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January 5, 2013

"Can Forgiveness Play a Role in Criminal Justice?"

The title of this post is the headline of this fascinating article appearing in Sunday's New York Times Magazine.  The piece is about a sad Florida case in which a young man shot and killed his girlfriend and the role a restorative justice process used thereafter shaped the defendant's prosecution and sentencing.  There are lots of interesting passages in the full piece, and but this passage early in the piece caught my attention because of what it reveals about prosecutorial discretion and the distinct interests (and power) of some victims once they know the prosecutor's legal options:

“Unfortunately I have a lot of experience talking to the parents of dead people,” says Jack Campbell, the Leon County assistant state attorney who handles many of North Florida’s high-profile murder cases.  Sheriff’s deputies who were investigating the case told Campbell that the Grosmaires’ feelings toward the accused were unusual, but Campbell was not prepared for how their first meeting, two months after Ann’s death, would change the course of Conor’s prosecution.

Campbell had charged Conor with first-degree murder, which, as most people in Florida understand it, carries a mandatory life sentence or, potentially, the death penalty.  He told the Grosmaires that he wouldn’t seek capital punishment, because, as he told me later,  “I didn’t have aggravating circumstances like prior conviction, the victim being a child or the crime being particularly heinous and the like.”

As he always does with victims’ families, he explained to the Grosmaires the details of the criminal-justice process, including the little-advertised fact that the state attorney has broad discretion to depart from the state’s mandatory sentences.  As the representative of the state and the person tasked with finding justice for Ann, he could reduce charges and seek alternative sentences.  Technically, he told the Grosmaires, “if I wanted to do five years for manslaughter, I can do that.”

Kate [the mother of the murder victim] sat up straight and looked at Campbell.  “What?” she asked. Campbell, believing she had misunderstood and thought he was suggesting that Conor serve a prison term of just five years, tried to reassure her.  “No, no,” he said. “I would never do that.”  It was just an example of how much latitude Florida prosecutors have in a murder case.

What Campbell didn’t realize was that the Grosmaires didn’t want Conor to spend his life in prison.  The exchange in Campbell’s office turned their understanding of Conor’s situation upside down and gave them an unexpected challenge to grapple with.  “It was easy to think, Poor Conor, I wouldn’t want him to spend his life in prison, but he’s going to have to,” Kate says.  “Now Jack Campbell’s telling me he doesn’t have to.  So what are you going to do?”

“He’s so sorry he said that,” Kate says now, of Campbell.  “I mean, it opened the door for us.”

I urge readers, before clicking through to read the full New York Times piece, to consider what might have happened once a local prosecutor "opened the door" to a murder victim's family simply by telling them about the legal discretion he possessed to seek a more nuanced form of sentencing justice. I also welcome readers to opine on whether this story should be considered a vindication or violation of victims' rights given that the local prosecutor ultimately engineered a plea deal with a locked-in prison term that differed significantly from the sentence urged by the victim's family during the restorative justice "pre-plea" conference process.

January 5, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal

While I was traveling to New Orleans yesterday, back in my hometown a federal district court judge continued to make news in his second effort at sentencing a elderly federal defendant in a child pornography downloading case.  This local story, headlined "Judge blasts sentencing guidelines: Man's original punishment tossed on appeal," provides the notable details:

A federal judge in Columbus criticized sentencing guidelines for child-pornography offenses yesterday as he imposed a stricter sentence on a Mount Vernon man whose original sentence was rejected by an appeals court.

U.S. District Judge James L. Graham said he “continues to have significant concerns about the helpfulness of those guidelines.” He made his comments during a resentencing hearing for Richard Bistline, 70, who pleaded guilty in April 2009 to one count of possessing child pornography. Federal sentencing guidelines recommended a sentence of 63 to 78 months.

Graham sentenced Bistline in January 2010 to one day in prison and 10 years of supervised probation. Federal prosecutors appealed the sentence, which the 6th U.S. District Court of Appeals overturned in January 2012, saying it “does not remotely meet the criteria that Congress laid out” for criminal sentencing.

Graham imposed the same sentence yesterday but ruled that Bistline must be confined to his Knox County home for the first three years of probation. He credited Bistline with the one day he served in prison, three years served on probation and nine months of home confinement that he served while awaiting his original sentence.

Assistant U.S. Attorney Deborah Solove had requested a five-year prison sentence, followed by five years of probation. She objected to the new sentence, saying it was “not reasonable.”

The judge said he was guided by appeals-court rulings that upheld sentences in similar child-pornography cases that included one day of prison and at least one year of home confinement. He cited statistics from the Federal Bureau of Prisons showing that federal judges across the country impose sentences below those recommended in the sentencing guidelines in more than half of child-pornography cases....

Bistline, a former Michigan schoolteacher with no criminal record, was arrested after a task force investigating online crimes against children downloaded images of child pornography that had come from Bistline’s home computer. A search of the computer uncovered 305 images and 56 videos of children posing naked or involved in sex acts with adults....

In the three years since his conviction, Bistline has complied with the terms of probation, successfully completed a one-year sex-offender treatment program, had no access to computers and understands the harm caused to the victims of child pornography, Graham said.  Defense attorney Jonathan Tyack told the judge that the past three years “have shown that (Bistline) was worthy of your original sentence.” 

Graham also said he was influenced by concerns about Bistline’s age and deteriorating health.  According to medical records presented to the court, Bistline has had two strokes and suffered a heart attack a year ago. He also cares for his wife, who has cancer. Sending him to prison for five years “would be a life sentence, or more accurately a death sentence,” the judge said.

It will be very interesting to see if federal prosecutors seek to appeal this sentencing yet again to the Sixth Circuit.  If they do, I would set the very early "betting line" on reversal at 50/50:  some judges on the Sixth Circuit surely will be troubled that Judge Graham imposed nearly the same sentence even after his first sentence was reversed as unreasonable; but some judges may be moved by the additional reasons Judge Graham gave upon resentencing for not changing the sentence dramatically.

Prior related post:

January 5, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Mexico considers marijuana legalization after ballot wins in U.S."

The title of this post is the headline of this new Los Angeles Times article, which gets started this way:

Forgive the Mexicans for trying to get this straight: So now the United States, which has spent decades battling Mexican marijuana, is on a legalization bender?

The same United States that long viewed cannabis as a menace, funding crop-poisoning programs, tearing up auto bodies at the border, and deploying sniffer dogs, fiber-optic scopes and backscatter X-ray machines to detect the lowly weed?

The success of legalization initiatives in Colorado and Washington in November has sparked a new conversation in a nation that is one of the world's top marijuana growers: Should Mexico, which has suffered mightily in its war against the deadly drug cartels, follow the Western states' lead?

Mexico's new president, Enrique Peña Nieto, opposes legalization, but he also told CNN recently that the news from Washington and Colorado "could bring us to rethinking the strategy."

Such rethinking has already begun. Shortly after the approval of the U.S. ballot measures, the governor of Colima state, Mario Anguiano, floated the idea of a legalization referendum for his small coastal state.  In the Mexican Congress, Fernando Belaunzaran, a lawmaker with the left-wing Democratic Revolution Party, has introduced a national legalization bill.  The cartels probably derive 20% to 25% of their drug export revenue from marijuana, and Belaunzaran contends that legalization will eat into profit that allows the cartels to buy the advanced weapons that are the cause of much bloodshed.

January 5, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

January 4, 2013

On my way to NOLA for annual AALS shindig to talk about pot policy

Blogging may be light today and through the weekend in part because I am now in transit to the Big Easy to attend and speak at the annual law profs big meeting.  This year's AALS program looks quite interesting, and I am honored to be participating tomorrow morning on a "hot topics" panel concerning marijuana reforms titled "What Happens When “Legalize It” Moves From Slogan to State Law?"

January 4, 2013 in Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

New term news on federal judiciary fronts

Via How Appealing, I see these two notable new headlines concerning developments that could and should impact the look and work of the federal judiciary:

January 4, 2013 in Who Sentences? | Permalink | Comments (0) | TrackBack

January 3, 2013

Should we thank unleaded gas and the EPA for the great modern crime decline?

Lead_Crime_325The provocative question in the title of this post comes from this new provocative Mother Jones article by Kevin Drum headlined "America's Real Criminal Element: Lead." The lengthy piece is probably the first "must read" of 2013 for crime and punishment fans, and here are a few excerpts which highlight why:

[I]t's not just New York that has seen a big drop in crime. In city after city, violent crime peaked in the early '90s and then began a steady and spectacular decline. Washington, DC, didn't have either Giuliani or Bratton, but its violent crime rate has dropped 58 percent since its peak. Dallas' has fallen 70 percent. Newark: 74 percent. Los Angeles: 78 percent. There must be more going on here than just a change in policing tactics in one city. But what?

There are, it turns out, plenty of theories.  When I started research for this story, I worked my way through a pair of thick criminology tomes. One chapter regaled me with the "exciting possibility" that it's mostly a matter of economics: Crime goes down when the economy is booming and goes up when it's in a slump. Unfortunately, the theory doesn't seem to hold water — for example, crime rates have continued to drop recently despite our prolonged downturn.

Another chapter suggested that crime drops in big cities were mostly a reflection of the crack epidemic of the '80s finally burning itself out. A trio of authors identified three major "drug eras" in New York City, the first dominated by heroin, which produced limited violence, and the second by crack, which generated spectacular levels of it. In the early '90s, these researchers proposed, the children of CrackGen switched to marijuana, choosing a less violent and more law-abiding lifestyle. As they did, crime rates in New York and other cities went down.

Another chapter told a story of demographics: As the number of young men increases, so does crime. Unfortunately for this theory, the number of young men increased during the '90s, but crime dropped anyway. There were chapters in my tomes on the effect of prison expansion. On guns and gun control. On family. On race. On parole and probation. On the raw number of police officers. It seemed as if everyone had a pet theory. In 1999, economist Steven Levitt, later famous as the coauthor of Freakonomics, teamed up with John Donohue to suggest that crime dropped because of Roe v. Wade; legalized abortion, they argued, led to fewer unwanted babies, which meant fewer maladjusted and violent young men two decades later.

But there's a problem common to all of these theories: It's hard to tease out actual proof. Maybe the end of the crack epidemic contributed to a decline in inner-city crime, but then again, maybe it was really the effect of increased incarceration, more cops on the beat, broken-windows policing, and a rise in abortion rates 20 years earlier.  After all, they all happened at the same time....

Even low levels have a significant effect. So we're back to square one. More prisons might help control crime, more cops might help, and better policing might help. But the evidence is thin for any of these as the main cause.  What are we missing?...

A molecule? That sounds crazy.  What molecule could be responsible for a steep and sudden decline in violent crime?  Well, here's one possibility: Pb(CH2CH3)4....

The biggest source of lead in the postwar era, it turns out, wasn't paint. It was leaded gasoline.  And if you chart the rise and fall of atmospheric lead caused by the rise and fall of leaded gasoline consumption, you get a pretty simple upside-down U: Lead emissions from tailpipes rose steadily from the early '40s through the early '70s, nearly quadrupling over that period.  Then, as unleaded gasoline began to replace leaded gasoline, emissions plummeted....

During the '70s and '80s, the introduction of the catalytic converter, combined with increasingly stringent Environmental Protection Agency rules, steadily reduced the amount of leaded gasoline used in America, but [researcher Jessica Wolpaw] Reyes discovered that this reduction wasn't uniform.  In fact, use of leaded gasoline varied widely among states, and this gave Reyes the opening she needed.  If childhood lead exposure really did produce criminal behavior in adults, you'd expect that in states where consumption of leaded gasoline declined slowly, crime would decline slowly too.  Conversely, in states where it declined quickly, crime would decline quickly.  And that's exactly what she found.

Meanwhile, [researcher Rick] Nevin ... in 2007 he published a new paper looking at crime trends around the world. This way, he could make sure the close match he'd found between the lead curve and the crime curve wasn't just a coincidence. Sure, maybe the real culprit in the United States was something else happening at the exact same time, but what are the odds of that same something happening at several different times in several different countries?

Nevin collected lead data and crime data for Australia and found a close match.  Ditto for Canada. And Great Britain and Finland and France and Italy and New Zealand and West Germany.  Every time, the two curves fit each other astonishingly well. When I spoke to Nevin about this, I asked him if he had ever found a country that didn't fit the theory. "No," he replied. "Not one."

We now have studies at the international level, the national level, the state level, the city level, and even the individual level. Groups of children have been followed from the womb to adulthood, and higher childhood blood lead levels are consistently associated with higher adult arrest rates for violent crimes. All of these studies tell the same story: Gasoline lead is responsible for a good share of the rise and fall of violent crime over the past half century.

Like many good theories, the gasoline lead hypothesis helps explain some things we might not have realized even needed explaining. For example, murder rates have always been higher in big cities than in towns and small cities. We're so used to this that it seems unsurprising, but Nevin points out that it might actually have a surprising explanation—because big cities have lots of cars in a small area, they also had high densities of atmospheric lead during the postwar era. But as lead levels in gasoline decreased, the differences between big and small cities largely went away. And guess what? The difference in murder rates went away too. Today, homicide rates are similar in cities of all sizes. It may be that violent crime isn't an inevitable consequence of being a big city after all.

The gasoline lead story has another virtue too: It's the only hypothesis that persuasively explains both the rise of crime in the '60s and '70s and its fall beginning in the '90s. Two other theories — the baby boom demographic bulge and the drug explosion of the '60s — at least have the potential to explain both, but neither one fully fits the known data. Only gasoline lead, with its dramatic rise and fall following World War II, can explain the equally dramatic rise and fall in violent crime.

Some related posts on the great modern crime decline: 

January 3, 2013 in Data on sentencing, National and State Crime Data | Permalink | Comments (8) | TrackBack

South Dakota Supreme Court reverses death sentence given to lifer for killing guard

As reported in this local article, the "South Dakota Supreme Court has reversed the death sentence of an inmate who pleaded guilty to killing a senior corrections officer."  Here are the basics:

The high court ruled that statements made by 50-year-old Rodney Berget during a competency hearing were improperly considered by the judge who sentenced him to death. Berget pleaded guilty to the murder of Officer Ronald “R.J.” Johnson months after the murder, which was part of an escape attempt on April 12, 2011....

The high court ruled that the judge had properly considered the majority of the evidence in issuing a death sentence to Berget and called the question about statements to the psychiatrist “a close issue.”  Former Chief Justice Robert Miller, who sat in for Justice Lori Wilbur in the case, wrote a dissent stating that he felt the sentence ought to be affirmed.

Berget and Robert killed Johnson with a metal pipe and wrapped his head in plastic that day, after which Robert donned Johnson’s uniform and Berget climbed into a box atop a wheeled cart.  The two were captured at the prison’s west gate as Robert was attempting to push the cart off the penitentiary grounds.

Both men pleaded guilty to first-degree murder and waived their right to a trial by jury on the question of a death sentence.  Judge Bradley Zell sentenced both men to death in separate hearings. Robert did not challenge his sentence, which was affirmed by the South Dakota Supreme Court after a mandatory review.  He was executed by lethal injection on Oct. 15.

Berget challenged his sentence on the grounds that Judge Zell had considered statements he’d made to a psychiatrist in Dec. 2011 that implied he’d pleaded guilty in part to get a death sentence.

The full rulling of the SD Supreme Court in this matter can be accessed at this link

January 3, 2013 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

"How Many People Have Been Killed by Guns Since Newtown?"

The question in the title of this post is the headline of this interesting new web-based project now up at Slate.  Here is how authors Chris Kirk and Dan Kois explain the project:

The answer to the simple question in that headline is surprisingly hard to come by.  So Slate and the Twitter feed @GunDeaths are collecting data for our crowdsourced interactive.  This data is necessarily incomplete.  But the more people who are paying attention, the better the data will be.  You can help us draw a more complete picture of gun violence in America.  If you know about a gun death in your community that isn’t represented here, please tweet @GunDeaths with a citation. (If you’re not on Twitter, you can email slatedata@gmail.com.)  And if you’d like to use this data yourself for your own projects, it’s open.  You can download it here.

January 3, 2013 in National and State Crime Data, On blogging, Who Sentences? | Permalink | Comments (0) | TrackBack

Capital defendant in Tennessee seeks reversal based on sentencing jury's praying

Though many capital defendants likely pray a lot to have their death sentences overturned, this local story from Tennessee reports on an effort by one capital defendant to have his death sentenced overturned based on the claim that the jury which sentenced him to death prayed a lot.  The story is headlined "Jury's praise service cited in new-trial bid in torture slayings," and here are the details:

The jury that convicted Lemaricus Davidson in the torture slayings of a young Knoxville couple spent the majority of its sentencing deliberation singing worship songs and reading Bible verses rather than discussing whether the accused ringleader should die by lethal injection, his attorneys argued in a motion for a new trial filed earlier this month.

Senior Judge Walter Kurtz unsealed the motion along more than a dozen pages of handwritten hymns and praise songs at the request of Davidson's attorney, David Eldridge, on Dec. 13. The impromptu worship service violated Davidson's rights to a fair trial, due process and impartial jury, his attorney argued. Kurtz set a Jan. 10 hearing for that motion.

The motion is based on a signed affidavit from a bailiff who served during Davidson's 2009 trial. The affidavit included handwritten notes that said the praise service happened before deliberation, but does not specify a timeline or location of the service. It does show the jury members used copies of hymns while one member led the others in song while playing guitar. Another juror read a Bible verse — Psalm 90, verse 12 — according to the handwritten notes.

The documents also included a three-page Internet message board post from someone under the username ClaytonVol, who claimed to be a member of the jury panel. In it, the poster said out of the more than five hours spent in deliberation on the second day, four were spent "in prayer and in reading the Bible and reaching the Moral Certainty called for by Law."

"In this case, it is clear that the biblical references and religious hymns that infiltrated the jury room during sentencing deliberations are of a nature suggesting that jurors' highest responsibility is to God and that they will be absolved for their actions in determining Mr. Davidson's sentence," attorneys wrote in the motion.

Davidson was sentenced to death in the January 2007 kidnapping, rape and murder of Channon Christian, 21, and Christopher Newsom, 23.

As detailed in prior posts below, there have been diverse appellate rulings concerning whether and when a jury's death verdict must be overturned based on evidence that the Bible played a role in its deliberations.

January 3, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

January 2, 2013

"Plead Guilty or Go to Prison for Life"

The title of this post is the headline of this new commentary concerning the Chris Williams' case and authored by Jacob Sollum over at Reason.com.  The sub-headline is "The stark choice given a medical marijuana grower highlights the injustice of mandatory minimums," and here are excerpts:

Chris Williams, a Montana medical marijuana grower, faces at least five years in federal prison when he is sentenced on February 1. The penalty seems unduly severe, especially because his business openly supplied marijuana to patients who were allowed to use it under state law.

Yet five years is a cakewalk compared to the sentence Williams originally faced, which would have kept the 38-year-old father behind bars for the rest of his life. The difference is due to an extremely unusual post-conviction agreement that highlights the enormous power prosecutors wield as a result of mandatory minimum sentences so grotesquely unjust that in this case even they had to admit it....

For a while it seemed that Williams, who rejected a plea deal because he did not think he had done anything wrong and because he wanted to challenge federal interference with Montana's medical marijuana law, also was destined to die in prison. Since marijuana is prohibited for all purposes under federal law, he was not allowed even to discuss the nature of his business in front of the jury, so his conviction on the four drug charges he faced, two of which carried five-year mandatory minimums, was more or less inevitable.

Stretching Williams' sentence from mindlessly harsh to mind-bogglingly draconian, each of those marijuana counts was tied to a charge of possessing a firearm during a drug trafficking offense, based on guns at the Helena grow operation that Williams supervised and at Flor's home in Miles City, which doubled as a dispensary. Federal law prescribes a five-year mandatory minimum for the first such offense and 25 years for each subsequent offense, with the sentences to run consecutively.

Consequently, when Williams was convicted on all eight counts, he faced a mandatory minimum sentence of 80 years for the gun charges alone, even though he never handled the firearms cited in his indictment, let alone hurt anyone with them. This result, which federal prosecutors easily could have avoided by bringing different charges, was so absurdly disproportionate that U.S. Attorney Michael Cotter offered Williams a deal.

Drop your appeal, Cotter said, and we'll drop enough charges so that you might serve "as little as 10 years." No dice, said Williams, still determined to challenge the Obama administration's assault on medical marijuana providers. But when Cotter came back with a better offer, involving a five-year mandatory minimum, Williams took it, having recognized the toll his legal struggle was taking on his 16-year-old son, a freshman at Montana State University.

"I think everyone in the federal system realizes that these mandatory minimum sentences are unjust," Williams tells me during a call from the Missoula County Detention Facility. But for prosecutors they serve an important function: "They were basically leveraging this really extreme sentence against something that was so light because they wanted to force me into taking a plea deal." Nine out of 10 federal criminal cases end in guilty pleas.

The efficient transformation of defendants into prisoners cannot be the standard by which we assess our criminal justice system. If the possibility of sending someone like Chris Williams to prison for the rest of his life is so obviously unfair, why does the law allow it, let alone mandate it?

I am glad to see the Williams' case continuing to get attention and criticism, but this commentary overlooks what strikes me as one of the worst parts of the deal with federal devil that Williams was forced to accept: in the deal, Williams waived all of his appeal rights to challenge his convictions so that he would not be able to continue with his lawful and courageous challenge to the federal laws with which he was prosecuted.

Prior posts on Williams case and related prosecutions:

January 2, 2013 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

"Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing"

The title of this post is the title of this new paper by Carlos Berdejo and Noam Yuchtman now available via SSRN.  Here is the abstract:

Whether judges respond to political pressure is an important question occupying social scientists. We present evidence that Washington State judges respond to such pressure by sentencing serious crimes more severely.  Sentences are around 10% longer at the end of a judge's political cycle than the beginning; deviations above the sentencing guidelines increase by 50% across the electoral cycle.  We conduct robustness and falsi fication exercises and distinguish between judges' election cycles and other officials' by exploring non-linear eff ects of electoral proximity.  Our fi ndings inform debates over judicial elections, and highlight the interaction between judicial discretion and the influence of judicial elections.

January 2, 2013 in Applicability of Blakely to FSG, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

January 1, 2013

New York Times rings in new year with old arguments against death penalty

This new editorial from the New York Times, headlined "America’s Retreat From the Death Penalty," repeats the Gray Lady's long-standing opposition to the ultimate punishment. Here are excerpts from this latest capital lament:

When the Supreme Court reinstated the death penalty in 1976, it said there were two social purposes for imposing capital punishment for the most egregious crimes: deterrence and retribution.  In recent months, these justifications for a cruel and uncivilized punishment have been seriously undermined by a growing group of judges, prosecutors, scholars and others involved in criminal justice, conservatives and liberals alike....

The punishment is supposed to be reserved for the very worst criminals, but dozens of studies in state after state have shown that the process for deciding who should be sent to death row is arbitrary and discriminatory....

All of these factors have led the states to retreat from the death penalty in recent years — in both law and in practice. In 2012, Connecticut became the fifth state in five years to abolish the penalty. Nine states executed inmates, the fewest in two decades. Three-fourths of the 43 executions in 2012 were carried out in only four states. The number of new death sentences remained low at 77 — about one-third the number in 2000 — with just four states accounting for almost two-thirds of those sentences. While 33 states retain the death penalty on their books, 13 of them have not executed anyone for at least five years.

Those 13 states plus the 17 without the penalty means that 30 states are not carrying it out — and that includes California, which retained the death penalty in a November referendum vote.  Almost one-quarter of the 3,146 death row inmates in the United States, as of October, are imprisoned in California, but that state has not executed anyone in seven years....

In January, executions are scheduled to take place in Pennsylvania, Virginia and Texas. As it happens, major reviews of the death penalty are under way in each of those states.  The reviews are very likely to find that those states have failed to meet standards of fairness under the Constitution, just as reviews of the capital systems in other states have concluded in the last decade.

The large number of states no longer carrying out executions indicates a kind of national consensus.  It points to “the evolving standards of decency that mark the progress of a maturing society,” an idea that the Supreme Court has evoked in judging the constitutionality of punishments.  The court used that analysis most recently when it ruled that mandatory life sentences without possibility of parole are unconstitutional for juvenile offenders even if they are convicted of homicide.

It should similarly recognize that under evolving standards capital punishment is cruel and unusual and should be abolished.

January 1, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

December 31, 2012

Chief Justice John Roberts defends costs of federal judiciary in year-end report

Proof I am a true law geek comes from the peculiar joy I get around this time each year from blogging about the traditional "Year-End Report on the Federal Judiciary" authored the Chief Justice of the United States.  This Wall Street Journal piece has a summary of this year's report, which is available at this link and starts with a great tale about the USS Constitution and the War of 1812.  Here is an overview based in the WSJ summary:

Chief Justice John Roberts, acknowledging the "fiscal cliff," avoided again lobbying for a judicial pay raise in his annual report on the U.S. court system but sought to defend the courts against future cutbacks....

This year, the chief justice explicitly acknowledged "the much publicized 'fiscal cliff'" consuming the executive and legislative branches, as well as "the longer term problem of a truly extravagant and burgeoning national debt." Rather than seek a bigger slice of the pie, the chief justice, who serves as administrative head of the federal judiciary in addition to presiding over the Supreme Court, argued that the judicial system already offers Americans good value and doesn't deserve to be cut.

This year's report also includes the usual accounting of caseloads in the federal courts, including these notable criminal justice caseload statistics:

Filings in the regional courts of appeals rose four percent to 57,501. Growth occurred in all types of appeals except civil appeals, which decreased one percent. Criminal appeals climbed 12 percent.

Filings for criminal defendants (including those transferred from other districts), which had reached an all-time high in 2011, dropped nine percent this year to 94,121. Excluding transfers, reductions occurred in the number of defendants charged with nearly every major offense, including drug crimes. Filings for defendants charged with immigration violations decreased 10 percent. The southwestern border districts once again accounted for 74 percent of the nation’s total immigration defendant filings.

Growth was reported for defendants accused of firearms offenses.  Filings for defendants prosecuted for regulatory offenses also increased.

December 31, 2012 in Data on sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Will 2013 finally bring the demise of Harris via the Alleyne case?

I have been too busy with family et al. this holiday season to find the time to complete either a 2012 sentencing year-in-review post or a set of 2013 sentencing law and policy predictions.  But, on this last day of 2012, I can helpfully preview what is surely among the top sentencing stories to watch in the next year (especially for Apprendi fans): the Supreme Court's consideration of the Alleyne case, in which the Justices are to consider whether to reverse the mandatory minimum exception to the Apprendi Sixth Amendment doctrine.

This preview comes principally via a new BNA article by David Debold and Matthew Benjamin, which I have been permitted to post here.  The piece is titled "Is Harris a Mandatory Minimums Ruling Whose Time Has Run Out?", and it starts this way:

On Jan. 14, the U.S. Supreme Court will hear argument in Alleyne v. United States, the latest case to explore the contours of the Sixth Amendment’s jury-trial guarantee at the sentencing phase. Since 2000, when the Supreme Court issued its landmark opinion in Apprendi v. New Jersey, the rule has been that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."

On numerous occasions over the past dozen years, the court has applied this rule to invalidate sentencing schemes that allowed judges to find facts that would expose a defendant to a more severe sentencing outcome.  Just last term, in Southern Union Co. v. United States, the court held for the first time that Apprendi applies to the imposition of criminal fines....

Alleyne raises a variation on the Apprendi theme. Unlike cases such as Southern Union, where the court applied the Sixth Amendment to the finding of facts capable of raising the sentencing ceiling, Alleyne will address whether a jury must find facts that raise the floor—otherwise known as mandatory minimums.  This is familiar territory for the Supreme Court. Just a couple of years after Apprendi, the court held in Harris v. United States that the Sixth Amendment does not require that a jury determine the facts that raise the bottom of a statutory sentencing range.  Thus, under Harris, a judge may constitutionally find facts that trigger a mandatory minimum sentence within the existing statutory range, and the judge may find such facts by a preponderance of the evidence, with no need for the government to allege them in an indictment.

The vitality of the holding in Harris has always been tenuous, at best.  The crucial fifth vote came from Justice Stephen G. Breyer, who candidly admitted in his concurrence that he could not "easily distinguish Apprendi v. New Jersey from this case in terms of logic." Instead, he voted with the plurality only because he could "not yet accept [Apprendi’s] rule."  Many petitioners — recognizing that no more than four justices could agree on a principled basis for the Harris holding — have hoped to learn how Breyer would rule if ever forced to admit that Apprendi is here to stay.  But repeated requests for the court to revisit Harris have consistently failed — until the recent grant of certiorari in Alleyne. Alleyne thus presents the court with a long-anticipated opportunity to overrule Harris.

Download Debold-Benjamin BNA piece on Alleyne

Recent prior posts on Alleyne case:

December 31, 2012 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment"

I usually do not post "front-end" criminal procedure articles, but I am especially to eager to promote this new article on SSRN authored by my Ohis State colleague Ric Simmons because it highlights how new technologies can help engender more productive debates over old criminal justice questions.  And this seems like an especially timely topic as we prepare to ring out an old year and ring in a new one. Here is the abstract:

Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement.  In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum.  In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry.  This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance.  The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt.  Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.

However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost.  And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease.  This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant.  Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system.  In these situations, the criminal justice system becomes a negative sum game.  Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.

The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally.  Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.

December 31, 2012 in Recommended reading, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack

December 30, 2012

Talk in Georgia of reform of mandatory minimum sentencing provisions

As reported in this local article, headlined "Mandatory minimum sentences face scrutiny: Some prefer to give judges more leeway in some cases," there is now serious talk of serious reform in Georgia of mandatory minimum sentencing provisions. The article starts this way:

Mandatory minimum sentences may get a hard look from state legislators in the upcoming session, and at least some Hall County leaders think that’s a good idea.  “I’m not a legal scholar or professional in the legal world,” state Rep.-elect Lee Hawkins said.  “But just looking at it from a common sense side, I question the need for mandatory minimum sentencing when we have more than capable judges who can listen to a case and make a decision based on the facts.”

The sentencing guidelines established by state law have come under increasing scrutiny as an expensive prison population continues to affect Georgia’s budget.

A criminal justice council created by Gov. Nathan Deal recommended in a 2011 report that judges be given more discretion in some cases.  The council recommended in its most recent 2012 report that the legislature consider implementing a “mandatory minimum safety valve,” which would allow judges more discretion in cases of nonviolent crimes, particularly those drug-related, or those in which criminals have cooperated with police.

For judges, the issue can be a matter of compassion. Former Superior Court Judge John Girardeau said in his experience, problems with mandatory minimums were infrequent but raised concerns.  “It doesn’t happen frequently, but there’s been enough instances where I’ve had to impose a sentence required by law that I thought under the circumstances was an unjust sentence, and that was troubling,” he said.

Hall County District Attorney Lee Darragh, though, said minimum sentencing is beneficial for prosecutors and victims.  “Mandatory minimum sentences are an invaluable tool to prosecutors in this state in ensuring justice for victims of the most serious crimes on the books,” Darragh said.

Many of the laws that created mandatory minimums began in a wave of “tough on crime” feelings in the late 1980s and early 1990s, Girardeau said.  “Back when these laws were enacted, I think there was a perception that some judges were too lenient on some crimes,” he said.

However, democracy is the remedy, Girardeau said.   “Given that our judges are elected, if judges with any consistency impose what the local community feels is being a too lenient a sentence, the judge stands for election every four years,” Girardeau said.  “People can speak at the ballot box.”

December 30, 2012 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (6) | TrackBack

Intriguing talk of death penalty initiative vote in Colorado in 2014

The Denver Post has this intriguing new article discussing the state of the debate concerning the death penalty in Colorado.  The piece is headlined "Rep. Fields wants Colorado voters to decide death penalty question," and here are excerpts:

A lawmaker who saw her son's killers sentenced to die says Colorado voters — and not 100 lawmakers under the state Capitol's golden dome — should decide whether to abolish the death penalty.

As state Rep. Rhonda Fields' Democratic colleagues attempt to gather support for ending capital punishment through legislation, she has started work on a bill that would put the death-penalty question on the 2014 ballot, she said.

Her counterproposal sets the stage for a political showdown on a traditionally touchy topic at the Capitol, where some key officials' stances against abolishing the death penalty have recently softened.  "Colorado lawmakers should not slam the door on justice for those who commit heinous crimes," Fields said.  "I believe that society must be protected, and the voters should decide the fate of capital punishment."

Colorado has executed one man since the death penalty was reinstated in Colorado in 1975.  Three men currently wait on death row.  Two of them — Robert Ray and Sir Mario Owens — were responsible for shooting Javad Marshall-Fields to death in 2005 to prevent him from testifying against them in a previous murder case.  Marshall-Fields' fiancée, Vivian Wolfe, was also killed.

Already sentenced to life in prison by the time they went to trial for the murders of Fields' son and would-be daughter-in-law, the killers would have faced no additional penalty had capital punishment been repealed, Attorney General John Suthers pointed out. "For killing the witness in your case, you're going to get no more serious consequence than if they'd testified against you?" Suthers asked.  "Life imprisonment is not an adequate societal response."...

State Rep. Claire Levy, D-Boulder, said that while she has not yet drafted 2013 legislation to end the death penalty, she has no plans to undo the sentences of men already on death row.  She pointed to the number of exonerations nationwide, research showing that Colorado's death penalty is applied arbitrarily and the increasing number of states abandoning capital punishment....

So far, she has been joined by Boulder District Attorney Stan Garnett, who has said publicly that while he has no moral objection to the death penalty, lengthy and complex litigation and appeals are a drain on resources better spent elsewhere. One of the state senators who helped kill a similar bill Levy carried in 2009 — Senate President-elect John Morse, D-Colorado Springs — said recently that he has rethought his position. And Gov. John Hickenlooper, who told The Denver Post in 2010 that he opposed repealing the death penalty, now says his mind is not made up on the topic.

Fields' proposed referred measure would add some uncertainty to the mix. For lawmakers, it could take away the risk of appearing soft on crime by giving them the option to send the death-penalty question to their constituents. A 2008 poll by RBI Strategies found Coloradans evenly split on the most appropriate punishment for murder, with 45 percent favoring death and an equal portion favoring life without parole....

No one can predict how the public's mood might change by November 2014 — or if Fields' measure will be on the ballot that year.  But if it is, Fields said, at least the matter will be decided by a broad array of people, some who have been affected by crime like she has. And should the vote go against her?  "That," she said, "is a decision I could live with."

I believe that death penalty abolitionists should welcome any and all efforts to have capital punishment repeal placed before voters directly via the initiative process; I think any national abolition movement will gain real momentum only if and when a significant group of voters directly repeal a state's death penalty law via a majority vote. And if such a repeal vote were to happen in a swing state like Colorado, and especially if national murder rates continue at their historic low levels, then I think the abolitionist community could realistically start to imagine a future United States without any use of the death penalty.

December 30, 2012 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack