December 1, 2012
History lessons and future forecasts concerning pot prohibitionCNN has this lengthy and effective article discussing the history and possible future of marijuana law in the United States. Here are excerpts from a long piece worth reading in full:
Turn on a television show or open a magazine in the United States today and you're bound to see someone with a drink in hand -- something unthinkable nearly a century ago. Advocates of marijuana hope that someday that drug will emerge from its current "prohibition" period, the same way alcohol did, and become not only legal but as socially acceptable as having a drink....
However pot's future is going to play out in this country, its recent path to limited legalization has interesting parallels to alcohol, which was banned by the federal government in the 1920s and early 1930s. The Prohibition era gave rise to an underground market for booze, produced by unregulated bootleggers and moonshiners, and consumed in back-alley speakeasies.
A few years after Prohibition's repeal, the federal government banned marijuana, hardly as popular and socially acceptable as alcohol. It would be decades before supporters of pot would mobilize and successfully get the drug legalized in some states. Advocates and detractors for both drugs seem to have read from the same playbook, stoking fears based on prejudices and questionable scientific studies.
Rather than discuss issues of substance, opponents of marijuana in the early 20th century preferred to exaggerate its effects and pin its use on foreigners and black entertainers. It was a familiar tactic that had panned out well in pre-Prohibition days.
In a 1914 speech before the House, Rep. Richmond Hobson of Alabama warned that booze would make the "red man" savage and "promptly put a tribe on the war path." He added, "Liquor will actually make a brute of a Negro, causing him to commit unnatural crimes." Twenty-three years later, while arguing for marijuana prohibition, Harry Anslinger also played on Americans' fear of crime and foreigners. The Bureau of Narcotics chief spun tales of people driven to insanity or murder after ingesting the drug and spoke of the 2 to 3 tons of grass being produced in Mexico. "This, the Mexicans make into cigarettes, which they sell at two for 25 cents, mostly to white high school students," Anslinger told Congress.
The term marijuana itself was intended to stoke alarm, as many Americans in the 1930s were already familiar with other terms for the drug, according to Michael Aldrich. "(The drug's opponents) preferred the word marijuana instead of cannabis or hemp because people thought it was some new devil drug from Mexico," said Aldrich, the curator of what is now Harvard University's Fitz Hugh Ludlow Memorial Library, a collection of psychoactive drug-related literature....
Just as Prohibition bore Al Capones and strengthened the Frank Costellos and "Lucky" Lucianos, American drug prohibition has spawned a host of cartels south of its border. They wage war against each other for the rights to the most lucrative illegal drug market on Earth -- the United States -- which by some estimates, consumes two-thirds of all the illegal drugs in the world....
When Prohibition was repealed in 1933, states saw two immediate benefits aside from neutering the criminal gangs, the first being that they could regulate the product. Under Prohibition, unscrupulous bootleggers had manufactured moonshines and bathtub gins that could render tipplers blind or dead. Once alcohol was legal, you had a return to quality control, Peck said. The second immediate benefit? They could also tax the hooch.... In President Franklin Roosevelt's first two terms, federal taxes jumped from $1.6 billion in 1933 to $5.3 billion in 1940.
How that might translate to marijuana taxation today is debatable, and the ends of the gamut are nowhere near middle ground. "Medical marijuana helped save the economy in California ... The counties north of San Francisco survived the recession through marijuana," said Aldrich, the marijuana historian. He was referring to the Emerald Triangle, which is known for producing and exporting some of the country's highest-grade cannabis.
On the other side, you have President Barack Obama's drug czar, Gil Kerlikowske, who emphatically denied that marijuana legalization would prove a boon to state coffers. Taxes on alcohol, he told CNN in 2010, amount to $14.5 billion a year, where as the social costs are closer to $185 billion.
Ahead of the recent ballot initiatives in Colorado and Washington, the Colorado Center on Law & Policy estimated that legalization would yield $60 million in state and local revenue and savings by 2017, and perhaps double thereafter. And Washington's Office of Financial Management estimated that a "fully functioning" marijuana industry could bring in nearly $2 billion in revenue over the next five years.
"Fully functioning." Therein lies the rub. Both the Colorado and Washington estimates came with caveats explaining the obvious: Any revenue projection is contingent on the federal government not enforcing the laws that still render possession of an ounce of marijuana illegal -- even in Colorado and Washington.
University of Virginia law professor Richard Bonnie, co-author of "Marijuana Conviction: A History of Marijuana Prohibition in the United States," said it's a tricky equation. "There is something attractive about saying you've got this underground market that's not going away, that you're missing a tax opportunity," he said. "The amount of tax revenue you're going to derive from it is going to depend on what your regulatory approach is going to be."
When alcohol Prohibition was lifted in 1933, regulation was left to the states. Oklahoma stayed dry until 1959, Mississippi until 1966. Bonnie said he sees marijuana legalization advocates leaning toward a similar model. But, he warns, "there is a social cost to a regulatory regime that taxes and becomes dependent on the revenue."
Overtax it, and you create another dilemma: black markets and the smuggling of marijuana from state to state, a la post-Prohibition. Canada and Sweden learned that lesson with cigarette taxes in the 1990s.
All of this is putting the roach before the joint, of course. Marijuana, no matter what Colorado and Washington say, remains illegal at the federal level. Experts are reluctant to forecast when that might change. Aldrich predicts federal legalization by 2017, but he concedes that in 1969 he predicted the federal government would relent by 1979.
Some recent and older related posts:
- "What's next for marijuana laws?"... how about "Give Pot a Chance"
- Voters call for experimenting with pot in the state laboratories of Colorado and Washington
- Early reactions to end of state pot prohibition in Colorado and Washington
- Recent editorials and opinion pieces on state control on pot policy
- New astute articles on the modern realities of pot politics, policies and practices
- "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
- Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?
- "Will the Feds Crack Down on Pot or Look the Other Way?"
- New poll reports that large majority of Americans consider "War on Drugs" a failure
- Effective commentary concerning political discussion of pot policy and the drug war
"More Children Growing Up With Parents Behind Bars"The title of this post is the headline of this recent ABC News/Univision piece. Here are excerpts:
The number of children with parents behind bars in the United States is growing. And a Latino child is more than twice as likely to have an incarcerated parent as a white child.
An infographic created by sociologist Becky Pettit in her new book, Invisible Men: Mass Incarceration and the Myth of Black Progress illustrates a five-fold increase in the number of children with parents behind bars from 1980 to 2005.
While interpreting the graph, it's important to keep in mind that the Hispanic population has grown much faster than the white and black populations since 1980, meaning there are simply more Latino children and parents in the U.S. However, taken as a percentage, Latino children are still more much more likely than white children to grow up with their parents behind bars. One in 42 Latino children has a parent in prison, compared to 1 in 111 white children, according to a 2009 report from The Sentencing Project, a research and advocacy group, which used data from the U.S. Department of Justice. And, when it comes to black children, one in 15 have a parent in prison....
One in every one hundred adults in the U.S. is behind bars, and more than two-thirds are non-white, according to a 2008 Pew study. The Sentencing Project report found that children who grow up with parents in prison are more likely to "drop out of school, engage in delinquency, and subsequently be incarcerated themselves."
November 30, 2012
Fraud sentencing of National Lampoon CEO no laughing matter (though recommended sentence are funny)A notable white-collar sentencing took place in federal court in Indiana today, as reported in this AP piece headlined "Ex-National Lampoon CEO sentenced to 50 years in jail." Here are the details:
A financier and former chief executive of humor magazine National Lampoon convicted of swindling investors out of about $200 million was sentenced Friday to 50 years in prison.
U.S. District Judge Jane Magnus-Stinson said the case against Timothy Durham was characterized by "deceit, greed and arrogance" and that Durham had violated the trust of thousands of small investors from the American Heartland. "We drive Chevys and Buicks and Ford, not Ducatis. That's how most of us roll," Magnus-Stinson said. "When they're defrauded, it is the most serious offense because it undermines the fabric of this country."...
Prosecutors have said [Durham and his codefendants] stripped Akron, Ohio-based Fair Finance of its assets and used the money to buy mansions, classic cars and other luxury items and to keep another of Durham's company afloat. The men were convicted of operating an elaborate Ponzi scheme to hide the company's depleted condition from regulators and investors, many of whom were elderly.
Durham's attorney, John Tompkins, argued at trial that Durham and the others were caught off-guard by the economic crisis of 2008 and bewildered when regulators placed them under more strict scrutiny and investors made a run on the company. Attorneys for all three men had asked the judge for lighter sentences than those recommended. Tompkins sought a total of five years for Durham — three years in prison and two years of home detention.
Prosecutors had wanted 225 years for Durham. Magnus-Stinson said she couldn't sentence him to that much because that number would be as "puffed up" as statements that he held $280 million in assets. But she clearly showed her displeasure with Durham, telling him he had been "raised better" and noting that though he testified that he "felt terribly" for the victims, he had shown no sincere remorse.
Barbara Lukacik, 74, an Ohio nun who said she lost $125,000 in the Fair Finance collapse, said she had forgiven Durham and the others but testified before the sentencing that a lengthy sentence was warranted. "If you receive a short sentence — a slap on the wrist, so to say — I do not think it will be enough time for your heart and your conscience to realize your sin and your greed," she said.
There is nothing funny about lives ruined by a massive fraud and by a decision to impose a 50-year prison sentence on a white-collar scoundral. But this story struck me as especially blogworthy and somewhat laughable on a Friday afternoon because of the seemingly crazy (though arguably not foolish) sentencing recommendations coming from the parties. I know I would never in good conscious be able to seriously advocate for a sentence of 225 years in prison for anyone, and I probably also could not urge only 3 years in prison for a massive Ponzi schemer. At both extremes, the recommendations coming from the parties here seem more fitting for the National Lampoon's pages than federal court filings.
New report assails (lack of) compassionate release in federal systemAs highlighted via this NPR piece, headlined "Federal 'Compassionate' Prison Release Rarely Given," Human Rights Watch and Families Against Mandatory Minimums have today released a big new report criticizing the poor administration of the federal compassionate release program. Here are excerpts from the NPR piece:
Back in 1984, Congress gave authorities the power to let people out of federal prison early, in extraordinary circumstances, like if inmates were gravely ill or dying. But a new report says the Federal Bureau of Prisons blocks all but a few inmates from taking advantage of "compassionate release."
The federal prisons house more than 218,000 inmates but, on average, they release only about two dozen people a year under the program. By contrast, the state of Texas, no slouch when it comes to tough punishment, let out about 100 people on medical parole last year, researchers say.
"Why are so few people getting out?" asks Jamie Fellner, a senior adviser at Human Rights Watch who helped write the new study. "You have a prison system that is grotesquely overcrowded, you have prisoners who pose no meaningful threat to public safety and yet they're being denied release?"
Fellner says she's convinced the culture of the federal prisons and the Justice Department acts as an iron curtain for all but the sickest inmates — people with less than a year to live, who can't even walk or use the bathroom on their own, let alone commit another crime....
Mary Price, general counsel at Families Against Mandatory Minimums, helped write the new report. She says she's tried to help Mahoney — and many other inmates — win compassionate release. "We don't sentence people to die alone in prison when we've given them a five-year sentence," she says.
Price says Congress gave judges the authority to make decisions about which prisoners could be released for "extraordinary and compelling" reasons. But under the rules, the Bureau of Prisons has to petition the court first. And the bureau usually says no — without ever involving the court.
For instance, Price and Fellner say they couldn't find a single case in the last 20 years where prison authorities had granted a compassionate release for an inmate to care for young children after a spouse or partner died, even though Congress and the U.S. Sentencing Commission expressly left open that option....
Advocates at Human Rights Watch and Families Against Mandatory Minimums are calling on the Bureau of Prisons to open up its procedures. And they're asking Congress to pass a law that would allow prisoners to go directly to the courts if the bureau shuts them down.
The Justice Department's inspector general, Michael Horowitz, is reviewing the program, too. He says it could help save money and cut down on prison overcrowding.
The full report is available at this link, and here are two paragraphs from the lengthy report's summary:
Congress authorized what is commonly called “compassionate release” because it recognized the importance of ensuring that justice could be tempered by mercy. A prison sentence that was just when imposed could — because of changed circumstances — become cruel as well as senseless if not altered. The US criminal justice system, even though it prizes the consistency and finality of sentences, makes room for judges to take a second look to assess the ongoing justice of a sentence.
Prisoners cannot seek a sentence reduction f or extraordinary and compelling circumstances directly from the courts. By law, only the Federal Bureau of Prisons (BOP, the Bureau ) has the authority to file a motion with a court that requests judicial consideration of early release. Although we do not know how many prisoners have asked the BOP to make motions on their behalf — because the BOP does not keep such records — we do know the BOP rarely does so. The federal prison sys tem houses over 218,000 prisoners, yet in 2011, the BOP filed only 30 motions for early release, and between January 1 and November 15, 2012, it filed 37. Since 1992, the annual average number of prisoners who received compassionate release has been less t han two dozen. Compassionate release is conspicuous for its absence.
Reviewing just some of the Miller meshugas in some statesThe day after the Supreme Court's Miller ruling in June, I explained in this post why the ruling was making me meshuge, largely because I kept thinking of the Yiddish word meshugas to describe the challenges states and lower courts would be facing as they try to give effect to Miller's Eigth Amendment holding and implications for past, present and future cases. This new commentary, headlined "The Cautionary Instruction: States scramble to deal with Supreme Court ruling on sentencing of juvenile killers," provides a review of just some of what's been going on in a few states. Here is an excerpt:
The Pennsylvania Supreme Court is the first state high court to test whether the U.S. Supreme Court ruling in Miller v. Alabama, banning the mandatory imposition of life without parole for juvenile killers (JLWOP), is retroactive.... Pennsylvania has also passed S.B. 850 granting future convicted juvenile killers the chance for release after serving between 25 and 35 years, depending on the age of the killer at the time of the crime.
Pennsylvania leads the nation with about 450 offenders serving mandatory life sentences for offenses committed as juveniles. Yet Pennsylvania is not the only state trying to adapt to the Miller decision. There are 39 states with mandatory JLWOP and, apparently, 39 different ways to address Miller.
In Iowa, for instance, the governor commuted the life sentences of 38 people convicted of committing murder when they were juveniles. In July, Governor Terry E. Branstad commuted the sentences but required inmates to serve a minimum of 60 years before being eligible for parole. An Iowa judge later rebuked Branstad for ignoring the Supreme Court by not providing offenders any meaningful opportunity to obtain release....
In North Carolina, the legislature passed S.B. 635 replacing mandatory life for juveniles with “a minimum of 25 years imprisonment prior to becoming eligible for parole.”
A New Hampshire judge has given a convicted teen killer until January to file an expert witness report in his request for resentencing. Another offender, who helped kill two Dartmouth College professors as a teenager, has also requested resentencing.
In Florida, at least two state appellate courts have ruled that Miller is not retroactive. Michigan’s attorney general has asked the state Supreme Court to declare that Miller is not retroactive, a decision that could affect over 300 inmates. Nebraska’s Board of Pardons will consider requests for commutation filed by juvenile lifers. Proposed legislation in Wyoming provides that juvenile lifers could become eligible for parole after 25 years behind bars.
This commentary is off a bit by saying there are 39 states with mandatory juve LWOP; I think that high state count includes those with discretionary LWOP schemes. But, as has already proven true in Califortnia and a few other states, Miller is having an impact of some sort in all states with any juvenile offenders serving LWOP under any sentencing schemes. And this commentary is spot on in highlighting that just about every state is developing its own shaky path for dealng with Miller. This new AP piece from Connecticut, for example, shows how yet another state is trying to work through these issues. The piece is headlined "Connecticut panel considering early parole for juveniles," and starts this way:
Some ex-offenders on Thursday urged a panel that makes recommendations to the General Assembly to give those convicted of serious crimes as juveniles a second chance at life by offering them an opportunity for an earlier parole.
But in an emotional plea, a Norwich man whose wife and son were murdered by a 15-year-old boy in 1993, told members of the Connecticut Sentencing Commission that such a proposal would ultimately be unfair to the victims. "I'm for giving any kid a second break. But if you give him a break," said John Cluny, referring to his family’s killer, "you bring my 14-year-old son and wife back to life."
The commission, whose membership includes the state’s top prosecutor and public defender, held a hearing at the Legislative Office Building on a series of proposals it is considering recommending to the General Assembly, which convenes in January.
Judge Joseph Shortall, chairman of the commission, said the panel is looking at the issue of giving people who were convicted and sentenced to lengthy prison terms as juveniles a chance at early parole because the U.S. Supreme Court has required the state give these offenders "a meaningful opportunity" sometime during their sentence to seek release, but not necessarily to be released. "We as a commission are required to consider how we can implement that requirement of the Supreme Court," Shortall said.
"Will the Feds Crack Down on Pot or Look the Other Way?"The question in the title of this post is the headline of this new Businessweek article. Here are excerpts:
A week after voters in Washington State and Colorado approved Election Day ballot measures legalizing recreational marijuana, Washington Governor Chris Gregoire got on a plane to D.C. A Democrat, Gregoire wanted to know if the new law would put her state at odds with President Obama, whose administration has raided hundreds of marijuana dispensaries in California, where medical pot has been legal under state law since 1996.
Gregoire met with U.S. Deputy Attorney General James Cole, who oversees enforcement of the Controlled Substances Act, the 42-year-old federal law that designates cannabis as a Schedule I controlled substance, the same category as heroin and LSD. If her state’s liquor control board began issuing permits to aspiring pot entrepreneurs, Gregoire wanted to know, would federal agents soon head her way? Cole didn’t have the answers she wanted. “They are ‘looking at the issue.’ That was about the only reaction we got,” says Gregoire’s spokesman, Cory Curtis. Cole, who declined to be interviewed, wasn’t merely stonewalling. He likely couldn’t answer the question because the Department of Justice has yet to spell out a consistent policy for dealing with the growing number of states legalizing pot to some degree, in violation of federal law....
For the most part, the Justice Department has avoided prosecuting pot-smoking cancer patients and has only sporadically raided dispensaries suspected of breaking local laws by operating too close to a school, supplying marijuana to nonpatients, or moving suspiciously large amounts of the drug. But the Washington and Colorado laws, which call on those states to regulate recreational marijuana like liquor — issuing business licenses to pot stores and collecting tax revenue on sales — renews pressure on the administration to let would-be sellers and smokers know whether they’re putting themselves at risk of prosecution. “That’s a harder question,” says Erwin Chemerinsky, a professor of law at the University of California at Irvine. “It’s the state actually facilitating the sale of marijuana, as opposed to just not prohibiting” its use.
In the coming months, the Justice Department must decide whether to sue Colorado and Washington to keep them from issuing commercial pot licenses, a move that would be unprecedented in marijuana cases. If it does take the states to court, says Allen St. Pierre, executive director of the marijuana advocacy group Norml, it “will be a rocket ride all the way to the Supreme Court.”
Short of that, Justice could instruct prosecutors to go after the most flagrant violators of federal law. First prosecutors would have to figure out how to define flagrant, since all sale and possession of marijuana is technically illegal. If it sets out guidelines saying what is and isn’t allowed, the department would be condoning illicit activity. “I don’t think they know what to do,” says Ethan Nadelmann, executive director of the Drug Policy Alliance, a pro-legalization group. “They’re juggling a lot of variables.”
In related coverage, ABC News has this lengthy new piece headlined "Legal Pot at 'Tipping Point,' Experts Say."
November 29, 2012
NAACP leadership (over?)committed to death penalty repeal in MarylandThe Baltimore Sun has this interesting new article on debate over the death penalty in Maryland headlined "NAACP to step up Maryland death penalty fight." Here are excerpts:
The NAACP is vowing to mount in Annapolis its largest-ever effort to abolish the death penalty in a state, saying Maryland's historic role in the civil rights movement makes it an appropriate place for the push.
In an interview, NAACP President Ben Jealous said Maryland is the civil rights organization's top priority in its broader campaign to eliminate capital punishment from the American justice system. He said the group will spend more than it ever has in a state as it rallies citizens to pressure lawmakers for repeal. "We'll make sure people hear from their constituents in a way they've never heard from them before," Jealous said.
The NAACP has historically opposed the death penalty for a variety of reasons, including racial disparities in how it is applied. Jealous said Maryland is especially important to the NAACP because of the state's civil rights history — including the careers of native sons Thurgood Marshall and Frederick Douglass. "There's a special debt of honor to get this done in Maryland for the NAACP," Jealous said.
His announcement comes as Gov. Martin O'Malley, a death penalty opponent, is weighing whether to put the full weight of his office behind a renewed effort to shut down Maryland's Death Row. A previous O'Malley effort ended in 2009 with a compromise bill that narrowed the circumstances under which a killer can be sentenced to death but left capital punishment on the books.
Jealous declined to say how much money the NAACP plans to raise for the campaign. He said that in addition to its existing resources, the group will hold dedicated fundraisers for the Maryland repeal effort, along with "unlikely and powerful allies" he declined to name.
While a full-scale effort by the NAACP could be influential, there is no guarantee that its clout would be powerful enough to break the impasse that has existed in the Maryland General Assembly....
Even some who favor repeal say any sense of urgency has been diminished by a de facto moratorium on executions in Maryland since 2006, the result of a court ruling striking down the regulations under which executions are carried out. Maryland has five men on Death Row — four black, one white — for murders going back as far as 1983, and it appears that over the next several years they face little risk of a lethal injection.
The five killers sentenced to death here are not likely to evoke much sympathy. They include the gunman and mastermind in a 1983 witness assassination plot that killed two at a Baltimore County motel, two men who murdered elderly neighbors in separate robberies in Prince George's County in 1996 and Baltimore in 1983, and the killer of a theater manager on the Eastern Shore in 1997.
Jealous said that while the freeze on executions may spare those men in the short term, keeping the death penalty on the books imposes costs that divert state resources from other crime-fighting measures. "Every million dollars we spend on the death penalty is a million dollars we can't spend on hiring homicide detectives," he said.
He said anti-death-penalty forces have been on a roll, having banned capital punishment in five states in five years, including Connecticut last year. He said the NAACP's strategy is to win abolition in a majority of states and then to ask the Supreme Court to strike it down as an unconstitutionally "unusual" punishment.
As the title of this post is meant to suggest, I am somewhat troubled by the decision by NAACP President Ben Jealous to make repeal of Maryland's dormant death penalty a priority over other race and criminal justice issues in that state and elsewhere. As this Washington Post article from a few years ago highlights, the racial skew and scope of Maryland's use of life sentences seem a much bigger matter worthy of greater attention:
More than 2,300 Maryland inmates were serving life sentences last year, nearly 10 percent of the prison population, according to an advocacy group report released [in August 2009].... Nearly 77 percent of inmates in prison for life in Maryland are African American, making it the state with the largest share of black prisoners serving life sentences. Among the 269 prisoners in Maryland sentenced to life for crimes committed when they were juveniles, 226 are black.
In other words, while the NAACP is going to invest heavy resources in trying to alter an already dormant Maryland death penalty to benefit five brutal adult murderers, there are well over 1750 black defendants (and many black juvenile offenders) serving functionally the same life sentence in Maryland for less horrific offenses. And, as highlighted by this recent commentary headlined "For many juveniles in Maryland, parole is out of reach," the NAACP could likely do a lot more good for both black and white offenders by trying to revive Maryland's dormant parole system rather than trying to kill its dormant capital system.
Additional disturbing realities about racial skews in Maryland's criminal justice system are detailed in this press report following a state hearing on the topic this past summer:
Blacks and Hispanics are arrested, convicted and jailed at a higher rate than whites in Maryland and are over-represented in criminal justice proceedings when compared to their percentage of the state's population, advocates said at a meeting this week of the rights commission's state advisory committee in Annapolis....
More than 72 percent of Marylanders in prison are black, according to data from the Maryland Division of Correction. That compares to 29.4 percent of blacks as a proportion of the statewide population, according to the U.S. Census Bureau....
Less than 1 percent (0.77) of white Marylanders are arrested for drug offenses compared to 2.7 percent of black Marylanders [despite similar reported drug use rates]....
In 2013, Maryland’s Division of Correction budget increased 1.4 percent, or $11.4 million. More than 35,000 people are incarcerated in the state, and almost 70,000 are on parole, probation or other supervised release, according to the Department of Legislative Services.
But while racial disparities persist in an ever-growing Maryland criminal justice system that impacts tens of thousands of offenders, the NAACP's priority is now to raise money and pressure state legislatures to make sure five murderers no longer have to worry about an (already unlikely) execution date.
Fourth Circuit rejects argument that Southern Union limits judicial fact-finding for restitution awards
Immediately following the Supreme Court's opinion in Southern Union (basics here and here) this past June that the Apprendi doctrine applies to the imposition of criminal fines, I asked in the title to this post "Doesn't Southern Union suggest the Sixth Amendment limits judicial factfinding for restitution punishments?". I also went on to explain why my answer to that question was "yes."
Today, at the end of a long opinion dealing with a lot of issues in US v. Day, No. 11-5218 (4th Cir. Nov. 29, 2012) (available here), a Fourth Circuit panel considers and rejects a claim that the Sixth Amendment limits judicial fact-finding in support of a criminal restitution punishment. Here is the heart of the panel's discussion:
Even before Southern Union, I never found compelling the "logic" used here to distinguish restitution fact-finding by judges from other forms of penalty fact-finding limited by the Sixth Amendment. But ever since Apprendi, I am never surprised by the arguments lower courts are eager to create in order to affirm sentences enhanced by judicial fact-finding. In other words, this ruling hardly represents a new Day in Apprendi-land.
Prior to Southern Union, every circuit to consider whether Apprendi applies to restitution held that it did not. See United States v. Milkiewicz, 470 F.3d 390, 403 (1st Cir. 2006) ("[L]ike all of the other circuits to consider this question, we conclude that [Apprendi does] not bar judges from finding the facts necessary to impose a restitution order."). Day argues that we should break ranks with these prior deci- sions in light of Southern Union and apply Apprendi to restitution because it is "similar" to a criminal fine.
We decline to take Day’s suggested course. As an initial matter, we note that Southern Union does not discuss restitution, let alone hold that Apprendi should apply to it. Instead, far from demanding a change in tack, the logic of Southern Union actually reinforces the correctness of the uniform rule adopted in the federal courts to date. That is, Southern Union makes clear that Apprendi requires a jury determination regarding any fact that "increases the penalty for a crime beyond the prescribed statutory maximum." 132 S. Ct. at 2350 (quoting Apprendi, 530 U.S. at 490). Thus, in Southern Union itself, the Apprendi issue was triggered by the fact that the district court imposed a fine in excess of the statutory maximum that applied in that case. Id. at 2349.
Critically, however, there is no prescribed statutory maximum in the restitution context; the amount of restitution that a court may order is instead indeterminate and varies based on the amount of damage and injury caused by the offense. See 18 U.S.C. §§ 3663(b), 3663A(b). As a consequence, the rule of Apprendi is simply not implicated to begin with by a trial court’s entry of restitution. As the Sixth Circuit aptly explained in United States v. Sosebee, "restitution is not subject to [Apprendi] because the statutes authorizing restitution, unlike ordinary penalty statutes, do not provide a determinate statutory maximum." 419 F.3d 451, 454 (6th Cir.), cert. denied, 546 U.S. 1082 (2005). That logic was sound when written before Southern Union, and it remains so today.
Latest BJS data report 2011 decline in US prison and overall correction populationsAccording the latest, greatest official numbers from the Bureau of Justice Statistics, the total population subject to criminal justice control in the US declined (again) in 2011. This press release from BJS sets out the basics:
About 6.98 million people were under some form of adult correctional supervision in the U.S. at yearend 2011, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. This was the equivalent of about one in 34 U.S. adults (or about 2.9 percent of the adult population) in prison or jail or on probation or parole, the lowest rate of adults under correctional supervision observed since 2000.
The adult correctional population declined by 1.4 percent or 98,900 offenders during 2011. This was the third consecutive year of decline in the number of offenders under the supervision of adult correctional authorities....
At yearend 2011, about 4,814,200 offenders were supervised in the community on probation or parole, and 2,239,800 were incarcerated in state or federal prisons or local jails. About one in 50 adults was under community supervision while about one in 107 adults was in prison or jail.
While both the community supervision population (down 1.5 percent) and the incarcerated population (down 1.3 percent) decreased during 2011, the majority of the decline (83 percent) in the total number of adults under correctional supervision during the year was due to a drop in the probation population. The probation population declined two percent or by 81,800 offenders during 2011, falling below four million for the first time since 2002.
For the third consecutive year, the number of offenders discharged from probation supervision (about 2.2 million offenders) exceeded the number who entered probation (about 2.1 million) during 2011, contributing to the decrease in the probation population....
An increase in the parole population partially offset declines in all other components of the adult correctional population. The parole population increased 1.6 percent or by 13,300 offenders during 2011. The state parole population increased 1.1 percent and the federal parole population grew 5.1 percent during the year....
The failure rate of parolees (defined as the percentage of parolees who were returned to jail or prison out of all parolees who could have been incarcerated at any point during the year) decreased for the fifth consecutive year. During 2011, about 12 percent of parolees at risk of reincarceration were incarcerated at some time during the year, down from about 15 percent during 2006.
All these data and so much more can be found in these two official new reports from BJS: Correctional Populations in the United States, 2011; and Probation and Parole in the United States, 2011
November 28, 2012
Controversy over plans by Nebraska parole board to address Miller via commutationsThis lengthy local article from Nebraska, headlined "Pardon Board's plan to resentence 27 inmates draws chorus of objections," reports on the controversy in the Cornhusker State over a notable plan to deal with juvenile LWOP sentences rendered unconstitutional by the Supreme Court's recent Miller ruling. Here are the interesting details:
Prosecutors, defense lawyers and even some victims' families are balking at a plan by the Nebraska Pardons Board to give new sentences to 27 inmates who received life sentences as juveniles.
One advocate questions whether the Pardons Board — made up of the governor, attorney general and secretary of state — is trying to do a “run” around a recent U.S. Supreme Court ruling that forbids states from imposing automatic life terms on juveniles, even those convicted of murder. A long-serving defense lawyer says he will most likely seek a court injunction to block the Pardons Board from acting....
The Nebraska Supreme Court has yet to rule on appeals challenging Nebraska's mandatory life sentences for juvenile murderers. The Legislature plans to spend part of next session hammering out an alternative sentencing law for such juveniles.
In July, Iowa Gov. Terry Branstad commuted the mandatory life sentences of 38 people to life sentences that allow parole only after 60 years in prison. Branstad said he acted to keep the prisoners from being resentenced, possibly to more lenient terms, in the wake of the U.S. Supreme Court ruling.
None of the Nebraska Pardons Board members — Gov. Dave Heineman, Attorney General Jon Bruning and Secretary of State John Gale — granted interviews requested Tuesday by The World-Herald. The board will meet next week to hold hearings on the cases, all but one involving a person convicted of murder. Gale said earlier this month that it was more expedient for the Pardons Board to commute the sentences of the inmates rather than have them reopened in court....
Defense lawyers argue that commuting the sentences to 50 years or more will all but ensure that their clients remain in prison for the rest of their lives. Prosecutors question whether such hearings would accomplish anything — saying they believe prisoners would still have the right to file further court challenges to any term given by the Pardons Board.
Douglas County Public Defender Tom Riley, the lawyer who said he is likely to ask a court to block the Pardons Board hearings, said his office has represented at least a dozen of the affected prisoners. Riley said Bruning indicated to him that after the hearings, the Pardons Board would place the prisoners into one of three categories based on culpability and other factors. He said he was told the prisoners' minimum sentences would be 50 calendar years. Two other attorneys said they heard the same plan. Riley called that the “equivalent of a life sentence.”...
Douglas County Attorney Don Kleine said the Pardons Board's action, “however well-intended, is premature.” Kleine said he wants the hearings delayed until the Nebraska Supreme Court and the Legislature have had a chance to act. He said the Nebraska County Attorneys Association is working with state senators on drafting new sentencing guidelines for juvenile killers.
Both Kleine and Lancaster County Attorney Joe Kelly said the Pardons Board did not contact them before they learned of the board's plan eight days ago. Both were scrambling to contact victims' families. Kleine's office handled 18 of the 27 cases. Kelly's office handled two.
Both prosecutors doubted that the hearings would prevent prisoners from seeking new sentencing hearings before a judge. That might mean victims' families would face the prospect of having to testify at multiple hearings....
The decision to hold hearings came just a few weeks after one of Bruning's assistant attorneys general argued to the Nebraska Supreme Court that the U.S. Supreme Court ruling should not be applied retroactively. That argument has yet to be ruled upon.
Several of the inmates listed on the Pardons Board agenda have not applied for commutation, according to Riley. He said such an application is required under state law. “That's one of the red flags that tells me that this hasn't been thought through very deeply,” he said.
"Should Juvenile Criminals Be Sentenced Like Adults?"The title of this post is the headline of this lengthy piece in The Daily Beast; it considers not just the hot constitutional topic of juve LWOP sentences, but the broader policy and practical issues involved in adult sentencing of juvenile offenders. The piece's subheading highlights the main case that is the focal point of the article: "Sean Shevlino was 16 when he robbed some local businesses. Sentenced as an adult, he’s serving 10 years. Is that better for anyone?". Here are some excerpts fromt he piece:
Increasingly, social scientists, law-enforcement authorities, lawyers, and judges are questioning the wisdom of charging juveniles as adults. It is only in the last few years that the law has begun to recognize what science has long known: that adolescent brain development takes more time than previously thought.
"While some teenagers can be astonishingly mature and others inconceivably childish, middle adolescence—roughly, ages 14 to 18—might be the worst time in a person’s life for rational decision making, says Laurence Steinberg, an adolescent psychologist at Temple University. Research has repeatedly shown that during these years, pleasure centers are at full throttle, and foresight is lacking, particularly in young men.
“Among all American boys, about 75 percent violate the law at some point,” Steinberg says. “For some it might be as minor as possession of marijuana and for others it could be as serious as armed robbery, but in either case they’re breaking the law. The question we ask is why some stop and others don’t. Our sense is most stop because they just grow up.”
During pre- and early-adolescence, the brain becomes more efficient and logical, and dopamine activity increases. Things like sex, drugs, and adrenaline thrills feel really good, and when teens are in groups they are even more likely to go for the thrill. But as teens approach adulthood, the pathways between the brain’s CEO and the limbic system—the emotional center—increase substantially, allowing for greater impulse control. According to some studies, brain development is not complete until the mid-20s....
[S]ince 2005, several states have raised the adult criminal bar to age 18, either for some or all offenses. A state task force in North Carolina, one of two states where the age of criminal responsibility is 16, has recommended that for minor crimes, teens under 18 remain in the juvenile system.
The benefits of keeping juveniles out of the adult system are also financial. If the age were raised to 18 for misdemeanors and nonviolent felonies, North Carolina would net $52.3 million a year over the long run, according to an analysis by the Vera Institute of Justice.
"The Micro and Macro Causes of Prison Growth"The title of this post is the title of this very interesting paper on prison growth now on SSRN and authored by the always astute John Pfaff. Here is the abstract:
This paper explores both "who" has driven up US prison populations in recent years and "why" this growth has occurred. At least since the early 1990s, the "who" appears to primarily be prosecutors. Crime and arrests have fallen, and the percent of felony cases resulting in admissions and time served once admitted have been flat. But the probability that an arrest results in a felony charge has gone up significantly. (Limitations in data prevent us from examining the role of filing decisions before 1994.)
As for the "why," this paper provides some evidence that, at least since the crime drop began, increases in prison spending appear to track increases in state budgets fairly closely, suggesting that increased fiscal capacity is an important causal factor. It also looks at the politics-of-crime theories and explains that all previous efforts are unsatisfactory because they have focused on state and federal actors. Prosecutors, who are driving prison growth, are county officials, and it is unclear that state- and national-level political theories explain more-local outcomes.
SCOTUS considering plain error timing (with sentencing spice) in Henderson
The Supreme Court wraps up an light week of oral arguments today by hearing a criminal procedure case that should be of interest to many sentencing practitioners for a number of reasons. The varied reasons why Henderson v. US is worth watching are terrifically spelled out by Rory Little in this SCOTUSblog argument preview titled "Not-so-plain questions about plain error." Here are excerpts from a lengthy post that merits a full read:
Federal Rule of Criminal Procedure 52(b) permits federal courts of appeals to consider “plain” errors “even though [they were] not brought to the [trial] court’s attention.” Is an error in a criminal case “plain” when, by the time the direct appeal is considered, the Supreme Court has clearly ruled that something was error? Or is the error not “plain” because, at the time the trial court ruled, it was unsettled? That is the question that the Court will consider at oral argument in Henderson v. United States on Wednesday, November 28. While the basic points for each side at argument seem clear, and the case involves only the interpretation of a federal rule, rather than a constitutional question, the argument itself may – I stress, may — be more interesting than the question itself portends, for two reasons. First, there appears to be an undeveloped flaw in the case that makes it a poor Rule 52(b) vehicle, since in fact the petitioner, who was the defendant below, did timely bring the error “to the [trial] court’s attention” eight days after the ruling. And second, counsel for the petitioner, Patricia Gilley of Shreveport, Louisiana, is making her first appearance before the Court with merits briefing that is somewhat unusual, while the experienced Supreme Court advocate whose name appeared on the cert. petition has apparently dropped out of the case....
Henderson pled guilty to a felony, and his counsel (Ms. Gilley) stressed in sentencing memoranda that Henderson had a longstanding drug problem and could benefit from drug treatment. The district court obliged; thus, although the recommended federal Sentencing Guidelines range for Henderson was thirty-three to forty-one months, the court sentenced him to sixty months because the best federal drug rehabilitation program requires at least a five-year term for eligibility. At the moment of sentencing, Henderson’s counsel did not object. (Eight days later she filed a timely motion to correct the sentence, but the court did not rule for a number of weeks and then denied the motion on the ground that Federal Rule of Criminal Procedure 35 permits correction only within fourteen days. More on this below.)
By the time of Henderson’s appeal to the Fifth Circuit, the Supreme Court had ruled unanimously, in Tapia v. United States (2011), that federal law “precludes federal sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation.” This rule (and thus the error in Henderson’s case) was so clear that the Solicitor General declined to defend the contrary position in Tapia. The panel that reviewed Henderson’s appeal, however, ruled that despite Tapia the error had not been “clear” or “plain” at the time that the district court sentenced him, because the circuits had been split and the Fifth Circuit’s law on the question had been “unsettled.” (Both the district court that sentenced Henderson and the lawyers in the case appear, however, to have been blissfully unaware of the circuit split or the unsettled state of the law.) Thus the panel ruled that the error had not been correctable under Rule 35(a), nor was it now “plain” within the meaning of Rule 52(b). Rehearing en banc was denied by a vote of ten to seven....On the merits of the Rule 52(b) question, there are two obvious competing interests: the desire to prevent injustice by correcting clear legal errors on appeal; and the desire to encourage contemporaneous objections in the trial court and to not reverse judgments when a district court made a reasonable -- albeit erroneous in hindsight -- ruling. The former interest supports a “plain by time of appeal” interpretation, while the latter supports a “plain at the time of the ruling” view. The tension is clear enough that the Court has previously noted and reserved the question, regarding law that is “unsettled” at the time of the trial court ruling, on two prior occasions: in United States v. Olano (1993) and Johnson v. United States (1987).
Rule 52(b) is short, and its text does not appear to answer the timing question presented here. The Rule provides simply that “[a] plain error that affects substantial rights may be considered even though it was not brought to the Court’s attention.” The federal government, which will be represented at the oral argument by Assistant to the Solicitor General Jeffrey Wall, makes a valiant, but ultimately strained, attempt to argue that the plain meaning of this text, in context, requires a “time of ruling” interpretation. But if anything, the text itself seems to suggest that an appellate court may consider any error that is “plain,” without regard to when the error becomes “plain.” We’ll see what the Justices think of the text at oral argument. The Circuits have split at least five to two on the question (depending on how you count), with the clear, and more recent, majority favoring Henderson’s “time of appeal” position.
UPDATE: The transcript from the oral argument in Henderson is now available at this link.
Noting the notable (moderate? liberal?) position of new Ninth Circuit judges in capital habeas caseThe California legal newspaper The Recorder has this interesting new piece about a notable vote in a capital case by some new Ninth Circuit judges. The piece is headlined, "Obama Appointees Issue Measured Protest to Vote Clearing Way for Execution," and here are excerpts:
Three new Obama appointees to the U.S. Court of Appeals for the Ninth Circuit weighed in Tuesday on their first hotly contested death penalty case. Judges Paul Watford, Morgan Christen and Jacqueline Nguyen voted on the side of staying an execution — but distanced themselves from a blast leveled by seven of the court's most liberal judges at two of their own colleagues.
In Stokley v. Ryan, 09-99004, the court narrowly turned aside a call to rehear en banc a decision clearing the way for the Dec. 5 execution of Arizona inmate Richard Dale Stokley, who kidnapped, raped and strangled two 13-year-old girls. He had lost his bid for habeas corpus last year, but asked the Ninth Circuit to recall the mandate and send his case back to U.S. district court based on a ruling from the U.S. Supreme Court in January on attorney abandonment.
A three-judge panel rejected Stokley's motion Nov. 15 in an order signed by Judges M. Margaret McKeown and Carlos Bea. They ruled that although Stokley had had serious difficulties with his state post-conviction attorney, she had not "abandoned" him within the meaning of Maples v. Thomas, nor could he show prejudice even if he'd been abandoned. Judge Richard Paez dissented....
Last week the full court fell a few votes short of rehearing the case en banc, and on Monday Judge Stephen Reinhardt filed a dissenting opinion blasting both the panel's reasoning and tactics....
Reinhardt was joined by Paez and Judges Harry Pregerson, Kim McLane Wardlaw, William Fletcher, Raymond Fisher and Marsha Berzon. Fletcher issued a separate opinion, joined by those same judges, saying Stokley's claims "may or may not prove to be winning claims," but "we should not allow the state of Arizona to kill Stokley before they have been properly considered."
Watford, who just joined the court from Munger, Tolles & Olson in May, wrote a third opinion. Only one paragraph long, it noted simply that the questions surrounding prejudice remain unresolved. "These important and unsettled issues should be resolved by the court sitting en banc," he wrote. Obama appointees Nguyen, who was confirmed in May, and Christen, confirmed in December, concurred in Watford's opinion. So did Pregerson, Wardlaw, Paez, Fletcher, Fisher and Berzon — but not Reinhardt. Obama's two other appointees, Mary Murguia and Andrew Hurwitz, did not sign any of the concurrences.
Generally, 15 of the 28 active Ninth Circuit judges must vote to take a case en banc. Although 10 judges publicly dissented from the Stokley en banc vote, it's possible other judges voted the same way, as a few members of the court prefer not to issue public dissents from denial of en banc review.
November 27, 2012
Is Alleyne a stare decisis sleeper about "super-duper precedents"?
Last month the Supreme Court granted cert in Allen Ryan Alleyne v. United States, in which the questions presented is simply "Whether this Court's decision in Harris v. United States, 536 U.S. 545 (2002), should be overruled." Because Harris is, of course, one of the holes in Apprendi jurisprudence, hard-core sentencing fans and Sixth Amendment gurus are jazzed about what the Alleyne case might mean for the division of responsibilities of judge and jury in criminal justice decision-making.
However, the notion of whether Harris "should be overruled" has me thinking Alleyne could be a sleeper case concerning the doctrine of stare decisis in constitutional law and practice. Significantly, Harris did not create the constitutional rule that legislatures could allow sentencing judges to find facts by a preponderance of evidence to trigger the application of mandatory minimum prison terms. Harris merely reaffirmed this constitutional doctrine in 2002; it was established back in 1986 in McMillan v. Pennsylvania (and the McMillan opinion suggested its holding was just a reaffirmation of constitutional rules first set out in the 1949 case of Williams v. New York). In other words, Harris is not just a regular precedent: like Roe v. Wade and other controversial rulings often challenged and often reaffirmed, the constitutional doctrines allowing judges to find facts to trigger mandatory minimums arguably qualify as a "super-precedent."
As some may recall (and as highlighted in this Essay by Professor Michael Gerhardt titled "Super Precedent") the idea of super-precedents has been sometimes espoused by defenders of Roe. Indeed, with Roe clearly in mind, then-Senate Judiciary Chairman Arlen Specter asked then-SCOTUS-nominee John Roberts during his confirmation hearings whether he agreed there were "super-duper precedents" in constitutional law. Though I do not fancy myself enough of a constitutional theorist to know whether super-precedents do or should exist, I do know that Alleyne tees up consideration of this idea perhaps as well as any case in recent memory.
"Republicans a victim of safer streets"The title of this post is the headlined of this notable recent commentary by Charles Lane in the Washington Post. Here are some excerpts:
I suggest that Republicans consider for their new issue a call to end federal pot prohibition, replaced by state-level regulation and experimentation on marijuana reform. Among other benefits for Republicans, if an end to pot prohibition really does lead to an increase in crime and related harms, it can better trade of the political rhetoric of crime yet again.
Americans were unhappy about many issues as 2012 began. In one area, though, contentment reigned. By a margin of 50 to 45 percent, a Gallup Poll reported, the public felt “satisfied” with the nation’s policies on crime.
It was a well-founded sentiment. In 2010, Americans were less than a third as likely to be victimized by violent crime as they had been in 1994; the murder rate had declined by roughly half. Today we are approaching the low murder rates of the 1950s.
For the Republican Party, this is a triumph — and a disaster, as the 2012 election results proved. It is a GOP triumph, because the enormous decline in crime over the past two decades coincided with the widespread adoption of such conservative ideas as “broken windows” policing and mandatory minimum sentences.
Whether such policies actually caused the crime decline is a separate, and much-debated, social-science question. The important thing is that many people believe that they did. As a result, conservative crime doctrine remains dominant in politics, with the two parties differing mainly over how to control and punish unlawful conduct most cost-effectively.
Hence the 2012 disaster for the GOP. Beginning with Richard Nixon’s “law and order” campaign for president in 1968, Republicans pretty much owned the issue. Fear of street crime — and its association, accurate or not, with post-’60s moral license, liberal Democratic policies and the rise of an urban black population — converted many a white working-class Democrat into a Republican....
As the first Democratic president since Clinton, and the first African American one ever, Barack Obama has done essentially nothing to reverse Clinton’s crime and welfare policies. He signed a bill reducing the disparity in penalties for crack and powder cocaine possession under federal law, a modest reform that enjoyed wide Republican support in Congress....
We’ll never know whether 2012 would have played out the same way if crime had staged a comeback during the recession, as many expected. Certainly in the past, crime was as important to the Republican brand as abortion and gay rights, if not more important. Safer streets, though, have blunted what was once a sharp wedge issue, and, perhaps, freed the electorate to consider social and moral issues in a different light.
In the crime-ravaged ’70s and ’80s, Clint Eastwood’s “Dirty Harry” Callahan acted out Middle America’s fantasy of a no-holds-barred war on crime. By the time an elderly Eastwood appeared at the 2012 GOP convention, though, violent crime was a fading specter. And when he led the crowd in a chorus of “Go ahead, make my day,” it was history repeating itself as farce.
He should have said, “We need a new issue.”
Congress passes bill to double statutory maximum for child porn possession
Thanks to a helpful reader, I just learned that late yesterday Congress passed a bill to increase the statutory maximum for child porn possession offenses from 10 years to 20 years. Especially because child porn receipt already has a stat max of 20 years and because federal prosecutors often can (and often do) charge multiple counts of possession to expose a defendant to more than 10 years imprisonment under current law, I was not aware that anyone directly involved in federal child porn cases thought this stat max needed to be raised. But, as this local report on the legislation highlights, the increase was part of a broader effort to give authorities even more weapons to go after child porn offenders:
A bill designed to protect children from sexual predators has cleared Congress and is headed to the White House to be signed into law. “With President Obama’s signature, this law will help to rescue the thousands of children suffering from unthinkable abuse,” said Congresswoman Debbie Wasserman Schultz, a Democrat from Weston, who sponsored the bill along with House Judiciary Chairman Lamar Smith, a Texas Republican.
The bill’s passage is one sign that Congress can still get something done, especially when leaders from each party push a non-controversial measure. The bill increases the maximum penalty from 10 years in prison to 20 years for child pornography offenses that involve pre-pubescent children, or those under age 12.
The bill allows a federal court to issue a protective order if it determines that a child victim or witness is being harassed or intimidated, and it imposes criminal penalties for violating a protective order. It gives U.S. Marshals limited subpoena authority to locate and apprehend fugitive sex offenders. The Child Protection Act also reauthorizes for five years the Internet Crimes Against Children Task Forces, a national network of investigators who have arrested more than 30,000 individuals involved in child exploitation since 1998, Wasserman Schultz’ office reported.
The Senate approved the legislation on Monday night by unanimous consent. The House passed it by voice vote in August. “This bill ensures that the spread of child pornography online is addressed aggressively and quickly,” Wasserman Schultz said, “and ensures that investigators have every available resource to track down predators and protect our children.”
NYCDL amicus brief in Alleyne with an offense/offender kicker
As long time readers know, in first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule." I first developed this idea in my Conceptualizing Blakely article, advanced it in a Stanford Law Review article, and unpacked it further (with Stephanos Bibas) in Making Sentencing Sensible. As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.
Consequently, when the Supreme Court decided it would take another trip to Apprendi-land by granting cert in Alleyne to consider the continued validity of the Harris mandatory minimum limit on the the Apprendi rule (basics here and here), I was interested in pitching the Justices yet again on the idea of incorporating an offense/offender distinction into some part of this jurisprudence. Wonderfully, a terrific group of New York lawyers reached out to me about helping the New York Council of Defense Lawyers on an Alleyne amicus brief, and they were willing to add an offense/offender "kicker" to NYCDL's arguments for overruling Harris. The NYCDL brief in which I lended a hand was filed yesterday and can be downloaded below. Here are two key paragraphs from the summary of argument:
As this Court has applied Apprendi’s holding over the last decade, several Justices have expressed con-cerns about the rule’s potential impact on trials and sentencing. As NYCDL’s experience in New York federal and state courts shows, any such effects will be minimal. New York’s federal courts, for example, have operated for seven years under a paradigm for drug offenses that substantially parallels the structure all courts would face should this Court overturn Harris. Practitioners there have been able to apply Apprendi’s rule to drug offenses with relative ease: from the indictment to the jury instructions or to the plea allocution, New York prosecutors and defense lawyers are able to address any facts that expose defendants not just to increased maximums, but also to increased minimums. Similarly, criminal defense attorneys in New York state courts regularly confront situations where a jury is required to find facts that trigger a mandatory minimum sentence, without apparent difficulty or inefficiency. These experiences buttress Petitioner’s argument that “there are no practical impediments to overruling Harris.” Pet. Br. 42.
Moreover, any of the enduring practical concerns identified by certain Justices can be addressed by adopting an approach to overruling Harris that distinguishes between facts that are specific to the offense and facts that are specific to the offender. The Constitution’s text requires that all facts relating to the alleged “crimes” at issue must be stated in the indictment and presented to the jury, which the Due Process clause requires to be proven beyond a reasonable doubt. To avoid a requirement that aggravating facts concerning an offender’s past be presented to the jury if such offender-specific characteristics implicate a mandatory minimum, the Court should draw a line for Constitutional purposes that allows judicial determinations of offender-specific facts that are relevant to sentencing, so long as such facts do not alter the range of applicable sentences. Such a rule comports with the particular competencies of the jury and judge: The jury’s traditional role is to answer questions about the criminal conduct alleged in an indictment, while the judge has historically been expected to assess broader offender-based considerations such as an offender’s criminal history, amenability to rehabilitation, and correctional treatment. Where, as here, a sentencing judge acts as “the reverser of juries” in finding offense-related facts only by a preponderance of the evidence, the sentence is unconstitutional. The decision below should be reversed.
November 27, 2012 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
District court rejects 400-pound Ohio inmate's weighty effort to block executionAs reported in this AP piece, a "condemned killer trying to delay his execution because of his extreme weight hasn't raised enough new issues to warrant the legal challenge, a federal judge ruled Monday." Here are the basics of the case and ruling concerning the next scheduled execution in Ohio:
Death row inmate Ronald Post, who weighs more than 400 pounds, is asking the courts to stop his January execution on the grounds his weight could cause him to suffer severe pain during the procedure. Post is prohibited from challenging his execution by injection because he raised similar claims in his first set of federal appeals in 1997, Judge Lesley Wells said Monday in Cleveland.
In general, death row inmates are only allowed one federal appeal when alleging the same set of facts. Post "has not demonstrated in his new petition that his medical condition has changed so significantly, or that Ohio's new lethal injection procedures have changed so radically, since he filed his first petition in 1997 that his original core complaints are transformed into something new," Wells wrote.
However, the judge sent the question to a federal appeals court in Cincinnati for a final determination according to federal law governing this type of appeal. The state is opposing Post's requests to delay his execution....
Post's attorneys declined to comment Monday. They have previously argued that Post's medical condition hasn't been stable. At issue, they say, is his condition around the time of his execution, not at the time of an original court challenge. Post "could not have raised this claim in his earlier petition because the execution was not imminent and his physical and medical condition have not been stable in relation to an execution date," his attorneys wrote in earlier court filings....
Post has tried losing weight, but knee and back problems have made it difficult to exercise, his lawyers say. They also say Post's request for gastric bypass surgery has been denied, he has been encouraged not to walk because he's at risk for falling, and severe depression has contributed to his inability to limit how much he eats. A doctor who examined Post for his defense team says Post does not have accessible veins in his arms or hands because of his weight and could not receive a lethal injection in his legs because he is so obese.
November 26, 2012
High-profile NY federal capital case raising numerous Atkins issues second time aroundThis new FoxNews report provides a notable (and confusing) account of an interesting "Atkins hearing" which started today in a high-profile federal capital case out of New York. The piece is headlined "Cop killer seeks to avoid death penalty based on low IQ," and here are some of the basics:
This Reuters article about the case provides more (and clearer) background not only concerning why this case is high-profile, but also concerning the procedural issues that should make this unusual federal court hearing so interesting to hard-core Atkins fans:
A convicted New York cop killer is hoping to avoid the death penalty by using an increasingly common defense -- he's just not smart enough to face execution for his crimes. Lawyers for Ronell Wilson began trying to convince a federal judge on Monday to [preclude imposition of a new] death sentence for the 2003 murder of New York City detectives Rodney Andrews and James Nemorin during an undercover sting in the borough of Staten Island. With an IQ of just under 70, defense attorneys say Wilson is mildly retarded and therefore exempt from the ultimate punishment....
In a procedure that is expected to last three weeks, the judge will likely examine Wilson’s complete educational history, as well as a formal IQ score and adaptive function tests. If he scores low enough, it could save his life....
As for Wilson, experts said the brutality of the murder of the two New York City detectives is not what is at issue. “This was a brutal murder, and it raises tremendous outrage and demands that it is treated with the greatest sanction," Alan Lipman, a behavioral sciences professor at George Washington University Medical Center and director of the Center for the Study of Violence, told FoxNews.com. “The question here is whether being mentally retarded is the difference between the death penalty and life in prison. He is right on the line, which means that [a ruling] could go either way. The judge has set aside three weeks for this hearing, which says to me that he knows there will be lengthy arguments from both sides. This is going to be a close call.”
A convicted cop killer who escaped death row in 2010 is trying to beat the federal death penalty for a second time by claiming on the resentencing that he is mentally retarded. Ronell Wilson, 30, was sentenced to death by a jury in 2007 for murdering two undercover New York Police Department officers posing as gun buyers in Staten Island. The 2nd U.S. Circuit Court of Appeals vacated his sentence in 2010, finding that prosecutors violated his constitutional rights by, among other things, telling jurors his decision to go to trial indicated a lack of remorse and refusal to accept responsibility for the crime.
The court remanded the case for resentencing and the U.S. Attorney last year said it would once again seek the death penalty. New York abolished the death penalty in 2004, but Wilson's was a federal death sentence, the first in the state since 1954.
At a hearing starting Monday, Wilson's lawyers are scheduled to argue to U.S. Judge Nicholas Garaufis that Wilson is mentally retarded and that executing him would run afoul of the U.S. Supreme Court's 2002 ruling in Atkins v. Virginia.... Wilson is being sentenced under the Federal Death Penalty Act, which bars the execution of mentally retarded prisoners but does not define mental retardation....
In a February letter to Garaufis, Wilson's lawyers said that a "preliminary investigation" had indicated their client was mentally retarded. Since then, Wilson has undergone a battery of psychiatric tests by experts from both sides. The findings have not yet been made public, and both sides declined to comment on the case or the evidence they will present during the hearing. Wilson's mental condition was brought up briefly during his first sentencing proceeding in 2007, although his prior defense counsel did not raise an Atkins claim. They told jurors that Wilson had an IQ in the high 70s and said he had been hospitalized for psychiatric problems several times as a child.
Garaufis, relying on criteria in Atkins, in June set forth factors he will use to evaluate Wilson's claim, including his IQ score, his adaptive functioning or ability to perform life skills like holding a job and whether his alleged condition began to manifest itself before his 18th birthday.... Typically, Atkins claims are raised and decided before the guilt phase of the trial, but they can also come after post-conviction appeals, like Wilson's.
The more borderline the alleged retardation, the more contentious the Atkins determination typically is, [Cornell Law School professor John] Blume said. For instance, a defendant with an IQ below 40 could be fairly easily categorized as retarded, but someone with an IQ as high as 70 or 75 could also qualify.
Blume said it was difficult to predict how Wilson's claim would fare. But Garaufis has blocked off more than 10 days over three weeks, including some Saturdays, to hear evidence on the Atkins claim, indicating that Wilson may be in for a lengthy battle.
Though I am unsure how many procedural issues have already been considered and resolved, I can already spot a gaggle of (appeal-worthy) issues implicated by this scheduled hearing on whether convicted murdered Ronell Wilson is mentally retarded. For example:
1. Does the failure to fully litigate Atkins before in his first round of death sentencing impact the litigation of Wilson's Atkins claim (or Federal Death Penalty Act claim) now?
2. What is the proper burden of proof under federal constitutional law (or federal common law) for Wilson's Atkins claim, and who bears that burden?
3. Does Wilson have any basis to "re-argue" his Atkins claim to a federal sentencing jury if (and when?) it is rejected by Judge Garaufis?
4. Can (and should) either side appeal any aspect of these Atkins issues/rulings to the Second Circuit and/or SCOTUS before another sentencing jury considers imposing another federal death sentence on Wilson?
This case is worth watching closely in part because the Supreme Court has studiously avoided, for now over a decade, taking up any of the Atkins administration issues that have divided state lower courts. Because of its federal (and high-profile) status, and especially because just how Atkins is applied may determine whether Ronell Wilson is even subject to another death sentence, the Justices may not be able to dodge these Atkins issues if (and when?) this case eventually makes it into the cert pool.
First articles in OSJCL symposium on "McClesky at 25" now up at SSRN
I am very pleased to report that two articles from the Fall 2012 issue of the Ohio State Journal of Criminal Law are now available via SSRN. There are an especially large number of terrific pieces in this issue, all of which I will be praising and promoting when the full issue comes on-line in the next few days. But, because the articles already on SSRN come from the lead symposium focused on "McClesky at 25," I will start shining the spotlight now for sentencing fans:
Twenty-five years after it was decided, a legal scholar can still use McCleskey v. Kemp as shorthand for a Supreme Court decision that failed to protect the Constitution’s most basic values. This Article uses Justice Powell’s papers to gain new insight into how an opinion came to be written that engendered so much criticism. What emerges is a sense of how Justice Powell’s belief in the legal system, when coupled with his distrust of “statistical jurisprudence,” led him to place his faith in legal procedures despite statistical evidence that racial bias was infecting the death penalty. McCleskey is thus an important lesson that procedure, despite its many benefits, can have a dark side if it becomes a veneer obscuring injustice.
Justice Powell’s opinion, especially the final section of the decision, also provides important lessons about how a judicial opinion communicates messages that reach beyond the holding itself. Indeed, the Article compares Powell’s opinion to the concurrence that Justice Scalia proposed but never wrote -- a concurrence that would have acknowledged that “irrational sympathies and antipathies including racial” inevitably enter a capital jury’s decision, but then would have found no constitutional violation. The Article ultimately asks: although Scalia’s position might have provoked outrage, might not its candor in the long run have produced a more constructive response than Powell’s opinion which appeared to adopt a position of willful blindness towards the existence of racial bias?
G. Ben Cohen, McCleskey's Omission: The Racial Geography of Retribution:
Twenty-five years after the Court in McCleskey refrained from addressing the overwhelming evidence that race, and particularly the race of the victim, plays a role in the administration of the death penalty, with no corrective measures taken to ensure that the worst of the worst offenders receive the death penalty, the death penalty in America is as arbitrary as it ever was.
This article suggests that while both the majority and the dissent in McCleskey noted the history of racism in the South, neither confronted the manner in which racism was imbedded in the goal of retribution, nor reconciled the sordid history of lynching with the modern system of capital punishment. A careful examination of death sentences in the modern era reflects that racism arises at a county rather than a state level. The author suggests that the history of lynching, especially in the deep south, is inexorably connected to retribution.
Future challenges to the constitutionality of capital punishment should address the validity of retribution as a basis for imposing the death penalty and the impact that desire for retribution has on county-level administration of the death penalty.
The United States Supreme Court decision in Kennedy v. Louisiana, calls for further inquiry concerning the role of retribution in supporting the validity of the capital punishment. In Kennedy, the Court warned that “retribution” “most often can contradict the law’s own ends . . . When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”
Over dissent of three Justices, SCOTUS refuses to review Idaho's restriction of insanity defenseAs reported here at SCOTUSblog, the Supreme Court returned to work today with an orders list that included no new certiorari grants and a few notable denials of cert. One such denial generated a multi-Justice dissent: "Among the Court’s more significant orders denying review, it refused to hear a claim that the Constitution requires states to allow an accused an opportunity to use insanity as a defense to a criminal charge. The case of Delling v. Idaho (11-1515) was denied over the dissents of three Justices — Stephen G. Breyer, joined by Ruth Bader Ginsburg and Sonia Sotomayor." Here are a few excerpts from Justice Breyer's dissent (with some quotes and cites eliminated), which in part explain why I am not troubled by this SCOTUS cert dodge:
Idaho provides that “[m]ental condition shall not be a defense to any charge of criminal conduct.” Idaho Code §18–207(1) (Lexis 2004). Another provision of the same statute provides, however, that the above restriction is not “intended to prevent the admission of expert evidence on the issue of any state of mind which is an element of the offense.” §18–207(3). And the Idaho courts have made clear that prosecutors are still required to prove beyond a reasonable doubt that a defendant had the mental capacity to form the necessary intent. Thus, in Idaho, insanity remains relevant to criminal liability, but only in respect to intent. Insanity continues to have relevance at sentencing as well. A court must “receiv[e]” evidence of mental condition at sentencing and, if mental condition proves to be a “significant factor,” must consider a string of issues deemed relevant to punishment, including, notably, “[t]he capacity of the defendant to appreciate the wrongfulness of his conduct.” Idaho Code §19–2523 (Lexis 2004). In addition, if the court imposes a prison sentence on a person who “suffers from any mental condition requiring treatment,” Idaho law appears to mandate that “the defendant shall receive treatment” in an appropriate facility. See §18–207(2).
Still, the step that Idaho has taken is significant. As that State’s courts recognize, it may allow the conviction of persons who may be insane by some former insanity test or medical standard, but who nevertheless have the ability to form intent and to control their actions. That is, the difference between the traditional insanity defense and Idaho’s standard is that the latter permits the conviction of an individual who knew what he was doing, but had no capacity to understand that it was wrong....
I would grant the petition for certiorari to consider whether Idaho’s modification of the insanity defense is consistent with the Fourteenth Amendment’s Due Process Clause.
In the lingo of many criminal law theorists, the insanity defense is classic "excuse" defense to criminal responsibility, not a "justification" defense. Though I think the Constitution might well limit the authority of states to eliminate entirely certain justification defenses (like, for example, self defense), I am not quite sure why a state should not be allowed to get rid of certain excuse defenses as long as it preserves some role for excuse considerations at sentencing. Indeed, ever the sentencing geek, I have long believed it might be wise for many theoretical and practical reasons — as well as constitutionally permissible — to eliminate all pure excuse defenses in order to turn them into (required) sentencing factors.
Criminal law theorists and/or long-time readers might rightly conclude that my general disaffinity for excuse defenses is just one part of my general disaffinity for retributivist theories of punishment (as well as my view that guilt determinations should be principally concerned with offense conduct and that sentencing is the place for broader consideration of offender characteristics). I fully understand, though do not find compelling, a certain retributivist viewpoint that a just system of criminal punishment must preserve some traditional form of the insanity defense to criminal liability. Consequently, I am inclined to view this notable denial of cert as an indication that there are not currently four Justices drawn to the notion that the Constitution's Due Process Clause includes certain retributivist criminal justice fundamentals.
An interesting follow-up question to this cert denial for even utilitarian-minded folks is whether and when the diminution of mental condition considerations at sentencing might present Eighth Amendment issues. Especially in the wake of the Supreme Court's recent work in Graham and Miller, it is intriguing to consider a potential Eighth Amendment challenge to any mandatory LWOP sentence given to a clearly insane person in a state like Idaho that has precluded raising an insanity defense at the guilt stage of proceedings. Ever the fan of a robust Eighth Amendment jurisprudence, I might be more drawn to this kind of constitutional claim than to one based in the Due Process Clause.
Spotlighting connection between mental illness and extreme three-strike sentencesYesterday's New York Times ran this interesting editorial by Brent Staples concerning the impact and import of the recent reform of California's three-strikes law. The piece has a particular focus on the role mental illness may play in many of the most troubling sentencing outcomes resulting from extra tough recidivism sentencing enhancements. The piece is headlined "California Horror Stories and the 3-Strikes Law," and here are excerpts:
Californians brought a close to a shameful period in the state’s history when they voted this month to soften the infamous “three strikes” sentencing law. The original law was approved by ballot initiative in 1994, not long after a parolee kidnapped and murdered a 12-year-old girl. It was sold to voters as a way of getting killers, rapists and child molesters off the streets for good.
As it turned out, three strikes created a cruel, Kafkaesque criminal justice system that lost all sense of proportion, doling out life sentences disproportionately to black defendants. Under the statute, the third offense that could result in a life sentence could be any number of low-level felony convictions, like stealing a jack from the back of a tow truck, shoplifting a pair of work gloves from a department store, pilfering small change from a parked car or passing a bad check. In addition to being unfairly punitive, the law drove up prison costs.
The revised law preserves the three-strikes concept, but it imposes a life sentence only when the third felony offense is serious or violent, as defined in state law. It also authorizes the courts to resentence thousands of people who were sent away for low-level third offenses and who present no danger to the public.
The resentencing process is shaping up as a kind of referendum on the state’s barbaric treatment of mentally ill defendants, who make up a substantial number of those with life sentences under the three-strikes rule. It is likely that many were too mentally impaired to assist their lawyers at the time of trial.
Mentally ill inmates are nearly always jailed for behaviors related to their illness. Nationally, they account for about one-sixth of the prison population. The ratio appears to be higher among three-strike lifers in California. According to a 2011 analysis of state data by Stanford Law School’s Three Strikes Project, nearly 40 percent of these inmates qualify as mentally ill and are receiving psychiatric services behind bars....
Asked about the relationship of mental illness and three-strikes prosecutions, Michael Romano, director of the Stanford project, responded, “In my experience, every person who has been sentenced to life in prison for a nonserious, nonviolent crime like petty theft suffers from some kind of mental illness or impairment — from organic brain disorders, to schizophrenia, to mental retardation, to severe P.T.S.D.,” or post-traumatic stress disorder. Nearly all had been abused as children, he pointed out. All had been homeless for extended periods, and many were illiterate. None had graduated from high school.
In other words, these were discarded people who could be made to bear the brunt of this brutal law without risk of public backlash.... And as more cases unfold in court, judges, lawyers and Californians should look back with shame at the injustice the state inflicted on a vulnerable population that often presented little or no danger to the public.
Some recent related posts:
- California voters appear to be approving three-strikes reform, rejecting death penalty repeal
- Intriguing accounts of how California's three-strikes reform will be implemented
- Effective report on three-strikes reform implementation in San Diego
- First California prisoner released under reformed three-strikes has lots of voters to thank
November 26, 2012 in Campaign 2012 and sentencing issues , Examples of "over-punishment", Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
November 25, 2012
More buzz about possible death penalty repeal in MarylandSunday's Washington Post has this lengthy article discussion the state and fate of Maryland's death penalty. The piece is headlined "As O’Malley eyes repeal, Md. death row remains at ‘impasse’," and here are excerpts:
Coming off some high-profile wins at the ballot box this month, Maryland Gov. Martin O’Malley is considering another run at repealing the death penalty when lawmakers reconvene in January, aides say. It’s an issue that could add to his progressive legacy.
But even if the law remains on the books, advocates on both sides agree that O’Malley (D) is all but certain to finish his two terms in office without having presided over a single execution of one of the state’s five condemned prisoners.
That’s largely because O’Malley’s administration has yet to implement regulations required for executions to resume, nearly six years after Maryland’s highest court halted use of capital punishment on a technicality. And there’s little reason to believe the politically ambitious governor will do so in his remaining two years, as drug shortages and other factors have complicated the mechanics of lethal injection in other states.
“It’s legislating by inaction,” said Sen. Joseph M. Getty (R-Carroll), a member of the Senate Judicial Proceedings Committee and an O’Malley critic. “I’m among the members of the General Assembly who would like to see the law followed.”...
While it’s unclear if there are enough votes to repeal the law altogether, many lawmakers doubt there are enough votes, particularly in the House of Delegates, to adopt a new law that would restart executions. “I think there’s an impasse,” said Del. Anne Healey (D-Prince George’s), a death penalty foe.
Recent related post:
"Virginia prison groups veterans together for support"The title of this post is the headline of this notable new AP piece, which gets started this way:
A sergeant at arms, hazmat crew, and intelligence team working in uniform behind guarded gates and a barbed-wire fence isn't anything out of the ordinary in this region that's home to major military installations. But the men chosen to perform those tasks a few miles from the North Carolina border are unusual.
Unlike their comrades who perform these duties on ships and bases, about 80 civilian prisoners are doing so as inmates at the medium-security Indian Creek Correctional Center. Each served in the military before landing in prison, and state officials hope grouping them together to create a military environment will help change their lives and keep them from returning to prison. About 2,000 of 30,000 inmates in the state prison system say they are veterans, though officials say there may be more.
The Virginia Department of Corrections opened two dormitories this summer exclusively for veterans — one at Indian Creek and another in Haynesville — where inmates have served in conflicts from Vietnam to Iraq. Similar dorms have opened at several prisons in Florida, another state home to a large veteran population, as well as at a jail in Columbus, Ga., near Fort Benning. The inmates receive therapy that addresses some problems such as post-traumatic stress disorder, anger issues or substance abuse problems that may have led to them winding up in prison.
Prison officials say these treatments help reduce recidivism among all inmates, but that grouping veterans together may be particularly effective. "These offenders have a particular bond because of the service they did for their country, and what they learned when they were in the service, all the good things they learned in the service, all the discipline and structure, is morphed into this program so that those things can now be channeled positively to help them," said Virginia Secretary of Public Safety Marla Decker.