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November 24, 2012

"What's next for marijuana laws?"... how about "Give Pot a Chance"

Pot peaceThe title of this post is drawn from the headline of two new effective pieces discussing the state and possible fate of marijuana law and policy in the wake of the marijuana legalization votes in Colorado and Washington earlier this month.  This first piece comes from CBS News, and its provides an astute review of how federal authorities might (or might not) respond to the fact that recreation marijuana use will be legal under state law in two states in just a few weeks.

The second piece at the New York Times' Opinionator site is a lengthy commentary by Timothy Egan, which includes these astute points:

For the first time since prohibition began 75 years ago, recreational marijuana use will be legal; the misery-inducing crusade to lock up thousands of ordinary people has at last been seen, by a majority of voters in [Washington] and in Colorado, for what it is: a monumental failure.

That is, unless the Obama administration steps in with an injunction, as it has threatened to in the past, against common sense. For what stands between ending this absurd front in the dead-ender war on drugs and the status quo is the federal government. It could intervene, citing the supremacy of federal law that still classifies marijuana as a dangerous drug.

But it shouldn’t. Social revolutions in a democracy, especially ones that begin with voters, should not be lightly dismissed. Forget all the lame jokes about Cheetos and Cheech and Chong. In the two-and-a-half weeks since a pair of progressive Western states sent a message that arresting 853,000 people a year for marijuana offenses is an insult to a country built on individual freedom, a whiff of positive, even monumental change is in the air....

But there remains the big question of how President Obama will handle the cannabis spring. So far, he and Attorney General Eric Holder have been silent. I take that as a good sign, and certainly a departure from the hard-line position they took when California voters were considering legalization a few years ago. But if they need additional nudging, here are three reasons to let reason stand:...

In two years through 2011, more than 2,200 serious illnesses, including 33 fatalities, were reported by consumers of nutritional supplements. Federal officials have received reports of 13 deaths and 92 serious medical events from Five Hour Energy. And how many people died of marijuana ingestion? Of course, just because well-marketed, potentially hazardous potions are legal is no argument to bring pot onto retail shelves. But it’s hard to make a case for fairness when one person’s method of relaxation is cause for arrest while another’s lands him on a Monday night football ad....

Washington State officials estimate that taxation and regulation of licensed marijuana retail stores will generate $532 million in new revenue every year. Expand that number nationwide, and then also add into the mix all the wasted billions now spent investigating and prosecuting marijuana cases. With pot out of the black market, states can have a serious discussion about use and abuse.  The model is the campaign against drunk driving, which has made tremendous strides and saved countless lives at a time when alcohol is easier to get than ever before.  Education, without one-sided moralizing, works....

From his years as a community organizer — and a young man whose own recreational drug use could have made him just another number in lockup — Obama knows well that racial minorities are disproportionately jailed for these crimes.  With 5 percent of the world’s population, the United States has 25 percent of its prisoners — and about 500,000 of them are behind bars for drug offenses.  On cost alone — up to $60,000 a year, to taxpayers, per prisoner — this is unsustainable.

Obama is uniquely suited to make the argument for change.  On this issue, he’ll have support from the libertarian right and the humanitarian left.  The question is not the backing — it’s whether the president will have the backbone.

November 24, 2012 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (22) | TrackBack

One notable case showing impact and import of Lafler and Frye

The Wall Street Journal has this new piece reporting on how the Supreme Court's landmark opinions earlier this year concerning ineffective assistance of counsel and plea bargaining has impacted one notable case. The piece is headlined "Decisions Open Door to Appeals of Plea Bargains," and here are excerpts:

Two recent Supreme Court decisions helped win freedom for a California man who was given a 25-year minimum sentence after pleading guilty to passing a bad check, the latest development in a legal re-evaluation of the rights of defendants who engage in plea bargains.  In late September, a three-judge panel of the Ninth U.S. Circuit Court of Appeals ordered a hearing into possible missteps by an attorney representing Tyrone W. Miles.

Mr. Miles had alleged he received inadequate legal counsel when he cut a deal with state prosecutors in 2005 for using a bogus $474 check in a convenience store in Hanford, the central-California town where he lived.  As a result, the 42-year-old Navy veteran said he lost out on a plea bargain that would have given him a six-year sentence instead of the 25 years to life he received when he later did plead guilty under California's so-called "three strikes" law for repeat offenders.  The attorney allegedly counseled Mr. Miles to reject the six-year deal without checking to see that his client faced possible life imprisonment under the three-strikes law.

In the wake of the September court decision and the November election in which California voters agreed to modify the three-strikes law, the two sides in the Miles case petitioned the appellate court to issue an order directing that Mr. Miles be freed in the near future. The appellate court issued that order on Wednesday....

The Ninth Circuit's September decision cited two Supreme Court decisions, both issued in March, in which the high court found defendants in two other cases hadn't been adequately represented by their attorneys during the plea-bargain process....

Judges and legal observers view the high court's rulings as a major shift in the standards that govern plea bargaining, a widely used legal strategy in which defendants plead guilty to one or more charges usually in exchange for a lighter punishment than they would receive if they went to trial and lost.  Plea bargaining allows criminal cases to be settled more quickly and with less expense than a jury trial....

As the Supreme Court rulings percolate through the judicial system, there will be many more cases where defendants challenge their plea deals based on inadequate assistance of counsel, said David Carroll, executive director of the Sixth Amendment Center, a Boston-based nonprofit that focuses on legal representation for indigent defendants. The Ninth Circuit decision "is the tip of the iceberg," he said.

Critics worry that the Supreme Court decisions could clog the judicial system with questionable plea-bargain appeals.  In his dissent to one of the court's decisions in March, Justice Antonin Scalia wrote that the majority's position "elevates plea bargaining from a necessary evil to a constitutional entitlement" and "opens a whole new boutique of constitutional jurisprudence."

November 24, 2012 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

November 23, 2012

Talk (again) of possible death penalty repeal in Maryland

There has been talk in many recent years about Maryland potentially being the next state to repeal its death penalty.  This new local article, headlined " Death penalty repeal back on Maryland legislative agenda: Failure of repeal in California will have little effect, advocates say," explains why some think that 2013 might be (and also still might not be) the year that this talk becomes reality.  Here are the basics:

Despite the high-profile failure of a measure to repeal the death penalty in California, Maryland activists are optimistically looking to the 2013 legislative session to end capital punishment in the state.  “We think this is the year to pass this repeal,” said Jane Henderson, executive director of Maryland Citizens Against State Executions.

Henderson cites what appears to be a less-cluttered agenda for the session as reason for optimism.  “We came up short last year largely because there was so much on the agenda,” Henderson said.

Bills to repeal the death penalty have been introduced, and failed to reach the floor of either chamber for a vote, in 10 of the past 12 legislative sessions....

Sen. Lisa A. Gladden (D-Dist. 41) of Baltimore, who has sponsored legislation in the past and reintroduced a bill again this year, is less optimistic about the chance for passage, but said she would be happy just to see both chambers take a vote on the issue.

In past years, the Senate Judicial Proceedings Committee has squashed a repeal bill before it could come to a vote.  Gladden, the vice chairwoman of the committee, said that one of the 11 members would have to have a change of heart for the bill to make it to the floor in 2013.  “I think it’s this year or no year,” Gladden said.  “But we still need to work with the politics of the House [of Delegates], and on the committee.”

Gladden and House sponsor Del. Samuel I. “Sandy” Rosenberg (D-Dist. 41) of Baltimore, are adding language this year allocating any funds saved in repealing the death penalty to support the families of murder victims.  Capital cases, in which prosecutors seek the death penalty, tend to be significantly more expensive to prosecute than noncapital cases.

“If you think about all the hundreds of families in Baltimore who are left when someone is killed, there are not enough resources for those families,” Gladden said.  “We can take the money we would have used killing people and put it toward support of victims.”

According to the Office of the Public Defender, capital cases cost about $1.9 million annually in the legal system.  The office estimates that the same cases could be tried as noncapital cases for about $650,000.

In 2009, the General Assembly passed legislation that restricted the use of the death penalty to cases with DNA evidence, video confession or conclusive video evidence. “There are a lot of hoops to jump through,” said Sen. Nancy Jacobs (R-Dist. 34) of Abingdon, a member of the Senate Judicial Committee who has voted against the repeal bill in the past.  “We have safeguards in [the regulations].”...

“If you have a death penalty on the books, and duly promulgated regulations, you should be able to move forward on it,” said Sen. Christopher B. Shank (R-Dist. 2) of Hagerstown, who also is on the Judicial Proceedings Committee and opposes repeal.  “If the General Assembly needs to makes some clarifications so that can happen, we should do that.”

Jacobs also favors putting new protocols in place to allow executions to proceed. “One of my constituents was murdered, and the gentleman got the death penalty,” Jacobs said. “To many people, it’s a matter of principle.”

November 23, 2012 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

First California prisoner released under reformed three-strikes has lots of voters to thank

It is poetic that the reform of California's three-strikes law approved overwhelmingly by state voters earlier this month produced the first resentencing and prisoner release just before the Thanksgiving long weekend.  Here are the details from this local report headlined "Revised California 3 Strikes law: Man becomes first to be re-sentenced under Prop. 36":

A man sentenced to 25 years to life in prison under California's "three strikes" law in 1996 was re-sentenced Wednesday to about 15 years, and released based on credit for time served.

Kenneth Glenn Corley, 62, became the first person to be re-sentenced under Proposition 36, passed earlier this month by California voters.  When Corley was convicted of drug possession for sale, he had two felony "strikes" for burglary and attempted burglary and was given the mandatory 25-years-to-life sentence on Oct. 8, 1996.

He was re-sentenced Wednesday by San Diego Superior Court Judge David Danielsen. "Many prosecutors in the state, including our office, were already working to address the unintended consequences of the 'three strikes' law,'" said San Diego County District Attorney Bonnie Dumanis. "Now that Prop. 36 has passed, the work we have already done to review these cases should make the process of assessing the petitions go more smoothly."

Justin Brooks, with the California Innocence Project, told 10News, "No violent offenses; it's basically a guy who had a drug addiction and committed a lot of property crimes and got sentenced to prison for the rest of his life."  Brooks has been working on Corley's case for nearly two years.  He has lined up a job for Corley and even arranged for him to live in a local halfway house....

Prosecutors, defense attorneys and San Diego Superior Court officials are preparing for 200 to 300 requests from state inmates seeking reductions in their prison sentences.  A judge will need to determine if the offender poses an unreasonable risk to public safety before permitting a re-sentencing....

Proposition 36 modified the law to require a sentence of 25 years to life only if the third strike was a serious or violent felony, or upon a conviction for another qualifying factor, such as use of a deadly weapon or intent to inflict injury. It is retroactive to the extent that it allows certain inmates whose third strikes were nonviolent, non-serious felonies and are serving life terms to seek a new sentencing hearing.... Under the three strikes law, 8,800 prisoners have been sentenced to life in prison, and 3,000 of them are eligible for release under Prop. 36.

I suppose the only disturbing part of this story is that shoppers in California now need to worry about one more shopper in line for the big Black Friday sales.

November 23, 2012 in Campaign 2012 and sentencing issues , Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (11) | TrackBack

"Muted Message: Capital Punishment in the Hollywood Cinema"

The title of this post is the title of this new piece in SSRN by David Ray Papke; it provides for a good holiday read before heading out for a holiday movie or while trying to avoid black friday crowds.  Here is the abstract:
Contemporary Hollywood films seem at first glance to be opposed to capital punishment. However, this article’s consideration of five surprisingly similar films (Dead Man Walking, The Chamber, Last Dance, True Crime, and The Life of David Gale) finds they do not truly and consistently condemn capital punishment.  Instead of suggesting that the practice of capital punishment is fundamentally immoral and should in general be ended, the films champion only worthy individuals on death row and delight primarily in the personal growth of other characters who attempt to aid the condemned.  In the end, Hollywood offers only a muted message regarding the on-going use of capital punishment.

November 23, 2012 in Death Penalty Reforms, Film | Permalink | Comments (5) | TrackBack

November 22, 2012

Sign of misguided sentencing times in today's New York Times piece on church sentencing

Nationwide, there are literally thousands of sentencing stories about thousands of defendants subject to problematic sentencing terms that never get consider part of "all the news that's fit to print" by the New York Times.  But when one judge in Oklahoma incorporates church into his sentencing script, the New York Times provides coverage via this lengthy article headlined "Constitution Experts Denounce Oklahoma Judge’s Sentencing of Youth to Church."  Here are excerpts:

Initially there was little outcry in Muskogee, Okla., last week when a judge, as a condition of a youth’s probation for a driving-related manslaughter conviction, sentenced him to attend church regularly for 10 years. Judge Mike Norman, in his Muskogee courtroom, seemed surprised by the scrutiny. “I sentenced him to go to church for 10 years because I thought I could do that,” he said.

The judge, Mike Norman, 67, had sentenced people to church before, though never for such a serious crime. But as word of the ruling spread in state and national legal circles, constitutional experts condemned it as a flagrant violation of the separation of church and state.

This week, the American Civil Liberties Union said it would file a complaint against Judge Norman with the Oklahoma Council on Judicial Complaints, an agency that investigates judicial misconduct, seeking an official reprimand or other sanctions. “We see a judge who has shown disregard for the First Amendment of the Constitution in his rulings,” said Ryan Kiesel, executive director of the civil liberties union branch in Oklahoma.

The 17-year-old defendant, Tyler Alred, was prosecuted as a youthful offender, giving the judge more discretion than in an adult case. Mr. Alred pleaded guilty to manslaughter for an accident last year, when he ran his car into a tree and a 16-year-old passenger was killed.

Although his alcohol level tested below the legal limit, because he was under age he was legally considered to be under the influence of alcohol. Mr. Alred told the court that he was happy to agree to church attendance and other mandates — including that he finish high school and train as a welder, and shun alcohol, drugs and tobacco for a year. By doing so, he is avoiding a 10-year prison sentence and has a chance to make a fresh start.

But his acquiescence does not change the law, Mr. Kiesel and others pointed out. “Alternative sentencing is something that should be encouraged, but there are many options that don’t violate the Constitution,” Mr. Kiesel said.  “A choice of going to prison or to church — that is precisely the type of coercion that the First Amendment seeks to prevent.”...

The judge said he was surprised at the criticism. “I feel like church is important,” he said. “I sentenced him to go to church for 10 years because I thought I could do that.” He added, “I am satisfied that both the families in this case think we’ve made the right decision,” and noted that the dead boy’s father had tearfully hugged Mr. Alred in the courtroom. If Mr. Alred stops attending church or violates any other terms of his probation, Judge Norman said, he will send him to prison....

Randall T. Coyne, a professor of criminal law at the University of Oklahoma, agreed that the judge’s church requirement was unconstitutional. But unless the defendant fights the ruling, he said, civil liberties advocates have no way to challenge it in court, leaving the complaint to the judicial review agency as their only option.

Over the years, several judges around the country have mandated church attendance as part of sentences, sometimes stirring criticism. In the early 1990s in Louisiana, Judge Thomas P. Quirk ordered hundreds of defendants in traffic and misdemeanor cases to attend church once a week for a year. The judge said that he had imposed the condition only on people who agreed to it, and that it provided a good alternative to sending defendants to overcrowded jails or imposing fines they could not afford.

The Judiciary Commission of Louisiana found that Judge Quirk had engaged in knowing violations of the Constitution and recommended that he be suspended without pay for 12 months. But the Louisiana Supreme Court ruled in 1995 that while the judge might have erred, he did not engage in “judicial misconduct,” and it rescinded the sanctions.

In 2011, the city of Bay Minette, Ala., required first-time misdemeanor offenders to choose between doing jail time and attending church weekly for a year. The city dropped the program after the American Civil Liberties Union called it unconstitutional.

I understand fully thr First Amendment concernins with a criminal sentence that requires religious activity.  Nevertheless, I still find it so very sad and telling that Judge Mike Norman here could have readily opted to sentence 17-year-old defendant Tyler Alred to prison for a full decade and this case never would have received a moments notice from anyone other than the local community. But because the judge here sought to encourage the juvenile defendant's spiritual development rather than completely deprive his liberty for a decade, this story makes national news and gets the ACLU up in arms.

I suppose I have to just continue hoping for a time when we as a society are as troubled by state-mandated deprivations of liberty as we are state-encouraged spiritual development. Until then, I have to remain less than entirely thankful about what gets folks most concerned in incarceration nation.

November 22, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

November 21, 2012

Holiday reading for sentencing fans in Harvard Law Review SCOTUS issue

The Harvard Law Review's annual Supreme Court review issue is now available here on line, and there are at least three pieces that should be of special interest to sentencing fans.

Professor Stephanos Bibas has this comment on Lafler v. Cooper and Missouri v. Frye which is titled "Incompetent Plea Bargaining and Extrajudicial Reforms." In addition, the HLR staff has case comments labelled "Factfinding in Sentencing for Criminal Fines: Southern Union Co. v. United States" and "Mandatory Juvenile Life Without Parole: Miller v. Alabama."

November 21, 2012 in Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (1) | TrackBack

"Pardon people, not turkeys: Under President Obama, the odds of clemency or commutation are shamefully slim"

The title of this post is the headline and subheading of this recent commentary by Professor Mark Osler, which echoes my own frustrated reaction to today's scheduled holiday symbolism at the White House. Here are excerpts from the commentary:

While the president has been a regular dispenser of clemency to fowl, he has not been so generous to humans.  It is time for that disjuncture to end.

As ProPublica journalist Dafna Linzer pointed out earlier this month, President Obama has granted clemency more rarely than any modern president.  This is particularly striking when considering commutations, or the power to lessen a sentence while maintaining the underlying conviction (a pardon wipes out the conviction). According to Linzer's calculations, "under Reagan and Clinton, applicants for commutations had a 1 in 100 chance of success. Under George W. Bush, that fell to a little less than 1 in 1,000. Under Obama, an applicant's chance is slightly less than 1 in 5,000."

The founding fathers did not intend for the pardon power to fall into such disuse. As the framers made clear, this vestigial power of kings is rooted in policy concerns that ring very true today.  Alexander Hamilton, in Federalist 74, argued that "the criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Our federal system of criminal law has, of late, been "too sanguinary and cruel." For example, thousands of federal prisoners still languish under long sentences doled out under the now-amended 100-to-1 ratio between powder and crack cocaine that was built into the federal statutes and sentencing guidelines.  That ratio has been actively rejected by all three branches of government, but the only avenue to relief for those prisoners is commutation.  President Obama should look to the approach President Ford employed for draft evaders in 1974: A mass commutation pursuant to a process created to provide careful review of each case.

At the individual level, there are strikingly strong petitions for clemency currently before the president.  Since we started the nation's first law school clinic focused on federal commutations here at the University of St. Thomas, we have been deluged with letters asking for help.  One was from Weldon Angelos, who was sentenced to 55 years in prison for three small marijuana infractions and the possession of firearms that were neither used nor brandished.  He had only one prior conviction, stemming from a juvenile court charge for gun possession.

The Angelos case grew out of a perversion of mandatory minimum sentences embedded in federal statute and the actions of overaggressive prosecutors in Utah.  The result was so unfair that the sentencing judge, George W. Bush appointee Paul Cassell, pled for a presidential commutation of the sentence on the very pages of the sentencing opinion, saying that the 55-year term of imprisonment he was forced by statute to issue was "unjust, cruel, and even irrational."  Cassell substantiated this by pointing out the types of crimes that would have received a much shorter sentence: hijacking planes, raping children and murder....

For too long, we have filled our prisons with similar minor-league players in the drug game. It might make sense if this had solved a problem, but it hasn't.  The billions spent have not bought success at reducing drug use in this country.

A step in the right direction would be to use the pardon power to release those who present the strongest cases and those sentenced under statutes we have now seen fit to amend.  In those cases, clemency is more justice than mercy.  Instead of a photo op with a turkey, President Obama should begin a Thanksgiving tradition that reaches back to our true origins and our best values.

November 21, 2012 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18) | TrackBack

November 20, 2012

Massachusetts taking slow (and unsteady) approach to responding to Miller

The Boston Globe has this new piece about the Bay State's response to the SCOTUS Miller ruling.  The piece is headlined "Mass. seeks new policy on life sentences Youths must get chance of parole," and it gets started this way:

Massachusetts juveniles ­incarcerated for life without ­parole will probably wait well into 2013 or beyond for a chance at reduced prison time, as lawyers, prosecutors, legislators, and advocates carefully craft a strategy to bring the state into compliance with new federal law outlawing the mandatory sentence.

Massachusetts has not been as quick to act as states such as North Carolina and Iowa, which have implemented new laws since June, when the US Supreme Court banned mandatory life without parole for ­juveniles convicted of murder. While change is expected in Massachusetts, either through the courts or legislation, no clear answers have emerged on how to handle new cases and review past convictions involving killers under 18.

Governor Deval Patrick’s point person on the issue wants life without parole banned entire­ly for juveniles, whether mandatory or not. Middlesex District Attorney ­Gerard T. Leone Jr. wants teenage killers to serve a minimum of 35 years before becoming eligible for parole, while the Massachusetts District Attorneys Association has reached no consensus on a solution.

Meanwhile, the state’s public defenders office has mobilized and trained dozens of ­defense lawyers to work with as many as 80 inmates and ­accused teenage killers in Massa­chusetts who could be ­affected by the ruling.

The 5-4 Supreme Court decision in Miller v. Alabama banned the mandatory sentence, imposed in 29 states, as “cruel and unusual punishment,” but still gives judges discretion to impose life without parole for teenage killers.

Last week, a Middlesex ­Superior Court judge wrote the first decision in the state discussing the consequences of the high court ruling, arguing that the only option available to judges now is to sentence teenage killers to life in prison with the possibility of parole. Legislation would be required, wrote Judge Kathe M. Tuttman, only if the state determines it wants the option to sentence juveniles to life without parole, a process that she said would require legislative guidelines.

November 20, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Press reporting that AG Eric Holder to stay in position another year

FoxNews has this notable new report concerning the state and fate of the Justice Department during Prez Obama's second term.  Here are the details:

Attorney General Eric Holder will honor President Obama’s request to stay into the second term and but will remain on the job only “for about a year,” Fox News confirmed Monday.

A senior administration official told Fox News that Obama does not want a mass exodus at the start of his second term, especially with his national security team going through major changes. And Secretary of State Hillary Clinton already has said she will leave soon....

The names of potential replacements are already starting to emerge.  Among those mentioned is Massachusetts Gov. Deval Patrick, the official told Fox News.  Other names being mention on Capitol Hill are Sen. Amy Klobuchar of Minnesota and Sen. Richard Blumenthal of Connecticut, a former state attorney general.  Homeland Security Secretary Janet Napolitano’s name also has been mentioned, a source told Fox News.

AG Holder's decision to stay on an extra year could have lots of interesting (though unpredicatable) impacts on federal crime and punishment policies in the months ahead. Also, the politics of naming and confirming his potential successor to head DOJ could also change considerably come late 2013 and 2014.

For some holiday week fun, I urge readers to suggest novel names for taking over the Justice Department after AG Holder moves on. I will start by throwing out three (crazy?) high-profile names for the AG position a year from now: Chris Christie, Hillary Clinton and Kamala Harris.

November 20, 2012 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (12) | TrackBack

November 19, 2012

Female voters seen as key to success of pot reform initiatives

The Atlantic has this notable new article reviewing the electorial success of the marijuana initiatives in Colorado and Washington.  The piece is headlined "The Secret Ingredients for Marijuana Legalization: Moms and Hispanics," and here are excerpts:

A few days before last Tuesday's election, New Approach Washington, the group pushing a ballot issue to legalize marijuana in the state, posted its final ad of the campaign. The spot featured a "Washington mom" -- a woman in her mid-40s, sitting on her porch, flanked by pumpkins -- who took the viewer through the assorted restrictions and benefits both minors and businesses would see once the measure, Initiative 502, was implemented: ID checks. Fewer profits for the cartels. Increased funds for schools. More time for police to "focus on violent crime instead."  In short, all of the top concerns that an average mom in the Evergreen State would seem to have about making pot legal.

But New Approach's ad was about more than just capturing the votes of a major demographic -- the same one that helped reelect President Obama and the one that kept GOP Senate hopefuls Richard Mourdock and Todd Akin at bay.  Legalization advocates have found that female support tends to be a leading indicator for marijuana measures. In the case of both California's 2010 and Colorado's 2006 votes, sagging support among women preceded a collapse in men's support too.  In California, for instance, support from women saw a 14-point swing against legalization over the final six weeks, dragging support from men under 50 percent.

"Historically, as soon as women really start to create a [gender] gap, a marijuana measure gets killed," says Allen St. Pierre, executive director of National Organization for the Reform of Marijuana Laws.  "If women get weak-kneed, the men will start to drop."

Armed with that knowledge about why previous attempts had failed, campaigns in both Washington and Colorado set out to court women . Their efforts appear to have paid off. Both states approved measures legalizing marijuana with the backing of some 55 percent of the electorate.  That was stronger than even proponents expected -- they had been cautiously optimistic about the Washington vote, but the Colorado measure appeared to be fading down the stretch. (Advocates in Oregon, where a marijuana-legalization measure failed on Tuesday, faced larger problems than merely enlisting females -- too little time to canvass, too few funds to spend.)

Convincing women -- mothers, especially -- that legalization wasn't simply about stoners and libertarians was essential to ending blanket prohibition.  They needed to be assured this was sound policy and that their children would not be affected. "We definitely wanted to reach [women]," says Tonia Winchester, the outreach director behind the Yes on I-502 camp.  "We were very much focused on not being a pro-pot campaign but a pro-policy campaign, showing that we could shift resources from incarcerating and focus on programs we knew would work."...

[W]omen aren't the sole demographic pro-legalization camps eyed.  After all, much as Obama's reelection showed that the Anglo-Christian-male bloc has become insufficient for victory -- if, as David Simon wrote, "there is no normal" -- marijuana backers understood they'd need to cultivate their own coalition of communities.

Perhaps predictably, a strong majority of the under-65 crowd showed support for measures in both states, leaving seniors as the sole age-based demographic demurring.  The big surprise came in the ethnic breakdown.  While there isn't sufficient polling on non-whites in Washington to draw conclusions, Colorado -- where the white population split on the measure -- saw Latinos support legalization at a 70 percent rate, double the national rate among the group....

Winchester says her organization also focused efforts on campaigning in Washington's Latino community, meaning that women, youth, and minorities -- the triumvirate that sealed Obama's second term -- played a similarly pivotal role in ending marijuana prohibition in both states....

Now that his organization has arrived at the hemp-lined embankments on the far side of the Rubicon, St. Pierre noted the momentum and demographics were firmly on legalizers' sides. With the victories -- and with the new numbers from a Washington Post national survey showing that 48 percent of Americans support marijuana legalization, the highest number in the history of the poll -- St. Pierre laid out a handful of states that he thinks may be the next to pass outright marijuana legalization, including Vermont and Maine, as well as second attempts in California and Oregon.

November 19, 2012 in Campaign 2012 and sentencing issues , Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

"Cal prosecutors seek to jump start death penalty"

The title of this post is the headline of this AP article. (Hat tip: How Appealing.)   Here is how it starts:
Earlier this year, the U.S. Supreme Court rejected Robert Fairbank's appeal of his death sentence for the 1985 rape and murder of college student Wendy Cheek.   With that rejection, Fairbank joined at least 13 other death row inmates who have completed the decades-long capital punishment appeals process and are eligible for execution.
Nonetheless, none of the 14 death row inmates who have "exhausted" their appeals will receive a lethal injection any time soon — even though 53 percent of the California electorate reinforced its support of the death penalty with the rejection of Proposition 34 on Nov. 6. 
Lawsuits in federal and state courts have halted executions since January 2006 and it will take months, maybe years, to resolve the litigation.  Judges have ordered a halt to executions and lawyers with the state's attorney general's office have promised not to pursue any executions until the cases are resolved.
Still, a growing number of prosecutors, law enforcement officials and capital punishment proponents are pushing for the quick resumption of execution, citing the defeat of Proposition 34 as a mandate from the voters.  They're calling for an end-run around the legal hang ups, calling for the scrapping of the three-drug lethal injection at the center of the litigation and replacing it with a single-drug execution.  Six other states have already abandoned the three-drug process and adopted the single-drug execution.

In recent months, Los Angeles County District Attorney Steve Cooley and San Mateo County District Attorney Steve Wagstaffe have formally asked local judges for death warrants for three death row inmates and an order to execute them with a single, lethal dose of pentobarbital, a drug previously used to euthanize animals.

But a Los Angeles judge rejected Cooley's motion and Wagstaffe is expecting the same treatment in San Mateo Superior Court, conceding his legal maneuver to have Fairbank's executed soon is more symbolic than realistic. "I am simply trying to get the system moving," Wagstaffe said. "I'm trying to shake the tree a little bit to get people to pay attention."

November 19, 2012 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (21) | TrackBack

November 18, 2012

Does Miller also render presumptive juve LWOP sentencing unconstitutional?

The question in the title of this post is prompted by this notable new SCOTUSblog post by Lyle Denniston under the headline "A puzzle on juvenile sentencing."  Here are excerpts from Lyle's very lengthy post:

Most of the time, when the Supreme Court sends a case back to a lower court for a further look, the task for the lower court is clear.  But the Justices have left the California courts with little guidance on what to do now with a case involving a teenager convicted for his role in gang-related, drive-by shootings that left three people dead six years ago.  The case involves a youth, seventeen at the time, who received three sentences of life without parole — to run one after the other — plus added prison terms.

Depending upon how California courts react, the case of Michael Angelo Mauricio of Compton, California, might well lead to added protection for minors convicted of murder. The case is Mauricio v. California (docket 11-10139). 

What is at issue in his case is what the Supreme Court meant last month, when it ordered California’s Second District Court of Appeal to reconsider the sentences for Mauricio, focusing on the Court’s decision last Term in Miller v. Alabama (docket 10-9646). The Miller decision barred life-without-parole sentences for minors convicted of murder, but appeared to be limited to cases in which that sentence was mandatory. The puzzlement in Mauricio’s case is that, under California law, life without parole was not mandatory....

Mauricio was convicted ... of three counts of first-degree murder, with special circumstances that led to added punishment.  He was sentenced to three consecutive life-without-parole sentences, plus three consecutive terms of twenty-five years to life. Upholding those sentences, the Second District Court of Appeal last year rejected Mauricio’s legal claim that it was unconstitutional, because of his youth, for the judge to opt for life-without-parole sentences when the judge had the discretion under state law to instead impose twenty-five-to-life sentences.

The appeals court said that, under California law, life without parole was the “presumptive punishment” for murder by a minor in the circumstances involved in Mauricio’s crimes, but that the law also said that, “at the discretion of the court,” the sentence could be twenty-five to life....

The Court majority’s opinion in Miller repeatedly stressed that it was dealing with LWOP as a mandatory matter.... But what did [the Court's] admonitions mean, in the face of a state appeals court ruling that had said explicitly that the sentencing judge had, in fact, taken Mauricio’s youth into account, had examined his role in the murders, and had weighed whether his case deserved the more severe punishment of LWOP? The remand order did not say. Still, the case was sent back to the state court, leaving it to figure out how to react.

Because the Supreme Court in Miller referenced an Eighth Amendment capital sentencing jurisprudence that seems to preclude any presumptive death penalty scheme, I am inclined to believe there are five votes to extend the Miller ruling beyond mandatory sentencing schemes to presumptive sentencing schemes. Of course, the remand in Mauricio is not a holding to this effect, but the remand certainly does hint that Miller is not the end of SCOTUS development of Eighth Amendment limits on severe sentencing systems for juveniles.

November 18, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Effective report on three-strikes reform implementation in San Diego

The San Diego Union-Tribune has this new article headlined "Some prisoners to get out of life sentencing," providing an effective overview on how the initiative-passed reform of California's three-strikes law is going to be implemented in one locality.  Here are excerpts:

Prosecutors, defense lawyers and San Diego Superior Court officials are preparing for about 250 requests from state inmates seeking reductions in their prison sentences after voters approved a ballot measure revising California’s three-strikes law.

Since voters overwhelmingly passed Proposition 36 on Nov. 6, the San Diego County District Attorney’s Office has received a dozen petitions from state prisoners. The county’s Office of the Public Defender, which will handle the bulk of the cases, estimates 243 state prisoners are eligible for resentencing.

Some, but not all, could end up with a chance at getting out from underneath life sentences in state prison.  Not everyone who asks for a new hearing will qualify for one, lawyers said. And for those that do, a sentence reduction will not be automatic.  Judges will still have the final call on whether to reduce the sentence....

Proposition 36, which is retroactive, modified the law to require a sentence of 25 years to life only if the third strike was a serious or violent felony.  It also allows certain inmates whose third strike was a nonviolent, nonserious felony — writing fraudulent checks, for example — and are serving life terms to seek a new sentencing hearing.

Their sentences could be reduced to that of a two-strike defendant.  So, someone who was convicted of a third-strike crime whose normal sentence was four years, and was sentenced under the original law to 25 years to life, could now end up with a sentence of eight years.

But several provisions under the ballot measure would disqualify some inmates who appear to meet that criteria from getting a new hearing, said Deputy District Attorney Lisa Rodriguez, who is working to implement the new law.  Inmates who are registered sex offenders won’t qualify, Rodriguez said.  Prisoners with convictions for rape or child molesting also won’t qualify for a new hearing, even if their final strike was a nonserious felony, she said.  Certain convictions that involved the use of a firearm or drugs also will disqualify inmates, Rodriguez said.

Those who do qualify for a hearing still have to face a judge, who can refuse to resentence an inmate if it is determined doing so presents an “unreasonable risk to public safety.” That clause will likely be the focus of contested hearings where lawyers for inmates will argue against prosecutors opposed to a lighter sentence.  Rodriguez said inmates’ prior convictions and their record of behavior in prison will be part of those hearings....

The first hearings in San Diego County to reduce sentences under the new law are weeks away, Deputy Public Defender Michael Popkins said.  He estimated about 3,000 inmates in the state could qualify for resentencing. Popkins said Proposition 36 has given inmates and their families new hope. Cases identified by his office involve prisoners sentenced as long as 18 years ago, and as recently as two years ago....

Statewide, the measure passed with a resounding 68.8 percent of the vote.  Voters in San Diego County backed the measure by about the same margin, with 67 percent in favor.

I find notable and valuable the reality that an offeners' "record of behavior in prison" will be part of any resentencing proceedings.   I suspect one under-appreciated benefit of any and all retroactive sentencing reforms — whether achieved via new statutes, new sentencing guidelines or Eighth Amendment litigation — is that they create an enduring incentive for even prisoners serving extremely long terms to behave well while incarcerated and to seek out whatever rehabilitation programs are available to them even if they have only limited prospects for release from prison for many decades.

November 18, 2012 in Campaign 2012 and sentencing issues , Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Group of Congress members formally urge DOJ and DEA not to bogart pot policy

As reported in this local piece from Seattle, headlined "Rep. Adam Smith asks DOJ to respect state marijuana laws in formal letter," a collection of Democratic members of Congress have sent a request to the US Justice Department and the US Drug Enforcement Administration concerning state marijuana reform efforts. Here are the basics from the press report:

U.S. Rep. Adam Smith and 17 other U.S. Congress members formally asked the Department of Justice and Drug Enforcement Administration not to enforce federal drug laws against marijuana use in Washington and Colorado in a letter released Friday. Though both states have made regulated, recreational use of marijuana legal, federal agencies still have the power to enforce a federal ban on the drug.

“We believe that it would be a mistake for the federal government to focus enforcement action on individuals whose actions are in compliance with state law,” says the letter addressed to Attorney General Eric Holder and Drug Enforcement Administrator Michele Leonhart....

The letter then goes on to ask federal drug law enforcers to allow states such as Washington and Colorado to be “laboratories of democracy” that help progress drug policy nationwide.  “These states have chosen to move from a drug policy that spends millions of dollars turning ordinary Americans into criminals toward one that will tightly regulate the use of marijuana while raising tax revenue to support cash-strapped state and local governments,” the letter says.  “We believe this approach embraces the goals of existing federal marijuana law: to stop international trafficking, deter domestic organized criminal organizations, stop violence associated with the drug trade and protect children.”

The full letter is available at this link.

November 18, 2012 in Campaign 2012 and sentencing issues , Criminal justice in the Obama Administration, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack