« March 10, 2013 - March 16, 2013 | Main | March 24, 2013 - March 30, 2013 »

March 23, 2013

New group opposing death penalty emerges at CPAC

US News and World Report has an this interesting report on a notable new group that emerged at last week's CPAC meetings.  The piece is headlined "Small Government Conservative? Group Says You Should Oppose Death Penalty," and here are excerpts:

Squeezed amid the dozens of stalls you'd expect to find last week at CPAC — stalls that were pro-gun, pro-life and pro-liberty — sat a group that was more unexpected: Conservatives Concerned About the Death Penalty....

But that stereotype no longer holds true.  As Maryland prepares to become the 18th state to ban the death penalty, CCADP advocacy coordinator Marc Hyden tells [Us News] the reaction the group is getting from conservatives is: "Where have you been for so long?"

Hyden says hundreds of people at CPAC signed up to join the group, which officially launched at the conference. For those who didn't sign up, Hyden, who previously worked for the NRA, came ready with reasons why they should.  He says he sways some conservatives with the pro-life, religious argument, but more often Hyden talks about the cost.

"It is widely accepted that [the death penalty] is so much more expensive than life without parole," Hyden says.  "If there is a cheaper alternative, we as fiscal conservatives should embrace it."

It may be no surprise, then, that the group has also been greeted with open arms by libertarians, whose political stars, Ron and Rand Paul, both oppose the death penalty. Several bigger names have also jumped aboard the CCADP team, including Jay Sekulow, a top litigator of free speech and religious liberty cases.  Sekulow tells [US News] he's been concerned about the death penalty from a legal perspective for years, but that there was never one conservative group that concentrated on the issue.

"We're in the infancy stages of a movement to galvanize awareness," says Sekulow, noting that several Republican governors have come out against the issue in recent years, such as Gov. Sam Brownback, R-Kan.  "This issue now crosses political lines."

March 23, 2013 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (14) | TrackBack

March 22, 2013

A moving memorial to Colorado prison chief Tom Clements from the Vera Institute of Justice

As reported in this new article, headlined "Colorado Parolee Killed in Texas Chase Likely Guilty of Slaying Prisons Chief," it looks like the person responsible for the murder of head of the Colorado prison system earlier this week may have already faced the ultimate punishment for the crime. But that reality does little to make up for the senseless loss; this new item posted at the Vera Institute of Justice blog, headed "In Memoriam: Tom Clements, Vera partner and friend," provides a sense of how great a loss this is. Here are excerpts:

The Vera Institute of Justice mourns the loss of Tom Clements, Executive Director of the Colorado Department of Corrections, who was shot and killed at his home on March 19, 2013. The Vera family is shocked and saddened at this tragic news, and our hearts go out to Director Clements' family, friends, and colleagues. Many of us had the opportunity to work with Tom—some of us for many years. Most recently, he was a key leader and partner in Vera's European-American Prison Project, an initiative funded by the Prison Law Office which aims to advance an international dialogue around what works in corrections and stimulate reform efforts in the United States. Just last month, as part of this project, several Vera staff members had the privilege of spending a week travelling with Tom and the Colorado delegation, along with our other partners in the project, to tour prisons in Germany and the Netherlands.

"We are heartbroken by this news," said Michael Jacobson, president and director of Vera, who was on the European trip last month. "Tom was a thoughtful and dynamic leader, not only of his agency but as an important and influential national voice in the field of corrections. In addition, he was simply a lovely, warm, generous and thoughtful man."

Director Clements is deservedly recognized for his openness to smart and efficient corrections reform, which he brought to Colorado, where he came to help transform its system. Clearly, he was a great asset to the state. In just two years, he made significant progress in reducing the use of segregation, improving reentry, working with challenging populations such as gang members, and tackling the needs of the mentally ill and elderly incarcerated persons. After the trip to Europe, Tom and his team were eager to start planning and implementing ways to better prepare offenders to reenter the community, for instance with a mother-child unit and strategies to encourage inmate savings.

Most importantly, Tom was a deeply kind and thoughtful person whom we were fortunate to have had the opportunity to know. He will be deeply missed. According to Peggy McGarry, who directs Vera’s Center on Sentencing and Corrections, "Tom Clements was exactly the kind of gentle, kind, and good person who you want in charge of prisons. He only wanted what was best for those in his care—with no desire to control or hurt anyone. His smile was warm and reassuring, his intelligence quick and apparent. It is beyond comprehension that anyone would want to hurt this good man."

[In this post], we share some of the thoughts and remembrances of our colleagues who worked with Tom on the European-American Prison Project. We will add to this list as other colleagues contribute to it.

March 22, 2013 in Prisons and prisoners, Who Sentences? | Permalink | Comments (30) | TrackBack

Based on new Louisiana constitutional provision, state judge strikes down law criminalizing felon gun posssission

As reported in this lengthy local article from New Orleans, some felons in the Bayou have gotten (for now) some benefit from the modern gun rights movement. Here are the basics:

An Orleans Parish judge on Thursday ruled that the state statute forbidding certain felons from possessing firearms is unconstitutional, in the wake of a constitutional amendment passed last year that made the right to bear arms a fundamental one in Louisiana.  The issue will now go straight to the state Supreme Court, which must decide whether the statute infringes on Louisiana citizens' now-enhanced right to gun possession.

Orleans Parish Criminal District Court Judge Darryl Derbigny on Thursday dismissed the charge against one felon, but took his decision a step further than another judge faced with a similar decision earlier this month.

Derbigny ruled that the entire statute -- RS 14:95.1 -- was unconstitutional after voters last year approved by a sweeping majority a constitutional amendment backed by the National Rifle Association. That bill made gun ownership a "fundamental right," on the same level as freedom of speech or religion. A court interpreting any law restricting a fundamental right -- as gun ownership is now considered -- must approach it with "strict scrutiny," the highest level of judicial scrutiny.

Before Jan. 1, questions of gun rights were considered with "rational scrutiny," which allowed regulations to "protect the public health, safety, morals or general welfare." But strict scrutiny requires that the law is, first, necessary for a "compelling government interest." Then, it must be so narrowly defined as to serve only that interest and, third, be the least restrictive way of doing so.

The Orleans Parish public defenders office challenged the constitutionality of the statute on behalf of a half-dozen clients, all charged with being a felon in possession of a firearm. The attorneys concede that public safety is a compelling interest to bar violent offenders, like murderers or armed robbers, from possessing weapons. But the law also bars people convicted of a number of less obviously violent felonies from possessing guns....

The case before Derbigny involved a 20-year-old man named Glen Draughter who had previously pleaded guilty to attempted simple burglary. Draughter was later caught riding in a car with two other people; a .40-caliber Smith & Wesson was in the backseat and an AK-47 with a 30-round magazine was in the trunk.

Public defenders Jill Pasquarella and Colin Reingold argued that under a strict-scrutiny test, the government must be able to provide compelling data showing that those convicted of crimes like simple burglary prove a heightened threat to society when armed. "There is, simply, no rational basis for stripping Louisianans of their rights ... where they have been convicted of crimes that are wholly unrelated to firearm possession or use," Pasquarella wrote to judges in this and several other cases.

Assistant District Attorney Matthew Payne submitted sociological studies suggesting a link between such offenses and a proclivity toward later violent crime.

But Derbigny on Thursday ruled that the statute infringed on constitutional protections when analyzed under a "strict scrutiny" test required of laws restricting fundamental rights. He wrote that it "is not narrowly tailored to achieve the government's interest."...

Judge Frank Marullo had already ruled in favor of defendants in several similar cases. But he did not declare the statute unconstitutional, saying his rulings applied to specific defendants and the circumstances of their cases. Judge Arthur Hunter is scheduled to hear a similar case later this month.

Payne on Thursday noted that he intends to appeal the decision. When a statute is deemed unconstitutional in its entirety, the appeal skips mid-level appeals courts and is fast-tracked straight to the state Supreme Court for review.

If the Supreme Court sides with Derbigny, and rules that the statute violates the state constitution, the law will be scrapped and the Legislature forced to rewrite it. If the court finds that the amendment makes the gun-possession law unconstitutional, it will also have to decide whether the unconstitutionality is retroactive -- which could jeopardize convictions that occurred before the amendment went into effect....

In the meantime, prosecutions of felons in possession of a firearm will continue on, said Chris Bowman, spokesman for Orleans Parish District Attorney Leon Cannizzaro. In the weeks leading up to the November election, with the gun rights amendment on the ballot, Cannizzaro warned of the possible fallout.

He wrote an op-ed column threatening that it would lead to a "flurry of litigation in which criminal defendants will challenge the constitutionality of current criminal laws regulating gun possession."

The nonpartisan Bureau of Governmental Research also urged voters to defeat the constitutional amendment, saying it "would expose the public to unnecessary risks and hamper law enforcement efforts" and adding: "There is no good reason to enter this uncharted territory." Gov. Bobby Jindal wrote an op-ed too, but his exhorted voters to pass the amendment, which he described as "an ironclad guarantee of freedom here in Louisiana."

In a prepared statement Thursday, the Jindal administration said: "We disagree with the judge's ruling. The amendment passed last session is not in conflict with Louisiana or federal law barring felons from owning guns."

Cannizzaro's office, meanwhile, offered an "I told you so" statement. "District Attorney Cannizzaro predicted that the passing of this amendment would cause prosecutors across the state to go to court and defend the constitutionality of 14:95.1," Bowman said Thursday.

Some related Second Amendment and gun policy posts:

March 22, 2013 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (4) | TrackBack

March 21, 2013

News and notes on a variety of sentencing fronts

I have the great honor and pleasure to be spending the next few days in Gainsville to participate in the University of Florida Levin College of Law Criminal Justice Center's Young Scholars Conference.  Consequently, blogging will be light at least for a few days. 

But, even while focused mostly on other matters, I cannot help checking out some of the news headlines, and here are links to a collection of stories that all seem pretty blog-worthy:

March 21, 2013 in Current Affairs | Permalink | Comments (1) | TrackBack

March 20, 2013

Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"

31-cEIG37XL._SL500_AA300_Especially because early Thursday morning I am heading out on a muti-day trip (involving both work and play) that will lessen my blogging opportunities, I am very pleased to be able to welcome Professor Alex Kreit as a guest-blogger to discuss his new casebook, Controlled Substances: Crime, Regulation, and Policy.  I plan to teach a new seminar from this new text (which I will discuss in this space in a few weeks), and I am eager to hear all that Alex has to say about his work and work-product. And here are his first comments:

Thanks so much to Doug Berman for giving the opportunity to blog about my recently published casebook, Controlled Substances: Crime, Regulation, and Policy.   I plan to do a short series of posts on about the book and about teaching law school courses on drug law and policy.

I don’t think it would be an exaggeration to say that no development has had a bigger impact on our criminal justice system over the past four decades than the war on drugs. The drug war has been a driving factor in the explosion in our prison population, with drug offenders accounting for about one fifth of our nation’s prisoners.  Our drug laws have also had significant impacts on a range of other issues, from the nature of policing to race and the criminal justice system.  Yet, while modern drug laws have dramatically changed our criminal justice system, they have been strangely absent from the curriculum at most law schools.  Every criminal law casebook devotes significant coverage to homicide and property crimes, but only a handful — at most — include a chapter or section on drug offenses.  Though criminal procedure courses are filled with drug cases, this is only because so many leading Fourth, Fifth, and Sixth Amendment decisions happened to involve drug investigations; not because drug law or policy is a special point of concern in criminal procedure courses.  Likewise, only a small fraction of law schools currently offer a seminar on drug law and policy.

Indeed, at most law schools today, a student could take every single criminal law-related offering without studying drug law and policy.

Why is this?   I must confess that, despite giving the question a lot of thought during my book project, I’m still not quite sure.   I suspect — and hope — that a lack of prepared materials may be partly to blame.   To my knowledge, before the publication of my new book, the last casebook dedicated to drug abuse and the law was published in 1983 (Gerald F. Uelmen and Victor G. Haddox’s Drug Abuse and the Law.)

Whatever the reason for the inattention to drug laws, teachers and students alike have been the poorer for their absence from law schools.  A course on controlled substances provides a uniquely rich mix of complex legal and policy problems.   A close look at the law of drug crimes reveals unusually tough challenges for how to define, prove, and grade criminal conduct.  The enforcement of drug laws, meanwhile, provides an ideal vehicle for studying a number of important issues often overlooked in law classes like prosecutorial discretion, the use of informants in modern policing, and racial profiling.   Drug prohibition also presents one of the most difficult tests for the theories of punishment. Though we may disagree about how much punishment a thief, a killer, or a drunk driver should receive, few question that theft, murder, and driving under the influence should be crimes.  Many theorists and policy analysts, however, believe that drug criminalization is unjust or unworkable.

From beginning to end, drug law and policy provides an intellectually engaging experience. Students who plan on becoming prosecutors or defense attorneys will learn about an area of the law that will inevitably occupy a large percentage of their practice.   Others will enjoy engaging with fascinating theoretical and policy problems.  And, with marijuana legalization now the law in two states and quickly shifting political views on the drug war generally, students have a real enthusiasm and interest in taking and learning about this subject.

The absence of a casebook in the field led me to write my book, which I hope will help contribute to seeing the subject taught in more law schools.   In upcoming posts, I plan to talk a bit more about some of the different issues that can be taught using my book, designing a drug law course, and more.

One last note for now: If you think you might be interested in teaching a course on controlled substances yourself — whether you are a full-time professor or a practicing attorney — please feel free to contact me directly any time.  I’d be happy to provide additional information like sample syllabi and, for prospective adjuncts, advice on how to submit a course proposal.

March 20, 2013 in Guest blogging by Professor Alex Kreit, Recommended reading | Permalink | Comments (5) | TrackBack

"Lafler and Frye: A New Constitutional Standard for Negotiation"

The title of this post is the title of this new paper by Rishi Batra, now available via SSRN.  Here is the abstract:

In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye, the Supreme Court extended the Sixth Amendment right to effective assistance of counsel to cover ineffective assistance by defense counsel solely in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that “defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.”  This paper explores the implications of this new constitutional minimum standard for counsel in the plea bargaining context.

The paper examines the Frye and Lafler decisions in light of the Supreme Court’s previous rulings, and shows that the Court made broad rulings that extend ineffective assistance jurisprudence to the larger negotiation context of plea bargains.  It then looks to existing standards of professional practice, such as ABA standards, case law, and negotiation texts, to find guidance for lower courts in determining how ineffective assistance may be shown in the negotiation of plea bargains.  Most importantly, it looks at new types of claims that defendants may bring that may now be considered ineffective assistance: (1) poor preparation, (2) trading off the interests of one client for another, (3) taking no time for a plea bargain negotiation, (4) antagonizing the prosecutor, and (5) refusing to bargain.  For each of these we attempt to apply existing standards to consider whether a court could uphold an ineffectiveness claim based on poor attorney performance.  It ends by examining other hurdles that petitioners will have to face in bringing these claims, and offering suggestions for future scholarly work.

March 20, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"

The title of this post is the headline of this notable new press release now available at the website of Senator Patrick Leahy. Here is how it starts:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senator Rand Paul (R-Ky.) introduced bipartisan legislation Wednesday to allow judges greater flexibility in sentencing federal crimes where a mandatory minimum punishment is considered unnecessary.

The bipartisan Justice Safety Valve Act of 2013 expands the so-called “safety valve” that allows judges to impose a sentence below the mandatory minimum in qualifying drug cases to all federal crimes.  By giving judges this greater flexibility, they will not be forced to administer needlessly long sentences for certain offenders, which is a significant factor in the ever-increasing Federal prison population and the spiraling costs that steer more and more of the justice budget toward keeping people in prison, rather than investing in programs that keep our communities safe.

“As a former prosecutor, I understand that criminals must be held accountable, and that long sentences are sometimes necessary to keep criminals off the street and deter those who would commit violent crime,” Leahy said.  “Our reliance on mandatory minimums has been a great mistake.  I am not convinced it has reduced crime, but I am convinced it has imprisoned people, particularly non-violent offenders, for far longer than is just or beneficial. It is time for us to let judges go back to acting as judges and making decisions based on the individual facts before them.  A one-size-fits-all approach to sentencing does not make us safer.”

Paul said that “Our country’s mandatory minimum laws reflect a Washington-knows-best, one-size-fits-all approach, which undermines the Constitutional Separation of Powers, violates the our bedrock principle that people should be treated as individuals, and costs the taxpayers money without making them any safer.  This bill is necessary to combat the explosion of new federal criminal laws, many of which carry new mandatory minimum penalties.”

Because Senator Leahy is doing some notable work today on the drone and immigration reform fronts, I suspect that today's introduction of the Justice Safety Valve Act of 2013 will not get as much attention from the MSM as I might think it merits.   That said, I expect (and hope) that this story will get some broader attention due to the fact that GOP rock-star Senator Rand Paul is the other big initial player in this important federal sentencing reform effort.  (To start, I am very pleased to see that John Gramlich has produced this lengthy and informative piece about the bill in CQ Roll Call.)

Not surprisingly, the folks at Families Against Mandatory Minimums are excited about this development, and this new FAMM press release details some additional notable content that FAMM has produced in conjunction with this new bill.  Here are excerpts and links:

FAMM President Julie Stewart today hailed the introduction of The Justice Safety Valve Act of 2013 (S. 619), a bipartisan federal bill that would save taxpayer dollars by reserving scarce federal prison beds for the most dangerous offenders.  The bill creates a “safety valve” that allows federal courts to impose sentences below the mandatory minimum sentence under specific conditions. The legislation was introduced on March 20 by Senator Patrick Leahy (D-VT), chair of the Senate Judiciary Committee, and Senator Rand Paul (R-KY), and referred to the Senate Judiciary Committee for consideration.

Stewart also announced the release of a new FAMM report entitled, “Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money.” The report details how eight states have embraced sentencing safety valves as a way of reducing prison populations and saving money, while at the same time protecting public safety....

The report concludes by recommending a safety valve that is similar to the Justice Safety Valve Act sponsored by Senators Paul and Leahy. FAMM plans to distribute the report to state legislators across the country who sit on crime-focused legislative committees."

For a comprehensive overview of the Justice Safety Valve, including the bill text, a summary of its benefits, profiles of individuals who would have been eligible for relief, and likely questions and answers, click here

To download FAMM’s report, “Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money”, click here.

March 20, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18) | TrackBack

Talk of reforming prison realignment in California

As reported in this new AP piece, "Republican lawmakers proposed a package of bills on Tuesday intended to counter what they see as a growing threat to public safety from sending some inmates to county jails instead of state prisons."  Here is more:

The 13 bills seek to counter the effects of prison realignment in 2011 by improving supervision of parolees and increase penalties for sex offenders and those who illegally possess or sell firearms.  The measures also would send more convicts back to prison to ease the burden on local jails while protecting counties from lawsuits.

"Republicans recognize that we must close the worst realignment loopholes," said Assembly Minority Leader Connie Conway, R-Tulare.

The bills' chances are uncertain in a Legislature controlled by Democrats.  The measures were proposed nearly 18 months after Gov. Jerry Brown's prison realignment took effect, sending inmates convicted of lower-level crimes to county jails instead of state prisons....

A related bill was rejected last week on a party-line vote in the Assembly Public Safety Committee.  The bill, AB2 by Assemblyman Mike Morrell, R-Rancho Cucamonga, would have sent paroled sex offenders back to state prisons, instead of county jails, if they fail to register as sex offenders.

The proposals have the backing of Diana Munoz, mother of Brandy Arreola, 21, of Stockton, who was permanently injured last year by her boyfriend, Raoul Leyva, a parole violator who had been released early from jail because of overcrowding.  Leyva, 34, was convicted last month of attempted voluntary manslaughter and injuring a spouse, with enhancements for causing brain injury and paralysis.

"If realignment didn't exist ... my daughter would be living her life normally," Munoz said as her daughter sat in a wheelchair by her side. "The state is responsible for what's happened to her. They should never have let him out."

Other bills in the Republican package would impose prison instead of jail time for criminals who remove their GPS-linked tracking devices; send all sex offenders who violate their parole back to prison' and have state parole agents, rather than county probation agencies, supervise all released sex offenders.  The proposals come amid rising concerns over the consequences of Brown's realignment law that took effect in October 2011.

The number of paroled sex offenders who are fugitives in California is 15 percent higher today than before realignment; counties are housing more than 1,100 inmates serving sentences of five years or more in jails designed for stays of a year or less; and inmate advocacy groups are beginning to sue counties over the same type of poor housing and treatment conditions that led to years of litigation and billions in additional costs for the state.

March 20, 2013 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

New report details arrests and NYC police time spent on low-level marijuana offenses

As detailed in this new press release, the Drug Policy Alliance has released a new report on marijuana arrests in New York City.  Here are details via the release:

A new report released today documents the astonishing number of hours the New York Police Department has spent arresting and processing hundreds of thousands of people for low-level misdemeanor marijuana possession arrests during Mayor Bloomberg’s tenure. The report finds that NYPD used approximately 1,000,000 hours of police officer time to make 440,000 marijuana possession arrests over 11 years.  These are hours that police officers might have otherwise have spent investigating and solving serious crimes.

The report was prepared by Dr. Harry Levine, Professor of Sociology at Queens College and recognized expert on marijuana possession arrests, at the request of members of the New York City Council and the New York State Legislature.

Additionally, the report estimates that the people arrested by NYPD for marijuana possession have spent 5,000,000 hours in police custody over the last decade.   The report includes a compendium of quotes from academics, journalists, law enforcement professionals and elected officials attesting to the wastefulness, consequences and racial disparities inherent in these arrests....

“This report shows that people arrested for marijuana possession spend an average of 12-18 hours, just in police custody, and the vast majority of those arrested are young Black and Latino men from seven to ten neighborhoods in NYC,” said Chino Hardin, Field Coordinator and Trainer with the Center for NuLeadership on Urban Solutions.  “This is not just a crisis, but a frontline civil rights issue facing urban communities of color in the 21st century. We are calling on Governor Cuomo to do the right thing, and exercise the moral and political will to address this injustice.”...

The release of One Million Police Hours takes place as Governor Cuomo and leaders from the Senate and Assembly are in negotiations about the governor’s proposal to fix the state’s marijuana decriminalization law.  Although the state decriminalized possession of less than one ounce of marijuana in 1977, it authorized the police to charge a person with a crime if the marijuana was “in public view.”   As has been well-documented in both studies and media reports, police in New York, and particularly in NYC, have used this loophole to charge a crime when the marijuana is in public view as a result of a police search or a demand that the contents of someone’s pockets, backpacks, etc. be revealed.

The full 16-page report is available at this link.

March 20, 2013 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (16) | TrackBack

"Manhunt after head of Colorado Department of Corrections killed answering doorbell"

The title of this post is the headline of this disturbing breaking news from Colorado.  Here are the basics:

The head of the Colorado Department of Corrections was fatally shot when he answered the doorbell at his home Tuesday night, authorities say.

Sheriff's Lt. Jeff Kramer says Tom Clements was shot to death around 8:30 p.m. in the town of Monument, which is north of Colorado Springs.  It is unclear if his wife and two daughters were home at the time of the shooting and police are searching for the gunman....

In a letter to DOC employees, Governor John Hickenlooper confirmed that the 58-year-old had been killed, KDVR.com reported.  "We have no more details than that," Hickenlooper wrote.  "I am so sad. I have never worked with a better person than Tom, and I can’t imagine our team without him. … As your Executive Director, he helped change and improve DOC in two years more than most people could do in eight years."

March 20, 2013 in Prisons and prisoners | Permalink | Comments (1) | TrackBack

March 19, 2013

"Overcharging"

The title of this post is the title of this notable new paper by Kyle Graham now available via SSRN. Here is the abstract:

The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry.  These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior.  United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.

Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices.  The various meanings given to “overcharging,” when the term is defined at all, have made it difficult to ascertain what this practice entails, why it is improper, and who the worst offenders are.  This essay aims to improve the ongoing conversation about overcharging in two ways: first, by disentangling and fleshing out the core meanings of this term; and second, by proposing and then applying some metrics to identify prosecuting authorities that chronically overcharge.

March 19, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack

Bill to abolish death penalty advances in Nebraska legislature

As reported via this local article, in Nebraska the unicameral legislature's "Judiciary Committee voted 7-0 Tuesday to advance a bill (LB542) by Sen. Ernie Chambers of Omaha to change the death penalty to life in prison without the possibility of parole." Here is more:

Chambers, the most ardent death penalty opponent in the Legislature, was re-elected to his North Omaha seat in November after sitting out four years because of term limits. Each year from 1973 to 2008, he introduced a bill to abolish the death penalty. In 1979, his bill passed but was vetoed by then-Gov. Charles Thone.

Among those supporting this year's effort at a recent hearing was the Nebraska Innocence Project, which is part of a national network that gives free legal representation to people wrongly convicted of crimes....

Among those speaking against the bill was Douglas County Attorney Don Kleine, who appeared on behalf of the Nebraska County Attorneys Association. Kleine said some murders were so heinous the death sentence was warranted. Lancaster County Attorney Joe Kelly also spoke against the bill on behalf of the association.

This month, the Maryland Legislature passed a bill to replace the death penalty with life without parole. If signed into law, Maryland will become the sixth state in six years, and the 18th overall, to abandon capital punishment. With that action, 32 states, the U.S. government and the U.S. military still have the death penalty.

Eleven men are on Nebraska's death row.

March 19, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Is TJ Lane eager to be the "uncommon" juvenile murderer who can constitutionally get an LWOP sentence?

130319-lane-shirt-1030a.photoblog600The question in the title of this post is prompted by this local news report about a high profile state sentencing proceeding which took place in Ohio this morning.  The piece is headlined "Ohio school shooter, wearing 'KILLER' T-shirt, sentenced to life in prison," and here are excerpts:

An Ohio judge has sentenced T.J. Lane, the Ohio teen charged with shooting three students to death and wounding three others last February, to life in prison without parole.

Lane showed up to his sentencing wearing a white T-shirt with the word "KILLER" in capital letters scrawled on it -- the same word police say he had emblazoned on his shirt the day of the shootings at Chardon High School.

Lane, 18, pleaded guilty last month to all charges against him in the Feb. 27, 2012, shootings, in which he opened fire on a cafeteria table full of students in the rural community of Chardon.

In a brief statement during his sentencing on Tuesday, Lane flipped his middle finger to people in the courtroom, which included family members of his victims, reported NBC affiliate WKYC.com.  He revealed his "KILLER" T-shirt to the court once he was inside, taking off a blue button-down shirt he had worn on the way in, the station reported.

Three students -- Demetrius Hewlin, 16; Russell King Jr., 17; and Daniel Parmertor, 16 -- were killed last February.  Nate Mueller and Joy Rickers were wounded, as was Nick Walczak, who is paralyzed from the waist down, according to Reuters.

Lane has not given a motive for the shootings, which rocked the tiny town 30 miles outside Cleveland.

The families of the boys who died in the shooting have attended every one of Lane’s court hearings, The Plain Dealer said.  "I feel he should be locked up for the rest of his life," Domenick Iammarino, grandfather of Daniel Parmertor told The Plain Dealer ahead of the sentencing.  "It was a despicable, premeditated act.  He should breathe his last breath in prison."

Those readers involved with juvenile sentencing or following closely modern Eighth Amendment rulings concerning life without parole sentences (LWOP) know that the Supreme Court in its recent ruling in Miller v. Alabama stated that "given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." It would seem that TJ Lane, who was well past his seventeenth birthday at the time of his seemingly random act of mass murder, was eager to use his time in court today to help ensure that he could be a "poster child" for the kinds of cases and kinds of juvenile defendants for which an LWOP sentence may still be constitutionally permissible.

A few recent related posts:

March 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (14) | TrackBack

Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?

Gideon trumptetThe provocative question in the title of this post is the result of my latest personal ruminations over how to "celebrate" the 50th anniversary of the Supreme Court's landmark ruling in Gideon v. Wainwright this month.   Much of the discussion I have seen looks back at the Gideon case, reviews the ruling's import, and then laments that funding for lawyers for poor defendants remains inadequate. 

But this provocative New York Times op-ed by Paul Butler, headlined "Gideon’s Muted Trumpet," provides some broader context for how modern criminal justice has evolved over the last half century after Gideon becomes the law of the land. Here are excerpts, with a few lines emphasized by me to help explain the provocative question in the title of this post:

Fify years after the Supreme Court, in Gideon v. Wainwright, guaranteed legal representation to poor people charged with serious crimes, low-income criminal defendants, particularly black ones, are significantly worse off.

Don’t blame public defenders, who are usually overwhelmed. The problem lies with power-drunk prosecutors — I know, because I used to be one — and “tough on crime” lawmakers, who have enacted some of the world’s harshest sentencing laws.  They mean well, but have created a system that makes a mockery of “equal justice under the law.”  A black man without a high school diploma is more likely to be in prison than to have a job.

A poor person has a much greater chance of being incarcerated now than when Gideon was decided, 50 years ago today.  This is not because of increased criminality — violent crime has plunged from its peak in the early 1990s — but because of prosecutorial policies that essentially target the poor and relegate their lawyers to negotiating guilty pleas, rather than mounting a defense.

After Gideon, things got better for poor defendants in the short term.  Thousands who had not had lawyers at trial were released from jail.  Many states and localities created public defenders’ offices.  But political and legal developments soon eroded those achievements.

The so-called war on crime greatly expanded criminal liability.  A prosecutor can almost always find some charge: there are over 4,000 crimes on the federal books alone. Recreational drug use is one of the more popular activities in America, but racial minorities suffer the brunt of drug-related convictions.

In part because of federal grants to states to incarcerate drug offenders, the United States experienced the largest increase in incarceration in the history of the free world.  Our population is less than 5 percent of the world’s but we have nearly 25 percent of its prisoners.  When Gideon was decided, about 43 percent of defendants were indigent. Now, over 80 percent are....

Today over 90 percent of accused people plead guilty.  It’s rational, because the costs of being wrong are just too high.  As a young prosecutor, I enjoyed having all this power. I worked on a case against a property clerk who was stealing supplies from a government office.  We set up a sting, in which an undercover agent acted as a buyer of stolen merchandise.  Each time the clerk committed to selling more stolen goods, his potential sentence increased by five years.  We got the guilty plea we wanted.

The Supreme Court has famously stated that the prosecutor’s interest “is not that it shall win a case, but that justice shall be done.”  In our adversarial system, however, those are just words on paper.  Gideon, meanwhile, is an underfunded mandate.  Some public defenders are forced to juggle over 2,000 cases per year, as the journalist Karen Houppert found in a new book, “Chasing Gideon.”...

The Supreme Court recently extended Gideon’s reach to the plea bargaining process, a potentially encouraging development.  But, as the federal judge Jed S. Rakoff has written, the main problem is not defense lawyers’ “ineffectiveness” but prosecutors’ “overconfidence.”

Poor people lose, most of the time, in our criminal justice system not just because indigent defense is inadequately financed, although it is, and not because public defenders are ineffective, although some are.  They lose because prosecutors and lawmakers treat them like losers.  That is the real crisis of American indigent defense.

The points I have highlighted above provide the foundation for my rumination that without the Gideon ruling in 1963, many of the "political and legal developments" stressed by Butler might not have happened or even have been possible.  The decade after Gideon is when the modern "drug war" got started, and it is still going pretty strong four decades later; around the same time, as the commitment to rehabilitation in sentencing was assailed, lawmakers and prosecutors embraced more rigid and severe sentencing structures; and these forces were critical components in the multi-decade march toward modern mass incarceration.  I must wonder if these policial and legal development would have taken place the same way, or at all, if lawmakers and prosecutors did not feel confident that poor defendants' rights would always be safeguarded because they now had a constitutional right to a lawyer.

Readers familiar with the late great Bill Stuntz's ground-breaking scholarship will rightly think I am channelling some of his insights about the ways in which landmark Warren Court criminal procedure rulings provided a critical precursor to modern criminal justice problems.  Critically, I absolutely do not mean to assert or suggest — nor do I read Stuntz's work to assert or suggest — that Gideon and other landmark Warren Court rulings directly caused a host of modern criminal justice problems.  But I do not think it is mere coincidence that the American criminal justice landscape started to change dramatically, and often for the worse, not too long after the Supreme Court responded to Clarence Gideon's trumpet call for the constitutional right of all criminal defendants to get a lawyer's assistance.

That all said, I absolutely do not think Gideon was wrongly decided, nor am I suggesting that modern complaints about indigent defense being inadequately financed are overstated.  Rather, I am just eager in this forum to encourage everyone to "celebrate" Gideon by considering broadly what modern American criminal justice might look like if Gideon never became a name in our constitutional lexicon.

Recent related posts:

March 19, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

"Fun with Numbers: Gall's Mixed Message Regarding Variance Calculations"

The title of this post is the title of this notable new student note by Nicholas Deuschle now available via SSRN. Here is the abstract:

This Comment seeks to resolve an unaddressed issue stemming from recent developments in the Supreme Court’s sentencing jurisprudence.  In Gall v. United States, the Supreme Court required that appellate courts "consider the extent of the deviation" of criminal sentences imposed outside the Sentencing Guidelines range.  The Court, however, provided little guidance as to what this requirement means.  Specifically, how should appellate courts calculate that deviation from the Sentencing Guidelines?

March 19, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Gall reasonableness case, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

BOP director puts numbers of federal correction costs for FY2011

Via this new Federal Register entry, the Director of the Bureau of Prisons announced the latest annual determination of the average cost of incarceration.  Here is the heart of the announcement:

28 CFR part 505 allows for assessment and collection of a fee to cover the average cost of incarceration for Federal inmates.  We calculate this fee by dividing the number representing Bureau facilities’ monetary obligation (excluding activation costs) by the number of inmate-days incurred for the preceding fiscal year, and then by multiplying the quotient by 365.

Under § 505.2, the Director of the Bureau of Prisons determined that, based upon fiscal year 2011 data, the fee to cover the average cost of incarceration for Federal inmates in Fiscal Year 2011 was $28,893.40.  The average annual cost to confine an inmate in a Community Corrections Center for Fiscal Year 2011 was $26,163.

March 19, 2013 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

March 18, 2013

Notable new player (making notable comments) in Florida debate over medical marijuana

Morgan and cristThis local article about the people and politics of Florida provides an interesting account of why a new development in that state's consideration of medical marijuana could be quite significant.  The piece is headlined "John Morgan could take medical marijuana mainstream," and here are excerpts (with my highlight of one particular comment):

So John Morgan is throwing his political heft — code for megabucks — behind an effort to legalize medical marijuana in Florida. It's the lift the marijuana lobby has long dreamed about.

Morgan is the perfect mainstream guy for the job. That plump mug of his is as ubiquitous as palm trees, thanks to the considerable air time he buys to promote his Morgan & Morgan law firm on television and radio — not to mention a forest of billboards.

If anybody can take pot from the fringe to the middle of the road in Florida, it's Morgan. He's a big-time Democrat who writes checks with lots of zeros, but not always to his party. He's a shrewd businessman who spreads the wealth to Republicans such as Dean Cannon and Chris Dorworth when practicality demands helping out hometown power players.

In other words, he has the ear of a lot of people, as well as a compelling personal story: Morgan's father suffered from emphysema and cancer, his appetite vanquished by the cocktail of prescription medicine he was on at the end of his life, and marijuana gave him some relief.

"John's a prominent business owner, a family man ... he's a very religious Catholic ... John brings a lot of positives to this campaign beyond his ability to write a check and asking his wealthy friends to write a check," said Ben Pollara, a longtime Democratic fundraiser who joined People United for Medical Marijuana about six weeks ago and became its treasurer two weeks ago.

Morgan was motivated by news coverage of a People United poll showing that seven out of 10 Floridians would support a constitutional amendment to support legalizing marijuana for medical use. "I believe that 90 percent of Republican legislators would vote for this inside the privacy of the voting booth," said Morgan, though he says he doesn't use the drug....

Morgan's drive seems genuinely rooted in his father's experience. "It was a very painful death," Morgan said. "My brother was able to get him marijuana, which enabled him to be able to be settled down and have a serenity he had not enjoyed until that time. I've seen it firsthand."...

The subject of marijuana is still so toxic in Tallahassee that Pollara doesn't expect legislation aimed at legalizing pot for medical reasons to get much of a hearing.   People United's best shot is gathering the nearly 700,000 signatures by February of next year to get a constitutional amendment on the ballot.  Pollara, former state finance director for Hillary Clinton's presidential campaign, estimates it'll take up to $10 million to bankroll the effort....

Some have questioned what Morgan's involvement with the issue could mean for Charlie Crist, who works for Morgan's law firm and is widely seen as a Democratic challenger to Gov. Rick Scott.  But Charlie is the ultimate populist, and if People United's polling numbers are even close to accurate, then medical marijuana is a perfect populist issue for Crist — and Morgan.

I have long speculated that private support for marijuana reform is considerable even among many Republicans.  But the assertion about that 90% of Florida's Republican legislators would support medical marijuana legalization strikes me as wishful thinking.

March 18, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Should NRA care more about gun rights for non-violent felons or those accused of domestic violence?

The question in the title of this post is prompted by this lengthy new front-page New York Times article headlined "Ruled a Threat to Family, but Allowed to Keep Guns." Here is an excerpts from the first part of the article:

[I]n one of a handful of states, the protection order would have forced [an abusive husband] to relinquish his firearms.  But that is not the case in Washington and most of the country, in large part because of the influence of the National Rifle Association and its allies.

Advocates for domestic violence victims have long called for stricter laws governing firearms and protective orders.  Their argument is rooted in a grim statistic: when women die at the hand of an intimate partner, that hand is more often than not holding a gun.  In these most volatile of human dramas, they contend, the right to bear arms must give ground to the need to protect a woman’s life.

In statehouses across the country, though, the N.R.A. and other gun-rights groups have beaten back legislation mandating the surrender of firearms in domestic violence situations.  They argue that gun ownership, as a fundamental constitutional right, should not be stripped away for anything less serious than a felony conviction — and certainly not, as an N.R.A. lobbyist in Washington State put it to legislators, for the “mere issuance of court orders.”

That resistance is being tested anew in the wake of the massacre in Newtown, Conn., as proposals on the mandatory surrender of firearms are included in gun control legislation being debated in several states.

Among them is Washington, where current law gives judges issuing civil protection orders the discretion to require the surrender of firearms if, for example, they find a “serious and imminent threat” to public health.  But records and interviews show that they rarely do so, making the state a useful laboratory for examining the consequences, as well as the politics, of this standoff over the limits of Second Amendment rights.

By analyzing a number of Washington databases, The New York Times identified scores of gun-related crimes committed by people subject to recently issued civil protection orders, including murder, attempted murder and kidnapping.  In at least five instances over the last decade, women were shot to death less than a month after obtaining protection orders. In at least a half-dozen other killings, the victim was not the person being protected but someone else.  There were dozens of gun-related assaults like the one Ms. Holten endured.

The analysis — which crosschecked protective orders against arrest and conviction data, along with fatality lists compiled by the Washington State Coalition Against Domestic Violence — represents at best a partial accounting of such situations because of limitations in the data.  The databases were missing some orders that have expired or been terminated.  They also did not flag the use of firearms in specific crimes, so identifying cases required combing through court records....

In some instances, of course, laws mandating the surrender of firearms might have done nothing to prevent an attack.  Sometimes the gun used was not the one cited in the petition. In other cases, no mention of guns was ever made.  But in many cases, upon close scrutiny, stricter laws governing protective orders and firearms might very well have made a difference.

As long-time readers know, I find puzzling and troubling that the NRA or others are quick to assert or assume that the Second Amendment right to keep and bear arms, if it really is about protecting a truly fundamental constitutional right, that it can be permanently stripped away for any and every felony conviction, even very-long-ago, indisputably non-violent drug possession or white-collar offenses.  This new article reinforces my sense that the NRA's advocacy policies, as well as existing gun laws and practices, are crude and problematic tools now often used to deny gun rights to persons who are not obviously dangerous while sometimes preserving gun rights for persons who are obviously dangerous.

Some related Second Amendment and gun policy posts:

March 18, 2013 in Gun policy and sentencing, Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (29) | TrackBack

Gov O'Malley explains his reasons for seeking Maryland's death penalty repeal

In Politico, Maryland Governor Martin O'Malley has this new opinion piece headlined "Repealing Maryland's death penalty." Here are excerpts:

In Maryland, we govern by results: when a public policy works, we choose to invest in it. On the other hand, when a public policy does not produce results, we invest our limited resources instead in things that are proven to work.

Capital punishment is expensive and the overwhelming evidence tells us that it does not work as a deterrent.

Therefore, rather than continuing to throw taxpayers’ money at an ineffective death penalty, our state has chosen – with bipartisan support – to replace capital punishment with a more effective and cost efficient public policy: life without parole. We are the first state below the Mason-Dixon line to do so, but I believe other states will follow suit.

Capital punishment is not a deterrent, it is not fool-proof, it is administered with great racial disparity, it costs three times as much as life without parole, and there is no way to reverse a mistake when an innocent person is wrongly convicted.

In 2011, the average murder rate in states where there is a death penalty was 4.9 per 100,000 people. In states without it, the murder rate was lower. It was 4.1 per 100,000 people.

Between 2000 and 2011, an average of 5 death row inmates were exonerated every year. In Maryland, between 1995 and 2007, our state’s reversal rate for the death penalty was 80 percent.

By 1999 the city of Baltimore had become the most violent and drug addicted city in America. Through all the preceding decades of rising violence, the death penalty was on the books and did absolutely nothing to prevent this from happening. Effective policing, expanded drug treatment, smarter strategies, new technologies to solve crime and target repeat violent offenders — these are the things that work to drive down violent crime.

Just as the death penalty did not prevent Baltimore from becoming the most violent city in America in the 1990s, it also contributed nothing at all to Baltimore’s historic reductions in crime over the last decade. Nor has the death penalty had any positive impact on our more recent statewide success in Maryland, in driving down violent crime and homicides to three-decade lows.

Every dollar we throw at maintaining an ineffective death penalty is a dollar we are not investing in the strategies and tactics that actually work to save lives. If we want better results, we must make better choices. We have a responsibility to do more of the things that work to save lives. So too, do we have a responsibility to stop doing things that are wasteful, expensive, and do not work....

Improving public safety is the most fundamental responsibility of our government. The death penalty does not make us stronger or more secure as a people. It is expensive, ineffective, and wasteful as a matter of public policy; it is unjust as historically applied; and its imperfections can and do result in the occasional killing of innocent people. That is why, in Maryland, we have replaced the death penalty with the punishment of life without parole.

Recent related posts:

March 18, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Supreme Court grants cert in new case concerning forfeiture procedures

As reported in this new SCOTUSblog post, one of these new cases in which the Supreme Court granted cert should be of interest to sentencing fans:

The Court also granted review on whether an individual faced with the forfeiture of property that may be the proceeds of a crime has a right to a pre-trial hearing to challenge the basis for possible forfeiture.  The Justice Department agreed that the Court should address this issue because of a division among lower courts on it; the case is Kaley v. U.S. (12-464).

March 18, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack