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May 23, 2013

NACDL rolls out state-by-state "excessive sentencing" proportionality litigation resource

ImagesCA6ZGXG7I am extraordinarily proud and excited to report that, as detailed via a new NACDL news release, that the National Association of Criminal Defense Lawyers is now offering, "as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."

This resource has been given the name Excessive Sentencing: NACDL’s Proportionality Litigation Project its main page can be accessed via this link.  Here is a bit more from the NACDL press release about the resource (and also my role therein):

Development of this new resource was inspired in part by the Supreme Court’s recent landmark constitutional decisions in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Miller v. Alabama, 132 S. Ct. 245 (June 25, 2012), which pronounced new Eighth Amendment limits on when and how states can impose life without parole prison terms on juvenile offenders.  The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012.  They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.

The primary academic supervisor of this resource is Professor Douglas A. Berman of The Ohio State University Moritz College of Law.... Professor Berman intends to update these materials regularly as developments in the law warrant and new information becomes available.

On the project’s landing page –- which can be accessed here -- there is a free, nearly 90-minute sentencing skills webinar featuring Professor Berman and Stephen Hardwick, an assistant public defender in Columbus, Ohio....

In addition, the project landing page has this additional account of what this resource now provides and hopes to help achieve:

The state profiles and related materials, which were prepared by recent law school graduates under the supervision of Professor Douglas A. Berman, provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. Unsurprisingly in the wake of Graham and Miller, there has been a significant increase in state-level litigation concerning lengthy prison terms, especially for juvenile offenders. The expectation is to have Professor Berman, in conjunction with the pro bono efforts other lawyers and aided especially by NACDL members and others who utilize this resource, revise and update these profiles regularly.

The profiles and charts are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.  The Supreme Court has repeatedly stressed that the Eighth Amendment’s “scope is not static [but] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958); state-level doctrinal and jurisprudential developments have thus always had heightened federal constitutional significance in this area of law.  Moreover, state policy-makers and state jurists have long understood that the Eighth Amendment sets only a minimum constitutional floor limiting only the most extreme punishment policies and practices: state lawmakers and judges can and should feel not merely free, but institutionally obliged, to consider developing their own distinct legal limits on unduly harsh sentencing terms based on distinct state-level requirements and needs.  The profiles posted here demonstrate that, even though there is some notable convergence in state-level proportionality doctrines, there are also some important variations and innovations concerning how states seek to protect its citizens from extreme or excessive criminal punishments.

I plan to discuss this web resource and the broader NACDL projectin a series of posts over the next few weeks and months.  For now, I just hope everyone will take a look at what we have posted (and perhaps begin commenting on what other materials might be usefully assembled and linked in this space).

May 23, 2013 at 07:03 PM | Permalink

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Comments

This is a great resource being made available to us. Thank you Doug Berman.

Posted by: liberty1st | May 23, 2013 9:47:13 PM

The sickening pro-criminal bias of the lawyer profession is on full display here. Welcome to the upside world of the Lawyer Twilight Zone, where up is down, and black is white. The most vicious, heartless, inhuman, dangerous criminals get the most protection from this sick profession.

There is no legal recourse for this betrayal by the lawyer traitor to the nation. The Justices should be impeached for their substantial decisions, not for trivial, collateral corruption gotchas. The Congress must rid us of this verminous pestilence. It never will because the Supreme Court does the dirty work of unlawful legislating the Congress does not want to touch.

Short of violence against these lawyer traitors to the nation, pray they get carjacked, and pistol whipped for moving too slowly by one of their clients. Pray, the client assaults the lawyer, the judge. That has happened in delicious ironic dealing of karmic justice. Pray, it keeps doing so.

Yeah. I have a suggestion for additional material. Try to address how there are 20 million FBI Index felonies, and 5 million victims of violent crime, and your profession does nothing about it except protect the criminal. You have only 2 million prosecutions a year, granting 90% of serious crime total immunity. The lawyer profession is disgusting.

Posted by: Supremacy Claus | May 23, 2013 9:48:46 PM

No crim law professor is candid about the above statistics. I demand they be in the first statements of every year's class. To be honest. What will follow the entire year is a worthless waste of time that fails to protect the nation from the lawyer client. Otherwise, the entire course is in bad faith, and a stealthy course in rent seeking. No lawyer will ever be that honest even to himself, of course.

Posted by: Supremacy Claus | May 23, 2013 9:52:41 PM

Perhaps, SC, reducing excessive prison terms and extreme sentencing of non violent crimes might free up more time/money/energy for law enforcement and others to seek to better deal with the violent crimes/criminals.

Posted by: Doug B. | May 24, 2013 1:29:14 AM

Prof. Berman: Unfortunately, about 95% of adjudicated charges are fictitious results of plea bargaining. It is totally unknown who is violent, who is non-violent. I hope that you will support this reform to return to reality. All re-sentencing, pardoning, paroling, and any other early release start to be based on the indictment charges, which are the real crimes. If false charges or stacking takes place, the defendant should be able to sue the prosecutor for his breach of one of the many prosecutorial duties to the defendant enumerated in statute.

You know that I support only incapacitation as a goal of prison. So I am far ahead of you on alternative sentencing for people who will not hurt others, and support shrinkage of the prison system. I have advocated no prison time at all for regulatory crimes and other mala prohibita, such as misuse of campaign funds for personal purchases.

Posted by: Supremacy Claus | May 24, 2013 1:45:06 AM

Doug --

"Perhaps, SC, reducing excessive prison terms and extreme sentencing of non violent crimes might free up more time/money/energy for law enforcement and others to seek to better deal with the violent crimes/criminals."

Ha! What is it that makes me skeptical that your partner in mischief, the ever-so-neutral NACDL, wants money freed up to go in to hiring more cops? It's a nifty PR line, but no sensible person buys it. Isn't it more like that they (and you?) want any money freed up to go into an even bigger welfare/nanny/administrative state?

What's going on is merely a (slightly) new wrinkle on the longstanding theme that we're better off with criminals outside of prison rather than inside. That imprisonment has worked for a generation to facilitate the massive drop in crime just never appears on the radar screen.

We have a quarter century of experience to tell us WHAT WORKS. We have the quarter century of experience before that to tell us WHAT DOES NOT WORK. Yet, strictly for ideological reasons (we're picking on these downtrodden criminals and that's bad, bad, bad!!!) we are urged to cashier success and re-embrace failure.

This is what gets labeled as being "smart on crime." "Smart" used to mean "learning from your failures and building on your successes." But that was then.

Posted by: Bill Otis | May 24, 2013 9:36:06 AM

Bill Otis is right. No prison term is "excessive." If anything, we must lengthen the terms. All crimes should carry mandatory minimums, and thos minimums should be at least 10 years.

Posted by: draco | May 25, 2013 3:38:26 PM

Bill, I tend to view cops as part of a "successful" type of "bigger welfare/nanny/administrative state." After all, cops in NYC seem to spend a lot of time stopping and frisking folks looking for marijuana. And, if Bloomberg has his way, NYC cops will also be soon making sure that nobody buys a soda larger than 16 ounces. And isn't it the NRA that wants more cops in all the school?

And, of course, locking up low-level drug dealers for long periods of time is the ultimate form of big government, welfare/nanny-state administrative solution to the problems of drug abuse. We prohibit folks from getting the substances they want, and then those who provide the substances on the black market, upon getting caught, get their housing and meals and medical care covered.

Again, as I suggested to your kindred spirit SC, we need to distinguish between violent crimes and drug/immigration/regulatory crimes. Violent crimes are down, in part because of greater incapacitation of violent criminals. But drugs crimes are not down, and immigration crimes declined only once the US economy slowed. And regulatory crimes are hard to measure.

You are welcome, Bill and SC, to have your own self-serving opinions about how the world works and should work, but try to be a little more precise on the facts.

Posted by: Doug B. | May 26, 2013 2:48:41 PM

Doug B stated: "After all, cops in NYC seem to spend a lot of time stopping and frisking folks looking for marijuana."

Yeah, and look at the terrible results. NYC went from a cesspool before Guiliani to being close to an acceptable place to live. He did this by cracking down on such things.

You stated: "And, of course, locking up low-level drug dealers for long periods of time is the ultimate form of big government, welfare/nanny-state administrative solution to the problems of drug abuse."

Says who? I, and many others I now, could care less if it stops drug abuse and have my eyes wide open with the knowledge that law enforcement will never stop it. However, I also am not naive enough (perhaps you are?) to believe that these "low-level drug dealers" are otherwise law-abiding individuals. They are violent scum who kill the first person who stiffs them or infringes on their "turf." Nearly 50% of street gang members sell drugs and there are roughly 1.5 million gang members. The thought that these street gang members are not using violence and creating chaos in our streets is absurd (which is exactly what your statement implies).

You stated: " Violent crimes are down, in part because of greater incapacitation of violent criminals."

Yep, including violent criminals picked up as "low-level drug dealers."

Posted by: TarlsQtr1 | May 26, 2013 5:54:04 PM

Doug --

"Bill, I tend to view cops as part of a 'successful' type of 'bigger welfare/nanny/administrative state.'"

Then you view them wrong. Cops are there to arrest criminals. The welfare/nanny/administrative state is there to hand out transfer payments of tax (or borrowed) money to people who don't pay their own bills. These are two quite different functions.

"After all, cops in NYC seem to spend a lot of time stopping and frisking folks looking for marijuana."

As TarlsQtr1 notes, the Giuliani broken-windows theory of policing has helped massively reduce the OVERALL crime rate in NYC, thus saving the huge amount of money crime victims would otherwise have had to spend to heal. Why do you not mention this?

"And, if Bloomberg has his way, NYC cops will also be soon making sure that nobody buys a soda larger than 16 ounces."

Which makes me really, really happy that Bloomberg left the Republican Party. If you want him, you can have him. (Personally, I will henceforth be buying two 10 ounce sodas).

"And isn't it the NRA that wants more cops in all the school?"

I sure wish an armed cop had been at Sandy Hook before Mr. Nicey finished his day's work, don't you? Now I don't know what the answer is to these occasional horrid school shootings, but I don't think you do either, meaning that it might not be wise just to dismiss the NRA proposal until you demonstrate that another one will work better.

"And, of course, locking up low-level drug dealers for long periods of time is the ultimate form of big government, welfare/nanny-state administrative solution to the problems of drug abuse."

Ah yes, the ubiquitous "low-level" drug dealer!!! No other kind must exist, since that's all I ever hear about on this forum. Not that it makes much difference, since, as noted, the nanny/welfare state is about handing out money to people, not arresting low level, or high level, or stratosphere level, heroin, meth or PSP dealers -- or other libertarian favorites.

Now that you mention it, however, here is a TOTALLY NON-GOVERNMENT solution to drug abuse: How about if our citizens on their own get off the bong or the needle, get their act together and lead a normal, working life? How 'bout that??? No government needed!

"Again, as I suggested to your kindred spirit SC..."

You have a few flame-thrower types in the comments section who are into this "Bill and SC and their ilk" sort of thing, but, up to now, you have not joined them. Care to reconsider?

"You are welcome, Bill and SC, to have your own self-serving opinions about how the world works and should work, but try to be a little more precise on the facts."

The most prominent people on this blog with "self serving opinions" are probably those maintaining that drug use is a good thing, but that's not the main point.

The main point is that my view of how the world works was good enough to spend nearly two decades winning hotly contested cases in federal court, before judges with all sorts of ideologies, temperaments, backgrounds and what have you. If you think a person with a distorted view of reality, or who is unable to command precision in factual argument, can compile that record, have at it. But I doubt you think any such thing, since it would be silly.

Posted by: Bill Otis | May 27, 2013 11:11:39 AM

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