February 28, 2012
Briefs available, and jurisprudential challenges clear, in Jackson and Miller JLWOP cases
I had the great pleasure yesterday to serve as a judge in the final round of OSU's moot court competition (with two terrific real Ohio jurists, as detailed here), and the case being argued was Miller v. Alabama, one of the two cases to be heard by SCOTUS next month concerning the constitutionality of sentencing a 14-year-old killer to life without parole. These oral arguments, combined with all of the primary briefing and amicus briefing in Miller (linked here) and the companion case Jackson v. Hobbs (linked here), confirmed my instinct that many SCOTUS Justices are likely to find these cases quite vexing in the wake of their work in Roper and Graham.
Regular readers likely will not be surprised to hear that I am hoping the Supreme Court find the LWOP sentences imposed in Jackson and Miller to be unconstitutional. But readers may be surprised to hear that I continue to be somewhat concerned by the Justices' decision in Graham to adopt a bright-line approach to the Eighth Amendment rather than the more nuanced case-by-case approach as was suggested by Chief Justice Roberts in his Graham concurrence. And my concerned is heightened because the advocates and amici in Jackson and Miller are understandably inclined to push bright-line arguments: the defense side urges an Eighth Amendment rule that JLWOP is always unconstitutional (at least for younger juves), while the states seek a ruling that JLWOP us never unconstitutional for the crime of first-degree murder.
For a bunch of reasons (only some of which are set forth in this amicus brief that I put together along with a group of my students for these cases), I have an inherent disaffinity for rigid and simplistic bright-line rules at sentencing. And, especially as the Justices seem finally ready to place a few (long overdue) constitutional limits on extremely severe prison sentences, I think Eighth Amendment jurisprudence would benefit from more nuanced case-by-case developments than by adoption (or rejection) of various bright-line rules. Moreover, the case-specific offense and offender facts in Miller and especially in Jackson, seem to make lead me to think that embrace of bright-line rules in these cases could end up doing more long-term harm than good to sound constitutional (and sub-constitutional) sentencing jurisprudence.
February 28, 2012 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Is California's prison population reduction going as well as it seems?
The question in the title of this post is prompted by this local article headlined "California prisons clearing out." Here are excerpts:
Images of California's overcrowded prisons are so striking that the U.S. Supreme Court included two photographs of the problem in last year's landmark opinion that forced the state to address the issue.
On Friday, state corrections leaders will announce they have made an important step toward their goal to ease overcrowding, finally getting rid of the last of thousands of bunks that were crammed into day rooms, gymnasiums and other spaces to hold inmates.
In a news conference scheduled to be held at the Deuel Vocational Institution in Tracy, corrections chief Matthew Cate and other officials are scheduled to announce the end of what the department itself calls "iconic images of (the) overcrowding crisis."...
The use of what the California Department of Corrections and Rehabilitation calls "nontraditional beds" peaked at just under 20,000 in 2007, Callison said. Their use stemmed from the prison system at one point holding twice as many inmates as the 80,000 it was designed to house. "The degree of overcrowding in California's prisons is exceptional ..." the Supreme Court concluded in its May 2011 opinion, which described in graphic detail how officials found room to house them....
Following the court's order that the state reduce its prison population by 33,000 inmates to bring it to 137.5 percent of capacity, state officials went to work. Gov. Jerry Brown's "realignment" plan, which shifts responsibility for some offenders considered low-level, nonviolent and nonserious to county jails, has since helped cut the prison population from about 144,000 inmates to about 127,770.
"The number of nontraditional beds had been falling since '07, but realignment has basically taken us over the finish line," Callison said. The department hopes to reduce overall population to 137.5 percent of capacity -- about 110,000 inmates -- by June 2013.
It is surely way too early to reach a final judgment (or even a mid-stream judgment) about whether the Plata prison overcrowding litigation and California's prison-population-reduction responses has proven to be a great public policy success. But I continue to see in the California papers positive stories like the one reported here, while I am yet to see many stories reflecting the parade of horribles sometimes described by those who opposed the various prison reduction orders during the Plata litigation. Thus the question in the title of this post.
"From 'Collateral' to 'Integral': The Seismic Evolution of Padilla v. Kentucky and Its Impact on Penalties Beyond Deportation"
The title of this post is the title of this notable piece authored by J. McGregor Smyth Jr., which is now available via SSRN. Here is part of the abstract:
From the moment of arrest, people charged with crimes find themselves caught in a web of punitive sanctions, in danger of losing their jobs, homes, children, and right to live in this country. Politicians over the past thirty years, eager to be “tough on crime” at the expense of being smart on crime, have piled layer upon layer of these “collateral” consequences on even a person’s most minor involvement in the criminal justice system.
As this web grew to overshadow the traditional criminal sanctions for most offenses, criminal courts and practitioners struggled to create legal justifications for ignoring it. The “collateral consequences” doctrine resulted. Arising out of Fifth Amendment challenges to convictions on the theory that courts had not adequately notified people of this web at plea or sentencing, this doctrine draws a sharp but false distinction between “direct” consequences of criminal proceedings (such as incarceration) and “collateral” consequences (such as deportation).
In a move last Term that shocked commentators and practitioners alike, the Supreme Court ignored decades of lower court case law to effectively repudiate this doctrine — which has been one of the most dominant (and most harmful) legal fictions of the criminal justice system. In Padilla v. Kentucky, the Court held that to provide effective assistance of counsel, a criminal defense attorney has an affirmative duty to give specific, accurate advice to noncitizen clients of the deportation risk of potential pleas. The majority’s analysis, however, reaches far beyond advice on immigration penalties, extending to any and all penalties intimately related to criminal charges. The Court’s recasting of Sixth Amendment jurisprudence will have significant ripple effects, leaving a rich set of legal issues for the courts to resolve in the coming years. These issues include those related to post-conviction relief, the Ex Post Facto Clause, Eighth Amendment definitions of punishment, the adequacy of defense funding, the expansion of the right to a jury trial, and the extension of the right to counsel.
This Article examines the practical effect of Padilla for criminal defense attorneys currently working with clients on pending cases.... This Article uses the legal reasoning of Padilla to outline a structure for approaching the daunting process of identifying and adequately advising clients about the wide range of penalties resulting from criminal justice involvement. The Article focuses not on post-conviction relief, but on productive and proven strategies for improved trial level advocacy going forward.
February 27, 2012
Georgia latest "red" state moving forward with "progressive" sentencing reforms
A helpful reader alerted me to this new article appearing in the Atlanta Journal-Constitution, which provides another notable example of a notable state responding to budget concerns with sentencing reforms long urged by critics of "tough-on-crime" sentencing policies. The piece is headlined "Sweeping criminal justice changes proposed," and here are excerpts:
State legislative leaders on Monday proposed sweeping changes to criminal justice in Georgia, including a plan to reduce prison terms for some offenders and divert others into treatment rather than locking them up.
House Bill 1176 asserts that prison is by far the most expensive way to punish nonviolent offenders and that other methods are both cheaper and more effective. The reform effort would save tens of millions of dollars by reserving prison beds for violent criminals, backers say. “This initiative represents a significant first step in bringing conservative common sense to our criminal justice system,” said Rep. Rich Golick, R-Smyrna, the lead sponsor of the bill.
But the bill did not immediately win the support of Gov. Nathan Deal, who has pledged to lead the state’s effort to reform its criminal justice system. Deal said the bill failed to include all of the recommendations of a special council appointed to study the state’s approach to criminal sentencing.
Georgia spends more than $1 billion a year on prisons. Maintaining current sentencing laws would require Georgians to spend another $264 million over the next five years for more prison beds, the special council found.
“The governor will need to see changes in the current bill that will bring it back toward the recommendations of the Criminal Justice Reform Council,” said Brian Robinson, Deal’s spokesman. “The process is intended to reduce costs to taxpayers, and it’s his opinion that this bill might actually increase costs.”...
The bill would allow the Department of Corrections to start a pilot program that would identify the lowest-risk nonviolent drug and property offenders headed to prison and allow judges to divert them to community-based supervision programs....
The bill will be considered by a special joint committee of the state House and Senate, instead of following the usual process of being reviewed separately by committees of the two chambers.
We sure know that the state sentencing times have changed when a bill to reduce prison terms for some offenders and divert others into treatment rather than locking them up is praised by a Republican legislator in Georgia as "conservative common sense" while the state's Republican Governor worries that the bill does not go far enough to reduce prison terms and associated costs.
Trio of notable sentencing losses by child porn defendants in Sixth Circuit
The Sixth Circuit has, just in the last two business days, handed down three notable published sentencing opinions in child porn cases. For a variety of reasons, anyone following this area of federal sentencing ought to find time to review the trio. But, as explained at the end of this post, such a review will not leave one with much confidence about modern federal sentencing justice in these kinds of cases.
Based on a too-quick review of the trio, the opinion in US v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (available here), strikes me as the most consequential because it reverses a below-guideline sentence as substantively unreasonable in an opinion that starts this way:
Rufus Robinson pled guilty to knowingly possessing over 7100 images of child pornography on his computer. Some of the images involved the bondage, torture, and rape of prepubescent children. Under the Sentencing Guidelines, Robinson’s recommended sentence was 78 to 97 months’ imprisonment. The district court rejected that recommendation and imposed a sentence of one day in custody, a term of supervised release of five years, and a $100 special assessment. The United States contends that Robinson’s sentence is both procedurally and substantively unreasonable. We agree that the sentence is substantively unreasonable, and vacate his sentence.
US v. Cunningham, No. 10-3092 (6th Cir. Feb. 24, 2012) (available here), covers some similar ground in the course of affirming a (within-guideline) sentence in an opinion that begins this way:
Defendant Thomas Cunningham appeals the district court’s judgment sentencing him to concurrent prison terms of 121 months and 120 months after he pleaded guilty to three child pornography offenses, in violation of 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2), and 2252A(a)(5)(B). Defendant raises assignments of error with several procedural and substantive aspects of the district court’s sentence. Because the district court’s imposition of Defendant’s sentence was comprehensive and legally sufficient, we AFFIRM.
US v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (available here), involves a similar defendant convicted and sentenced for child porn possession, but the sentencing issues raised (and deemed waived) on appeal concerned conditions of supervised release (perhaps because the defendant worked out a plea deal in which he got only a 30-month sentence for his kiddie porn offenses).
There is so much that might be said individually about each of these cases and what they reveal about the child porn guidelines and/or appellate review for reasonableness. But I find most remarkable that these opinion create the impression that defendant Cunningham may have been the most mitigated of these three offenders, even though he had the highest guideline range (121-151 months) and received the longest prison term (121 months).
Based on points discussed by the Sixth Circuit, defendant Robinson arguably is a much more serious offender than defendant Cunningham, but he faced a much lower guideline range (78-97 months) which means that, even after today's reversal of his one-day prison sentence, on resentencing defendant Robinson is still very likely to get a much shorter prison sentence than defendant Cunningham.
Finally, because defendant Ferguson's lawyer was apparently able to put together a sweet plea deal, defendant Ferguson is now likely already out of federal prison even though there are facts set forth in his case which might suggest he could well pose more danger to the public than the others. I am not sure just how or why 30 months was set at the fixed sentence in his case, but the outcome even on appeal provides further proof that "winning" sentencing arguments at the plea bargain stage may prove much more important and even more enduring in these cases than "winning" at the sentencing stage.
Short summary: sentencing in kiddie porn downloading cases are even more of a mess than one can reasonably assess.
February 27, 2012 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack
Thoughtful discussion of too-often forgotten story of misdemeanors
Professor Alexandra Natapoff has this interesting new piece on SSRN titled simply "Misdemeanors." As this abstract highlights, it covers lots of important ground that rarely gets the attention merited:
Misdemeanor convictions are typically dismissed as low-level events that do not deserve the attention or due process accorded to felonies. And yet with ten million petty cases filed every year, the vast majority of U.S. convictions are misdemeanors. In comparison to felony adjudication, misdemeanor processing is largely informal and deregulated, characterized by high-volume arrests, weak prosecutorial screening, an impoverished defense bar, and high plea rates. Together, these engines generate convictions in bulk, often without meaningful scrutiny of whether those convictions are supported by evidence. Indeed, innocent misdemeanants routinely plead guilty to get out of jail because they cannot afford bail. The consequences of these convictions are significant: in addition to the stigma of a criminal record, misdemeanants are often heavily fined, incarcerated, and/or lose jobs, housing, and educational opportunities. In other words, petty convictions are growing more frequent and burdensome even as we devote fewer institutional resources to ensuring their validity.
The misdemeanor phenomenon has profound systemic implications. It invites skepticism about whether thousands of individual misdemeanants are actually guilty. It reveals an important structural feature of the criminal system: that due process and rule-of-law wane at the bottom of the penal pyramid where offenses are pettiest and defendants are poorest. And it is a key ingredient in the racialization of crime, because misdemeanor processing is the mechanism by which poor defendants of color are swept up into the criminal system, i.e., “criminalized,” with little or no regard for their actual guilt. In sum, the misdemeanor process is an institutional gateway that explains many of the criminal system’s dynamics and dysfunctions.
Another notable consequence of very long prison sentences
Because serious crime has long been a young man's game, prisons have historically had to worry most about how to manage and pacify young men until the finished serving their time. But, as this front-page Sunday New York Times article details, the much longer sentencing terms of the modern era means a new challenge for managing parts of the prison population. The article is headlined simply "Life, With Dementia," and here are excerpts:
Dementia in prison is an underreported but fast-growing phenomenon, one that many prisons are desperately unprepared to handle. It is an unforeseen consequence of get-tough-on-crime policies — long sentences that have created a large population of aging prisoners. About 10 percent of the 1.6 million inmates in America’s prisons are serving life sentences; another 11 percent are serving over 20 years.
And more older people are being sent to prison. In 2010, 9,560 people 55 and older were sentenced, more than twice as many as in 1995. In that same period, inmates 55 and older almost quadrupled, to nearly 125,000, a Human Rights Watch report found.
While no one has counted cognitively impaired inmates, experts say that prisoners appear more prone to dementia than the general population because they often have more risk factors: limited education, hypertension, diabetes, smoking, depression, substance abuse, even head injuries from fights and other violence.
Many states consider over-50 prisoners elderly, saying they age up to 15 years faster. With many prisons already overcrowded and understaffed, inmates with dementia present an especially difficult challenge. They are expensive — medical costs for older inmates range from three to nine times as much as those for younger inmates. They must be protected from predatory prisoners. And because dementia makes them paranoid or confused, feelings exacerbated by the confines of prison, some attack staff members or other inmates, or unwittingly provoke fights by wandering into someone else’s cell.
“The dementia population is going to grow tremendously,” says Ronald H. Aday, a sociologist and the author of “Aging Prisoners: Crisis in American Corrections.” “How are we going to take care of them?” Some prison systems are confronting that now. Many would like to transfer demented inmates to nursing homes, but their often-violent crimes make states reluctant to parole them and nursing homes reluctant to take them.
New York has taken the top-dollar route, establishing a separate unit for cognitively impaired inmates and using professional caregivers, at a cost of about $93,000 per bed annually, compared with $41,000 in the general prison population. Pennsylvania and other states are giving mental health workers special dementia training.
But some struggling prison systems, including those in Louisiana and California, are taking a less expensive but potentially riskier approach. They are training prisoners to handle many of the demented inmates’ daily needs.
February 26, 2012
"What life is like for 14-year-old killer tried as an adult"
The title of this post is the headline of this new lengthy article from the Indianapolis Star. Here is how it begins:
Paul Henry Gingerich awoke on the morning of his 14th birthday to the sound of a voice -- his prison guard. "Happy birthday," she said.
It was 6 o'clock. Paul would just as soon been given a few more minutes to sleep. But in a place where he must ask permission to go to the bathroom, where he eats every meal under close surveillance and where birthdays aren't much different from any other day, it was a nice gesture for one of the state's most controversial inmates.
Paul Gingerich is believed to be the youngest person in Indiana ever sentenced to prison as an adult. He was still 12 years old when he arrived here at the Pendleton Juvenile Correctional Facility, the state's maximum security prison for children. He had such a small frame and such a baby face that one of his new teachers -- the prison has a school -- asked: "What is a 7-year-old doing in our facility?"
Yet Paul was also a killer. He had pleaded guilty to conspiracy to commit murder after he and a friend fired four bullets into the friend's stepdad. Each boy received 25 years, with the possibility that, for good behavior, they could get out in about half that time. They would still be young men, but young men who had grown up in prison.
In Paul's case, that means living in a cell with a steel door and bare block walls in a remote corner of Pendleton. Home consists of a mattress on a concrete slab, a small desk and a chair and a window spliced with thick bars. Paul's view is of a small patch of grass, a tall fence and rolling wave of razor sharp concertina wire.
Here, in this place, Paul has grown nearly 3 inches to about 5-foot-8, sprouted peach fuzz, popped his first pimples, had his voice change and -- now -- marked two birthdays. It is also a place that -- should his lawyer pull off an epic reversal -- Paul hopes to soon leave.
Notable example of how death debate impacts other sentencing reforms
The Connecticut legislature is again gearing up to debate potential repeal of the state's death penalty, and this new local article provides a notable example of how capital conversations can readily distort consideration of other distinct sentencing reform issues. The piece is headlined "Key Lawmaker Ties Death Penalty Vote To Repeal Of Early-Release Credits," and here are excerpts:
State Sen. Andrew Roraback, a longtime opponent of the death penalty, said Friday he would not back a repeal bill unless lawmakers also reverse a series of changes to the state's criminal justice policy.
Roraback's vote is considered key if capital punishment is to be abolished in Connecticut this year. The legislature's judiciary committee announced earlier this week that it intends to raise the issue this session.
Roraback, a Republican from Goshen, is running for Congress in the 5th District and has been hammered by opponent Lisa Wilson-Foley for his opposition to capital punishment. Wilson-Foley began running radio ads this week attacking "the liberal politicians and special interests in Hartford trying to eliminate the death penalty" and urging listeners to call Roraback's office.
"Nothing has changed with respect to my thinking on the death penalty," Roraback said. "I don't believe the state should be in the business of extinguishing life but I also this year want to make sure the state isn't in the business of breaking its promises. Last year we passed an early-release bill that was a breach of faith with victims of crime ... and their families because it is breaking a promise that was made at the time of sentencing," Roraback added.
He is referring to a bill approved during the 2011 legislative session that establishes an early-release program for prisoners, including some who were convicted of violent offenses such as rape and arson. Roraback and other members of the Republican caucus who oppose the bill called it bad public policy. Under the policy, inmates may earn up to five days a month off of their sentence for good behavior and participation in programs that aim to reduce recidivism. The credits can be revoked if prisoners misbehave or fail to comply with the program....
Roraback said he intends to offer an amendment to a death penalty repeal bill that would also repeal the early-release credits. "We have an opportunity to, in connection with the death penalty vote, to restore integrity to our sentencing system," he said. "I will vote to repeal the death penalty if this provision is included, Otherwise, I will not."
Roraback said his congressional aspirations and Wilson-Foley's criticism have nothing to do with his desire to link his vote on the death penalty with his drive to repeal the criminal policy changes....
The repeal bill's fate in the Senate has always been tumultuous. In 2009, it passed the chamber after several longtime opponents, among them Democratic Sens. Gary LeBeau and Edith Prague, changed their vote. But the measure was vetoed by Gov.M. Jodi Rell.
In 2011, death penalty opponents thought they would prevail, thanks to the election of Malloy, a capital punishment foe. But the issue never came up for a vote after Prague and Sen. Andrew Maynard announced their opposition to the repeal bill. Both lawmakers cited the brutal home invasion in Cheshire and the quiet persuasion Dr. William Petit, the sole survivor, as reasons for their reversal.