April 21, 2012
"Proportionality and Parole"
The title of this post is the title of this new article by Professor Richard Bierschbach, which is now available via SSRN. Here is the abstract:
Commentators analyzing the Supreme Court’s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping off point.
Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the state to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole’s constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation.
Some notable stories on the modern politics of pot
Today I came across these various interesting stories from various sources discussing various political angle on modern marijuana laws and policies:
- From Forbes here, "High Roller: How Billionaire Peter Lewis Is Bankrolling Marijuana Legalization"
From Politico here, "Obama's pot promise a pipe dream?"
From Reason here, "Connecticut Medical Marijuana Legalization Gets Closer, But Politicians Still Have Some Stupid, Cruel, and Anti-Market Objections"
April 20, 2012
"Murder victim’s family sues to enforce California death penalty"
The title of this post is the headline of this press release from the Criminal Justice Legal Foundation, which is representing the murder victim in what looks like fascinating and potentially ground-breaking litigation. Here are excerpts from the release:
The brother of Terri Winchell, who was brutally murdered in 1981, has filed a lawsuit against the California Department of Corrections and Rehabilitation (CDCR) to end the delay in the execution of his sister’s murderer, Michael Morales.
Bradley Winchell is asking California’s Third District Court of Appeal to order the CDCR to exercise its authority under state law to adopt a one-drug lethal injection method currently used in the states of Ohio, Washington, and Arizona to end the six-year delay of Morales’s sentence.
The Criminal Justice Legal Foundation, which is representing Mr. Winchell, has filed a petition for a writ of mandate in the Sacramento appeals court arguing that the CDCR has been derelict in its duty to enforce the law. Former California Governors George Deukmejian and Pete Wilson have joined the petition as co-counsel for Mr. Winchell.
In its argument, CJLF notes that there are currently 14 murderers on California’s death row whose sentences have been fully reviewed and who are ready for execution, yet the execution of their sentences has been blocked by litigation over lethal injection. While other states have moved forward and resumed enforcement of their capital punishment laws, California remains mired in litigation.
“This delay and denial of justice is entirely unnecessary,” said the Foundation’s Legal Director Kent Scheidegger. “The California Department of Corrections and Rehabilitation has ample authority to resume executions promptly. The failure of that Department and its Secretary, the Respondents in this action, is an abuse of discretion, an obstruction of the law, and a violation of the constitutional rights of the victims’ families,” he added.
Morales was sentenced to death in 1983 for the rape and murder of 17-year-old Terri Winchell. Between 1983 and 2005, Morales’s conviction and sentence were reviewed and upheld multiple times in both state and federal courts, and the United States Supreme Court twice refused to disturb those holdings.
The scheduled February 2006 execution was stayed by a federal judge considering Morales’s claim that California’s three-drug lethal injection process was unconstitutional. In 2007 a Marin County Superior Court judge, in an unprecedented ruling, announced that Morales’s execution could not proceed until the lethal injection protocol was adopted in compliance with state’s Administrative Procedure Act.
The 30+ page petition in this action is available in full at this link.
NC death row defendant prevails in first case decided under state's Racial Justice Act
As reported in this new AP story, which is headlined "Judge: Race played role in NC racial justice case," this morning has brought a high-profile ruling in a high-profile litigation over the application of the death penalty in North Carolina. Here are the basics:
A condemned killer's trial was so tainted by the racially colored decisions of prosecutors that he should be removed from death row and serve a life sentence, a judge ruled Friday in a precedent-setting North Carolina decision.
Superior Court Judge Greg Weeks' decision in the case of Marcus Robinson comes in the first test of a 2009 state law that allows death row prisoners and capital murder defendants to challenge their sentences or prosecutors' decisions with statistics and other evidence....
"The Racial Justice Act represents a landmark reform in capital sentencing in our state," Weeks said in Fayetteville on Friday. "There are those who disagree with this, but it is the law."
Robinson's case is the first of more than 150 pending cases to get an evidentiary hearing before a judge. Prosecutors said Friday they planned to challenge Weeks' decision, and District Attorney Billy West declined further comment while the case was being appealed.
Weeks ruled that race was a factor in prosecution decisions to reject potential black jurors before the murder trial of a black man who was convicted of killing a white teenager in 1991. The jury that convicted Robinson had nine whites, two blacks and one American Indian.
Robinson and co-defendant Roderick Williams Jr. murdered 17-year-old Erik Tornblom after the teen gave his killers a ride from a Fayetteville convenience store. Tornblom was forced to drive to a field where he was shot with a sawed-off shotgun. Robinson came close to death in January 2007, but a judge blocked his scheduled execution. Williams is serving a life sentence.
Central to Robinson's case before Weeks was a study by two law Michigan State University professors who reported that, of almost 160 people on North Carolina's death row, 31 had all-white juries, and 38 had only one person of color....
Robinson defense attorney James Ferguson of Charlotte told Weeks, who decided the case without a jury, that the study showed race was a significant factor in almost every one of North Carolina's prosecutorial districts as prosecutors decided to challenge and eliminate black jurors. "This case is important because it provides an opportunity for all of us to recognize that race far too often has been a significant factor in jury selection in capital cases," Ferguson said when the hearing opened in January....
The Republican-led Legislature tried to repeal the Racial Justice Act earlier this year but failed to override a veto by Gov. Beverly Perdue, a Democrat.
Related posts on NC Racial Justice Act:
- First big hearing on application of NC Racial Justice Act getting started
- North Carolina legislature creates committee to study state's Racial Justice Act while considering veto override
- NY Times editorial on "Race and Death Penalty Juries"
UPDATE: A helpful reader sent me a copy of the 168-page order in this (landmark?) case. It can be downloaded below, and here is a key paragraph from the introduction:
After considering the evidence and testimony presented to the Court, and the arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law in support of its order finding that race was, in fact, a significant factor in the prosecution's use of peremptory strikes, and thereby granting the Defendant's Motion for Relief Pursuant to the Racial Justice Act, vacating the death sentence, and imposing a sentence of life imprisonment without possibility of parole.
The title of this post is the title of this notable new paper by Professor Adam Kolber, which is now available via SSRN. Here is the abstract:
Criminal law theorists overwhelmingly agree that for some conduct to constitute punishment, it must be imposed intentionally. Some retributivists have argued that because punishment consists only of intentional inflictions, theories of punishment can ignore the merely foreseen hardships of prison, such as the mental and emotional distress inmates experience. Though such distress is foreseen, it is not intended, and so it is technically not punishment.
In this essay, I explain why theories of punishment must pay close attention to the unintentional burdens of punishment. In two very important contexts — punishment measurement and justification — we use the term “punishment” to capture not only intentional harsh treatment but certain unintentional harsh treatment as well. This means that the widely accepted view that punishment is an intentional infliction requires substantial caveats. It also means that any purported justification of punishment that addresses only the intentional infliction of punishment is woefully incomplete.
April 19, 2012
Noting the notable role of Catholicism in recent state death penalty abolition efforts
Today's Washington Post ran this interesting story headlined "Catholic activists pushing politicians to turn tide against the death penalty." Here are excerpts:
Soon, probably next week, Connecticut Gov. Dan Malloy will sign into a law a bill that abolishes the death penalty in his state. When he does, Connecticut will be the fifth state to enact such legislation in as many years — and the third with a governor who was raised a Roman Catholic....
Powerful, vocal Roman Catholics have been much in the news of late, mostly for their hard-line positions on abortion and birth control, and their self-serving rhetoric on the subject of religious rights in the health-care debate. But Catholic activists are playing another political role, too — under the radar — on an issue that hasn’t made the same sorts of headlines.
They are helping to turn the tide of public opinion in the United States against the death penalty. (According to a Pew poll earlier this year, about a third of Americans now oppose capital punishment, up from 18 percent in the mid-1990s.) And they are appealing to the consciences of Roman Catholic politicians to do it.
The sanctity of human life is central to Catholic theology, and for death penalty opponents, this sanctity extends as much to living men and women convicted of capital crimes as it does to embryos and fetuses....
Last November, a delegation of international death-penalty opponents was invited to a private audience with Pope Benedict XVI. There, the pope praised and encouraged “the political and legislative initiatives being promoted in a growing number of countries to eliminate the death penalty.”...
In 2011, on Ash Wednesday, Gov. Pat Quinn signed legislation that abolished the death penalty in Illinois. Quinn had attended Catholic schools as a child and went to Georgetown University but had long supported capital punishment.
After the bill passed in the Illinois legislature, he pondered his decision for months — for, as he puts it, “there are people of great conscience on both sides of this debate.” During that time, he received a visit from Sister Helen Prejean, the author of “Dead Man Walking,” and a call from the Catholic death-penalty opponent Martin Sheen. For guidance, he read Scripture, and on the morning he signed the bill, he read from the writings of the late Chicago Cardinal Joseph Bernardin....
Since then, he has become part of the country’s informal network of prominent Catholic death penalty opponents. He phoned Malloy to offer his congratulations on the passage of Connecticut’s bill and has told California Gov. Jerry Brown — who had at one time considered becoming a priest — that he supports anti-death-penalty efforts in his state.
Before the vote in Connecticut, the Society of St. Egidio, an international group of lay Catholics based in Rome, sent letters to key Catholic members of the state Senate, appealing to their consciences. “I am sure that it will be possible,” the letter said, enticingly, “to create a special event at the Coliseum in Rome to tell the world that Connecticut has taken the lead to abolition. ... The world will be able to love your state even more than now.” Mario Marazziti, St. Egidio’s spokesman, said the letter helped to swing undecided votes in support of abolition.
Some older posts on religion and the death penalty:
- "Pope seeks end to death penalty"
- "Religion and the Death Penalty: Can't have one without the other?"
- Senator Brownback questions death penalty and culture of life
- Debating religion and the death penalty
- New DPIC page on religion and the death penalty
- New resource examining religion and the death penalty
- Remarkable circuit judge speech on capital punishment at mass
- Sister Prejean's powerful perspective
- "Shepherds lead, but flocks diverge on morality of death penalty"
"Our ‘War on Drugs’: Eugenics Without Surgery?"
[There is prison] data showing that half of all inmates are currently incarcerated on drug offenses. In my experience, more than half of the remainder are also incarcerated on crimes committed in the service of addiction: burglary, robbery, bank robbery, assault, felony murder.
And these inmates disproportionately come from segments of society that suffer various, often multiple, deprivations: social deprivation, educational deprivation, nutritional deprivation, cultural deprivation, cognitive deprivation.
Since drug addiction — or at least being caught, prosecuted and convicted for addiction and related crimes — disproportionately affects deprived segments of our society, I submit that our incarceration addiction is tantamount to eugenics without surgery....
In my view, the selective incarceration of young minority men due to addictions that they often develop in their socioeconomically and culturally deprived worlds removes them from society in part because we view them as the “bogeyman,” and as unfit to be full partners with us. This is eugenics in different form.
Are we approaching a tipping point in the modern-day sex offender panic?
The question in the title of this post is prompted by this new piece in Stateline, which is headlined "Are sex offense laws too broad?." Here are excerpts from the piece:
Over eight years in the Missouri House, Republican Representative Rodney Schad has gotten numerous phone calls, letters, and emails from registered sex offenders and their families about the damage the registry has caused in their lives — the harassment, persistent unemployment, and community ostracism. Three years ago, Schad decided to start researching the state's registration policy, and what he found surprised him.
"There's no way to tell who's dangerous and who isn't," says Schad. "[People] look up their address and see 10 offenders living or working near their house." In his view, the list is becoming bloated and less helpful to ordinary citizens than it should be.
To try and refine who actually shows up on the public registry, Schad crafted legislation to create a tier system so that only the most dangerous offenders are listed publicly. Currently, anyone convicted of any type of sex crime, from public urination to child molestation, is placed on the list. The bill also creates an appeals process, so that offenders can petition to be removed from the registry after 10 or 20 years, depending on their crime, and removes all juvenile sex offenders tried in juvenile court from the public registry....
Missouri is not the only state pushing back against the strictest registry requirements. Georgia, which had one of the toughest sex offender laws in the nation, scaled back its registration requirements in 2010 for people who had committed crimes such as false imprisonment or non-sexual kidnapping. This immediately removed 819 people from the registry, according to the Atlanta Journal- Constitution.
In Ohio, which was the first state to go along with the Adam Walsh Act in 2007, the state Supreme Court has struck down three controversial portions of SORNA compliance legislation in the last two years: the lifetime registration of some juveniles, the application of the more restrictive Adam Walsh Act penalties to offenders sentenced under previous, less strict laws, and community re-notification requirements for offenders previously sentenced.
Even though opposition to the harshest sex offender policies is brewing, the more common story is still more punishment, not less. The Louisiana House passed a billl this week to exclude sex offenders convicted of computer-related offenses from social networking sites. The Arkansas parole board is considering banning registered sex offenders from using the Internet, and New York has recently distributed sex offenders' email addresses to online gaming companies which are then disabling offenders' accounts.
Why I think defendants should win "fight about competing background rules" in Hill and Dorsey
Despite lots of travels and other commitments, I have had time now to review and reflect on the SCOTUS oral arguments earlier this week in the Fair Sentencing Act pipeline cases Hill and Dorsey (basics here, transcript here). Though many parts of the argument merit discussion, here I will focus upon Miguel Estrada's crisp and spot-on statement that these cases ultimately are a "fight about competing background rules." Specifically, I will explain why I think, as a matter of both doctrine and policy, FSA defendants ought to win the fight in this particular setting where all the FSA does is lower the trigger quantities of crack for applicable mandatory minimum prison terms.
Here I must start by channeling my inner Blackstone to note that the common-law abatement doctrine meant that even if and when a criminal statute was amended to increase penalties, the "background rule" was that defendants could not even be prosecutedfor criminal behaviors that took place prior to this statutory change. So, for anyone drawn to common-law rules, and especially for those who believe in the statutory interpretation canon that statutes in derogation of the common law should be narrowly construed, the defendants have the common-law background in their favor.
Of course, Congress in 1871 passed the "Savings Statute" which reverses this common-law background rule with a new background rule providing that the "repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability." This statute sets out what might be called the Savings background rule and it is the rule that Estrada as the SCOTUS-appointed amicus argues should mean the defendants lose in Hill and Dorsey.
Notably, this Savings background rule has some indisputable import in these cases: absent this background rule, the common-law abatement doctrine would mean the defendants in Hill and Dorsey could not even be prosecuted for their crack offenses! But nobody has argued that these defendants should now get this common-law windfall and be free of "any penalty, forfeiture, or liability" for their pre-FSA conduct. Rather the dispute in these cases is whether they should be subject at a post-FSA sentencing to the pre-FSA mandatory minimum triggering levels for certain long prison terms for minor crack offenses. And, as SCOTUS interpretation of the Savings background rule states, we are to look to the express text and the necessary implications of the new statute to figure out what laws apply to crack defendants being sentenced now.
Here is where the defendants can and have stressed another background rule, namely the Sentencing Reform Act's key provision, 18 U.S.C. § 3553(a)(4)(ii), which calls for sentencing courts to apply the guidelines sentencing law "in effect on the date the defendant is sentenced." This statutory provision is, functionally, an express reversal by Congress of the Savings background rule for sentencing purposes under modern guideline reforms.
Congress in the FSA failed to include a specific provision referencing either the Savings background rule or the SRA law-in-effect-at-date-of-sentencing background rule. But the SRA background rule would seem to be closer in both time and relevance to the FSA's new sentencing provisions AND all major crack offenders are necessarily getting the benefit of the SRA background rule (i.e., they are getting sentenced based on the reduced 18:1 crack sentencing provisions) because the guidelines and not the old (or new) mandatory minimums frame/define the sentences they realistically face. It seems very weird to think Congress wanted the Savings background rule to sting lesser crack offenders, while the SRA background rule would benefit only more serious offenders.
In addition, the SRA has another important background rule, namely that sentencing judges are always required in every case to impose sentences "sufficient, but not greater than necessary" to achieve the purposes of punishment in the SRA. This additional "background rule" ensures defendants should not get any "sentencing windfall" from application of the new provisions of the FSA, but rather these provisions will merely allow judges to no longer be compelled (by now repealed mandatory minimums) to impose sentences for low-level crack offenders that they think are "greater than necesary" (a view Congress and the President has embraced as evidenced by the FSA's passage).
Further still, I think statutory construction canons like the rule of lenity and constitutional doubt provide still further "background rules" for an interpretation of the FSA to favor the defendants here. Indeed, the very fact that SCOTUS had to appoint an amicus to make an argument for the Savings background rule and nobody else (including no member of Congress) has urged that background rule to prevail further contributes to my (admittedly biased) view that the defendants should win this "fight about competing background rules" in Hill and Dorsey.
A few recent posts on these SCOTUS cases:
- SCOTUS to review FSA pipeline issue via Dorsey and Hill grants
- Why talk of "retroactivity" makes me (unjustifiably?) nuts in the FSA pipeline cases
- A quirky constitutional query about quirky sentencing laws
- Early report on SCOTUS oral arguments in FSA pipeline cases
Fascinating First Circuit discussion of the "Hail Mary" writ of coram nobis
Earlier this week, the First Circuit issued an interesting opinion discussing in an interesting setting the common law writ of coram nobis. Even if you are not a big fan of common law writs — but, really, who isn't? — I recommend checking out US v. George, No. 11-1815 (1st Cir. Apr. 18, 2012) (available here), which gets started this way:
A Hail Mary pass in American football is a long forward pass made in desperation at the end of a game, with only a small chance of success. The writ of error coram nobis is its criminal-law equivalent. This appeal requires us to explore the intricacies of the writ, sift through the considerations that inform a determination to unleash that extraordinary remedy, and assess the extent to which discretion can influence a reviewing court's decision about coram nobis relief. We conclude that a flexible, common-sense approach to coram nobis relief is warranted and that, in the last analysis, we have discretion to withhold the remedy where the interests of justice so dictate. Applying this principle to the case at hand, we affirm the district court's denial of the writ.
Expert panel concludes that death penalty deterrence studies are inconclusive
As reported in this Los Angeles Times article, headlined "Death penalty a deterrent to murder? Study says evidence unclear," a special committee formed by the National Research Council yesterday released a report which concluded that extant studies about the death penalty and deterrence are inconclusive. Here are the basics:
The Committee of Deterrence and the Death Penalty concluded that studies on the death penalty and its potential effect on homicide rates — both pro and con — contain fundamental flaws that essentially make them moot. For example, the studies do not include the effects of other forms of punishment — such as life in prison without possibility of parole, and whether it too acts as a deterrent. The studies, study authors wrote, don’t “consider how the capital and noncapital components of a regime combine in affecting the behavior of potential murderers.”
In other words, previous studies don’t determine whether potential killers think about the possibility of spending their lives in prison or ending up on death row before they commit their crimes. The lack of comprehensive information makes the research inconclusive, the study authors said. “We recognize this conclusion will be controversial to some, but nobody is well served by unfounded claims about the death penalty,” committee Chairman Daniel Nagin said in a telephone news conference. “Nothing is known about how potential murderers actually perceive their risk of punishment,” he said.
Nagin, a professor of public policy and statistics at Carnegie Mellon University, said more data were needed on the full range of penalties across the country before they are cited as basis for changing public policy. More precise data collection is needed, Nagin said, because the issue is so fundamentally difficult to study. For example, it’s scientifically impossible to know exactly what was going on in someone’s head when they killed someone — even if they are interviewed about it afterward.
The study also concludes that data alone can’t reveal what the homicide rate in a state with the death penalty would be if it didn’t have the punishment — and vice versa.
This official press release about the report and its findings provides an additional summary; these starting paragraphs from the press release also provide a link to the full report:
Research to date on the effect of capital punishment on homicide rates is not useful in determining whether the death penalty increases, decreases, or has no effect on these rates, says a new report from the National Research Council. The committee that wrote the report evaluated studies conducted since a four-year moratorium on the death penalty was lifted in 1976, and it found that the studies do not provide evidence for or against the proposition that the death penalty affects homicide rates. These studies should not be used to inform judgments about the effect of the death penalty on homicide, and should not serve as a basis for policy decisions about capital punishment, the committee said.
The lack of evidence about the deterrent effect of capital punishment — whether it is positive, negative, or zero — should not be construed as favoring one argument over another, the report stresses. "Fundamental flaws in the research we reviewed make it of no use in answering the question of whether the death penalty affects homicide rates," said Daniel S. Nagin, Teresa and H. John Heinz III University Professor of Public Policy and Statistics at Carnegie Mellon University Pittsburgh, and chair of the committee that wrote the report. "We recognize that this conclusion may be controversial to some, but no one is well-served by unsupportable claims about the effect of the death penalty, regardless of whether the claim is that the death penalty deters homicides, has no effect on homicide rates or actually increases homicides."
The key question, the report says, is whether capital punishment is less or more effective as a deterrent than alternative punishments, such as a life sentence without the possibility of parole. Yet none of the research that has been done accounted for the possible effect of noncapital punishments on homicide rates.
April 18, 2012
"Taxpayers should demand cost-effective crime policies"
The title of this post is the headline of this commentary published yesterday at The Hill's Congress Blog. It was authored by Julie Stewart, the president and founder of Families Against Mandatory Minimums, and here are excerpts:
Last year, Americans for Tax Reform President Grover Norquist, the Cato Institute’s director of criminal justice, Tim Lynch, and former Republican congressman and Bush administration DEA chief, Asa Hutchinson, joined me for a briefing to discuss the dozens of ways Congress and the administration could cut millions from wasteful anti-crime programs without jeopardizing public safety. Some cost-cutting reforms, like allowing elderly and ill patients (who pose no threat to society) to leave prison early and serve out their punishment in alternate ways, are obvious and overdue.
Others, like eliminating wasteful mandatory minimum sentencing laws, are being approved by cash-strapped states across the country. Governors and state lawmakers do not love their children any less, but they realize that locking up nonviolent criminals for decades is not a cost-effective way to keep their communities safe. New Jersey Gov. Chris Christie (R-NJ) recently announced an ambitious plan to require treatment in lieu of prison for all first-time drug offenders in the Garden State. Christie’s pitch? Since treatment is a fraction of the cost of prison, his new policy will save money and lives.
Contrast this common-sense approach with federal law, where a mother like Sabrina Giles is sentenced to 12 years in prison for allowing her abusive boyfriend to run his meth dealing business out of her New Mexico house. Ms. Giles, who had never even been arrested before, was gainfully employed and providing for her young daughter, despite struggling with substance abuse. What she needed was drug treatment, but what she got was more than a decade in federal prison. Her daughter was forced to grow up without the mother she loved and is now a teenager.
This isn’t tough on crime -- it’s just stupid.
Fortunately, some in Washington, D.C. are ready for reform. Two years ago, anti-tax hero Norquist and former American Conservative Union president David Keene testified before the House Crime Subcommittee in opposition to federal mandatory minimum sentences. Said Norquist, “The benefits, if any, of mandatory minimum sentences do not justify…[the] burden to taxpayers.” The subcommittee’s ranking member, Rep. Bobby Scott (D-VA) has long supported reform. More recently, Senator Rand Paul (R-KY) announced his strong opposition to mandatory minimums. Paul’s position makes sense given his Tea Party roots and that coalition’s aversion to excessive federal spending.
Most encouraging, the American public gets it. When asked by Pew if they agree with the statement, “Some of the money that we are spending on locking up low-risk, nonviolent inmates should be shifted to strengthening community corrections programs like probation and parole,” a remarkable 85 percent of voters agreed.
It’s time to stop wasting money on anti-crime programs and policies that don’t keep us safe, but make our tax bills higher.
Intriguing Second Circuit ruling on restitution awards and plain error
Today the Second Circuit handed down an interesting little white-collar crime ruling in US v. Zangari, 10-4546 (2d Cir. Apr. 18, 2012) (available here), which gets started this way:
In this appeal, we consider, as a matter of first impression in this Circuit, the propriety of substituting a defendant’s gain for his victims’ losses in calculating restitution under the Mandatory Victim’s Restitution Act (“MVRA”), 18 U.S.C. §§ 3663A–3664. Although we join several of our sister circuits in concluding that such a substitution is error, we decline to exercise our discretion under Federal Rule of Criminal Procedure 52(b) to notice the error in this case because the defendant failed to object to the restitution calculation before the District Court and has not satisfied his burden of persuading us that the erroneous restitution order both “affected [his] substantial rights” and “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (internal citation and quotation marks omitted). The judgment of the District Court is therefore affirmed.
April 18, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (1) | TrackBack
Ohio completes "the most documented execution in the United States"
As reported in this local story, after a sixth-month blockade of executions due to Ohio's persistent failure to follow its own execution protocols, the Buckeye State this morning got its machinery of death up and running again. As, as these excerpts from the story highlight, the execution prompted some notable quotes from both the condemned and those tasked with ending his life:
More than 26 years after he brutally murdered a Rootstown, Ohio, teenager, Mark Wayne Wiles paid the ultimate price today. Wiles 49, was executed at 10:42 a.m. at the Southern Ohio Correctional Facility near Lucasville. It was Ohio’s first execution in five months because of a legal battle about the state’s lethal-injection procedures.
Wiles, who looked nervous and haggard after entering the death chamber, reportedly had spent a sleepless night. As he lay on the gurney, a prison staff member removed his glasses at his request, so that he could read his last statement from a piece of paper held in front of his face.
"The love and support of my family has sustained and supported me throughout the years," he said. "I love you all. Since this needs to happen today, I hope my dying brings some solace and closure to the Klima family and their loved ones. The state of Ohio should not be in the business of killing its citizens. May God bless us all that fall short."
Gary C. Mohr, director of the state Department of Rehabilitation and Correction, said this morning that because the Wiles case is being so closely watched by the courts, it is "the most documented execution in the United States."
Wiles was convicted and sentenced to be death for the fatal stabbing of Mark Klima, 15, on Aug. 7, 1985. Records show that Wiles, who was out of prison on an aggravated-robbery conviction, killed the 5-foot-tall, 100-pound Klima at the family’s Shakespeare Acres horse farm in Portage County where Wiles had once worked. The kitchen knife that Wiles used to stab Klima 24 times had been used the previous day to cut the cake at a family birthday party....
The execution was the 47th in Ohio since capital punishment resumed in 1999.
I suspect time and future litigation may tell whether this "most documented" execution lived up to Ohio's own written protocols and to the expectations of the federal courts. If Ohio is successfully back on track with its machinery of death, it likely will conduct another half dozen executions this year.
April 17, 2012
"The Unchecked Charging Power of the Prosecutor"
The title of this post is the headline of this notable and lengthy new commentary by Radley Balko over at The Huffington Post. Here are excerpts:
When Florida special prosecutor Angela Corey charged George Zimmerman with second-degree murder this week in the February shooting of 17-year-old Trayvon Martin in Sanford, the charge won praise from Martin's supporters and more skeptical reactions from some legal commentators.
The power prosecutors have to charge people with crimes is often overlooked. While probable cause is the minimum standard police officers need to make an arrest and the minimum standard to convict is beyond a reasonable doubt, the question is where the power to charge should be between those two extremes.
In the 22 states that require a grand jury indictment before charging, the grand jury standard is a preponderance of the evidence, although grand juries are sometimes notorious for rubber-stamping a prosecutor's wishes. But without a grand jury, a prosecutor's charging power is entirely discretionary.
Once charged, a suspect often needs to hire expensive legal representation or, if he can't afford it (and there aren't many people who can pay for representation on a murder charge), request a public defender. It likely means at least temporary incarceration, the posting of bond, and a stigma more damaging than an arrest, but less so than a conviction.
A judge may occasionally dismiss charges due to lack of evidence, but generally speaking, the decision to charge is the prosecutor's. And while police officers can be sued for a wrongful arrest, prosecutors are protected by absolute immunity, meaning that as long as they're performing a prosecutor's duties, they can't be sued....
The American Bar Association's Standards for Criminal Justice advises that a prosecutor shouldn't prosecute a case in which he doubts the defendant's guilt, but if he believes there's enough evidence to establish probable cause, the ABA guidelines state that it's ethical to pursue a conviction. There's also no requirement that a prosecutor pursue evidence that may cast doubt on the suspect's guilt. That means it is ethical for a prosecutor, according to the ABA, to ask a jury to pronounce a defendant guilty with a degree of certainty that the prosecutor may not possess himself....
One possible middle-ground solution might be for prosecutors to bring initial charges based only on probable cause, but to encourage a more stringent standard to bring a case to trial. That would allow for an indictment and incarceration, or posting of bond to keep a suspect around while police and prosecutors attempt to collect more evidence....Ultimately, the prosecutor is a political position. Because no prosecutor has the resources to charge and try every crime, discretion over when to bring charges and for which crimes is a matter of policy.... Unless the voting public demands a higher standard for bringing serious charges, there's no incentive for prosecutors to impose such a standard upon themselves.
Early report on SCOTUS oral arguments in FSA pipeline cases
Thanks to this post by Lyle Denniston at SCOTUSblog, headlined "Argument recap: A dilemma over race," we can all get a quick account of the SCOTUS oral arguments this morning in Hill and Dorsey. Here is how the post begins:
A racial issue in criminal sentencing that has bedeviled all three branches of the federal government for a quarter century took a little time to emerge in a Supreme Court argument on Tuesday, but when it did, it had a noticeable impact on the Justices. After spending much of the first half-hour focusing on the meaning of two federal statutes, one passed in 1871, the other in 2010, the Court appeared strongly inclined to limit those who could benefit from Congress’s keen desire to narrow the racial disparity in sentencing for cocaine crimes.
But the tone changed as the Justices turned their focus to the prospect of perpetuating that racial disparity for at least a few years longer. That began to look quite unattractive to the Court.
I have a long plane ride this afternoon during which I will poor over the full argument transcript (which is now available at this link), and I am certain I will have a lot more to say about what the Justices had to say today later tonight.
UPDATE: A cranky internet connection while on the road has prevented me from finding time to comment more on the oral arguments in these cases, but How Appealing has a collection of media reports on the argument available at this link. With luck, I hope still to be able to discuss these cases more before the Justices themselves do at this Friday's private conference.
Colorado the new "ground zero" for debates over pot prohibitions and policies
For the last few years at least, California has been the state to watch concerning state reforms of marijuana laws and the broader realities of modern pot prohibition and policies. California has long had the most lax regulation of its medical marijuana industry, and in 2010 there was a state referendum to fully legalize pot that garnered well over 40% of the statewide vote. As highlighted by this new Huffington Post piece, however, it appeals that Colorado is now the state to watch in this arena. This piece is headlined "State's Proposal To Legalize Pot Gets Big Push," and here are excerpts:
On Monday, the Campaign to Regulate Marijuana Like Alcohol announced that the Colorado Democratic Party officially endorsed Amendment 64 at its state convention and assembly in Pueblo over the weekend.
In a press statement, Cindy Lowery-Graber, chair of the Denver County Democratic Party, said this about the Democratic support of pot legalization:
This is a mainstream issue. Polls show that more than 60 percent of Democrats and a solid majority of Independents believe marijuana should be treated like alcohol. A broad coalition is forming in support of Amendment 64 and I am proud to say that it now includes the Colorado Democratic Party.
The support should come as no surprise, earlier in March, after the Democratic Caucus, the Denver County Democratic Party released a document outlining the planks of its current platform which stated a support of not only "well-regulated, taxed, medical marijuana facilities" but also the decriminalization of marijuana, "allowing its sale, regulation and taxation similar to alcohol, subject to local control."
Amendment 64 seeks to legalize marijuana for recreational use for adults and will appear on Colorado ballots this November....
While the feds continue their crackdown on medical marijuana shops in Colorado, the Campaign to Regulate Marijuana Like Alcohol is on a bit of a roll. Prior to Colo. Democrats announcing their endorsement, fifty-six percent of the delegates at the Denver County Republican Assembly voted in support of Amendment 64.
The support from both Republicans and Democrats appears to echo the findings of a December 2011 poll released by Public Policy Polling which showed that a large group of Coloradans believe that marijuana should not just be legal medically, but fully legalized. From the Public Policy report:
Coloradans are even more strongly in favor of legalizing marijuana, and they overwhelmingly believe it at least should be available for medical purposes. 49% think marijuana use should generally be legal, and 40% illegal. But explicitly for medical use, that rises to a 68-25 spread. Just five years ago, a referendum to legalize simple possession by people over 21 failed by 20 points. On the medical question, Democratic support rises from 64% for general use to 78%; Republicans rise from 30% to 50%, and independents from 54% to 75%.
Basic preview of today's SCOTUS arguments on crack sentencing rules
This morning the Supreme Court will hear consolidated argument in the Fair Sentencing Act statutory interpretation cases Hill and Dorsey. This new article in the Los Angeles Times, headlined "Supreme Court to weigh crack cocaine sentences," provides a very effective basic preview, and it begins this way:
Nearly two years ago, President Obama signed into law a "fair sentencing" act to reduce the long prison terms meted out to people who were caught with small amounts of crack cocaine. But the law did not make clear whether it should apply to cases that were pending when the measure was signed.
On Tuesday, the Supreme Court will consider whether the lighter sentences apply to hundreds of cases in the pipeline when the law was signed on Aug. 3, 2010.
The issue is complicated because the Justice Department and Atty. Gen. Eric H. Holder Jr. changed their views on the matter. Shortly after Obama signed the law, Holder's department said the changes applied only to new crimes. Last summer, however, after prodding by Senate Democrats, Holder switched his position and said the new rules for crack cocaine prison terms applied to all who were sentenced after Obama signed the bill, even if their crimes took place two or three years before.
For a pair of Chicago-area defendants, the change could mean the difference between serving about three to four years in prison or 10 years behind bars. "It would be unconscionable" to sentence defendants under the law Congress had repealed as too harsh, said Mary Price, general counsel for Families Against Mandatory Minimums. She said many judges balked at using the stiff mandatory sentences after Congress changed them. "The courts were ahead of the Justice Department on this," she said.
A few recent posts on these SCOTUS cases:
- SCOTUS to review FSA pipeline issue via Dorsey and Hill grants
- Why talk of "retroactivity" makes me (unjustifiably?) nuts in the FSA pipeline cases
- A quirky constitutional query about quirky sentencing laws
April 16, 2012
"Liberal Academic, Tea Party Leader Rethinking Crime Policy"
The title of this post is the headline of this new piece appearing in Newsweek magazine. Here is an excerpt:
As the son of an LAPD reserve policewoman turned Nevada County, Calif., corrections officer, [Tea Party Patriots co-founder Mark] Meckler was always primed to be skeptical of the GOP’s tough-on-crime talking points. “Having grown up around law-enforcement folks, I know a large number who are very conservative and still think the war on drugs has been an immense failure,” he says. “That’s not a new position they’ve come to. I’ve been hearing this literally my whole life.”
But it wasn’t until he’d spent some time in the Tea Party, with its obsessive focus on balanced budgets and smaller government, that Meckler realized how well his conservative principles jibed with criminal-justice reform. It was all there, he says: a ballooning tab that was “busting state budgets”; a top-down, one-size-fits-all style of policing and imprisonment that was “making it hard for [former criminals] to become productive members of society”; and communities that had “lost the ability to take care of themselves” because they were “occupied” by agents of the state. “On the right, we always talk about self-governance,” Meckler explains. “So I thought, why haven’t we been applying those ideas to the criminal-justice system?”
He isn’t the only conservative to come to that conclusion. Inspired by the Tea Party ethos, heavyweight GOP governors such as Bobby Jindal and Mitch Daniels are now working to soften sentences, reduce recidivism, and cut costs in their home states. Meanwhile, Right on Crime, a Texas-based conservative group backed by Newt Gingrich, Jeb Bush, and Grover Norquist, is championing reform on the national stage. As the outfit’s mission statement puts it, there’s nothing “conservative” about “spend[ing] vast amounts of taxpayer money on a strategy without asking whether it is providing taxpayers with the best public-safety return on their investment.” Right on Crime points to the Lone Star State — which recently reduced its incarceration rate by 8 percent, cut crime by 6 percent, and saved $2 billion on prison construction by rerouting inmates to drug courts and treatment facilities — as an example of where that mindset can lead.
Regular readers are probably tired of hearing me assert that tea party talk should lead to lots of questions about modern mass incarceration and the drug war in the US, but I am not tired of seeing the mainstream media (finally!) pick up on this (obvious?) reality.
Some prior related posts (both old and new) on this front:
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
- Will we invest in classrooms or cells in these tough times?
- Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
- Hoping someone in a town hall might ask Prez Obama about government spending for the drug war in prison nation
- Why is Senator Jim Webb the only national figure focused on the prison economy?
- Will any Prez candidate promise to get us out of a failed war ... on drugs?
April 16, 2012 in Elections and sentencing issues in political debates, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack
Eleven lawyers — five funded by taxpayers — now involved in Clemens perjury trial
As reported in this new AP piece, which Fox News has given the fitting and lovely headline "Feds bulk up for Roger Clemens perjury retrial," a whole lot of lawyers are now involved in the trial fight over whether the Rocket lied to Congress about his steroid use. Here are the pricey details:
The Justice Department, embarrassed by blundering into a mistrial of Roger Clemens last year, has added more prosecutors as it tries again to convict the famed pitcher of lying to Congress when he said he never used performance-enhancing drugs. Jury selection in the new trial begins Monday.
The legendary former pitcher, who famously reveled in staring down hitters, will face a prosecution lineup of five lawyers -- more than double the two from the first trial.
Last July, U.S. District Judge Reggie Walton declared a mistrial on only the second day of testimony, after prosecutors showed jurors evidence that had been ruled inadmissible. Walton also will preside over the new trial, which is expected to last four weeks to six weeks.
The Clemens team won't be outgunned. It has six lawyers working on the case, led by Houston lawyer Rusty Hardin, whose Rusty Hardin & Associates has represented sports stars such as quarterback Warren Moon, baseball star Wade Boggs and NBA great Scottie Pippen, each a Hall of Famer....
Michael McCann, a law professor and director of the sports law institute at Vermont Law School, said it was unusual to have so many prosecutors "for a perjury case that isn't terribly complicated."... McCann said the department has extra motivation to convict Clemens, given the amount of money spent on the case and the underwhelming outcome of its more-than-seven-year investigation of Barry Bonds over steroids.
Bonds, baseball's career home run leader, was found guilty last year on just one count, obstruction of justice, for giving an evasive answer to a grand jury when asked about drug use. He received a sentence of 30 days confinement at his estate in Beverly Hills. Prosecutors dropped three other counts charging Bonds with making false statements after the jury deadlocked on those charges. Bonds has appealed his conviction.
"For the government to lose this case after obtaining a very mild victory against Bonds," McCann said, "would invite a lot of questions about the appropriateness of these prosecutions."...
If convicted on all six charges, Clemens faces a maximum sentence of up to 30 years in prison and a $1.5 million fine. Maximum penalties are unlikely because Clemens doesn't have a criminal record, but Walton made plain at the first trial that Clemens was at risk of going to jail. Under U.S. sentencing guidelines, Clemens probably would face up to 15 months to 21 months in prison.
As I have explained in some prior post, I think the prosecution of Clemens is MUCH more justifiable than some other "lying about steroids" cases. In the wake of being named in the Mitchell report on steroid use in baseball, Clemens essentially requested a chance to "clear" his name through high-profile televised testimony to Congress. Though I have limited sympathy for any high-profile liars and cheats, I am especially unsympathetic toward those like Clemens who, in essence, actively promote their lies. In addition, I personally view lying under oath to Congress as an even more serious offense than lying to government officials in other settings.
That all said, I would love to see some kind of reasonable accounting of what the lengthy Clemens prosecution has already cost federal taxpayers. I would not be at all surprised if the final "bill" for this single case may end up making all the monies recently wasted by the GSA during its conference boodoggles look like chump change.
April 15, 2012
"Agency and Equity: Why Do We Blame Clients for Their Lawyers' Mistakes?"
The title of this post is the title of this notable new Foreword in the Michigan Law Review authored by Adam Liptak, which gets started this way:
If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy.
This theory holds that the lawyer is the client’s agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is built on the concepts of free choice, consent, and loyalty, and it is not unusual to find lawyer-client relationships in which some or all of these elements are missing.
Let us put to one side the ideal case: a sophisticated client with money. That client presumably chooses a good lawyer, monitors and controls the lawyer’s work, and fires her if she turns out to be disloyal or incompetent. The lawyer in that case really is the instrument of her client’s will, and so the client may fairly be tagged with the lawyer’s errors.
Now consider a client who is poor, uneducated, mentally troubled, scared, or imprisoned—or perhaps all of these things at once. And then add to this mix a lawyer who is not retained but a volunteer or assigned by the state. Does it still make sense to consider such a lawyer an authentic agent of the client?
When do the costs of incarcerating the elderly clearly outweigh any benefits?
The question in the title of this post is prompted by this commentary from the Tulsa World, which is headlined "A Wow Moment: The aging of Oklahoma's prison population." Here are excerpts:
If the state can prove that [73-year-old Darlene] Mayes is what it claims she is, a marijuana queenpin who supplied 40 percent of the marijuana sales around Grand Lake, there could be other wow moments. Like the wow moment for taxpayers and the Department of Corrections when yet another aging offender — with the equivalent of a life sentence — is added to the more than 5,000 geriatric inmates already in the prison system. These are inmates in varying — and some very costly — stages of declining health.
How useful is sending or keeping some of these older inmates in prison? Does their incarceration deter others in the AARP set from dipping into crime? Does it protect the community, or simply cost it?
Oklahoma has thousands of inmates, of all ages, behind bars serving time for drug offenses. That fact obviously hasn't deterred many others from getting in the business despite the risks. So, if deterrence isn't working, how about risk to the community? Are there alternatives to prison that would protect public safety but not cost taxpayers an arm and a leg in medical costs for an aging inmate?
If there are two categories of people that Oklahoma likes to lock up, it is women and drug offenders. Oklahoma ranks No. 1 nationally in per-capita female incarceration and is fairly high up the ladder in the percentage of drug offenders in prison.
But it is not only the number of drug offenders and female offenders that's grown exponentially in the past few decades. Oklahoma also has had marked growth in the number of older inmates, a population that presents expensive health-care challenges.
In 1980, DOC had only 85 inmates age 50 or older in its entire prison system. By 2010, that figure had grown to 3,952, and by 2013, the population is expected to reach 5,254 - a 48 percent increase. This is not favorable news for the DOC, taxpayers or older inmates.
"Inmates don't come to us in good health to start with," DOC Director Justin Jones told Tulsa World reporter Barbara Hoberock two years ago. "After years of substance abuse, when they get into their mid-50s, they have an array of chronic illness." Several years ago, DOC opened a geriatric facility at Joseph Harp Correctional Center in Lexington. "We filled it up the day we opened," Jones said of the 273-inmate facility.
In fiscal year 2000, DOC's total inmate health-care costs were about $34 million, which rose to more than $61 million by fiscal year 2010. A disproportionate share of that cost, by necessity, is being spent on care of older inmates.
This aging of the prison population poses tough choices for lawmakers and agency heads grappling with ever tighter budgets and demands to cut spending. A Time magazine article reported that policymakers "must address soaring medical costs for these older inmates and ponder whether some can be safely released before their sentences expire."
That might work for some nonviolent offenders, who could be paroled and use Medicaid or Medicare benefits instead of DOC-supported care. But how well would that play politically?
In many states, which have no choice financially, early-release programs targeted at older, nonviolent inmates are being tried. Compounding the issue, however, is the difficulty of finding nursing homes for aging, recently released felons who have no families and cannot live on their own. Some states are looking at starting long-term care facilities outside prison to care for parolees.