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June 23, 2012

Hearty welcome to a timely new blog: "Juvenile Justice Blog"

I am very pleased to welcome to the blogosphere Juvenile Justice Blog, a fantastic looking new blog by UNC law prof Tamar Birckhead.  Here is how Tamar, whose blog bio is available here, describes her new blog creation:

The purpose of this blog is to provide a central source for the latest news, information, scholarship, and commentary on issues related to juvenile justice in the United States.

It is intended for lawyers, academics, advocates, students, and all others interested in juvenile court practice, the fair sentencing of youth, and the criminalization of poverty, among other related topics.

If you would like to see something posted that fits within these themes, please email the blog administrator at tbirckhe@email.unc.edu.  As this is a work in progress, I welcome your thoughts, suggestions, and comments.

There is already a lot of great content on JJB.  And with a big SCOTUS ruling on the constitutional of juve LWOP coming wihtin the week, I am sure to make JJB a daily read in the weeks ahead.

June 23, 2012 in Offender Characteristics, On blogging, Recommended reading | Permalink | Comments (4) | TrackBack

Split Arkansas Supreme Court strikes down state's execution methods on separation-of-powers grounds

As reported in this Wall Street Journal piece, the "Arkansas Supreme Court struck down the state's death-penalty law as unconstitutional Friday, a ruling that will further delay executions in a state where there are 37 inmates on death row." Here is more about the ruling and its import:

In a split decision, the court said state law gives the Arkansas Department of Correction too much discretion in deciding how to carry out the death penalty, including choosing which drugs will be used in lethal injections. The law "fails to provide reasonable guidelines for the selection of chemicals to be used," the court concluded.

The Arkansas legislature, which doesn't meet again until January, will now have to rewrite the state's death-penalty law....

Arkansas law is worded so broadly that the "prison could use rat poison or Drano if they wanted," said Jeff Rosenzweig, one of the lawyers for the 10 death-row inmates who brought the suit. "If prisons use the wrong chemicals or wrong doses, you can put a person in excruciating, torturous pain," he said.

Dina Tyler, a spokeswoman for the Arkansas Department of Correction, said "there has never been any undue pain and suffering by Arkansas inmates, beyond that they feel a needle prick." Lethal injection will remain "the manner of execution in the state," she added.

Arkansas Governor Mike Beebe will meet with the state's attorney general and legislators to devise a remedy. "The death penalty is still the law in Arkansas," Mr. Beebe's spokeswoman said.

The full opinion of the Arkansas Supreme Court in this matter is available at this link, and here are key paragraphs from the majority opinion:

Our prior cases interpreting statutes in conflict with the doctrine of separation of powers focus on whether a statute gives “absolute, unregulated, and undefined discretion” to a government agency and whether reasonable guidelines have been provided by which the administrative body is to exercise its discretionary power. The MEA plainly gives absolute and exclusive discretion to the ADC to determine what chemicals are to be used. Although subsection (a)(2) attempts to provide a list of chemicals for use in lethal injection, the ADC has unfettered discretion to use chemicals from that list or chemicals not included on that list. It can hardly be said that the word “may” used in conjunction with a list of chemicals that itself is unlimited provides reasonable guidance. Although the General Assembly can delegate to the ADC the power to determine certain facts or the happening of a certain contingency, the current MEA gives the ADC the power to decide all the facts and all the contingencies with no reasonable guidance given absent the generally permissive use of one or more chemicals. Moreover, subsection (a)(4) expressly gives complete discretion to the ADC to determine all policies and procedures to administer the sentence of death, including injection preparations and implementation. The statute provides no guidance and no general policy with regard to the procedures for the ADC to implement lethal injections.

The ADC argues that reasonable guidance can be found in the prohibition on cruel 14 Cite as 2012 Ark. 293 and unusual punishment in the Eighth Amendment and our state counterpart, Ark. Const. art. 2, § 9. In other words, the ADC maintains that because it is bound by the bar on cruel and unusual punishment, this prohibition acts as a supplement to the statutory language found in the MEA. This argument is misplaced. The ADC is correct that we presume that officials act with good faith and follow the law in carrying out their duties, such as implementing the mandate of the General Assembly for capital punishment by lethal injection. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). Nonetheless, the argument presented in this case is that the General Assembly has delegated its legislative authority by giving unfettered discretion, without sufficient guidelines for the use of that discretion, to another branch of government. The central question is thus whether the General Assembly has provided sufficient guidance. Where it has failed to do so, the doctrine of separation of powers has been violated and other constitutional provisions cannot provide a cure.

June 23, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

June 22, 2012

Jerry Sandusky found guilty on 45 counts

and now seems all but certain to get a functional life sentence. My understanding is that he faces a 60-year minimum prison term based on certain counts of conviction, and he was taken immediately into custody following the reading of the verdict.

UPDATE: This AP article, headlined "What's next for Jerry Sandusky after the trial?," provides a road map concerning the legal process still to come. Here are how the piece begins:

The jury took less than two days to find Jerry Sandusky guilty of 45 of 48 counts of child sexual abuse, but the judge will need substantially more time to decide his punishment.

Judge John Cleland ordered a pre-sentencing report, which will take anywhere from one to two months to complete. During that time, Sandusky will be examined by the state Sexual Offenders Assessment Board to decide if he should be treated as a sexually violent predator, and prosecutors could ask the judge for a hearing.

The judge determines whether someone is a sexually violent predator — it carries stiffer reporting and treatment requirements once someone is out of prison — and can use information from the board's investigation in a sentencing decision.

If he's sentenced to state prison — which appears to be certain in this case — then Sandusky will be transferred to Camp Hill, in south-central Pennsylvania, which has 3,000 to 4,000 inmates, about 1,000 of whom are held temporarily for classification.

June 22, 2012 in Celebrity sentencings, Offense Characteristics, Prisons and prisoners, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (39) | TrackBack

Clemens' counsel says client was offered plea deal for probation term

This new AP article, headlined "Clemens risked prison when he rejected plea offer," confirm my suspicion that the feds offered Roger Clemens a plea deal which would have taken any prison term off the table.  Here are the basics:

Roger Clemens rejected a plea deal that would have spared him prison time, and instead took his chances by going to trial.  Clemens lawyer Rusty Hardin said in a telephone interview Thursday that prosecutors offered to let the former pitcher plead guilty to one count of lying to Congress when he denied using human growth hormone.  In exchange, Clemens would have received probation.

The seven-time Cy Young Award winner was indicted in August 2010 on six counts for allegedly lying to Congress for denying he used HGH as well as steroids.  At the time, Hardin revealed that his client had rejected a plea offer, but the lawyer declined to provide the details.  In the interview Thursday, Hardin said his client was offered the deal in December 2009 and immediately rejected it.

"His reason was, 'I didn't lie to Congress,'" Hardin said.  On Monday, a jury in Washington acquitted Clemens on all counts.

This story provides some further support for my fear that often only the most confident, strong and wealthy of defendants can reasonably be expected to put the federal government to its burden of proof.  If Clemens had any personal doubt about his innocence or had reason to worry about the reputational and economic impact of putting up a trial defense, it would have been extra hard for him to turn down a plea deal that would ensure he would not face any prison time.  (Indeed, I continue to wonder just how much Clemens' acquittal has "cost" him in terms of attorneys' fees.)

June 22, 2012 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (45) | TrackBack

New Hampshire Gov apparently opts for "die" over "live free" with veto of medical marijuana bill

NHThe state motto for New Hampshire is "Live Free or Die."  Based on this AP article, headlined "NH gov Lynch vetoes bill legalizing home cultivation of marijuana for medical uses," it would appear that New Hampshire's (Democratic) governor has decided die is the preferred choice to living free when it comes to marijuana.  Here are the basics:

As promised, Gov. John Lynch has vetoed a bill that would legalize the home cultivation of marijuana for medical purposes.

The bill would allow patients with debilitating medical conditions or the patient's designated caretaker to cultivate and possess up to six ounces of marijuana, four mature plants and 12 seedlings at a registered location.  Lynch says that would lead to a virtually unlimited number of potential cultivation sites, making it impossible to control the distribution and prevent illegal use.

Lynch also vetoed a similar bill in 2009.  The current bill passed both the House and Senate with wide margins, making it likely that the Legislature could override Lynch's veto next week.

Governor Lynch yesterday released this long statement explaining the reasons for his veto, and these passages from the statement provide a great indication of how effective law enforcement and its vision of "big brother government" can be in blocking these sorts of criminal justice reforms:

Law enforcement has serious concerns about preventing the unauthorized use of marijuana under this legislation. SB 409 requires that the cultivation locations be registered with the N.H. Department of Health and Human Services. But the bill restricts the identification of those cultivation locations to law enforcement only in the very narrow instances where an individual has been arrested and claims to be engaged in the medical use of marijuana, or where state and local law enforcement have probable cause that marijuana is being cultivated or used at a particular location and seek confirmation that the cultivation or use is for medical purposes.

While SB 409 requires that marijuana for medical use be cultivated in a "locked and enclosed site," neither state nor local law enforcement is authorized to generally inspect and confirm that these conditions are being maintained. The inspection and oversight of cultivation sites is assigned to the Department of Health and Human Services. The Department has neither the staff nor the statewide presence to adequately regulate the security of marijuana cultivation sites, which are unlimited in number. Effective and continuous oversight of cultivation sites is critical to prevent unlawful access to marijuana.

In other words, NH Gov Lynch says here he needed to veto this bill in part because cops and prosecutors are not being given permanent and unlimited authority to engage in "continuous oversight" of any and everyone who registers to grow marijuana for medical purposes. Yeesh.

NH choiceI am pleased and hopeful that legislators in New Hampshire are strongly inclined on this issue to opt for the "live free" rather than "die" opinion in the state's motto. 

Importantly, as reinforced by this new Politico piece, headlined "New Hampshire speaker touts conservative wins," in the Granite state this pot policy debate is not a left/right, soft versus hard on crime matter.  Rather, the Republican-dominated legislature plainly understands in New Hampshire than a real commitment to freedom and limited government should mean letting people grow the wicked weed in some cases. In telling contrast, the Democratic governor of New Hampshire plainly appreciates that a real commitment to a nanny state must mean restricting any and all access to the wicked weed unless and until big brother government can be sure to be able to keep a close watch on when and how that weed is being used.

Meanwhile, for some (not quite closely) related news from another notable jurisdiction, check out this new press article headlined "Uruguay says it may sell marijuana to combat cocaine." Here is the heart of this story:

Selling marijuana is part of a package of measures meant to combat the abuse of cocaine and pasta basica, a drug akin to crack, diverting Uruguayan drug users toward marijuana instead. The measures come after a recent rash of gang and drug crime in the ordinarily peaceful nation.

If Uruguayan lawmakers agree, theirs would be the first country where the government has not only legalized or regulated marijuana but taken over the market, experts say. Backers of drug legalization and regulation praised the idea as an intriguing step forward.

“Mothers wanting to protect their children should realize that a strictly regulated market is much safer than an illegal market,” said Amanda Fielding, founder of the Global Initiative for Drug Policy Reform based in Britain. "We need to let governments experiment -- cautiously -- with policies that might minimize harm."

That argument was disputed by drug opponents, who contend that getting government into the marijuana business won't curb the black market or stop users from moving on to harder drugs.... "Why would people pay taxes and higher prices and put themselves out there to be known by the government?" asked Calvina Fay, executive director of the Drug Free America Foundation based in Florida. Since the government will only sell to adults, "kids will become the target of the black market."

June 22, 2012 in Pot Prohibition Issues, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

Big reform of NC Racial Justice Act headed (again) to Governor Perdue's desk

As reported in this AP article, North Carolina's "Republican-led Legislature gave final approval Wednesday to a bill limiting the use of trial statistics for people on North Carolina's death row who received another way in 2009 to prove racial bias in sentencing."  Here is more about this latest development in a long-running saga:

The measure now goes to Gov. Beverly Perdue, who vetoed other legislation last December that would have essentially voided the Racial Justice Act. This time, it appears the General Assembly has veto-proof majorities in both chambers.

The Senate finalized its passage with a vote of 30-18 in favor of the House's rewrite of the bill. The House approved the bill last week with the help of five Democrats. Perdue spokesman Mark Johnson said the governor will review the bill when it reaches her desk. She'll have 10 days to decide whether to veto the bill or let it become law.

The Racial Justice Act directs judges to reduce a death-row inmate's sentence to life in prison if they find race was a significant factor in a convicted murderer receiving a death sentence or in the composition of jurors hearing a case.

Opponents say the changes gut the intent of the law, but many of the state's district attorneys have said the Racial Justice Act has clogged up the court system and delayed the carrying out of capital punishment in North Carolina. Nearly all the 150-plus inmates on North Carolina's death row filed for reviews under the law, including white defendants convicted of killing white victims.

The bill makes clear that statistics alone cannot prove race was a significant factor. "They have really defeated the legitimate purpose of what this law was," said Sen. Buck Newton, R-Wilson, at the beginning of the Senate debate. "We don't want to see racial bias tainting our courtrooms. I think everybody agreed to that. The question that we have before us in this bill is how are we going to manage that."

The law caps the period of time which death penalty statistics can be used to prove racial bias to effectively 12 years around the murder case. There is currently no limit on the time. Statistics also could be entered into a Racial Justice Act hearing for the county and prosecutorial district where the homicide occurred, rather than anywhere in the entire state as the 2009 law allows. Senate Democrats said voting for the overhaul would strike a blow against the integrity of the criminal justice system and affect fairness in carrying out capital punishment.... "We've turned back the hands of time on ridding ourselves of ridding ourselves of prejudice in our courtrooms," said Sen. Floyd McKissick, D-Durham, after the vote. "When they've come forth today and gutted the Racial Justice Act, they've allowed those prejudices to creep back into our courtrooms once again."...

Sarah Preston with the state chapter of the American Civil Liberties Union called the Racial Justice Act "a nationally recognized civil rights law that should serve as a model across this nation."

Death penalty opponents are likely to lobby Perdue to veto the bill, as they did successfully last December when she blocked passage of the previous Republican attempt to weaken the Racial Justice Act. She wrote at the time "it is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina." She also signed the 2009 law.

If (when?) this big reform of the NC RJA becomes law (presumably after a veto and then an override), it will still be fascinating to watch all the litigation likely to surround all the pending RJA cases.  Though it seems that this NC RJA reform will make it much harder for all those on North Carolina's death row to get their death sentences reduced, this reform does not obviously mean that all the RJA cases must be dismissed.  In fact, though this reform will surely make it hard for those on death row in North Carolina to prevail on RJA claim, it may actually make it easier for those on death row to keep RJA litigation going for many years.

A few older and more recent posts on NC Racial Justice Act:

June 22, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

"Hot Crimes: A Study in Excess"

The title of this post is the title of this interesting looking new paper by Steven Grossman. Here is the abstract:

In the fall of 1984, after a jury acquitted two parents she had accused of sexually molesting their children and before she was forced to drop charges against the twenty-one remaining defendants she had accused of child sex abuse related charges, the chief prosecutor in Jordan, Minnesota said that she was "sick to death of things like the presumption of innocence.  After the tragic mass murders at Columbine High School in 1999, Mothers Against Drunk Driving ("MADD") issued a press release classifying the "murders as 'insignificant' compared to those killed in alcohol-related traffic accidents.

What do these two announcements have in common?  This Article suggests that each is but one manifestation of the pathology that exists regarding certain crimes and the reaction to them on the part of the public, the media, legislative bodies, law enforcement authorities, and ultimately members of the judicial system.  For a long time, crimes such as these were either not treated with the seriousness they deserve (i.e. drunk driving) or the extent of their prevalence in society was significantly underestimated (i.e. child sex abuse).  Fortunately, in ways this Article discusses, the previous undervaluation or under appreciation of these crimes was brought to the attention of different elements of American society, and people were educated about the nature of these crimes and the degree of harm they cause.  As a result of this heightened attention, the public and particularly victims' rights groups began to call for more action in preventing and punishing these crimes.  Legislatures on both the state and federal levels responded to these calls with new laws designed to accomplish both goals.  Prosecutors investigated these crimes with more urgency and charged and prosecuted them more strictly.  Judges began to sentence individuals convicted of these offenses more harshly.  In other words, each affected group in society took action in an appropriate way to deal with the dangers that child sex abusers and drunk drivers posed.

There came a point, however, when reaction turned into over-reaction and remedial measures became excessive.  This Article examines some of that over-reaction, seeks to explain why it occurs with certain crimes, fleshes out the lessons to be learned from the overreactions, and offers suggestions on how to avoid recurrences of this type of social pathology.  For the most part, this Article uses those crimes related to the serious problems that child sex abusers and drunk drivers pose as illustrations of how crimes become hot crimes and then how such crimes are treated.

Section II of this Article discusses the genesis of a hot crime, what factors appear to be needed for a crime to become hot, and how each factor contributes to the way in which such crimes are ultimately treated.  Section III looks at the types of excesses that hot crimes breed. Section IV examines the kind of flaws in society's responses to hot crimes that breed these excesses, Section V discusses how the concept that has been referred to as moral panic explains the hot crimes phenomenon.  Lastly, Section VI explores ways in which society, particularly law enforcement and legal institutions, can respond to serious crimes without the need to react with excessive and arguably unconstitutional measures.

June 22, 2012 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

June 21, 2012

A recap and request concerning today's big SCOTUS sentencing action

In part because my head is still spinning much too fast after reading the Supreme Court's work today in  Southern Union (basic here), and Dorsey (basics here), I think I am going to get "off the grid" for at least the next few hours. 

Before doing so, I will recap via links below my posts on these cases, and also make this request to any and all fellow sentencing nuts: please use the comments to this post (or send me an e-mail) to report any highlights from other blogs or the traditional media concerning reactions to these opinions.  I have already seen this FAMM press release about the Dorsey ruling, and I suspect a lot more commentary will follow. 

I will be grateful to any and all who help me identify the most interesting or notable reactions (and I will happily provide space for thoughtful guest-posts if/when readers want to develop detailed commentaries too intricate or important to lurk only in the comments).  Thanks.

Today's posts on today's SCOTUS sentencing stuff:

June 21, 2012 in Procedure and Proof at Sentencing, Recap posts, Who Sentences? | Permalink | Comments (7) | TrackBack

Doesn't Southern Union suggest Sixth Amendment limits judicial factfinding for restitution punishments?

As explained in this post, I think the really consequential sentencing ruling from the Supreme Court this morning came in Southern Union (basics here), in part because SU suggests that the Ice ruling cutting back on the Sixth Amendment's reach may now be just an outlier in the Court's (ever expanding?) Apprendi jurisprudence.  And, as the question in the title of this post highlights, the majority opinion in Southern Union leads me to expect the next (very big) battle over the boundry lines of Apprendi-land seems likely to concern judicial factfinding to permit the imposition of restitution awards at sentencing.

The opinions in Southern Union do not discuss restitution at allBut in Ice, the majority opinion (comprised of the three SU dissenters along with Justices Stevens and Ginsburg) stated in dicta a concern about extended the reach of Apprendi to "the imposition of statutorily prescribed fines and orders of restitution." 555 U.S. at 171.  The 6-3 ruling in Southern Union not only official extended Apprendi's Sixth Amendment rule requiring jury factfinding to "the imposition of statutorily prescribed fines," it also dropped a footnote to make clear that the dicta in Ice should not be interpretted or applied to cut back on Apprendi in other contexts. 

More broadly and more importantly, much of the language and methodology adopted in Southern Union strongly suggest that there are now six justices (including Justice Ginsburg, the author of the opinion in Ice) still prepared and perhaps eager to keep expanding the border of Apprendi-land in order to keep defendants' Sixth Amendment rights meaningful.  Consider, for example, this passage:

In all such cases [in which the amount of a fine is calculated by reference to particular facts], requiring juries to find beyond a reasonable doubt facts that determine the fine’s maximum amount is necessary to implement Apprendi’s “animating principle”: the “preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.” Ice, 555 U. S., at 168. In stating Apprendi’s rule, we have never distinguished one form of punishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal “sentence[s],” “penalties,” or “punishment[s]” — terms that each undeniably embrace fines. E.g., Blakely, 542 U.S., at 304; Apprendi, 530 U.S., at 490; Ring, 536 U.S., at 589.

In short form, because the terms “sentence[s],” “penalties,” or “punishment[s]” are all terms that also undeniably embrace restitution awards that are imposed at a criminal sentencing following a criminal conviction, I believe the answer to the question in the title of this post has to be "YES!".

June 21, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Has Justice Scalia won the legislative history war despite losing Dorsey battle?

There is much to say in future posts on future days about the merits and the likely aftermath of the Supreme Court's work in the crack pipeline cases Dorsey and Hill (which I will soon just be calling Dorsey and have already discussed here and here).   But before diving later into matters of substance, I want to make two quick points about SCOTUS method.

First, I want to praise in a hearty, heartfelt way the notable fact that neither opinion in Dorsey uses the word "retroactivity" to describe the issue in the case.  I explained in this post a few months ago why I thought the term "retroactivity" has been lots of (opaque and confusing) meanings and why I did not think the issue in the Hill and Dorsey FSA pipeline cases was properly cast as a retroactivity issue.  I am so very pleased to see that Justices avoid any use of this (loaded?) term in the Dorsey opinions.

Second, I want to spotlight that Justice Breyer's majority opinion in Dorsey makes no real mention of any of the (many) statements of "legislative history" which surrounded the passage of the Fair Sentencing Act.  The parties and amici advocating the interpretation adopted by the majority in Dorsey rightly and effectively cited to lots of helpful legislative history to support its arguments, but none of this history is mentioned in the Court's opinion.  I have to suspect that the majority, knowing that any reliance on legislative history in this context might prompt a sharp retort from Justice Scalia (or other dissenters), decided it could and should set forth support for its ruling without reengaging any broader debates over the consideration of legislative history in statutory interpretation.

June 21, 2012 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

A (too) quick first take on Southern Union and Hill/Dorsey

I am so very pleased and grateful the Supreme Court finally handed down today opinions in two of the three big sentencing cases pending this term: we got Southern Union concerning Apprendi's applicability to fines (basic here), and Hill and Dorsey concerning application of the new crack FSA sentencing provisions to pipeline cases (basics here).  We still await Jackson and Miller, the juve LWOP Eighth Amendment cases (which, I would guess, will be handed down on Monday.)  Even before reading them very closely, I wanted to share a few quick reactions to today's notable sentencing rulings:

1.  In both cases, federal defendants prevailed and were able to get a SCOTUS reversal of pro-prosecution rulings issued by federal circuit courts.  This reality reinforces, yet again, my belief that the US Supreme Court is a much more pro-defendant appellate tribunal on sentencing issues than many (most? all?) other appellate courts in the nation.  (This means, inter alia, sentencing defendants unhappy with an appellate outcome in a lower court ought always seriously consider appealing to SCOTUS.)

2.  In both cases, oral argument proved to be a pretty good predictor of where the Justices were leaning, and those Justices with a history of engagement with sentencing issues were tasked with writing opinions for their colleagues.  We got two opinions from Justice Breyer (a majority and a lead dissent), and an opinion from Justice Sotomayor (a majority) and Justice Scalia (a dissent).  I was a bit surprised that Justice Alito did not write in either of these cases, though his vote in both was pro-prosecution and I suspect he has a (pro-prosecution) opinion coming in the juve LWOP cases.

3.  Because of the huge debates and controversy over crack sentencing rules, and because hundreds of crack cases are sentenced in federal courts every month, the Hill and Dorsey cases will likely get much more attention and have more short-term impact in the days and months ahead.  But Southern Union is the "bigger" decision because it shows (a) that there are now six Justices (including three of the four newer ones) who are happy to keep extending the Apprendi/Blakely rule and (b) that the Ice ruling cutting back on the Sixth Amendment's reach is likely to end up as an outlier in this jurisprudence.

4.  In light of the 6-3 outcome Southern Union, I see strong reasons for the defense bar to keep pushing hard to get the Justices to take up a case that enables reconsideration of the Almendarez-Torres exception (covering prior convictions) and the Harris exceptions (convering mandatory minimums) to the Apprendi rule.  Because Chief Justice Roberts is now a long-term citizen in Apprendi-land and because he has shown in other settings a willingness to engineer the overturning of precedents he finds misguided, the time may now be really ripe to find strong case(s) through which to seek reversal of these (misguided?) Apprendi exceptions.

June 21, 2012 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

In 5-4 opinion, defendants prevail in crack pipeline cases via the FSA

As I hoped and expected, today brought us not only a pro-defendant Sixth Amendment ruling from the Justices in Southern Union (basics here), but also a pro-defendant statutory ruling the the crack pipeline cases of Hill and Dorsey.  Specifically, as per the early SCOTUSblog report, we have this outcome:

We have the opinion in Dorsey and Hill, the Fair Sentencing Act cases.  The opinion is by Breyer.  The Seventh Circuit is vacated and remanded.  The vote is 5-4.  Justice Scalia dissents, joined by the Chief and Alito and Thomas.

The Court holds that the FSA's new mandatory minimums applies to sentences for crack cocaine imposed after the Act for pre-Act crimes.  Dorsey and Hill have the more traditional line-up that we have come to expect in 5-4 cases.

The full opinion is now at this link and I am certain I wil have much to say about the ruling and its import in the hours to come.

June 21, 2012 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

In 6-3 opinion, SCOTUS finds that Apprendi rule applies to criminal fines

As I hoped and expected, today we finally got one of the big final sentencing cases from the Supreme Court.  Specifically, as per the early SCOTUSblog report, we have this Apprendi sighting:

Justice Sotomayor has opinion. The rule of Apprendi v. NJ applies to the imposition of criminal fines. The First Circuit is reversed. The vote is 6-3. Justice Breyer dissents, joined by Kennedy and Alito.

The full opinion is now available at this link and I am certain I wil have much to say about the ruling and its import in the hours to come.

UPDATE:  A very quick scan of the opinions (in which the dissent by Justice Breyer is nearly twice as long as the opinion for the Court) suggests that three of the four newer Justices are now happy citizens in Apprendi-land with Justice Alito the only newby on the outside complaining about this magical land's continued growth.

June 21, 2012 in Blakely in the Supreme Court, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

June 20, 2012

"Can America Reduce its Prison Population?"

The title of this post is the headline of this effective new piece by Ted Gest at The Crime Report, which is itself a report on an effective new speech by Joan Petersilia.  Here are highlights:

The current trend of prison downsizing in the United States may not succeed unless experts can advise policy makers promptly about which non-prison programs for convicts change offender behavior, says criminologist Joan Petersilia of Stanford Law School.

In a keynote address to the National Institute of Justice's annual conference Tuesday in Arlington VA, Petersilia warned that it is not inevitable that the current movement among states to reduce prison populations and close penal institutions will continue. "We have been here before," Petersilia said.

She recalled that many states adopted intensive probation supervision in the 1980s and 1990s as an alternative to prison, but research results on its effectiveness were disappointing. "We've got to stop overselling community corrections -- and under-delivering," Petersilia said.

She worries that, as in previous decades, prison population totals will moderate or recede in the short run in large part as a way to save government money -- but when the economy improves, political leaders will start filling prisons again when they have no proof that non-prison programs worked.

The test case for prison reform is Petersilia's home state of California, where the evolving prisoner "realignment" plan is the "biggest criminal justice experiment ever conducted in America," Petersilia says.

Even many Californians are not aware that in the last 18 months, the state's prison population has dropped from 172,000 to 135,000, and the number of parolees has plummeted even more sharply, from 132,000 to 60,000.

While this sounds promising to corrections reformers, Petersilia says it is happening so fast that officials and offenders alike are just beginning to understand the impact.  Many former inmates complain that they have been taken off the parole rolls so quickly that they are losing government benefits that are reserved for parolees.  Some are being asked to get back on parole as a result, she says.

In addition, many prosecutors and law enforcement officials oppose aspects of realignment, contending that it will lead to rising crime rates.  One big problem is that government agencies are not pouring sufficient funding into ex-inmate rehabilitation.

Petersilia's Stanford Criminal Justice Center, which is receiving a federal grant to evaluate the California prisoner realignment program of Gov. Jerry Brown, is building a database of how the state's 58 counties are spending the $2 billion they are getting from the state to perform corrections-sytem functions that the state formerly did.  So far, only 10 percent of that money is going to treatment programs, with the bulk going to sheriff's office, local jails, probations staff, and court services.  That bodes ill for keeping ex-inmates from returning to crime, Petersilia says....

Petersilia believes that the public will back expenditures of public funds on projects that truly help former prisoners get their lives back together.  She has some hope for "social impact bonds," also known as "pay for success," which are contracts with government agencies in which entrepreneurs invest in projects that produce improved social outcomes and save public money.  Initial interest in the concept has been seen in the juvenile justice area, Petersilia says.

If these and other non-prison alternatives can't be proved to work, she said, the "incredibly huge" constituencies for the status quo, including labor unions for prison employees and rural communities that depend on income from prisons, will prevail.

June 20, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Notable start to notable Eleventh Circuit rejection of capital habeas IAC petition

This first paragraph of the panel opinion in the Eleventh Circuit decision today in Morton v. Florida DOC, No. 11-11199 (11th Cir. June, 20, 2012) (available here), struck me as blogworthy:

This appeal illustrates the truism that, regardless of the mitigation strategy that capital defense lawyers choose, they are often “damned if they do, and damned if they don’t” when their clients later assert claims of ineffective assistance of counsel during collateral review.  After he confessed to butchering an elderly woman with a survival knife and shooting her defenseless son at pointblank range with a sawed-off shotgun during a random home invasion, Alvin Morton was convicted and sentenced to death.  During the two penalty phases that occurred after Morton was convicted, Morton’s counsel presented expert testimony that Morton’s troubled childhood caused him to develop an antisocial personality disorder, which led him to commit the murders.  Defense counsel argued that this disorder mitigated Morton’s moral culpability for the murder, but the jury rejected this argument and sentenced Morton to death.  Although habeas petitioners routinely argue to this Court that their lawyers rendered ineffective assistance by not presenting evidence of an antisocial personality disorder, see, e.g., Reed v. Sec’y, Fla. Dep’t for Corr., 593 F.3d 1217, 1245–49 (11th Cir. 2010); Cummings v. Sec’y for the Dep’t of Corr., 588 F.3d 1331, 1365–68 (11th Cir. 2009); Parker v. Sec’y for the Dep’t of Corr., 331 F.3d 764, 781–90 (11th Cir. 2003); Thompson v. Nagle, 118 F.3d 1442, 1451–52 (11th Cir. 1997), Morton argues that his trial lawyers rendered ineffective assistance because they presented evidence that Morton had an antisocial personality disorder.  This argument fails.  The Supreme Court of Florida reasonably applied Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), when it rejected Morton’s claim.  We affirm the denial of Morton’s petition for a writ of habeas corpus.

As a caveat to the first sentence above, I think it might be even more accurate to say that a capital defense attorney will just about always be damned (at least by his client an in a subsequent habeas appeal) if and whenever a death sentence is returned no matter how well or how poorly that capital defense attorney performed.  The practical reality of the modern death penalty is that it is always accurate and easy to assert, after a defendant is sentenced to death, that defense counsel could not possibly have done worse and could have very possibly done better.  Consequently, it will rarely be frivolous, and almost never be pointless, for a death row defendant to claim he received ineffective assistance of counsel not matter what the true quality of that assistance may have been.

June 20, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Split Ohio panel recommends against clemency for murderer next up for execution

As reported in this brief local AP story, a "divided Ohio Parole Board has rejected mercy for the condemned killer of a Youngstown store owner scheduled to die next month." Here is more on why this rejection of a clemency request by John Eley is noteworty:

Eley has the support of both the former prosecutor who charged him with a capital crime and one of the judges who sentenced him to death.

The parole board voted 5-3 Wednesday against recommending clemency for the 63-year-old Eley, who received the death sentence for the 1986 shooting of Ihsan Aydah. Gov. John Kasich has the final say.

Eley's supporters say his co-conspirator master-minded the robbery and was considered the true culprit.

This expanded AP piece provides details on the perspective of both sides of the Ohio Parole Board:

The supporters' assertions "do not outweigh the fact that Eley took the gun from Green, entered the store with the intent to rob the victim, knew that the victim had a gun and might try to use it, and then shot him in the head," the board said. The board also rejected claims by Eley's lawyers that he is mentally ill and mentally disabled....

The three board members who supported Eley's plea for mercy say he is not the "worst of the worst" killers, and argue that many similar convenience store robbers who committed more serious crimes escaped death sentences.

They also said the crime wouldn't have happened without Green. And they argued that Eley was a victim of a game of bluff by prosecutors as they threatened him with a death sentence to force his testimony against Green. "The prosecutors 'played a bluff' all the way to the end, and when Eley did not cooperate, they were stuck with the death penalty conviction," the three dissenting members said.

The full 18-page Ohio Parole Board Death Penlaty Clemency report for John Eley is available at this link.

June 20, 2012 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Anyone figured out Williams v. Illinois or its tea leaves for the sentencing cases?

I am still making my way through the full opinion in Williams (available here, basics here); more time with this 98-page mostrosity has not yet made me any more confident that I understand it or what its real impact will be (other than still more uncertainty and circuit splits over application of the Confrontation Clause).  But perhaps readers who are more in tune with Crawford and it progeny have figured out Williams and can share there insights in the comments.

In addition, the various opinions in Williams (especially the (weird?) separate opinions of Justices Thomas and Breyer) have left me even more unsure of what we should expect in the three big sets of sentencing cases still pending.  Perhaps readers smarter than me have new and better post-Williams insights on this front, too.

June 20, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Interesting commentary on upcoming Gupta sentencing for insider trading

Writing at Forbes, Richard Levick has this interesting new commentary headlined "The Sentencing of Rajat Gupta: Why It Matters." Here is how it begins:

Here’s a quaint news item from 1987 about how a certain Ivan F. Boesky, one of the world’s most powerful speculators and symbol de jour of Wall Street greed, was sentenced to three years in prison for insider trading-related violations.  It was one of the longest jail terms ever imposed in such a case and, apparently, a source of satisfaction to then-U.S. Attorney Rudolph Giuliani.

Twenty-five years later, we have hedge fund bigwig Raj Rajaratnam setting a new record as he serves an 11-year sentence for similar misdeeds.  Maybe the lesson is that you’re better off getting caught committing financial crimes in prosperous times.  Maybe it’s that persistent violations over decades wear down public patience, accelerating demand for ever more severe punishments that, it’s fancied, will better deter future wrongdoers.

In any event, last week’s conviction of Rajat Gupta for leaking insider information to Rajaratnam has naturally generated much discussion about how the retired head of McKinsey & Company and former Goldman Sachs board member will fare when Judge Jed Rakoff of the Federal District Court in Manhattan passes sentence in October. (Gupta was convicted on one count of conspiracy and three counts of securities fraud.)

Yet the discussion is more than just an odds-maker’s game. Gupta’s ultimate fate raises substantive issues that speak to public perception as well as the narrower considerations that drive judges, influence the future actions of enforcement officials, and impact markets.

June 20, 2012 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

June 19, 2012

Lots of notable (and overdue) questioning of extreme solitary confinement

I am intrigued and pleased to see more attention now finally being given to the severe depravation and related horrors of extreme isolation in prisons.  Two big new developments here are:

Here are highlights of both developments via the NYT report:

The hearing, held before the Subcommittee on the Constitution, Civil Rights and Human Rights, represents the first time lawmakers on Capitol Hill have taken up the issue of solitary confinement, a form of imprisonment that many human rights advocates believe violates the Eighth Amendment’s prohibition of “cruel and unusual punishment” and that has drawn increasing scrutiny in recent months in the United States and internationally.

The practice, which is widespread in American prisons, has also been the target of a growing number of lawsuits, including a class-action suit filed on Monday on behalf of mentally ill inmates held in solitary at ADX, the federal super-maximum-security prison in Florence, Colo. Last month, civil rights lawyers representing prisoners held for more than 10 years in isolation at Pelican Bay State Prison in California filed suit in federal court, arguing that solitary confinement is unconstitutional.

Senator Richard J. Durbin of Illinois, the assistant majority leader, began the hearing — which he said had the support of both Democratic and Republican committee members — by noting that more prisoners are held in isolation in the United States than in any other democracy and that about half of all prison suicides occur among inmates in solitary confinement.

“We can have a just society, and we can be humane in the process,” Mr. Durbin said. “We can punish wrongdoers, and they should be punished under our system of justice, but we don’t have to cross that line.” He said he was working on legislation to encourage changes in the way solitary confinement is used.

With more than 250 people packed into two rooms, the hearing was “one of the best attended of the year,” Mr. Durbin said, an indication “of the fact that the time is due for us to have this conversation about where we’re going.” Over the course of two hours, the senators heard testimony about the effects of solitary confinement and the steps taken in Mississippi and several other states to reduce the number of prisoners kept in isolation.

But the hearing also included a testy exchange between Mr. Durbin and Charles E. Samuels Jr., director of the Federal Bureau of Prisons, who defended the use of solitary confinement for inmates who pose a threat to the safety of staff members or other inmates.

“Do you believe you could live in a box like that 23 hours a day, a person who goes in normal, and it wouldn’t have any negative impact on you?” Mr. Durbin asked, pointing to a life-size replica of a solitary confinement cell that had been set up in the hearing room.

“Our objective is always to have the individual to freely be in the general population,” Mr. Samuels responded.

“I’m trying to zero in on a specific question,” Mr. Durbin said, adding, “Do you believe, based on your life experience in this business, that that is going to have a negative impact on an individual?”

“I would say I don’t believe it is the preferred option,” Mr. Samuels conceded, “and that there would be some concerns with prolonged confinement.”

Some recent and older related posts:

June 19, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Latest death row data on shows spike in percentage of condemned Latinos

Via this DPIC posting, I see that the NAACP Legal Defense Fund now has some notable updated data on condemned inmates via its Death Row USA publication available here.  The DPIC posting summarizes highlights of this data in this way:

The latest edition of the NAACP Legal Defense Fund's Death Row USA shows a decrease of 19 inmates between January 1 and April 1, 2012. Over the last decade, the total population of state and federal death rows has decreased significantly, from 3,682 inmates in 2000 to 3,170 inmates as of April 2012.  California continues to have the largest death row population (724), followed by Florida (407), Texas (308), Pennsylvania (204), and Alabama (200). Neither California nor Pennsylvania have carried out an execution in the past six years.

The report includes information on the race of death row inmates. Although the overall population of death row has decreased since 2000, the percentage of Latino inmates facing execution has been steadily increasing. In 1991, Latinos made up 6% of the nation's death row.  In 2012, Latinos or Latinas comprised 12.4% of death row inmates. In jurisdictions having 10 or more inmates on death row, the states with the highest percent of Latino/Latina death row inmates are Nebraska (45%), Texas (29%) and California (23%).  The report also contains statistics on executions and an overview of recent legal developments related to capital punishment.

June 19, 2012 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

"Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect"

The title of this post is the title of this provocative new paper appearing on SSRN authored by Jonathan Rapping. Here is the abstract:

Every day, all across America, prosecutors charge people with crimes that the criminal justice system is not sufficiently funded to handle.  Most of the accused are indigent citizens forced to rely on the services of over-burdened public defenders.  In a system that lacks the resources to resolve these cases at trial, or even to spend the requisite capital at the pre-trial stage, prosecutors have found creative ways to process the vast majority of these cases without the expense associated with providing the accused actual justice.

With an ever-expanding list of behaviors and actions deemed criminal, and increasingly harsh sentencing options for these offenses, prosecutors are able to put pressure on most criminal defendants to give up many of their most fundamental Constitutional rights and plead guilty to avoid potentially draconian outcomes.  While many prosecutors see this as a cheap and effective way to justly punish wrongdoers, this course of action has largely replaced our reliance on principles of justice such as the right to counsel, the right to trial by jury, and the role of an independent judiciary determining a punishment that fits the crime.  By undermining basic principles of justice so crucial to our legal system, one might ask whether this way of handling criminal cases is antithetical to the prosecutor’s critical role as minister of justice.

This article argues that when a prosecutor charges more cases than he knows the system can justly resolve due to resource limitations, he violates his ethical obligation to seek justice.  It further argues that many prosecutors fail to appreciate how they violate their duty to justice because of a culture that promotes this behavior.  Finally, it suggests that prosecutors must be trained to resist these systemic pressures, and to act in accordance with values consistent with justice, if they are to fulfill their intended role in the criminal justice system.

June 19, 2012 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (39) | TrackBack

June 18, 2012

South Dakota murderer says his "sentence of death is justly deserved ... and should be carried out"

The AP has this notable new piece, headlined "AP Exclusive: Inmate says death will bring justice." Here are excerpts:

A convicted murderer said in a letter written from death row that the South Dakota Supreme Court owes it not only to him but to the family of the prison guard he killed to allow his execution to take place in a timely manner.  It's the only way, he said, the guard's family can get justice.

Eric Robert, 50, pleaded guilty to killing Ron Johnson during a botched prison escape at the South Dakota State Penitentiary and asked to be put to death.  A judge determined in October that the crime merited the death sentence, and Robert was scheduled for execution the week of May 13.

But the state Supreme Court postponed the date in February to allow more time for a mandatory review to make sure the death penalty was proper, even though Robert hadn't appealed the conviction or sentence.  The review could take up to two years.

In a three-page letter to the Associated Press, Robert detailed why he believes the death sentence is appropriate in his case and described his aggravation with the delay.  The letter represented Robert's first public comments since his October sentencing.  He said justice works differently in death penalty cases than in others.

"Victims of non-capital offenses receive their justice when the perpetrator is placed in custody. Victims in capital cases receive their justice when the perpetrator is executed. Give the Ron Johnson family their justice, they have been forced to wait too long. I finish where I started — I deserve to die," he said, alluding to a statement he read during his trial that started with "I deserve to die."...

In his letter, Robert noted that everyone agrees he is mentally competent.  "Yet, as recently as May 8, 2012, the (South Dakota Supreme Court) was still nosing around this issue. They just can't seem to fathom that a defendant would accept a just fate," he wrote, later adding he has a right to plead guilty and receive the death penalty.  "I am free to admit my guilt, as well as acknowledge and accept society's punishment just as I am free to proclaim innocence in defiance of a verdict.  I believe that the sentence of death is justly deserved in any murder and should be carried out."

June 18, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Another big loss for feds at trial: Rogers Clemens acquitted on all counts

As reported in this New York Times piece, "Roger Clemens, whose hard throws intimidated even the toughest batters and turned him into one of the best pitchers in baseball history, was acquitted Monday of charges that he lied to Congress in 2008 when he insisted he never used steroids or human growth hormone during his remarkably lengthy career." Here is more:

The verdict, which was rendered by a panel of eight women and four men who are largely uninterested in baseball.  It was a major, especially painful, defeat for the government in its second failed attempt at convicting a player whose legal problems highlighted baseball’s continuing drug woes.

Last spring, Clemens’s initial trial ended in a mistrial on only the second day of testimony when prosecutors bungled by showing the jury inadmissible evidence.  Critics said the prosecution of an athlete like Clemens — a seven-time Cy Young Award winner — was a waste of government time and money, but the United States attorney’s office in Washington pressed forward anyway.

This time, the trial lasted much longer.  The jurors heard from 46 witnesses over more than eight weeks before retreating into deliberations last Tuesday afternoon.  They had their work cut out for them.

Clemens had been charged with one count of obstructing Congress, three counts of making false statements and two counts of perjury in connection with his testimony to a House committee about his drug use.  Under the obstruction count, the jury had to review 13 statements Clemens made to Congress to determine whether he was innocent or guilty of each one.  To convict him on that count, the jury needed to find that he had lied only one of those 13 times.  He was acquitted of all charges.

When the jurors emerged from their debate, they delivered news that came as a ravaging blow to prosecutors, who had spent more than four years and likely millions of dollars on their case against him.

For Clemens, 49, and his family the verdict was a huge victory — and an obvious relief. If he had been convicted on all counts, he would have faced 10 years in federal prison. Still, all along, Clemens said that even a complete acquittal would not salvage his reputation, which he said has been permanently damaged by the government’s accusations that he cheated by using performance-enhancing drugs to prolong his career.

I wonder what Clemens' total fee for all his lawyers (who clearly earned their keep).

June 18, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (35) | TrackBack

Williams v. Illinois, the latest SCOTUS Confrontation Clause ruling, finally handed down by deeply divided Court

Thanks to the LiveBlogging over at SCOTUSblog, I can report that we are finally getting some criminal justice action from the Justices this morning.  To begin, we finally have the long-awaited ruling in Williams v. Illinois, the latest case dealing with the reach of the Sixth Amendment's Confrontation Clause.  Here is the early report on the ruling from the SCOTUSblog folks:

Williams v. Illinois, the Confrontation Clause case. The decision is to affirm the Illinois S. Ct. It is a divided decision. Justice Alito's opinion represents four Justices. The form of testimony in this case does not violate the Confrontation Clause....

Alito opinion is joined only by Chief Justice and Justices Kennedy and Breyer. Justice Breyer has a concurring opinion; Justice Thomas concurs in the judgment only.

Justice Kagan dissents, joined by Justices Scalia, Ginsburg, and Sotomayor. So the overall vote is 5-4.

The full opinion is Williams is now available at this link and it runs 98 pages in total.  I hope to find the time and energy to read all the opinions and see what we might glean from it all.  And (fortunately?), this is the only criminal justice action from the Court today and so we still have a bit more waiting for the sentencing trio still pending.

UPDATE A (too) quick read of the four opinions in Williams leads me to this simple conclusion: "What a bloody mess!"  Though I have long believed that the Confrontation Clause ought to apply to proof offered at sentencing, I am strangely pleased that a sentencing geek like me does not now need to perfectly figure out what the heck is going to happen in this arena with Williams and its aftermath.

June 18, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Is effort to reform North Carolina's Racial Justice Act a "Test of Racial Justice"?

The question in the title of this post is drawn from the headline of this new editorial from the New York Times.  Here are excerpts:

North Carolina’s Legislature is moving shamefully to gut the state’s 2009 Racial Justice Act.  The statute is the first in the nation to allow death row inmates to have their sentence reduced to life without parole if they show that the sentence was tainted by racial bias.

Last year, the Legislature passed a bill to repeal the law, but Gov. Bev Perdue wisely vetoed it and the lawmakers failed to override the veto.  She needs to show the same steadfastness and veto the new measure, which has already passed the State House and is expected to be approved by the Senate this week.

The bill would not repeal the Racial Justice Act, but would so severely limit the proof an inmate could use to show race bias as to render the law ineffective....

This spring, in the first case challenging a death sentence under the act, Superior Court Judge Gregory Weeks issued a 167-page opinion finding that Marcus Robinson, a death row inmate, was the victim of clear discrimination in jury selection.  The judge found “highly reliable” statistical evidence from a study by the Michigan State University College of Law showing racial discrimination in the removal of blacks from juries in all but four of the state’s 100 counties.

Until the death penalty is abolished, as it should be, the Racial Justice Act is a pragmatic way to address the state’s stark history of racial discrimination in its criminal justice system.  Governor Perdue must stop the latest effort to undo the law.

I must take issue with this editorial's assertion that NC's Racial Justice Act is a "pragmatic" way to do much of anything other than to provide an apparently effective means to achieve a nearly de facto retroactive repeal of the state's death penalty.  The NC RJA only applies in capital cases and  it might be interpreted as now written to require reversal of every death sentence imposed in the state over the last 30 years.  Thus, the NC RJA does not really address "the state’s stark history of racial discrimination in its criminal justice system" except for the very worst murderers sentenced to death, and it appears that all of those murderers could get relief from this Act.

It is certainly possible that the voters of North Carolina truly want every state death sentence nullified because of extant statistical evidence that race may have played a role in many (most? all?) capital case jury selection proceedings.  If so, there should be political support for the current version of the NC RJA and public opposition to any proposed reform.  But it is also possible that voters do not now support those provisions of the RJA which may functionally serve to repeal the state's death penalty.  If so, then the on-going work by the NC legislature would appear to be a proper expression of representative democracy.

A few older and more recent posts on NC Racial Justice Act:

June 18, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

June 17, 2012

Kansas prisoners still serving long terms based on now-reformed "old" sentencing laws

This interesting new article from the Wichita Eagle reports on how and why hundreds of offender sentenced before Kansas sentencing reform two decades ago are still serving prison terms that would have been much shorter under the reformed law.  This piece is headlined "Hundreds of ‘old law’ Kansas inmates serving longer sentences," and it begins this way:

Rick Redford will go before the Kansas Prisoner Review Board this month after serving more than 27 years in prison. Had he been sentenced under today’s laws, he probably would have been released years ago.   “Here I am doing 27 years just to see the parole board,” Redford said in a telephone interview from the Norton Correctional Facility.  “Had I been convicted in 1993, I would have been out in 2005 without even seeing a parole board.”

Redford, whose most serious conviction was for aggravated kidnapping, is one of hundreds of Kansas prison inmates serving sentences for crimes committed before July 1, 1993, the day the Kansas Sentencing Guidelines took effect.  Many of these “old law” inmates are serving sentences that would have been much shorter under today’s law.

“I’m on my 26th year right now,” said Sherman Wright, who figures he would have been released after 15 years had he been sentenced under the guidelines as they became law in 1993.  Instead he’s serving a 69-year-to-life sentence on burglary and aggravated robbery convictions that will keep him in prison at least until 2024.

Wright’s sister, Cynthia Crawford, said her brother’s crimes were relatively minor compared with those committed by some of his fellow inmates.  “He never used any kind of a weapon; he never hurt anybody,” she said.  “I don’t understand how they can let him sit in there and rot like that when people keep going in for killing or raping kids and getting right back out.  I know that hurts him to see people come and go, come and go, for crimes that were way past his.”

The 1992 Sentencing Guidelines Act, which was designed to eliminate racial and geographical disparities in sentencing, established a sentencing system based on the type of crime committed and the defendant’s previous criminal history.  The guidelines generally called for shorter sentences for property crimes and longer ones for crimes of violence.

The Kansas Legislature decided to apply the guidelines retroactively to more than 2,000 inmates who were serving time for relatively minor offenses.  But more than 4,000 inmates convicted of more serious crimes were left to serve out their original sentences. Many of those inmates had more than one conviction and were serving multiple sentences consecutively.  Some who had prior convictions saw their sentences doubled or even tripled under what was known as the Habitual Criminal Act.

The sentencing guidelines law in effect created two classes of prison inmates, but the Kansas Supreme Court ruled in 1994 that it did not violate any inmate’s right to equal protection of the law, guaranteed by the 14th Amendment.  Today, about 400 of those “old law” inmates remain behind bars.

June 17, 2012 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

"Valuable" cooperation gets con man's sentence recommendation reduced from LWOP to 5+ years

Federal sentencing practioners know that defendants involved in very serious federal crimes, even those with very long and very serious criminal histories, can escape very long prison terms by making nice with the government and helping the feds go after others.  The latest notable example of this reality is reported in this new Chicago Tribune article, which is headlined "Prosecutors: Levine among 'most valuable' witnesses in 3 decades." Here are the details:

Prosecutors called their key witness against former Gov. Rod Blagojevich and two top advisers "one of the most valuable cooperators" in three decades of public-corruption prosecutions in a late-Friday filing arguing for a light sentence.

Stuart Levine could have faced life in prison under federal sentencing guidelines but prosecutors agreed to recommend a sentence of 5 years and 7 months in exchange for Levine's cooperation. Friday's filing comes after U.S. District Judge Amy St. Eve, during a hearing in April, asked for a "lengthy recitation of Levine's cooperation."...

"The government not only used information provided initially by Levine in the case against Blagojevich, it was Levine's decision to cooperate that set in motion the series of events that led directly to the government obtaining the evidence and witnesses it needed to prosecute Blagojevich," prosecutors wrote.

Friday's filing, in advance of Levine's June 28 sentencing, recognizes both Levine's cooperation and his extensive criminal history.

More background on the man getting this (justified?) sentencing break from federal prosecutors comes from this local article from a few month ago headlined "How Stuart Levine — a thief and con man — became star witness."  Here is a snippet from that article:

On a recent day in federal court, a quiet settled over the courtroom as Stuart Levine answered questions about his past. It wasn’t just the drug-binge parties and snorting 10 lines of animal tranquilizer mixed with crystal meth at the Purple Hotel that stunned the courtroom. It was an interminable list of scams that one man was able to pull off for decades.

Did he steal $6 million from one charity, keep half and never pay it back? “Yes,” he said plainly.  Levine, wearing an ill-fitting suit and glasses, was asked if he rewarded a dying friend who entrusted him with his estate by stealing $2 million from the dead man’s children.  “Yes,” he said.

He’d answer “yes” to handing out bribes to politicians, to school board members, to a postal union worker and to using his position on state boards to work kickback deals amounting to millions of dollars.  Levine even admitted that once the FBI caught him and he swore to tell the truth, he initially lied about Vrdolyak.  Was that because, even while under FBI scrutiny, he still wanted to secretly take part in a $1.5 million kickback scheme with Vrdolyak?  Levine answered predictably: “Yes.”

June 17, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

"As Escapees Stream Out, a Penal Business Thrives"

The title of this post is the headline of this notable front-page New York Times article, which is the first of a three-part series of articles concerning New Jersey’s system of large halfway houses.  Here is how the very-lengthy first piece gets started:

After serving more than a year behind bars in New Jersey for assaulting a former girlfriend, David Goodell was transferred in 2010 to a sprawling halfway house in Newark. One night, Mr. Goodell escaped, but no one in authority paid much notice.  He headed straight for the suburbs, for another young woman who had spurned him, and he killed her, the police said.

The state sent Rafael Miranda, incarcerated on drug and weapons charges, to a similar halfway house, and he also escaped.  He was finally arrested in 2010 after four months at large, when, prosecutors said, he shot a man dead on a Newark sidewalk — just three miles from his halfway house.

Valeria Parziale had 15 aliases and a history of drugs and burglary.  Nine days after she slipped out of a halfway house in Trenton in 2009, Ms. Parziale, using a folding knife, nearly severed a man’s ear in a liquor store.  She was arrested and charged with assault but not escape.  Prosecutors say they had no idea she was a fugitive.

After decades of tough criminal justice policies, states have been grappling with crowded prisons that are straining budgets.  In response to those pressures, New Jersey has become a leader in a national movement to save money by diverting inmates to a new kind of privately run halfway house.

At the heart of the system is a company with deep connections to politicians of both parties, most notably Gov. Chris Christie.  Many of these halfway houses are as big as prisons, with several hundred beds, and bear little resemblance to the neighborhood halfway houses of the past, where small groups of low-level offenders were sent to straighten up.

New Jersey officials have called these large facilities an innovative example of privatization and have promoted the approach all the way to the Obama White House.  Yet with little oversight, the state’s halfway houses have mutated into a shadow corrections network, where drugs, gang activity and violence, including sexual assaults, often go unchecked, according to a 10-month investigation by The New York Times.

Perhaps the most unsettling sign of the chaos within is inmates’ ease in getting out.  Since 2005, roughly 5,100 inmates have escaped from the state’s privately run halfway houses, including at least 1,300 in the 29 months since Governor Christie took office, according to an analysis by The Times.  Some inmates left through the back, side or emergency doors of halfway houses, or through smoking areas, state records show.  Others placed dummies in their beds as decoys, or fled while being returned to prison for violating halfway houses’ rules.  Many had permission to go on work-release programs but then did not return.

While these halfway houses often resemble traditional correctional institutions, they have much less security.  There are no correction officers, and workers are not allowed to restrain inmates who try to leave or to locate those who do not come back from work release, the most common form of escape.  The halfway houses’ only recourse is to alert the authorities. And so the inmates flee in a steady stream: 46 last September, 39 in October, 40 in November, 38 in December, state records show.

“The system is a mess,” said Thaddeus B. Caldwell, who spent four years tracking down halfway house escapees in New Jersey as a senior corrections investigator.  “No matter how many escaped, no matter how many were caught, no matter how many committed heinous acts while they were on the run, they still kept releasing more guys into the halfway houses, and it kept happening over and over again.”  By contrast, the state’s prisons had three escapes in 2010 and none in the first nine months of 2011, the last period for which the state gave figures.

UPDATE:  The second piece in this series is headlined "At a Halfway House, Bedlam Reigns," and is now available at this link.

June 17, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (16) | TrackBack