February 24, 2012
Does everyone agree that feds ought not bother prosecuting "ordinary drug crimes"?
The question in the title of this post is prompted by this recent piece appearing in The National Law Journal authored by Vikrant P. Reddy and titled "10th Amendment applies to criminal justice, too." Here are some excerpts:
When the current U.S. Supreme Court term began, Justice Antonin Scalia made headlines by appearing before the Senate Judiciary Committee and testifying that "[i]t was a great mistake to put routine drug offenses into the federal courts."
Scalia was not arguing that drugs should be legal, but rather that there is a limit to what the federal government is competent, and constitutionally, permitted to do. Ordinary drug crimes are better left to state and local governments.
Essentially, Scalia was calling for a revival of 10th Amendment principles. The 10th Amendment to the U.S. Constitution reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Many Americans argue that this provision is being ignored by a federal government that seizes an ever-larger role in health care, environmental regulation, and other economic matters. Less remarked upon, but equally troubling, is the federal government's increased jurisdiction over routine matters of criminal law....
In Federalist No. 17, Alexander Hamilton observed that "[t]here is one transcendent advantage belonging to the province of the state governments…the ordinary administration of criminal and civil justice." Most drug offenses require only the ordinary administration of criminal justice. Federal agencies such as the FBI have limited resources, and priorities like terrorism and espionage should take precedence.
As Scalia pointed out, the glut of drug offenses has also overwhelmed the federal judiciary. Federal judges, who are supposed to be devoting their attention to complex constitutional problems, find their dockets increasingly clogged with minor drug crimes....
Although a greater percentage of federal cases involve trafficking drugs rather than simple possession, most of those are not international kingpins or gang leaders but rather "mules" or street dealers selling to support a habit. Though these are serious cases often inappropriate for diversions, they are prosecuted successfully every day in all 50 state court systems....
Returning routine drug laws to state and local government is both sound policy and would be faithful to the U.S. Constitution. It should be an area where all Americans can find consensus.
I share the view that many benefits could flow from the feds getting out of the business of prosecuting nearly all local drug crimes except when very large quantities or significant violence is involved in this offense. But I suspect some readers of this blog might contend that rarely now do the feds bother with truly "ordinary" drug crimes and/or that what might be deemed an "ordinary" drug crime in New York City or Los Angeles is in fact extraordinary drug crime (and justifies federal involvement) when committed in, say, Manhattan, Kansas or Los Lunas, New Mexico.
"Second Amendment Penumbras: Some Preliminary Observations"
The title of this post is the title of this new short paper by Glenn Harlan Reynolds, which is now available via SSRN and has this on-sentence abstract: "With the Second Amendment now a working part of the Bill Of Rights in the wake of the Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago, this brief Essay examines the likely extent of penumbral rights under the Second Amendment, as well as the possible effect on unenumerated rights in general of an enforceable right to arms."
A quick review of the draft leads me to conclude that Professor Reynolds sees, as do I, how the Second Amendment could now have a potentially profound impact on the application of some criminal gun laws. Consider, for example, this interesting passage from the article:
First Amendment analogies, in fact, suggest another doctrine that might apply: chilling effect. Traditionally, violation of gun laws was treated as mere malum prohibitum, and penalties for violations were generally light. During our nation’s interlude of hostility toward guns in the latter half of the twentieth century, penalties for violations of gun laws, especially in states with generally anti-gun philosophies, became much stiffer. Gun ownership was treated as a suspect (or perhaps “deviant” is a better word) act — one to be engaged in, if at all, at the actor’s peril.
But with gun ownership now recognized as an important constitutional right belonging to all Americans, that deviant characterization cannot be correct. Regulation of firearms cannot now justifiably proceed on an in terrorem approach, in which the underlying goal is to discourage people from having anything to do with firearms at all. Laws treating fairly minor or technical violations as felonies must be regarded with the same sort of suspicion as pre–New York Times v. Sullivan laws on criminal libel: as improper burdens on the exercise of a constitutional right.
Dallas DA calling for review of Texas death penalty based on innocence concerns
As reported in this new AP piece, a "Texas prosecutor leading an aggressive push to free wrongly imprisoned inmates, in a county where more than two dozen wrongful convictions have been overturned, is calling for a review of the capital punishment system in the nation's busiest death penalty state." Here is more:
Craig Watkins' tenure as Dallas County's top prosecutor has earned him a national reputation. Now, as Watkins publicly acknowledges that his great-grandfather was executed in Texas almost 80 years ago, he called on state lawmakers to review death penalty procedures to ensure the punishment is fairly administered.
"I think it's a legitimate question to have, to ask: 'Have we executed someone that didn't commit the crime?'" Watkins said in an interview with The Associated Press.
After becoming district attorney in 2007, Watkins started a conviction integrity unit that has examined convictions and, in some cases, pushed for them to be overturned. Dallas County has exonerated 22 people through DNA evidence since 2001 — by far the most of any Texas county and more than all but two states. An additional five people have been exonerated outside of DNA testing. Most of those exonerations occurred during Watkins' tenure.
Texas has executed 55 inmates since 2009, including 13 last year, a 15-year low. Twelve former death row inmates have been freed since 1973. "I think the reforms we've made in our criminal justice system are better than any other state in this country," Watkins said. "But we still need reforms. And so, I don't know if I'm the voice for that. I just know, here I am, and I have these experiences."
February 23, 2012
"Obama's War on Pot"
The title of this post is the headline of this recent Rolling Stone piece, which gets started this way:
Back when he was running for president in 2008, Barack Obama insisted that medical marijuana was an issue best left to state and local governments. "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue," he vowed, promising an end to the Bush administration's high-profile raids on providers of medical pot, which is legal in 16 states and the District of Columbia.
But over the past year, the Obama administration has quietly unleashed a multiagency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush. The feds are busting growers who operate in full compliance with state laws, vowing to seize the property of anyone who dares to even rent to legal pot dispensaries, and threatening to imprison state employees responsible for regulating medical marijuana. With more than 100 raids on pot dispensaries during his first three years, Obama is now on pace to exceed Bush's record for medical-marijuana busts. "There's no question that Obama's the worst president on medical marijuana," says Rob Kampia, executive director of the Marijuana Policy Project. "He's gone from first to worst."
The federal crackdown imperils the medical care of the estimated 730,000 patients nationwide -- many of them seriously ill or dying -- who rely on state-sanctioned marijuana recommended by their doctors. In addition, drug experts warn, the White House's war on law-abiding providers of medical marijuana will only drum up business for real criminals. "The administration is going after legal dispensaries and state and local authorities in ways that are going to push this stuff back underground again," says Ethan Nadelmann, director of the Drug Policy Alliance. Gov. Lincoln Chafee of Rhode Island, a former Republican senator who has urged the DEA to legalize medical marijuana, pulls no punches in describing the state of affairs produced by Obama's efforts to circumvent state law: "Utter chaos."
February 23, 2012 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack
Split Ninth Circuit uphold California DNA collection from all felony arrestees
Though not really a sentencing case, I suspect many readers of this blog will be interested in a split Ninth Circuit panel decision today in Haskell v. Harris, No. 10-15152 (9th Cir. Feb. 23, 2012) (available here), which has a majority opinion that gets started this way:
Plaintiffs-Appellants Elizabeth Aida Haskell, Reginald Ento, Jeffrey Patrick Lyons, Jr., and Aakash Desai (collectively, Plaintiffs) appeal the district court’s denial of their motion for a preliminary injunction to stop the enforcement of the 2004 Amendment, infra, to California’s DNA and Forensic Identification Data Base and Data Bank Act of 1998 (DNA Act), Cal. Penal Code § 296(a)(2)(C), which amendment requires law enforcement officers to collect DNA samples from all adults arrested for felonies. They contend that the 2004 Amendment violates their Fourth Amendment right to be free of unreasonable searches and seizures.
We assess the constitutionality of the 2004 Amendment by considering the “totality of the circumstances,” balancing the arrestees’ privacy interests against the Government’s need for the DNA samples. Law enforcement officials collect a DNA sample from a buccal swab of the arrestee’s mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection. Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government’s compelling interests far outweigh arrestees’ privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm.
High-profile example of (wise?) jury sentencing in Virginia
I have long thought that many sentencing reform advocates, especially in the wake of the Sixth Amendment Apprendi/Blakely line of cases, have failed to give enough attention to jury sentencing as a potentially valuable modern form for reform proposals. Specifically, I see many potential benefits from a system that at least encourages jury sentence recommendations in all serious cases that go to trial. And the latest high-profile (aka pretty-white-people) murder case now seems to provide a notable example of a sentencing jury demonstrating a special kind of case-specific sentencing wisdom. This CNN story, headlined "Jury recommends 26 years in prison for former Virginia lacrosse player," provides these jury sentencing details:
A judge is considering a jury recommendation that a former University of Virginia lacrosse player be sentenced up to 26 years in prison for his role in the death of his ex-girlfriend. A jury returned the recommendation late Wednesday, hours after finding George Huguely V guilty of second-degree murder and grand larceny in the May 2010 death of Yeardley Love....
Judge Edward Hogshire is expected to sentence 24-year-old Huguely on April 16, at which time he can accept or reduce the jury's recommendation.
Outside the courtroom, Charlottesville Commonwealth's Attorney Warner D. Chapman told reporters that "what we do in court is a very rough approximation of justice in any given case. "There's nothing that we can say that will make good the terrible and tragic loss to the Love family," Chapman said. "There are no winners in this case. There is nothing but loss everywhere."...
The jury did not agree with the prosecution that Huguely was guilty of first-degree murder, and it acquitted him on several other charges, including robbery, and breaking and entering to commit larceny.
Huguely has never denied he was in Love's apartment nor that they had a fight. At the center of the case were dueling portraits of Huguely, who prosecutors contend killed Love in a jealous rage while the defense argued the death was accidental....
Inside an emotionally-charged courtroom, Huguely hung his head and appeared to cry during his attorney's plea during the sentencing phase that directly followed the jury's verdict.
"George's decision and judgment were clouded by drinking, immaturity," attorney Rhonda Quagliana told the jurors. "It's not an excuse. It's not a justification. It's just a fact ... (at the time) George is a 22-year-old immersed in sex and alcohol."
Love's mother, Sharon, and sister, Alexis, both cried during their testimony in the sentencing phase, which saw two female jurors cry. "Every year that goes by, I'm afraid I'm forgetting a little piece of her," Sharon Love told the court.
Alexis Love told the jurors that not a day goes by that she doesn't think about what happened to her sister. "First, there's the shock. And then that wears off, and it becomes reality," she said. "...I've never wanted anything so much in life as I've wanted to see her face again."
February 22, 2012
New report laments prison growth in West Virginia
The West Virginia Center on Budget and Policy, a nonpartisan research group, has today released a new report highlighting and criticizing growth in West Virginia's prison population and corrections spending in recent decades. The report, available at this link, is titled "Stemming the Tide: The Racial and Economic Impacts of West Virginia's Prison System," and here is the start of the report's executive summary:
Despite a relatively stable crime rate, West Virginia is facing a growing prison population, which currently is larger than the capacity of the existing state prisons. As a result, many state prisoners are being housed in regional jails where they cannot access educational and supportive services offered by the Division of Corrections. With more individuals serving sentences in prison, there is a growing financial burden on the state. This population increase is associated with an increase in prison spending, with a growing percentage of the General Revenue fund going toward the Division of Corrections. Prison population growth and its associated overcrowding are not only criminal justice issues, but also fiscal concerns for West Virginia.
This growth in the prison population in a state with little total population growth and a stable crime rate is in part the effect of sentencing patterns that place offenders into prison rather than into alternatives like community corrections and give them long sentences, as well as a reduction in the rate of granting parole. It also is a result of the shift from understanding prison as a place of rehabilitation to one of punishment that accompanied the “war on drugs” and the movement in the 1970s toward harsher sentences and being tough on crime. The growing prison population appears to be mainly the result of structures and policies, rather than an increase in crime.
"Crimes, Widgets, and Plea Bargaining: An Analysis of Charge Content, Pleas, and Trials"
The title of this post is the title of this notable new paper by Kyle Graham, which adds lots of interesting dimensions and insights to the never-ending debate over the impact of prosecutorial charging and plea bargaining discretion. Here is the abstract via SSRN:
This article considers how the composition and gravamen of a charged crime can affect the parties’ willingness and ability to engage in plea bargaining. Most of the prevailing descriptions of plea bargaining ignore or discount the importance of charge content in plea negotiations. In fact, one leading commentator has likened crimes to widgets insofar as plea bargaining is concerned. In developing its counter-thesis, this article reviews seven years of federal conviction data, focusing on those crimes that produce the most and fewest trials relative to how often they are alleged; the most and fewest acquittals at trial; and the most and fewest plea bargains that involve a substantial alteration in charges.
Overall, the data demonstrate that the character of and circumstances that surround a particular offense can catalyze or frustrate plea bargaining. Similar information to that utilized in and gleaned from this study, it is also argued, can and should be considered in connection with the adoption of new crimes and the re-evaluation of existing offenses. This information would provide legislatures with insight into how a proposed crime is likely to be utilized, and how current crimes are being used.
Is it "grim news" when a state budget calls for prison closings?
The question in the title of this post is prompted by this news story out of Illinois, which begins this way:
Gov. Pat Quinn prepared Tuesday to deliver an Illinois budget proposal stuffed with grim news including closing two prisons and 12 other state facilities, slashing Medicaid by $2.7 billion and cutting spending at most state agencies.
The facilities Quinn wants to close include the supermax prison at Tamms, a maximum-security prison for women at Dwight and six halfway houses for inmates nearing release, said an administration official who spoke on condition of anonymity because he wasn’t authorized to discuss the budget publicly.
I am not sure news can get much more "grim" for folks housed in a supermax prison, and thus I suspect anyone who cares about prisoners now at Tamms will see this prison-closing part of Gov. Quinn's budget proposal as great, not grim. But the article goes on to explain some reasons why, in fact, the prisoners elsewhere already dealing with overcrowded facilities may agree with the description grim (and also why monies may be found to make the final story perhaps less grim):
Illinois prisons are severely overcrowded. In November, 48,620 people were squeezed into space designed for 33,700. The Illinois Department of Corrections has begun counting areas such as gymnasiums when calculating the space available for housing inmates. Closing facilities would further complicate the situation. The two prisons and six “adult transition centers” on Quinn’s list house 2,648 inmates.
Quinn’s other closures could be a repeat of last year, when he said several facilities need to be shut down because lawmakers hadn’t given him enough money to run them. They include a youth prison in Murphysboro and mental institutions in Rockford, Chester and Dixon. Those closures were avoided when lawmakers approved additional money to keep those and other facilities open.
Effective review of post-Tapia holdings on sentencing justifications
The Second Circuit late last week issued an effective little ruling in US v. Gilliard, No. 11-1088 (2d Cir. Feb. 17, 2012) (available here), which surveys much of the work of circuit courts in applying the Supreme Court's recent ruling in Tapia, which held district courts could not impose greater imprisonment terms in order to promote a defendant’s rehabilitation. In Gilliard, the panel rebuffs a defendant's Tapia challenge to his above-guideline sentence, and it provides this effective summary of the state of the doctrine:
A common theme exists between Tapia and those cases in which our sister circuits found error — in all four cases, the sentencing judge explicitly tied the need to impose a sentence of particular length to the defendant’s ability to participate in a drug treatment program. That connection is missing here. Rather, the record indicates that Gilliard’s sentence was based on, among other permissible reasons, his extensive criminal history. The district court discussed Gilliard’s rehabilitation only in the context of making its recommendations to the BOP, and in so doing, did no more than what was deemed permissible in Tapia. Accordingly, Gilliard’s claim of procedural unreasonableness fails.
A sentencing spin for constitutional controversy over Stolen Valor Act?
An interesting and potential important First Amendment case is to be argued this morning in the Supreme Court: The Justices will hear oral argument in United States v. Alvarez concerning the constitutionality of the Stolen Valor Act. Lyle Denniston has previewed Alvarez in this post at SCOTUSblog, which starts this way:
For the past three years, the Supreme Court has been unusually active in deciding cases that might have put some forms of speech or communication entirely outside the shelter of the First Amendment’s free speech clause. It has refused, each time, to create a new exception. It rejected claims to deny First Amendment protection for depictions of animal cruelty, protests at the site of military funerals, and violent video games. Though each of those kinds of expression might well offend or even outrage some parts of the public, the Court has been unwilling to allow that reaction to justify new loopholes in the First Amendment. In the case of United States v. Alvarez, the Court faces a new kind of utterance that can rouse deep emotions, often stirred by patriotic fervor.
The federal government, in the Alvarez case, has insisted that it is not trying to create a new exception — for lying on purpose — because it finds little if any protection in history for intentionally telling a falsehood. The case, though, is shaping up as a test of government power to ban lying, in and of itself. It might, indeed, require creation by the Court of a new exception to permit a criminal ban on lying — period. The Court, over the years, has been on both sides of the false statements issue, sometimes saying that such utterances are so lacking in social value as not to qualify as a protected form of speech, and sometimes saying that there are situations in which speaking falsely might have some value worth protecting.
Other forms of intentional lying have been subject to criminal prosecution, or civil lawsuit: some obvious examples are perjury in an official proceeding, defamation or libel, false statements during a government investigation, and statements that amount to fraud. Each of those involves something more than merely speaking, or writing, falsely: there has to be proof that the speaker or writer knew they were lying and intended some harm or consequence that such a law was seeking to avert. But even some of those, such as defamation and libel, do have exceptions that have First Amendment protection. The Court is now facing where, within the Constitution or beyond it, to place a federal law, which Congress labeled the “Stolen Valor Act.” It was passed in 2005 and took effect in 2006.
Under that Act, it is a minor crime (a “misdemeanor”) to “falsely represent . . . verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the armed forces of the United States.” Conviction of the crime can lead to a prison term of up to six months in prison. If, however, the false claim is that the individual had won the Congressional Medal of Honor, or some other highly prestigious decoration, the prison term can go up to a year.
I can think of lots of ways that a broad ruling in Alvarez could have some (unexpected?) sentencing bite, but I somewhat doubt we will get a broad ruling in Alvarez. But perhaps someone who has followed this case more closely than I have so far might have special insights as to whether I ought to start paying a lot more attention to this high-profile (and low-impact?) constitutional controversy.
February 21, 2012
Federal judge finds unconstitutional broad state law limiting sex offender internet activity
Thanks to this new post by Eugene Volokh at his conspiracy, I just learning of a notable new ruling concerning an issue that seems destined to be the subject of much constitutional litigation in lots of different flavors in the years to come. The post is titled "Federal District Court Strikes Down Ban on Much Internet Activity by Registered Sex Offenders," and here are snippets and links:
A Louisiana statute bans much Internet activity by registered sex offenders who had been convicted of child pornography or other sex crimes involving children (or of video voyeurism); the law, like most other laws dealing with sex offenders, includes within its coverage sex offenders who are no longer in prison or on probation. The law bans “using or accessing of social networking websites, chat rooms, and peer-to-peer networks” by such offenders, unless “the offender has permission to use or access social networking websites, chat rooms, or peer-to-peer networks from his probation or parole officer or the court of original jurisdiction.” And the law defines the prohibited sites very broadly...
This blog would therefore qualify as a “chat room,” as would any newspaper site that allows reader comments. Any service that lets people set up their own Web pages would qualify as a “social networking website.”
Last Thursday, a federal district court struck down the law, holding that it was unconstitutionally overbroad. The court therefore did not have to decide whether a law that was more focused on registered sex offenders’ communications to minors, or that were especially likely to be seen by minors rather than by adults, would be constitutional.
The court also rejected, for two reasons, the argument that the exception for any offender who got “permission … from his probation or parole officer or the court of original jurisdiction” narrowed the law sufficiently: First, the law didn’t impose any standards that the permission-granting authority would use. (Such standardless discretion has often been held to be unconstitutional where First Amendment rights are involved.) Second, it isn’t clear how a defendant who isn’t on probation or parole could get permission from the court of original jurisdiction, since some such courts might not (under the law of the jurisdiction to which the court belongs) have the authority to do or say anything more with regard to defendants whose sentences have been completed.
The court’s analysis seems quite right to me. I would think that even narrower restrictions would be unconstitutional as to people who have finished serving their sentences (though the matter isn’t an open and shut, and raises interesting — though imperfect — analogies to the restrictions on the Second Amendment rights of felons and some misdemeanants who have finished serving their sentences). But certainly restrictions that are this broad are unconstitutional.
"Higher Crime, Fewer Charges on Indian Land"
The title of this post is the headline of this notable New York Times article discussing a not-often-noted component of the federal criminal justice system. The piece starts this way:
Indian reservations across the United States have grappled for years with chronic rates of crime higher than all but a handful of the nation’s most violent cities. But the Justice Department, which is responsible for prosecuting the most serious crimes on reservations, files charges in only about half of Indian Country murder investigations and turns down nearly two-thirds of sexual assault cases, according to new federal data.
The country’s 310 Indian reservations have violent crime rates that are more than two and a half times higher than the national average, according to data compiled by the Justice Department. American Indian women are 10 times as likely to be murdered than other Americans. They are raped or sexually assaulted at a rate four times the national average, with more than one in three having either been raped or experienced an attempted rape.
The low rate of prosecutions for these crimes by United States attorneys, who along with agents of the Federal Bureau of Investigation generally have jurisdiction for the most serious crimes on reservations, has been a longstanding point of contention for tribes, who say it amounts to a second-class system of justice that encourages law breaking. Prosecutors, however, say they turn down most reservation cases because of a lack of admissible evidence.
Brendan Johnson, the United States attorney for South Dakota, said the government in recent years has deployed extra prosecutors and F.B.I. agents to Indian Country. And the Justice Department says it is seeking to make its decisions more transparent. Impatience on reservations is understandable, Mr. Johnson said. “If I had the rates of crime in my community that they do, I’d be mad, too,” he said.
Lots of little(?) criminal justice action from the Supreme Court
After their extended mid-winter break, the Supreme Court is back in action today and it got the day started by releasing two opinions in argued cases and one per curiam opinion dealing with criminal justice issues. Here is the quick-and-dirty summary of the action via posting from SCOTUSblog:
First opinion is Howes v. Fields. The decision of the Sixth Circuit is reversed. Justice Alito writes; there is a separate opinion by Ginsburg and Sotomayor concurring in part and dissenting in part [opinion here]. The Sixth Circuit's categorical rule that when an inmate is questioned in prison about events in the outside world there is custody for Miranda purposes is wrong.
Next opinion is Kawashima v. Holder. The decision of the Ninth Circuit is affirmed. The vote is 6-3. Ginsburg dissents, joined by Breyer and Kagan [opinion here]. The Court holds that convictions under the statute for aiding and assisting in the preparation of a false tax return is an aggravated felony if the government's revenue loss is greater than 10K dollars.
Per curiam opinions today. Wetzel v. Lambert [opinion here]: The Court vacates the Third Circuit's opinion and remands for proceedings consistent with the per curiam opinion.
Without having to to read the opinions yet, I surmise that none of these rulings are blockbusters. But perhaps I will find (or readers can opine on) reasons why these cases are more consequential then they might first appear to be.
UPDATE: A quick scan of all these opinions confirms my initial instinct that, at least for hard-core sentencing fans, there is not all that much "there" there in these new opinions. That said, I must spotlight some telling lines from the majority per curiam opinion and the dissent by Justice Breyer (joined by Justices Ginsburg and Kagan) in the Wetzel v. Lambert case. The case involves a grant of habeas relief to a defendant on death row in Pennsylvania, and the opinions express two quite distinct views of what is of greatest concern to the various Justices.
First, consider a closing sentiment from the majority opinion (which sends the case back to the Third Circuit for further review): "Any retrial here would take place three decades after the crime, posing the most daunting difficulties for the prosecution. That burden should not be imposed unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA."
Now comes the dissenting three, who stress these points toward the close of their opinion: "Finally, the Circuit questioned the strength of the case against Lambert.... [and its] statements suggest that the Commonwealth’s case against Lambert was unusually weak. If the Commonwealth was wrong, an innocent man has spent almost 30 years in prison under sentence of death for a crime he did not commit."
Notable new blog on wrongful convictions
I wanted to let you know that several of us involved in the Innocence Movement launched a new blog today, The Wrongful Convictions Blog. The web address is www.wrongfulconvictionsblog.org, or you can just click the link above.
The purposes of the blog are to (1) provide one place where you can go to get all the news and info about wrongful convictions, and (2) foster discussion, debate, and learning. You will see that we have contributing editors from all over the world, thus the tagline is: "Addressing Wrongful Conviction and Actual Innocence Issues in an International Forum." There is a place for comments and debate on each post....
The blog will involve more than just news and links. We will also have frequent commentaries/editorials on various topics, such as the commentaries up now about forensic odontologists attempting to validate their "science," the state of junk science generally, reacting to prosecutorial misconduct, and conviction integrity units at prosecutor's offices.
A quick review of the new blog shows right away that there will be lots of notable and important internation perspectives covered in this space. That reality, together with the terrific group of persons involved with the blog, means I will be sure to make this new resource a regular stop in my blogosphere travels.
"Is Ohio's death penalty under its own death watch? Questions, criticism mount about Ohio executions"
The title of this post is the headline of this extended article from the Cleveland Plain Dealer, which gets started this way:
Ohio's capital punishment system could be under its own death watch as scrutiny over how the state executes prisoners has led to calls for significant changes -- if not an outright repeal -- of the death penalty.
Despite the issues plaguing the state's execution process, Ohio officials say they are certain they are getting this call on life-or-death right. "I feel that we have a solid protocol, and I know that we have the professionally trained staff to execute that protocol," Ohio Department of Rehabilitation and Correction director Gary Mohr told The Plain Dealer. "I have no reservations with saying that at all."
But Mohr knows there are plenty of people from judges to former prison officials to anti-death penalty activists who have heavy concerns about the death penalty. They question why some criminals land on death row and others do not, whether the state's execution procedures are legal and whether the system can be revamped to restore waning public trust.
In just the past few years, Ohio has:
- Botched one execution, which had to be postponed, and had two others with lengthy delays, including one in which the inmate, while strapped to the gurney in the execution chamber, cried out, "This isn't working."
- Under legal duress, switched from a three-drug concoction to a one-drug dose for lethal injection, a change that is the subject of a lawsuit.
- Defended itself in numerous inmate lawsuits questioning whether rights against cruel and unusual punishment are violated during executions.
- Instituted a moratorium of sorts after a federal judge stayed an execution until Ohio revises its procedures, a ruling upheld this month by the U.S. Supreme Court.
- Been the target of critics who now include a sitting Ohio Supreme Court justice and two former state prisons directors.
- Seen two bills introduced in the Republican-controlled General Assembly that would repeal the death penalty.
February 20, 2012
Brief reflections on federal sentencing policy, practice and politics after USSC hearings
I have many intricate "micro" observations about last week's two US Sentencing Commission hearings, but I fear I will not soon be able to find time to write up (m)any of them for this space. But I think I can quickly here articulate and briefly explain my "macro" take away from both hearings: federal sentencing laws and their prospects for reform still suffer greatly from (and may always suffer from?) harmful disconnects between sound sentencing policies and practices and sound-bite sentencing politics. Let me (too briefly) explain what I mean:
1. There was a rough consensus from the written testimony submitted on the first hearing day concerning penalties for child pornography offenses (still available via links in this official agenda) that, as a matter of policy and practice, federal sentencing law in this area is functioning quite poorly. (This is hardly surprising: the potential dysfunction of the existing CP guidelines has been stressed by courts and commentators for many years now.) But I suspect and fear it will prove very challenging for the US Sentencing Commission or the Justice Department to engineer any quick and/or sound fix because the sound-bite politics of this issue make it almost impossible to propose lower sentences for anyone who downloads kiddie porn, even the most mitigated of offenders who already faces many years in prison under existing law. (This is the same sad political reality that prevented any real change to the 100-1 crack/powder ratio for more than a decade after essentially everyone agreed that ratio was terribly misguided and racially unjust.)
2. There was a rough consensus, at least coming from all the judges, prosecutors, defense attorneys and public policy groups (whose written testimony is still linked via this official agenda here), that the broader post-Booker sentencing structure is, as a matter of policy and practice, functioning reasonably well all things considerd. But I suspect and fear the US Sentencing Commission and the Justice Department will feel very pressured to urge fixes to the post-Booker system because powerful Republican voices in Congress seem to relish the sound-bite politics of complaining about the possible unwarranted and/or racial disparities in federal sentencing. (But, tellingly, these same Republican voices were often disturbingly silent for years concerning proposed crack sentence reductions that the USSC long said were clearly needed to reduce unwarranted and racial sentencing disparities.)
3. Rigorous quantitative analysis of the post-Booker sentencing system done by both the US Sentencing Commission and outside researchers are already playing a large role in the policy and political debates. But I fear that even the best quantitative research (like the Commission's own data runs) too often fails to break down categories of cases/regions for analysis in order to assess the impact of sets of outliers. For example, the case-processing data differences in the CP cases and the larceny cases are profound in all sorts of ways, as are the difference in even the three judicial districts of North Carolina, but so much of the research and reporting necessarily has to lump many of these "local" stories together. For this reason (and many others), I think the USSC and outside researchers ought to be devoting a lot more time to sophisticated qualitative research with a focus on particularly important "local" stories.
I could go on (and may in future posts), but for now I hope lots of thoughtful folks — whether following the USSC hearing closely or not — will share comments on my numbered observations above OR more generally about what they see in the future for federal sentencing reform debates.
Some recent related posts:
- Fascinating DOJ testimony to US Sentencing Commission about child porn sentencing
- Highlights from DOJ testimony to US Sentencing Commission about federal sentencing concerns
- "Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences"
- New paper say there "is no need for a 'Booker fix'; Booker is the fix"
- In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"
- NPR covers latest debates over post-Booker federal sentencing systems
- Two big public hearings on tap for US Sentencing Commission next week
February 20, 2012 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Lots to read about American sentencing development on this patriotic day off
For reasons I only partially understand, I have a regular teaching day at my law school; it seems nearly all other government-linked institutions have an extra day to their weekend thanks to our nation's greatest presidents. Fortunately, for those sentencing fans looking to find a productive way to spend this extra day off, there are lots of new papers on SSRN worth giving a look. Here is just an abridged list of pieces recently added to SSRN that I hope I might soon find time to read:
The Failure of Parole: Rethinking the Role of the State in Reentry by Christine S. Scott-Hayward
Protecting Liberty and Autonomy: Desert/Disease Jurisprudence by Stephen Morse
February 19, 2012
"Smooth and Bumpy Laws"
One of many joys of participating in the the terrific conference put on by the folks at the University of Miami was having the chance to talk Professor Adam Kolber about his new paper on smooth and bumpy laws. I love the idea and it seems especially significant for sentencing fans, especially in the context of discussing the dramatic impact that severe mandatory sentencing provisions can have on efforts to reduces unwarranted sentencing disparities. Though I may say more about the specifics of this paper, which shares the title of this post, in some future posts, for now I will just here reprint the abstract:
Modest differences in conduct can lead to wildly different legal outcomes. A reasonably prudent driver who causes an accident owes nothing, but had the driver been just a bit less cautious, he might have owed millions of dollars. A man who has sex with a woman reasonably believing she consents likely commits no crime, but if he had just a bit more reason to doubt that she consented, he might have been convicted of rape. While the law must draw difficult lines, it is puzzling why the lines have such startling effects. After all, we can fine-tune damage awards and the duration of prison sentences anywhere along a spectrum.
A law is “smooth” when a gradual change in conduct leads to a gradual change in the legal outcome. The prior examples are not smooth but “bumpy”: gradual changes in conduct sometimes have no effect on the legal outcome and sometimes have dramatic effects. The law is full of these bumpy relationships between legal inputs and outputs that create hard-to-justify discontinuities. While considerations like cost and administrability sometimes justify bumpy laws, I show why there are many opportunities to make the law smoother than it is.
In short form, I think it is fair to look at the entire project of sentencing guidelines as an effort to make criminal laws "smoother," and I hope to say more on this front in some future posts.