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October 1, 2012

Feds seeking lengthy prison terms for two who "shamelessly exploited" Michigan's medical marijuana law

This brief AP article reports on the severe sentences being sought by federal prosecutors this afternoon in a sentencing of a father and son involved in marijuana cultivation in Michigan.  Here are the details:

Federal prosecutors are seeking many years in prison for a Monroe County father and his son who were convicted of growing marijuana in greenhouses.  Gerald Duval Jr. and son Jeremy Duval are returning today to Detroit federal court.  The government says they "shamelessly exploited" Michigan's medical marijuana law to try to get around a federal ban on pot.

Prosecutors are recommending nearly 16 years in prison for the elder Duval and 14 years for his son. The greenhouses on Ida Center Road in Monroe County were approximately 100 feet long and 50 feet wide.

The Duvals admit they were growing marijuana but insist it was for medicinal use under Michigan law. Jeremy Duval says he thought the large operation was protected.

I fully understand (though do not fully condone) the views of federal prosecutors who believe it is a justifiable use of federal resources to vigorously pursue persons who willfully endeavor to violate federal law flagrantly under the cover of questionable state laws.  That said, I do not fully understand (and I do fully condemn) the belief by federal prosecutors that these defendants should serve more than a decade in prison for this kind of behavior.  Unless and until there is reason to believe these defendants pose a real threat to public safety (or there are some special aggravating circumstances), the harms of adding more bodies to an already over-crowded federal prison system (including the costs to federal taxpayers) that would result from such long federal prison terms seem to surely outweigh any obvious benefits.

UPDATE:  According to this follow-up AP piece Gerald Duval Jr was "sentenced to 10 years in prison ... Monday by Detroit federal Judge David Lawson, while Jeremy Duval is returning to court Tuesday." As suggested above, though well below what federal prosecutors sought, this decade-long prison sentence still strikes me as potentially "greater than necessary" to serve federal sentencing purposes unless there are serious aggravating factors or evidence that Gerald Duval is a threat to public safety.

I am hopeful the media might report on these sentencings further after Jeremy Duval is sentenced today, at which time I may do further posts on this case.

October 1, 2012 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Pot Prohibition Issues, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Today's SCOTUS order list: Dorsey and Miller GVRs, along with a Rubashkin cert denied

As I had expected (and predicted here) after the Supreme Court last week announced it had granted review in six new cases lacking significant sentencing issues, the Justices have now made official that they do not think the (in)famous Rubashkin case merits the Court's energy or attention on direct review.  In this new SCOTUS order list, the Rubashkin case appears deep within the usual first Monday mega-list of cases for which certiorari has been denied(I filed an amicus brief in support of cert together with the Washington Legal Foundation explaining why I though Rubashkin's sentencing and sentence justified cert review.)

The new SCOTUS order list ought also be of some interest  to sentencing fans based on a couple of GVRs based on last Term's Eighth Amendment decision in Miller and a larger number of GVRs based on last Term's Fair Sentencing Act interpretation decision in Dorsey.  I am not sure if any of these GVRs are especially noteworthy or unexpected as a matter of procedure, though the posture and process of the sentencings in the Miller GVRs (one of which is from Texas and the other from Wyoming), and/or any potentially similar cases in which a GVR was not granted, might perhaps provide basis for speculating about how SCOTUS is likely to deal with all the Miller aftermath issues which are already keeping many lower courts busy.

Back on the Rubashkin front, it will be interesting to see if the many prominent persons who were vocal in their complaints about the prosecution and sentencing of Rubashkin will to turn significant attention and energies toward a 2255 petition (or a clemency application) now that the Supreme Court has decided to take a pass.  (The nature and process surrounding a 2255 petition in the Rubashkin case could be especially interesting given that a 2255 petition is typically to be filed with and considered by the district judge who originally presided over the case and that a principal claim by the Rubashkin defense if that the district judge in Iowa who presided over the trial and imposed a harsh sentence should have been recused because of her involvement with the prosecutors concerning pre-indictment matters.)

Related posts on the Rubashkin case:

October 1, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

A not-so-big SCOTUS Term for sentencing fans about to get started

As effectively covered via lots of media reports linked via How Appealing (here and here, for example), lots of folks are predicting the upcoming Supreme Court Term, which gets started this first Monday in October, will be another big one. Cases concerning affirmative action and the Voting Rights Act and gay marriage make this prediction sound for those focused on high-profile social issues and election law.  But for criminal justice fans, and especially for a hard-core sentencing geeks, this coming SCOTUS Term looks like it could be a relative yawner.

The SCOTUS Term just concluded was huge not only because of the huge health-care cases and Arizona immigration cases which had some criminal justice implication, but also because of groundbreaking Sixth and Eighth Amendment rulings in Lafler, Frye and Miller. In addition, SCOTUS last Term also gave us sentencing fans an Apprendi sequel via Southern Union, a crack sentencing case in Dorsey, and a few other tasty jurisprudential tidbits. So far, the only cases on the docket garnering any significant attention from me concerning Padilla's retroactivity and (yet another) ACCA dispute.

That all said, many of the big-ticket sentencing cases decided last Term were not on the docket yet when the Term got started last October 2011. Thus, it is be premature to conclude that this Term is destined to be one that sentencing fans can completely ignore. Still, unless and until SCOTUS takes up some notable new cases soon, sentencing fans will have good reason to be watching the polls more than the courts for the next few months.

October 1, 2012 in Who Sentences? | Permalink | Comments (2) | TrackBack

September 30, 2012

California Gov signs into law novel juve LWOP resentencing provision

As reported in this AP article, headlined "California governor signs bill giving juvenile prisoners a second chance," Governor Moonbeam has likely brought some sunshine to juvenile offenders who had been sentenced to LWOP in California.  Here is why:

Gov. Jerry Brown on Sunday announced signing a bill that could one day bring the release of some criminals who were sentenced as juveniles to life in prison. There are 309 inmates serving life-without-parole sentences in California for murders committed when they were younger than 18.

Brown signed SB9, by Democratic Sen. Leland Yee of San Francisco. It would let the inmates ask judges to reconsider their sentences after they serve at least 15 years in prison. Judges could then reduce the no-parole sentence to 25 years-to-life if the inmate shows remorse and is taking steps toward rehabilitation.

Yee said his bill recognizes that young people's brains and impulse control grow as they age. His bill was opposed by the state's major law enforcement and victims' organizations. "I am proud that today California said we believe all kids, even those we had given up on in the past, are deserving of a second chance," Yee said in a statement....

The U.S. Supreme Court recently struck down mandatory life without parole sentences for juveniles as unconstitutional "cruel and unusual" punishment. But the ruling didn't affect California's law because it already gives judges the discretion to impose a sentence of 25 years-to-life.

Opponents say the bill is unfair to victims' families. Allowing the possibility of parole would force the survivors to relive their experience as they fight against parole. "Before, we had life without possibility of parole -- without," said Maggie Elvey of Sacramento, who helped organize opposition to the bill. "It's so sad that they're taking the justice away." She said survivors like herself were told that their loved one's murderers would never be released from prison. "It's not fair to go retroactive back to all those killers," she said.

Yee struggled for a year to get the bill through the Legislature over opposition from organizations representing police chiefs, sheriffs, prosecutors, victims and many rank-and-file law enforcement officers. He had support from some individual law enforcement officials, notably San Francisco District Attorney George Gascon, Police Chief Greg Suhr and interim Sheriff Vicki Hennessy.

It was his third attempt in five years. He succeeded in getting it through the Legislature this year, with no Republican votes, only after amending the bill to exclude young offenders who tortured their victims or killed a law enforcement officer or firefighter....

California has more than 10 percent of the nation's juvenile life-without-parole cases, said Elizabeth Calvin, an advocate with Human Rights Watch, which supported the bill along with the American Civil Liberties Union. She said the law should serve as a model for other states.

The bill had the support of numerous mental health and medical associations, along with defense attorneys and church groups. The groups note that some offenders were sentenced to life without parole as accomplices to murder, despite not being the actual killer.

Related recent posts:

September 30, 2012 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Ohio reducing prison population, but judges still unhappy with sentencing reforms

This new AP article, headlined "Fewer Ohio inmates, but judges want law fixed," highlights that sentencing judges dislike limits on their discretion even when these limits require lower sentences. Here are excerpts:

A law that has helped Ohio reduce its inmate population is being criticized as too restrictive by judges seeking more leeway in sentencing.

Enacted a year ago this Sunday, the law aims to save the state millions of dollars by shrinking the number of inmates and also by reducing the number of offenders who might to return to prison as repeat offenders. One result of the change is that Ohio’s inmate population has remained under 50,000 since January, levels not seen since 2007.

Ohio is also one of several states making significant progress reducing the number of repeat offenders, according to a national report released last week. Kansas, Michigan, Mississippi, Ohio, Oregon, Texas and Vermont all saw the number of repeat offenders drop between 2005 and 2007, according to the study by Washington-based Council of State Governments’ Justice Center.

One way Ohio has lowered its inmate population over the past year is by prohibiting judges from sentencing first-time offenders to prison if the cases fall into a series of categories, such as convictions involving low-level felonies or if the crime was not a violent offense.

But judges aren’t always happy about that. In some cases, they can’t find local treatment facilities or aren’t aware of them, or they say the offender has a history of skipping out of halfway houses or similar settings. In other cases, judges make it clear they think prison is warranted, despite the law....

Thanks to the law, the number of offenders convicted of property, drug possession and drug trafficking crimes decreased from 37 percent of total admissions to 29 percent of admissions, according to prison records. In addition, the number of offenders admitted each month for failing to pay child support has dropped from 39 per month in 2011 to 31 per month from January through August, records show.

Prisons director Gary Mohr called the first-year results promising but said much remains to be done. “If I believed that we were going to stop at these numbers, I’d be pretty darn disappointed,” Mohr said in an interview last week. “This gives us a sense of hope that we can continue to get a whole lot better.”

Ohio has about 49,500 inmates in 28 prisons built to hold about 39,000 prisoners. A year ago, the state estimated the inmate population would rise to 54,000 in four years without action. The goal is to shrink Ohio’s prison population to about 47,000 inmates by 2015.

This similar local article, headlined "Sentencing reform: Fewer convicts going to prison," provides this additional evidence that folks have varied perspectives on Ohio's recent sentencing reform efforts:

With promises of big taxpayer savings and fears of more strain on local governments, state lawmakers and the governor overhauled Ohio’s sentencing laws last year. The goal was to send fewer nonviolent, low-level felons to prison, and shorten the length of time other prisoners would spend behind bars, and save tens of millions of dollars in the process.

The law took effect a year ago today. As predicted, fewer felons are going to prison and more are being put on probation, both around the state and in Stark County. What those changes mean depends on who you ask:

— “We’re pleased with the results of House Bill 86 thus far and we see those results even increasing as we move forward the next couple of fiscal years,” said Linda Janes, Ohio Department of Rehabilitation and Correction chief of staff.

— “We have not seen what I would call earth-shattering changes,” said Stark County Common Pleas Judge Lee Sinclair.

— “I think it’s awful,” said Stark County Common Pleas Judge Frank Forchione, repeating an opinion he has voiced from the bench.

September 30, 2012 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Latest California polling shows (unsurprising?) split for two major sentencing initiatives

Lat-me-poll-three-strikesa1-20120929-gAs reported in this new Los Angeles Times article, there are new and notable poll numbers concerning the two big sentencing initiatives on the California ballot this fall.  The article is headlined " Californians back change on three strikes, but not on death penalty; Proposition 36 would ease the three-strikes sentencing law. Proposition 34 would replace the death penalty with life without possibility of parole." Here are excerpts from the lengthy article discussing the latest numbers:

California voters support easing the state's tough three-strikes sentencing law by a margin of more than 3 to 1 but are reluctant to abolish the death penalty, according to a USC Dornsife/Los Angeles Times poll. The poll results come as voters ponder a pair of ballot measures that, if approved, would make dramatic changes to the state's criminal justice system.

Support for an initiative that aims to replace capital punishment with life in prison without parole is trailing 38% to 51%, the poll found.  But that gap narrows to a statistical dead heat when voters learn that Proposition 34 also requires convicted killers to work while in prison, directs their earnings to their victims and earmarks $100 million for police to solve murders and rapes.

Despite voters' ambivalence over capital punishment, a ballot measure seeking to amend the three-strikes law is attracting strong support from a broad cross section, including conservatives. Proposition 36 takes aim at what critics of three strikes call its unfairest feature by changing the law so that offenders whose third strikes were relatively minor, such as shoplifting or drug possession, could no longer be sentenced to 25 years to life in prison.

"We've built this society on the idea that the penalty depends on the crime," said poll respondent Hamilton Cerna, 31, a registered Republican from Downey who works as an employee relations consultant. "If you're going to take away somebody's freedom, then I feel like it should be for a damn good reason."  The measure to soften the three-strikes law was backed by 66%, with only 20% opposed and 14% undecided or not answering. Both ballot initiatives need a simple majority to pass.

The USC Dornsife College of Letters, Arts and Sciences/Los Angeles Times poll canvassed 1,504 registered voters from Sept. 17 to 23.  The survey was conducted jointly by the Democratic polling company Greenberg Quinlan Rosner Research and the Republican firm American Viewpoint.  The margin of error is 2.9 percentage points.

The propositions target two of California's most iconic and controversial tough-on-crime sentencing laws. The "Three Strikes and You're Out" law won overwhelming voter approval in 1994 amid heightened public anxiety over crime.  The law targets offenders who have previous convictions for at least two serious or violent crimes, such as rape or robbery. Any new felony conviction can trigger a prison sentence of at least 25 years to life. Of the state's nearly 8,900 third-strikers, about a third were convicted of drug or nonserious property crimes.

Proposition 36 would end life terms for such offenders, who would instead be treated as if they had only one previous strike and be sentenced to double the standard prison term for their latest crime.... Inmates already serving 25 years to life for nonserious and nonviolent offenses could get a reduction in their sentences if a judge decides they do not pose an unreasonable risk to the public. The proposition's changes would not apply to offenders with previous convictions for murder, rape or child molestation, or to those whose latest offense involved a sex crime, major drug dealing or use of a firearm....

More than half of voters who described themselves as conservative said they supported amending the three-strikes law, with just over a quarter opposing the measure, according to the poll.  "It's not fair to taxpayers. It's not fair to the offender," said Don Chapman of Anaheim, a registered Republican who used to oversee drivers and equipment for a distribution company before retiring.

Although the poll gives the initiative a large advantage, a 2004 attempt to amend the three-strikes law held a similar lead in polls until an advertising blitz by opponents in the final week of the campaign. That proposition lost 53% to 47%. The current measure is opposed by victims rights groups and more than a dozen law enforcement associations, including the California District Attorneys Assn. and the union that represents rank-and-file LAPD officers.

Opponents note that judges already have the authority to spare a third-striker the maximum sentence. They argue that the proposed amendment removes a powerful tool that has put away dangerous offenders before they could hurt more people.  Norman Tripp, a retired corrections officer and supervising prison counselor who participated in the survey, said he believes the initiative would result in more crime. "At what point does society say, 'I'm going to end this person preying on people'?" Tripp, of Susanville, asked.


Proposition 34 offers Californians their first opportunity to decide whether the state should have the death penalty since two-thirds of voters amended the state Constitution to allow capital punishment in 1972. 

Only 13 inmates have been put to death in California since executions resumed and none since 2006.  California has more than 725 inmates on death row, the most in the nation, and they are more likely to die of old age, illness or suicide than by lethal injection.

The USC Dornsife/Times poll mirrors similar surveys finding that support for the death penalty has waned.  When voters were read the proposition language on the November ballot, 43% favored Proposition 34, with 45% against.  The margin of error for that result was 4.1%.

The escalating costs of the death penalty — an issue highlighted by the proposition's supporters — did not move respondents. After voters were told the state could save as much as $130 million annually by abolishing capital punishment, opponents of Proposition 34 still outnumbered supporters by the same margin — 46% to 44%. 

Pollsters said the overall results did not bode well for the measure and show that most voters already have firm opinions on the issue.  Susan Estabrook, 52, a teacher's aide who lives in Marysville and took part in the poll, said the cost had no bearing on her support for executions of murderers. "If someone commits that heinous of a crime, they just don't even need to be here," she said.

Some respondents who favored Proposition 34 said they were motivated as much by whether it was fairly carried out as by cost.  Kevin Calandri, 69, a retired college professor from Sacramento, said he intended to vote to abolish the death penalty because "the people who are more likely to be sentenced to death are poor minorities."

Recent related posts:

September 30, 2012 in Elections and sentencing issues in political debates, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack