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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 [email protected]  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 lethal injection case, 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