Here are excerpts from the relatively brief (and quite interesting) opinion in Floyd v. Florida, No. 1D11-1983 (Fla. 1st DCA Apr. 12, 2012) (available here):
Appellant was seventeen years of age in 1998 when he committed grand theft auto and two counts of armed robbery with a firearm, which, according to the prosecutor’s description during the resentencing hearing, was a pellet gun that was “realistic looking.” The trial court initially sentenced Appellant to life imprisonment on the armed robbery counts. After Graham was issued more than a decade later, the trial court resentenced Appellant to consecutive forty-year sentences on the two armed robbery counts.... In [Graham], the Court explained that while a state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide offense, it must give defendants like Graham “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. It also set forth that while the Eighth Amendment does not foreclose the possibility that juveniles convicted of nonhomicide crimes will remain behind bars for life, it does “forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.” Id.
Since Graham was issued, we have reviewed two lengthy term-of-years sentences for juveniles who committed nonhomicide crimes. In Thomas v. State, 78 So. 3d 644, 646 (Fla. 1st DCA 2011), we noted that the Graham holding was limited to those juveniles who were sentenced to life without parole for nonhomicide crimes. Although we agreed that, at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we rejected the appellant’s argument that his fifty-year concurrent sentences met that standard because, as found by the trial court, the appellant would be in his late sixties when he was released from prison, if he was required to serve the entirety of his sentence. 78 So. 3d at 646. In Gridine v. State, 37 Fla. L. Weekly D69 (Fla. 1st DCA Dec. 30, 2011), while again noting that, at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we rejected the argument that a seventy-year sentence was unconstitutional.
In this case, we are faced with a situation where Appellant, if he serves the entirety of his sentence, will be ninety-seven when he is released. Even if Appellant received the maximum amount of gain time, the earliest he would be released is at age eighty-five.... This situation does not in any way provide Appellant with a meaningful or realistic opportunity to obtain release, as required by Graham. While the trial court was correct that the Eighth Amendment does not foreclose the possibility that juveniles who commit nonhomicide crimes will remain in prison for life, Graham also cautioned that states are foreclosed from making the judgment at the outset that those offenders will never be fit to reenter society. By sentencing Appellant to eighty years in prison, the trial court impermissibly made that judgment.
In reaching our decision, we are mindful of those cases, both in Florida and in other states, where the courts have deemed lengthy term-of-years sentences constitutional. See, e.g., Henry v. State, 37 Fla. L. Weekly D195 (Fla. 5th DCA Jan. 20, 2012) (holding that a ninety-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional); State v. Kasic, 265 P.3d 410, 415 (Ariz. Ct. App. 2011) (holding that a combined 139.75-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional); People v. Caballero, 119 Cal.Rptr.3d 920, 926 (Cal. App. Ct. 2011) (holding that a 110-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional). We disagree with those courts, however, that a lengthy term-of-years sentence cannot constitute the functional equivalent of a life sentence without parole. As the California appellate court reasoned in People v. Mendez, 114 Cal.Rptr.3d 870, 882-83 (Cal. Ct. App. 2010), while Graham’s holding was expressly limited to juveniles sentenced to life without the possibility of parole, courts should be guided by the principles set forth in Graham when evaluating a lengthy term-of-years sentence for a juvenile who was convicted of a nonhomicide offense. In holding that the juvenile defendant’s eighty-four-year sentence was unconstitutional, the court found that common sense dictated that a juvenile who is sentenced at the age of eighteen and who is not eligible for parole until after he is expected to die does not have a “meaningful” or, as the Supreme Court also described, “realistic” opportunity of release. 114 Cal.Rptr.3d at 883; see also United States v. Mathurin, No. 09-21075-Cr, 2011 WL 2580775 (S.D. Fla. June 29, 2011) (holding that a 307-year sentence for a juvenile who committed nonhomicide offenses was unconstitutional); People v. J.I.A., 127 Cal.Rptr.3d 141, 149 (Cal. App. Ct. 2011) (holding that the juvenile’s sentence, which had a minimum period of actual confinement of 56.5 years, was unconstitutional because the defendant would not be eligible for parole until about the time he was expected to die); People v. De Jesus Nunez, 125 Cal.Rptr.3d 616, 617 (Cal. App. Ct. 2011) (holding that the juvenile’s sentence, which precluded the possibility of parole for 175 years, was unconstitutional).
In this case, common sense dictates that Appellant’s eighty-year sentence, which, according to the statistics cited by Appellant, is longer than his life expectancy, is the functional equivalent of a life without parole sentence and will not provide him with a meaningful or realistic opportunity to obtain release. We, therefore, reverse Appellant’s forty-year consecutive sentences and remand for resentencing. In doing so, we encourage the Legislature to follow the Supreme Court’s guidance in Graham and to “explore the means and mechanisms for compliance” of its opinion. Until either the Legislature or a higher court addresses the issue, the uncertainty that has arisen in this area of the law since Graham was issued will undoubtedly continue.
Connecticut bill to repeal of death penalty to become law with Governor's signature
As reported in this New York Times article, following "more than nine hours of debate, the Connecticut House of Representatives voted on Wednesday to repeal the state’s death penalty, following a similar vote in the State Senate last week." Here is more:
Gov. Dannel P. Malloy, a Democrat, has said he will sign the bill, which would make Connecticut the 17th state — the 5th in five years — to abolish capital punishment for future cases.
Mr. Malloy’s signature will leave New Hampshire and Pennsylvania as the only states in the Northeast that still have the death penalty. New Jersey repealed it in 2007. New York’s statute was ruled unconstitutional by the state’s highest court in 2004, and lawmakers have not moved to fix the law.
The vote, after more than two decades of debate and the 2009 veto of a similar bill by the governor at the time, M. Jodi Rell, a Republican, came against the backdrop of one of the state’s most horrific crimes: a 2007 home invasion in Cheshire in which Jennifer Hawke-Petit and her daughters, Hayley, 17, and Michaela, 11, were held hostage and murdered, two of the three raped, and their house set afire by two habitual criminals who are now on death row. Ms. Hawke-Petit’s husband, Dr. William A. Petit Jr., who was badly beaten but escaped, has since been an ardent advocate for keeping the death penalty.
The bill exempts the 11 men currently on death row, including Joshua Komisarjevsky and Steven J. Hayes, the men convicted of the Petit murders.
The measure was approved by a vote of 86 to 62, largely along party lines. The legislation will make life in prison without possibility of parole the state’s harshest punishment. It mandates that those given life without parole be incarcerated separately from other inmates and be limited to two hours a day outside the prison cell.
In a statement released late Wednesday night, Governor Malloy said the repeal put Connecticut in the same position as nearly every other industrialized nation on the death penalty. “For decades, we have not had a workable death penalty,” he said, noting that only one person has been executed in Connecticut in the last 52 years. “Going forward, we will have a system that allows us to put these people away for life, in living conditions none of us would want to experience. Let’s throw away the key and have them spend the rest of their natural lives in jail.”
Thirteen proposed amendments from supporters of capital punishment, most of which would have allowed the death penalty in certain cases, were defeated during the debate, in which many legislators told personal stories of the effects of violent crime. The lawmakers also invoked a wide variety of people, from mass murderers to Immanuel Kant to Sir Thomas More....
Republican critics of the bill said the exemption for those currently awaiting execution cast a cloud over the vote, both because it undercut the moral argument of death penalty opponents and because future appeals or government action had the potential to spare the 11 men....
After Connecticut’s repeal, 33 states will have capital punishment, along with the United States government when it prosecutes cases in the federal courts. Voters in California will be asked in November whether to abolish the death penalty in that state.
Capital punishment in Connecticut dates to colonial times. From 1639 to 2005, it performed 126 executions, first by hanging, then by the electric chair, and since 1973, by lethal injection. But since 1976, when the Supreme Court allowed the resumption of executions, there has been just one person executed in the state: Michael Bruce Ross, a serial killer who voluntarily gave up his right to further appeals and was put to death in 2005. The last person involuntarily put to death, in 1960, was Joseph (Mad Dog) Taborsky, who committed a string of robberies and killings....
In the Connecticut Senate, where passage seemed most in doubt, the bill was approved 20 to 16 on April 5, with 2 Democrats and all 14 Republicans opposed. Democrats have a majority in both chambers of the General Assembly....
The political fight over the bill could persist long after the vote. Republicans are likely to put the issue in play in the fall when all 36 State Senate and 151 State House seats are up for election. A recent Quinnipiac University poll found that 62 percent of Connecticut residents thought abolishing the death penalty was “a bad idea,” though polls over time have found respondents split relatively evenly if given the option of life without parole as an alternative to executions.
Governor Malloy's statement — in which he states "I am pleased the House passed the bill, and when it gets to my desk I will sign it" — is available at this link.
Recent related posts:
- Despite increased public support, Connecticut legislature again discussing death penalty repeal
- Marching bishops perhaps take Connecticut to verge of repealing its death penalty
- Connecticut now far along path to abolish the death penalty after Senate vote
- What are odds any Connecticut death sentences get carried out after "prospective" repeal?
April 11, 2012
Zimmerman charged with second-degree murder in Florida shooting of Trayvon Martin
Via this breaking USA Today news report about the latest developments in the high-profile Zimmerman-Martin, it appear that George Zimmerman is to be charged with second-degree murder and is already in custody:
The shooter in the Trayvon Martin case will be charged with second-degree murder and is in custody, the Associated Press reports a law enforcement official says. The news organization reports that 28-year-old George Zimmerman is custody, but will not say where.
The special prosecutor in the Trayvon Martin shooting case said Wednesday that she will release "new information" today at 6 p.m. ET. Several news outlets, including the Associated Press, are reporting that Florida State Attorney Angela Corey will file criminal charges against neighborhood watch volunteer George Zimmerman.
Zimmerman, whose father is white and mother is Latina, told police he shot Trayvon in self-defense after following the unarmed black teen in a gated Sanford community Feb. 26. The decision on charges in this case is a particularly brutal and difficult choice, legal and forensic analysts say. Zimmerman's claim of self-defense, Florida's stand your ground law, questions about racial profiling, intense public attention and nationwide rallies calling for Zimmerman's arrest have combined to make the case a complicated stew, the analysts say.
Though I am not an expert on Florida's homicide laws, I would guess that second-degree murder is the harshest charge that was reasonably available to the special prosecutor. And here is what a quick google search turned up about the potential sentencing realities if Zimmerman is ultimately convicted on this charge:
The crime of Second Degree Murder is classified as a First Degree Felony and is assigned a Level 10 offense severity ranking under Florida's Criminal Punishment Code. If convicted of Second Degree Murder, a judge is required to impose a minimum prison sentence of 16+ years in prison up to a maximum of life in prison.
Now the big question in this case turns from whether Zimmerman will be charged to whether he will be convicted and/or whether a plea deal may be sought or suggested by either the prosecutors or the defense. Interesting times.
Prior posts on this case:
- Should Florida's Gov have appointed a black (or Hispanic) prosecutor to take over the Trayvon Martin case?
- What should we make of Florida special prosecutor's decision to forego a grand jury in the Martin-Zimmerman case?
Notable report on Oregon's use of technology to combat drunk driving
Regular readers know I am a fan of "technocorrections" generally and that I have a special affinity for the use of ignition locks as a means to respond to, and seek to reduce the incidents of, drunk driving. Consequently, I found this new local piece, headlined "Oregon turns heavily to ignition interlocks to prevent drunken driving," to make for very interesting reading. Here are excerpts:
A new state law [in Oregon] has greatly expanded the number of drivers ordered to install ignition interlocks, which are designed to keep people from driving if they have been drinking.
Use of the devices has soared across the country in recent years as legislators, spurred on by groups such as Mothers Against Drunk Drivers, adopted laws requiring offenders to install the interlocks. Congress is also considering language in the new transportation bill that would penalize states that don't adopt mandatory interlock laws.
Supporters say re-arrest rates plummet for drivers using the electronic devices while also providing a safe way for people to continue to drive to work or ferry their kids around. Offenders have to pay the costs of the equipment and it appears to be politically popular: the Oregon Legislature unanimously approved interlock bills in 2011 and 2012.
Still, the growth of interlocks has also raised plenty of doubts and criticism. The majority of drunken drivers required to install an interlock get out of the requirement, typically by waiting out their license suspensions or by claiming not to have access to a car. The problem is that most of those offenders continue to drive anyway without a license or insurance, according to several studies and experts.
It's also not clear that interlocks have a lasting effect on driver behavior. Once they're removed -- in Oregon, usually after a year -- studies indicate the recidivism rate climbs back to the same rate as offenders who never used interlocks. In addition, while Oregon expanded its interlock law, it hasn't put resources into monitoring their use. As a result, officials aren't likely to learn whether offenders have "bad blows" that indicate they've been drinking and can't start their cars.
Installers are preparing for a new rush of business after a 2011 law passed by the Legislature took effect in January. It requires offenders in diversion programs install the interlock devices for a year. Another law passed in 2012 requires the most serious multiple offenders to use an interlock for five years after getting their licenses restored.
About 10,000 people a year are placed on diversion after being arrested for drunken driving. Another 10,000 are convicted of drunken driving -- typically after a previous offense -- and are already required to use the device. The latest figures, from last July, show 3,715 interlocks on Oregon vehicles.
"We can't keep these things in stock," said David Farah, owner of BreatheCLEAN'alc-lock Systems, "as soon as they come in they're gone." Farah's Portland-based company buys interlocks from manufacturers and has deals with auto shops in Portland, Medford, Ashland and Coos Bay to install them. In Portland, he usually charges a $65 installation fee and $59 a month for the device....
Anne Pratt, who lobbies for Mothers Against Drunk Driving in Oregon, said she is impressed by New Mexico's success with tougher interlock ignition laws. Over the last decade, that state's drunken driving fatality rate has dropped from being one of the country's highest to around the national average. On a per-capita basis, more drivers in New Mexico -- nearly one out of every 100 -- use interlocks than anywhere else. "The interlock acts as a virtual probation officer riding in the front seat," said Pratt, adding that, "If you can pay for alcohol, you can pay for the installation of an interlock device."...
While companies that manufacture and install interlock devices are an important economic power behind these laws, the restaurant industry has used its clout to fight their expanded use. The American Beverage Institute, which represents several restaurant chains, is fighting federal legislation that would boost funding for a research program to develop an ignition interlock that could someday become standard equipment on all cars.
Sarah Longwell, the institute's managing director, said that if that happens, people will be afraid to go out for dinner and drinks for fear their cars won't start when they want to go home. "We want to protect moderate and responsible drinking," she said.
Richard Roth, a New Mexico researcher and expert on interlock use, said he thinks Longwell mostly wants to protect high-margin alcohol sales in restaurants. He said the research project, known as DADSS, for Driver Alcohol Detection System for Safety, and sponsored by the federal government and auto manufacturers, could be a valuable addition to safety since a majority of drunken drivers involved in fatal crashes have never been arrested for the crime before. In any event, he added, the DADSS technology "is a tremendously difficult thing to achieve and I still think it's 10 years away. It has to be so much better than what the current interlock is. It has to be like an airbag -- you don't even know it's there."
Some related posts on sentencing drunk drivers and advocacy for ignition locks:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- More examples of undue leniency shown to repeat drunk drivers
- "Some Coloradans drive until they kill"
- New York about to require ignition locks as mandated punishment for drunk driving
- Sentences of a few weeks for drunk driving makes Michigan judge uniquely tough
- Effective commentary complaining about undue leniency for drunk drivers
- Alcohol industry resistant to federal support for more DUI prevention technology
DC Circuit say a lot on safety valve, acceptance of responsibility, and ineffective assistance
The DC Circuit does not issue many sentencing opinions, but those that come from the circuit tend to cover important ground in interesting ways. Such is the case with the panel opinion (unsealed today) in US v. Rodriguez, No. 10-3017 (DC Cir. Mar. 9, 2012) (available here). The opinion is not readily summarized, but I thought this section (with cites and quotes removed) discussing ineffective assistance at sentencing was of particular note:
Rodriguez’s lawyer failed to request safety-valve relief after Rodriguez truthfully debriefed. Indeed, Rodriguez’s lawyer suggested that the district court had rejected the safety valve and that it was off the table.... Familiarity with the Guidelines is a necessity for counsel who seek to give effective representation. When a lawyer fails to raise an applicable provision of the Guidelines, he fails to provide effective assistance. Rodriguez’s lawyer was (or should have been) aware that his client had fully and truthfully debriefed and there was no “objectively reasonable” or strategic reason not to argue its applicability.
Moreover, given the applicability of the safety-valve provision, we believe there is at least a reasonable probability that, had Rodriguez’s lawyer raised it, Rodriguez would have received a lower sentence. Our sister circuits have held that once a defendant satisfies the five requirements, the district court has no discretion to withhold its application, and that the safety-valve provision is mandatory.
The post-Booker sentencing scheme, which requires the district court to determine the Guidelines range before exercising its discretion, presupposes that the appropriate range is an important guide in the exercise of that discretion. Here, Rodriguez’s offense level adjustment under the safety-valve provision and corresponding two-point decrease under the drug guideline would reduce his Guidelines range from 78-97 months to 63-78 months.
April 10, 2012
"Beyond 'Life and Liberty': The Evolving Right to Counsel"
The title of this post is the title of this new piece by John Derek King now available via SSRN. Here is the abstract:
The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The hidden consequences of a conviction may never be explained to the person choosing to plead guilty, leading to unjust results that happen more regularly and with more severe consequences than ever before.
This Article argues that current Sixth Amendment jurisprudence on the right to counsel has not adequately adapted to the changed realities within which misdemeanor prosecutions take place today. Because of the dramatic changes in the cultural meaning and real-life consequences of low-level convictions, there is no longer a useful or constitutionally significant line between those cases resulting in actual imprisonment and those cases not resulting in imprisonment. Two years ago in Padilla v. Kentucky, the Supreme Court recognized that the line between the direct and collateral consequences of a conviction has no constitutional significance in defining the effective assistance of counsel. Recognizing that the Sixth Amendment right to counsel has evolved throughout its history to accommodate the changing cultural context of criminal prosecutions, this Article calls for a robust expansion of the right to counsel in all criminal cases.
Death penalty news and notes from many states
I saw a number of interesting death penalty stories from a number of states on the news wire this evening, and here are links to a few:
From Arizona here, "Arizona inmate won’t seek death-row mercy"
From Florida here,"Surviving serial killer's victim asks officials to stop his Thursday execution
From Idaho here, "4 death row inmates sue over Idaho's newest lethal injection procedures"
From Ohio here, "Faith leaders want mercy for Ohio death row inmate"
From Oklahoma here, "Tulsa residents want death penalty in shootings"
A habeas example of man bites dog: New York loses habeas appeal based on procedural default
Frequently, state prisoners seeking relief in federal courts through habeas petitions fail even to get their potentially valid substantive claims heard because of some procedural default in prior efforts to challenge their conviction. Today, in Stevens v. Miller, No. 11-5343 (2d Cir. Apr. 10, 2012) (available here), the procedural shoes ends up on the other foot. The legal backstory for this ruling is complicated (and includes Apprendi jurisprudence), but this paragraph from the start of the discussion highlights the basics:
The State claims that the district court abused its discretion in denying its Rule 60(b)(6) motion. The State’s primary argument on appeal is that the district court should 5 have granted its motion because Portalatin constituted a supervening change in governing law that called into question the correctness of the district court’s judgment [which granted habeas relief to the defendant]. It also points to other circumstances it believes make this case “extraordinary.” The State asserts, among other things, that it had no reason to suspect that the district court would issue a ruling when it did, that the Clerk’s Office failed to provide the State notice of judgment, that Stevens’s counsel “misled” the district court, and that “comity concerns” counsel in favor of granting the State’s motion. We find that, even when viewed in the light most charitable to the State, the State’s motion is nothing more 17 than one premised on its own mistake, inadvertence, surprise, and neglect –- in other words, an untimely Rule 60(b)(1) motion masquerading as a Rule 60(b)(6) motion. The district court did not abuse its discretion in denying the State its requested relief.
Could Romney appeal to independents and minorities with bold crime and punishment vision?
It seems now all but certain that Mitt Romney is going to secure the Republican nomination and take on President Obama in the general Presidential election this Fall. Consequently, I am starting to think about whether and how criminal justice issues might play a role in the coming Romney v. Obama 2012 campaign. In particular, I am wondering about who might be giving Romney advice on crime and punishment issues, and I am especially hoping that Romney might seriously consider a bold new GOP approach to these issues in an effort to reach out to independent and minority voters (especially young ones).
As regular readers know, the Right on Crime folks have set forth an effective "conservative case" for criminal justice reform. In this statement of principles, which stresses "limited government, transparency, individual liberty, personal responsibility, and free enterprise," there is a strong suggestion that incarceration should play a smaller role in modern criminal justice systems and that the drug war ought to be scaled back significantly. GOP stalwarts ranging from Jeb Bush to Newt Gingrich to Grover Norquist to Edwin Meese to John DiIulio to Ralph Reed to Larry Thompson have all signed off on these principles and likely would be supportive of their embrace by candidate Romney.
Meanwhile, I strongly suspect that many folks (myself included) who thought President Obama might be an effective advocate for needed criminal justice reforms have been persistently disappointed by the work of the Obama Administration in this arena. On issues ranging from federal marijuana policy to criminal discovery reform to mandatory minimum sentencing statutes to clemency practices, the last few years have represented a missed opportunity for needed federal reforms with a deeply disappointing failure in leadership and vision.
I fully understand political and practical reasons why President Obama has not been able to engineer the sort of hope and change in the criminal justice system promised by candidate Obama. But this very reality prompts me to believe there is a real opening for candidate Romney to seize on this issue and, without having to do any major Etch-a-Sketch revisions to his campaign rhetoric, to demonstrate to many potential swing voters and even a part of the Obama base that he is ready and willing to bring the GOP's rhetoric about the evil of big government to bear on the big federal criminal justice system.
Because Romney has not yet shown much boldness in his campaign strategies to date, and because criminal justice issues are sure to continue to take a back seat throughout the rest of the 2012 election season, I am not expecting much here. But I continue to hope for change, and the recent work of a number of GOP governors on sentencing reform suggests to me that it now may be more likely to hear real talk about real criminal justice change from candidate Romney than from President Obama.
Some recent and older related posts:
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- When and how will state GOP leaders start cutting expensive criminal justice programming?
- New poll reports that large majority of Americans consider "War on Drugs" a failure
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- Two state govs request that feds reclassify pot to ease medical use
- "Marijuana questions dominate White House online chat -- again"
- Fascinating NPR piece on how feds have ended local innovation on pot regulation
- "Obama's War on Pot"
- Marijuana legalization advocate getting warm reception at CPAC
April 10, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Pot Prohibition Issues, Purposes of Punishment and Sentencing | Permalink | Comments (12) | TrackBack
April 9, 2012
What should we make of Florida special prosecutor's decision to forego a grand jury in the Martin-Zimmerman case?
The question in the title of this post is prompted by this new CNN report, which is headlined "Prosecutor won't use grand jury in Trayvon Martin shooting case." Here are the basics:
Special prosecutor Angela Corey has decided against using a grand jury in the case involving the shooting death of 17-year-old Trayvon Martin, her office said Monday. "The decision should not be considered a factor in the final determination of the case," the office said in a statement.
The grand jury, set to convene Tuesday, was "previously scheduled by the former prosecutor," the statement said. Corey said the investigation into the case continues. The state attorney has maintained that a grand jury is not needed to file possible criminal charges against George Zimmerman, the neighborhood watch volunteer who killed the teen February 26.
"We were anticipating that there would be no grand jury, because the family has always been hopeful that there would just simply be an arrest," said Benjamin Crump, an attorney for the Martin family. "We believed, from day one, that they had enough evidence to arrest the killer of Trayvon Martin and now, as the evidence has continued to unfold, we think there has been a plethora of evidence to simply effect probable cause to do an arrest -- not for a conviction, but for an arrest."
"We want a very public trial so the evidence can come out and show people that the justice system works for everybody," he said. He told CNN that the victim's mother, Sybrina Fulton, "said that she's prayerful" Zimmerman will be arrested.
The Justice Department said the grand jury decision does not affect any federal role. "The department's parallel investigation remains ongoing," Justice spokeswoman Xochitl Hinojosa said....
Prosecutors are trying to unravel what happened the night Martin was killed. Witnesses and attorneys for both sides have offered conflicting accounts. Two prosecutors are working to determine whether there is sufficient evidence to bring charges against Zimmerman, 28. Zimmerman's attorney, Hal Uhrig, texted his reaction to CNN's Martin Savidge: "Not surprised. Don't know what her decision will be. Courageous move on her part."
Corey said previously that she had never used a grand jury to decide on charges in a justifiable homicide case. "We do a thorough investigation. We make that decision ourselves," she said.
Sunny Hostin, legal analyst for CNN sister network HLN, said she was not surprised by Corey's decision. "As a former prosecutor, I typically made my own charging decisions," she said. "... Many, many seasoned prosecutors use their judgment and make charging decisions, don't necessarily punt the ball to lay people, to a grand jury." Corey's decision was "the smart thing to do," she said. "... Now Angela Corey is letting everyone know that this is her case. This is her decision."
Because I have never been a prosecutor, I am disinclined to speculate as to what this decision could mean concerning special prosecutor Angela Corey's thinking concerning the case. But, because I have long been a fan of lay involvement in all aspects of the criminal justice system, I am inclined to be disappointed that there is not going to be a proceeding which would at this stage enable a group of "non-experts" to review the evidence and provide a lay opinion as to whether there is probably cause to charge George Zimmerman with any criminal offense. That said, given how fraught this case has become with emotion and (excessive?) media attention, perhaps Corey sensibly feared that any work by a grand jury proceeding might end up distorting rather and clarifying perspective in this high-profile case.
"Tim Tebow connects with inmates during prison visits"
The title of this post is the headline of this notable new piece appearing on NFL.com. Here are excerpts:
On Easter Sunday, Tim Tebow answered questions from a Texas pastor with more than 15,000 people hanging on his every word. It was a very public example of both Tebow's immense popularity and outspoken connection to his Christian faith. Not all Tebow does is seen by the masses, however.
The New York Jets' quarterback has made 10 prison visits dating back to his time at the University of Florida, speaking and interacting with inmates who are looking for a fresh start. Accompanied by chaplain and longtime family friend James Williams, Tebow had spoken with everyone from death row inmates to young offenders new to the system.
“It’s hard to fool people who are incarcerated,” Gerald Evans, an inmate at Lawtey Correctional Institution in northeast Florida, told the New York Daily News. “They can see right through you. They can tell when a guy’s faking, every time. Tim Tebow, he brought a charge to people here. He brought inspiration to people here. He is a real as you can get.”
Tebow has visited Lawtey twice, talking faith and throwing a football with inmates in the prison's gymnasium. “Being in prison you automatically see the worst in people,” inmate Tyron Thomas said. “You meet a lot of people who pick up the Bible and when they put it down you can never tell they read it. There was just something about Tebow, and how he truly believes in the word of God. It’s kind of freaky, actually. It’s not something you see too often.”
I like this story not only because it is useful to hear from prisoners that Tebow is not a phony, but also because it is nice to see prominent persons practice what they preach. Regular readers know that many persons with strong Christian faith are ready and eager to apply that faith's principles of forgiveness and redemption to the criminal justice system, and I am pleased to learn that Tebow has long brought these messages to persons in prison who surely benefit from hear them directly from someone so high-profile. Let the Tebowing in prison begin.
What are odds any Connecticut death sentences get carried out after "prospective" repeal?
The question in the title is prompted by this effective local article exploring the likely fate of those arleady on Connecticut's death row in light of the state's seemingly likely repeal of its capital punishment statute. The piece is headlined "Connecticut death penalty repeal may spare 11 on death row, despite legislature's intent, some say," and here are excerpts:
Now that Connecticut is on the verge of becoming the 17th state to reject the death penalty, the only question is what will happen to the 11 men currently on death row, in various stages of appeal.
The bill recently passed by the state Senate on a 20 to 16 vote applies the repeal prospectively, and the clear intent, as stated repeatedly in debate last week, is to continue to proceed with those 11 death sentences, but not for any individuals found guilty of similar crimes going forward.
Democratic supporters of repeal, including Senate Majority Leader Martin M. Looney, D-New Haven, who has lobbied for repeal for decades, say there are examples of the courts upholding prospective changes that will allow the death penalty revisions to stand.
Republican opponents who favor continuing with the infrequently used punishment counter that an appeal of the changes is a certainty and that the court will not allow the state to execute the 11 based on constitutional grounds....
It is generally conceded that the policy change was crafted prospectively in order to get enough state senators to agree to the legislation. They wanted to be assured that the men on death row, particularly the two recently convicted and sentenced to death for their roles in the notorious murder of three members of the Petit family in Cheshire, will at some point be executed.
The bill could come up for a vote in the House as early as next week, where it is expected to pass, and Gov. Dannel P. Malloy has promised to sign it. The harshest punishment in Connecticut for murder under special circumstances then would be life in prison with no possibility of release.
An amendment to the bill applies the treatment now afforded death row inmates to future felons sentenced to life in prison. They would spend 22 hours a day in their cells, be segregated from the rest of the prison population, be subject to frequent searches and be allowed no physical contact with visitors....
Everyone, in explaining their positions, begins by saying that, ultimately, there is no certainty as to how a state Supreme Court challenge would come down, and the divergence of opinion on the issue extends beyond the legislature in Hartford.
William Dunlap, professor of law at Quinnipiac University, said he feels the revised policy, if adopted, can survive a challenge. Whether one thinks of it as bad policy is irrelevant and of no interest to the court, Dunlap said, and will not be the basis of a successful appeal. But he did not think the public defenders who might bring the challenge would win with an equal protection case either. Dunlap, who personally favors a complete abolition of the death penalty as many supporters of repeal do, said the decision was understandably a political one involving a compromise to maximize the number of votes for repeal.
Republicans who favor maintaining the death penalty put forth several legal arguments. State Senate Minority Leader John McKinney, R-Fairfield, said no state Supreme Court in the country has addressed the constitutionality of repealing the death penalty prospectively, including New Mexico, which is the only one to date who has repealed it for future crimes....
State Sen. John Kissel, R-Enfield, another strong supporter of the death penalty, said public defenders will argue under the 14th Amendment that the new policy represents “evolving social norms of human decency” and they will use this to get inmates off death row....
Local defense lawyer Hugh Keefe said the likelihood that the 11 on death row will ever be subjected to a lethal injection are almost nonexistent. “The chance of any of those guys being put to death is about as great as winning that $500 million lottery last weeek. It is just not going to happen,” Keefe said. “You can’t have the ultimate penalty depend on when you committed a crime. There is something inherently unconstitutional about that.”
Recent related posts:
- Despite increased public support, Connecticut legislature again discussing death penalty repeal
- Marching bishops perhaps take Connecticut to verge of repealing its death penalty
- Connecticut now far along path to abolish the death penalty after Senate vote
April 8, 2012
"Race, Prediction & Discretion"
The title of this post is the title of this new paper by Professor Shima Baradaran, which is now available via SSRN. Here is the abstract:
Many scholars and political leaders denounce racism as the cause of disproportionate incarceration of black Americans. All players in this system have been blamed including the legislators who enact laws that disproportionately harm blacks, police who unevenly arrest blacks, prosecutors who overcharge blacks, and judges that fail to release and oversentence black Americans. Some scholars have blamed the police and judges who make arrest and release decisions based on predictions of whether defendants will commit future crimes. They claim that prediction leads to minorities being treated unfairly. Others complain that racism results from misused discretion. This article explores where racial bias enters the criminal justice system through an empirical analysis that considers the impact of discretion and prediction.
With a close look at the numbers and consideration of factors ignored by others, this article confirms some conventional wisdom but also makes several surprising findings. This article confirms what many commentators have suspected — that police arrest black defendants more often for drug crimes than white defendants. It also finds, contrary to popular belief, that there is little evidence to support the belief that drugs are linked to violent crime. Also, judges actually detain white defendants more than similarly-situated black defendants for all types of crimes. The important and surprising findings in this article challenge long-held conventions of race and help mitigate racial disparity in criminal justice.
Ohio sentencing judges complain about lack of discretion to send offenders to prison
In the federal system, sentencing judges often complain about mandatory minimum sentencing provisions that limit their discretion to impose alternatives to incarceration on certain offenders. In this interesting local article from Ohio, which is headlined "Judges chafe under new sentencing requirements," we hear of sentencing judges complaining about mandatory maximum sentencing provisions that limit their discretion to give prison terms to certain offenders. Here is how the article begins:
John Elder pleaded guilty to six counts of theft, three counts of insurance fraud and three counts of forgery in February. He stole from his church, and defrauded the insurance company he worked for. The prosecutor wanted to send him to prison. Fairfield County Common Pleas Judge Richard Berens agreed. But first, the judge had to jump through another hoop.
Last year the Ohio General Assembly passed a sweeping sentencing reform designed to reduce the prison population and promote community corrections. House Bill 86 requires judges to first consult with the Department of Rehabilitation and Correction if they want to imprison a first-time, non-violent, low-level felony offender like Elder.
It's not often prison time is sought for these offenders, Berens said. But as in Elder's case, it does happen, and many judges feel that the Legislature has impeded on their authority. Elder's sentence is still pending. "The law has only been in effect for six months, so (the offenders) are starting to filter through the system," Berens said. "I've had offenders who brazenly will come into the courtroom and say, 'You, judge, cannot send me to prison.' "
Some officials say the battle about how to treat low-level offenders may itself wind up in court. It will take some time, though, for the affected cases to trickle up to the appellate courts and possibly to the Ohio Supreme Court, said David Diroll, executive director of the Ohio Criminal Sentencing Commission.
Hancock County Common Pleas Judge Reginald Routson said since the courts have to consult the Department of Rehabilitation and Correction - an arm of the executive branch - H.B. 86 violates the separation of powers and is unconstitutional.
Berens has circulated a four-page letter to the media, legal circles, and even on the court's website criticizing the new law. He said there are cases when a person commits a number of low-level felonies at once, or has a long misdemeanor record, that do warrant prison time. "For example, an offender on any given day could have sexual intercourse with a 14-year-old girl, break into his neighbor's garage and steal tools worth $20,000, buy and sell up to 49 doses of heroin or LSD, and, upon being pursued by law enforcement in his vehicle, commit the offense commonly known as fleeing and eluding," Berens wrote. "... As a result of H.B. 86, at sentencing, a judge could not sentence the offender ... to prison."