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May 25, 2013

Is capital punishment uniquely unfair to jurors required to make life/death decision?

The question in the title of this post is prompted by this new AP article headlined "Arias trial jury foreman says death decision unfair for 12 average people who aren't lawyers." Here are excerpts:

They were 12 ordinary citizens who didn't oppose the death penalty. But unlike spectators outside the courthouse who followed the case like a daytime soap opera and jumped to demand Jodi Arias' execution, the jurors faced a decision that was wrenching and real, with implications that could haunt them forever.

In an interview Friday, jury foreman William Zervakos provided a glimpse into the private deliberations, describing four women and eight men who struggled with the question: How heinous of a killing deserves a similar fate?

"The system we think is flawed in that sense because this was not a case of a Jeffrey Dahmer or Charles Manson," Zervakos told The Associated Press. "It was a brutal no-win situation. ... I think that's kind of unfair," the 69-year-old added. "We're not lawyers. We can't interpret the law. We're mere mortals. And I will tell you I've never felt more mere as a mortal than I felt for the last five months."...

Zervakos described a deliberations room full of tears and spinning moral compasses as each juror struggled to come to grips with their own beliefs about what factors — including Arias' young age at the time of the killing and her lack of criminal history — should cause them to show mercy and spare her life.

"You've got Travis Alexander's family devastated, that he was killed, that he was brutally killed. You've got Jodi Arias' family sitting in there, both families sitting and seeing these humiliating images and listening to unbelievably lurid private details of their lives, and you've got a woman whose life is over, too," Zervakos said. "I mean, who's winning in this situation? And we were stuck in the middle."...

"You heard (prosecutor Juan) Martinez say she was only 27. ... She's old enough that she should have known better," Zervakos said. "I didn't look at it that way. I'm looking at 27 years of an absolutely normal everyday young woman that was living a life that was perfectly normal. Then something changed the trajectory of her life after meeting Travis Alexander, and it spiraled downhill from there."

The same jury on May 8 convicted Arias of first-degree murder in Alexander's killing, but couldn't reach a decision Thursday after about 13 hours of deliberations on whether she should live or die. Judge Sherry Stephens was forced to declare a mistrial of the penalty phase and dismissed the panel. A conference with the judge and attorneys is set for June 20 to determine how both sides want to proceed. In the interim, Stephens set a July 18 retrial date.

The mistrial set the stage for a whole new proceeding to determine whether the 32-year-old former waitress should get a life sentence or the death penalty for murdering Alexander five years ago....

Prosecutors now have the option to take the death penalty off the table and avoid a new penalty phase. The judge would then determine whether to sentence Arias to spend her entire life behind bars, or give her life with the possibility of release after 25 years. Given Arias could not afford her own defense, taxpayers footed the bill for court-appointed attorneys at a cost so far of nearly $1.7 million, a price tag that will only balloon if the case moves forward.

Should the state decide to seek death again, jury selection alone could take months, given the difficulty of seating an impartial panel in a case that has attracted global attention and become daily cable TV and tabloid fodder with tales of sex, lies and violence, said jury consultant Jo-Ellan Dimitrius. "Will it be impossible? No. Will it be tough? Absolutely," she said.

Recent related posts on the Arias case:

May 25, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

"Humane Punishment for Seriously Disordered Offenders: Sentencing Departures and Judicial Control Over Conditions of Confinement"

The title of this post is the title of this new paper by E. Lea Johnston now available on SSRN. Here is the abstract:

At sentencing, a judge may foresee that an individual with a major mental disorder will experience serious psychological or physical harm in prison.  In light of this reality and offenders’ other potential vulnerabilities, a number of jurisdictions currently allow judges to treat undue offender hardship as a mitigating factor at sentencing.  In these jurisdictions, vulnerability to harm may militate toward an order of probation or a reduced term of confinement.  Since these measures do not affect offenders’ day-to-day experience in confinement, these expressions of mitigation fail to protect adequately those vulnerable offenders who must serve time in prison.

This article argues that judges should possess the authority to tailor the conditions of vulnerable, disordered offenders’ carceral sentences to ensure that sentences are humane, proportionate, and appropriate for serving the intended aims of punishment.  To equalize, at least in part, conditions of confinement for this population, judges should consider ordering timely and periodic mental health evaluations by qualified professionals, disqualifying facilities with insufficient mental health or protective resources, specifying the facility or unit where an offender will serve or begin his sentence, and mandating certain treatment in prison.  Allowing judges to exercise power over correctional conditions in this way will allow judges to fulfill better their institutional function of meting out appropriate, humane, and proportionate punishments, subject prison conditions to public scrutiny and debate, and help reform the image and reality of the criminal justice system for some of society’s most vulnerable individuals.

May 25, 2013 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Effective ProPublica reports on the problems of prosecutorial misconduct

The investigative journalism website ProPublica has now published another installment in its notable series of pieces concerning the problems of prosecutorial misconduct.  The series is titled "Out of Order: When Prosecutors Cross the Line," and here are links to all the pieces from the beginning:

May 25, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

May 24, 2013

"Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."

The title of this post is the headline of this notable new National Review commentary by David Keene, a former president of the National Rifle Association and the American Conservative Union, explaining why conservatives should support the Justice Safety Valve Act.  Here are extended excerpts:

Like many conservatives, I supported many [mandatory minimum sentencing] laws when they were enacted and still believe that, in some narrow situations, mandatory minimums makes sense. But like other “one-size-fits-all” solutions to complicated problems, they should be reviewed in light of how they work in practice.

Fortunately, Senators Rand Paul (R., Ky.) and Patrick Leahy (D., Vt.) have crafted a smart and modest reform bill that will fine-tune these laws to eliminate many of the unforeseen and, frankly, unfair consequences of their application when the facts demand more flexibility. This bipartisan measure deserves conservative support.

The bill, the Justice Safety Valve Act of 2013, maintains existing federal mandatory-sentencing laws. It enables judges to depart from the minimums in certain cases, however, such as when the mandatory sentence is not necessary to protect public safety and seems blatantly unfair in light of the circumstances of the offense. In so doing, their proposal fulfills the primary objective of criminal-justice policy: protecting public safety, while promoting our constitutional separation of powers and saving taxpayers the expense of unnecessary and counterproductive incarceration.

Many people, conservatives as well as liberals, have come to believe that most mandatory-minimum-sentencing laws should be repealed. These laws give prosecutors nearly unchecked power to determine sentences, even though courts are in a better position to weigh important and relevant facts, such as an offender’s culpability and likelihood of reoffending.

Federal mandatory-minimum-sentencing laws are especially problematic. Not only do they transfer power from independent courts to a political executive, they also perpetuate the harmful trend of federalizing criminal activity that can be better prosecuted at the state level.

For years, conservatives have wisely argued that the only government programs, rules, and regulations we should abide are those that can withstand cost-benefit analysis. Mandatory minimum sentences, by definition, fail this basic test because they apply a one-size-fits-all sentence to low-level offenders, even though the punishments were designed for more serious criminals.

Economists who once wholeheartedly supported simple pro-prison policies now believe they have reached the point of diminishing returns. One is University of Chicago economist Steven D. Levitt, best known for the best-selling Freakonomics, which he co-authored with Stephen J. Dubner. Levitt recently told the New York Times, “In the mid-1990s I concluded that the social benefits approximately equaled the costs of incarceration,” and, today, “I think we should be shrinking the prison population by at least one-third.”

In other words, the initial crackdown was a good thing, but we are now suffering the effects of too much of that good thing. If Levitt’s estimate is even close, right now we are wasting tens of billions of dollars locking people up without affecting the crime rate or enhancing public safety. In fact, spending too much on prisons skews state and federal budgetary priorities, taking funds away from things that are proven to drive crime even lower, such as increasing police presence in high-violence areas and providing drug-treatment services to addicts.

The Paul-Leahy bill will help restore needed balance to our anti-crime efforts. Repeat and violent criminals will continue to receive and serve lengthy prison sentences, but in cases involving lower-level offenders, judges will be given the flexibility to impose a shorter sentence when warranted.

The Paul-Leahy bill is a modest fix that will affect only 2 percent of all federal offenders, and even they won’t be spared going to prison. They will simply receive slightly shorter sentences that are more in line with their actual offenses. The bill will improve public safety, save taxpayers billions of dollars, and restore our constitutional separation of powers at the federal level while strengthening federalism. This is a reform conservatives should embrace.

Some recent and older related posts:

May 24, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Would a death sentence given by a second sentencing jury to Jodi Arias survive constitutional challenges?

As reported in this Reuters article, an "Arizona jury failed on Thursday to reach a unanimous verdict on whether Jodi Arias should be put to death for the brutal murder of her ex-boyfriend, prompting the judge to set a date for a new sentencing phase of the trial."  Here is more on the latest development in this high-profile capital case:

Arias, a former waitress from California, was found guilty this month of murdering Travis Alexander, whose body was found slumped in the shower of his Phoenix-area home in June 2008. He had been stabbed 27 times, had his throat slashed and been shot in the face.

Maricopa County Superior Court Judge Sherry Stephens, who had told the jury on Wednesday to resume deliberations after the panel indicated it was struggling to reach consensus, set July 18 as the date for a retrial of the penalty phase and ordered a status hearing for June with attorneys in the case.

Arias, a petite figure who had earlier pleaded with the eight men and four women on the jury to spare her life for the sake of her family, appeared to breathe a sigh of relief. Alexander's relatives wept and hugged in court....

Following the penalty phase deadlock, the state has the option to retry the sentencing portion of the trial and have a new death penalty jury impaneled. Should such a jury also deadlock, capital punishment would be taken off the table. Should prosecutors opt against a full penalty-phase jury retrial, the judge would be left to hand down a verdict of life in prison.

Maricopa County Attorney Bill Montgomery said in a statement that his office appreciated the jury's work and would now assess its next steps, but was proceeding "with the intent to retry the penalty phase."...

Among the issues that came up during the sentencing deliberations was whether a life term meant Arias would spend the remainder of her life in prison or would have the possibility of parole after 25 years.

Defense attorney Jennifer Willmott had advised jurors that if they sentenced Arias to life in prison, they were "sentencing her to die in prison," and there was no procedure in place to grant parole. Prosecutor Juan Martinez countered that while there was no mechanism now to grant Arias parole, one could be put in place later.

Some legal analysts questioned whether prosecutors should go forward with a new penalty-phase jury proceeding. "The jury that looked at all the evidence and heard five months of testimony could not agree that a death sentence was appropriate. Even though the state can take a second bite, this case should end now," said Dale Baich, an assistant federal public defender who represents death-row prisoners' appeals.

"The trial phase and the aggravation are going to have to be presented to this new jury, and Maricopa County has spent a lot of money on this case already. The question is, do they want to spend more?" Baich said....

Legal analysts also questioned how an impartial jury could be seated for a new penalty phase considering the wide attention the case had attracted. "This case has taken on the character of a circus rather than a trial," said Michael Kimerer, a criminal defense attorney in Phoenix. "I don't see how you are going to do it."

As the question in the title of this post suggests, even if Arias were to be sentenced to death by a new sentencing jury, there will be a wide of array of constitutional challenges that Arias could raise on appeal of a death sentence imposed by that new jury. Critically, there is established precedent from both the Ninth Circuit and the US Supreme Court that suggest the Double Jeopardy Clause permits giving prosecutors another shot at a death sentence through a second sentencing proceeding. But Arias could still reasonably raise a double jeopardy claim by urging these courts to reconsider these precedents and/or by claiming that some unique aspects of her case (e.g., that she presented a self-defense claim at her guilt trial or that Arizona has a unique three-stage capital sentencing process) should call for a different outcome on her behalf.

Beyond Double Jeopardy claims, Arias might also reasonable pursue Fifth Amendment due process claims and/or Eighth Amendment claims on appeal of a death sentence if imposed after a new sentencing phase trial before a new jury. As the article above suggests, all the publicity surrounding the first trial will make it hard to be confident that any new jury — especially after jurors are subject to the necessary "death-qualification process" — will be able to come without having prejudged some critical issues. In addition, the "evolving" nature of the Eighth Amendment means that any and every person sent to death row reasonable can, and usually will, challenge almost any and every novel aspect of the death sentencing process.

In part because of all these challenges facing prosecutors now and in the future, I would not be surprised if prosecutors might consider a deal that would allow Arias to secure an LWOP sentence in exchange for giving up some of her appeal rights. But whether Arias herself or the victim's family have an interest in such a deal, and how they might express their interests to Arizona's prosecutors, will surely impact whether and how a deal of any kind is struck.

Recent related posts on the Arias case:

May 24, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack

"Implicit Racial Bias in Public Defender Triage"

The title of this post is the title of this intriguing new piece co-authored by law professor L. Song Richardson and psychology professor Phillip Atiba Goff. The piece is available now via SSRN, and here is the abstract:

Despite the promise of Gideon, providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded.  Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which do not.  Although scholars have recognized the need to develop standards for making these difficult judgments, they have paid little attention to how implicit, i.e., unconscious, biases may affect those decisions.  There is reason to suspect that unconscious biases will influence public defender decisionmaking due to generations of racial stereotypes specific to stigmatized groups and crime.  This Essay urges legal scholars and practitioners to consider how implicit biases may influence the rationing of defense entitlements and suggests ways to safeguard against the effects of these unconscious forces.

A few recent related posts:

May 24, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (13) | TrackBack

May 23, 2013

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

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

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

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

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

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

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

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

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

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

May 23, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack

Florida Supreme Court rules local public defenders may withdraw from cases based on excessive caseloads

As reported in this local article, headlined "Supreme Court to allow public defenders to quit cases due to work load," the top court in Florida today issued a notable opinion concerning the challenges facing and authority given to local public defenders. Here are the basics from the press account:

Describing what it called a "damning indictment" of representation for poor criminal defendants, the Florida Supreme Court on Thursday ruled that the Miami-Dade County public defender's office could withdraw from a large chunk of felony cases because of excessive workloads.

The court divided 5-2 on the issue, with Justice Peggy Quince writing a majority opinion that said attorneys who represent defendants in third-degree felonies often have as many as 50 cases set for trial in a week.

"Clients who are not in custody are essentially unrepresented for long periods between arraignment and trial,'' wrote Quince, who was joined in the majority by justices Barbara Pariente, R. Fred Lewis, Jorge Labarga and James E.C. Perry. "Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment. Instead, the office engages in 'triage' with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients."

But Chief Justice Ricky Polston, joined by Justice Charles Canady, wrote a dissenting opinion that said the Miami-Dade public defender's office had not proved harm to defendants. Polston and Canady would have upheld rulings by the 3rd District Court of Appeal, which rejected the public defender's attempt to withdraw. "Rather than proving actual (or the likelihood of imminent) violations of individual defendants' constitutional right to effective representation, the public defender's office presented general evidence regarding the average caseload of its attorneys, its lack of funding, and its difficulties in hiring new attorneys," Polston wrote....

Attorney General Pam Bondi and a statewide group of prosecutors fought the public defender's attempt to pull out of the cases. During Supreme Court oral arguments last year, Louis Hubener, an attorney for the state, pointed to a law that bars public defenders from withdrawing from cases solely because of "inadequacy of funding or excess workload."

The Supreme Court found the law constitutional, though it disagreed about how the law should be applied. "(The) statute should not be applied to preclude a public defender from filing a motion to withdraw based on excessive caseload or underfunding that would result in ineffective representation of indigent defendants nor to preclude a trial court from granting a motion to withdraw under those circumstances," the majority opinion said.

The full 45-page majority opinion and the six-page dissent referenced above can both be accessed at this link.

May 23, 2013 in Procedure and Proof at Sentencing, Television, Who Sentences? | Permalink | Comments (0) | TrackBack

Is Colorado Governor's grant of "clemency light" to quadruple murderer slick or silly?

GovernorhickenlooperThe question in the title of this post is prompted by this Reuters story concerning a fascinating — and clever? crazy? conniving? compelling? — decision made yesterday by the Governor of Coloardo concerning a convicted murderer scheduled to be executed in August.  Here are the basics:

Colorado Governor John Hickenlooper granted a reprieve on Wednesday to the state's longest-serving death row inmate, ordering his execution blocked indefinitely in a move that infuriated prosecutors and victims' families.

"It is a legitimate question whether we as a state should be taking lives," Hickenlooper, a first-term Democrat, wrote in his executive order, issued in response to a request for clemency from condemned quadruple killer Nathan Dunlap.

Dunlap, 39, who has been confined to Colorado's death row for 17 years, was scheduled to be executed in August by lethal injection. His lawyers had asked that Dunlap's death sentence be permanently commuted to life in prison without parole.

Hickenlooper called his order a "temporary reprieve," noting the decision left open the possibility for a future governor to rescind it and allow the execution to move forward. "I think it's highly unlikely that I will revisit it," said Hickenlooper, who is up for re-election next year.

Hickenlooper said he met with the families of Dunlap's victims before issuing the order and that the consensus among them was "disappointment." Bob Crowell, whose 19-year-old daughter, Sylvia, was among those slain, accused the governor of playing politics with the death penalty. "I think it stinks," Crowell told Reuters. "He (Hickenlooper) has not listened to the victims."

Dunlap was convicted and sentenced to death in 1996 for shooting to death four workers at a suburban Denver pizza restaurant where he had recently been fired. He has run out of formal appeals, although his attorneys and others have filed lawsuits seeking to halt the execution.

Dunlap's attorney, Phil Cherner, said he was "heartened" by the governor's decision. "It is a powerful statement against the death penalty. It cannot be administered fairly and needs to be done away with," Cherner said. He added that he broke the news to Dunlap, who he said "continues to be remorseful" for the killings....

Arapahoe County District Attorney George Brauchler, whose predecessor prosecuted the case, blasted the governor for granting what he called "clemency light" to a cold-blooded killer. "There's going to be one person in the system who will go to bed tonight with a smile on his face, and that's Nathan Dunlap," Brauchler said. "And he's got one person to thank for that smile, and it's Governor John Hickenlooper."

It was unclear what effect, if any, the reprieve would have on two more inmates now on Colorado's death row, or on other cases in which prosecutors are seeking the death penalty, including that of accused movie theater gunman James Holmes.  Legal analysts called the reprieve a victory for death penalty foes because it cast further doubt on the future of capital punishment in a state that has executed just one inmate in 46 years.

Colorado Attorney General John Suthers, a Republican and possible gubernatorial candidate, said the governor should not have allowed his "personal discomfort" with capital punishment to halt the execution. "The governor is certainly entitled to these views, but granting a reprieve simply means that his successor will have to make the tough choice that he cannot," Suthers said.

Whatever one might think about the substance of Gov Hickenlooper's grant of "clemency light" here (and I suspect commentors will have a lot to say on this front), I want to at least compliment him for issuing a lengthy explanation for his decision.  As summarized in this press release, Gov Hickenlooper provided this four-page detailed accounting of why he could not bring himself to allow Nathan Dunlap to be executed for his four murders.

Especially because Gov Hickenlooper is up re-election next year, and because it seems the current Colorado AG could be his opponent in that election, the unique decision to do a semi-permanent reprieve here will perhaps ensure that the death penalty in Colorado (where, of course, mass murderer James Holmes is being prosecuted) will be a front-and-center issue in the next Colorado election cycle.

May 23, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Lots of notable new marijuana coverage lately via Time magazine

Providing yet another sign of the modern marijuana times, Time magazine this week has run three distinct, and distinctly interesting, stories about marijuana law, policy and reform.  Here are the headlines with links:

May 23, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

May 22, 2013

Reviewing the new challenge facing states seeking to operate machineries of death

This notable new ProPublica story, headlined "A Prolonged Stay: The Reasons Behind the Slow Pace of Executions," reports on the execution drug procurement difficulties now facing many states seeking to carry out executions. Here are highlights from this lengthy and effective new piece of reporting:

States that impose the death penalty have been facing a crisis in recent years: They are short on the drugs used in executions.

In California, which has the country's largest death row population, the chief justice of the state supreme court has said there are unlikely to be any executions for three years, in part due to the shortage of appropriate lethal drugs.  As a result, state prosecutors are calling for a return of the gas chamber.

Ohio, which is second only to Texas in the number of executions carried out since 2010, said it will run out of the drug it uses in executions, pentobarbital, on Sept. 30.  The state has two men scheduled for execution in November, and eight more set to be killed after that.  Every state's supply of pentotbarbital, which has been the principal execution drug, expires at the end of November.

The shortage has forced death penalty states to scramble on two fronts: They are hunting for new suppliers or different drugs to use, and enacting changes to public records laws to keep the names of suppliers and manufacturers of those alternative drugs secret.

The lack of lethal drugs, and the fight over keeping new ones secret, are partly the result of a remarkably effective campaign by opponents of the death penalty, who have, in effect, taken their efforts from the court room to the boardroom.

Each time a state has found a new source for a drug to use in executions, Reprieve, an anti-death penalty organization based in London, in collaboration with death penalty lawyers in the United States, has used freedom of information laws, the local news media and the powers of persuasion to compel the drug's manufacturer to cut off the supply.

"Who's easier to persuade? The Supreme Court or a corporation that has financial interests?" said Clive Stafford Smith, a British-American, who was a death penalty lawyer in the South for many years before founding Reprieve.  "You can make it not worth their while to allow their drugs in executions."...

Death penalty states are now taking measures to keep anti-death penalty activists, and journalists, from learning the identity of suppliers.  A Georgia law enacted in March provides that any information about a "person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies or medical equipment" used in an execution shall be considered a "confidential state secret."  Already this year, at least three other states — Arkansas, South Dakota and Tennessee — have amended their public records laws to exempt the names of suppliers from disclosure....

In Colorado, a man who killed three teenagers and their boss in a pizza restaurant in 1993 is set to be executed in August.  But the state does not have the proper drugs, causing the director of prisons to send an urgent plea to the state's compounding pharmacies.  At "compounding pharmacies," pharmacists mix, or compound, the ingredients for drugs on site.

Last October, South Dakota became the first state to use a compound drug in an execution, and it did so twice.  Lawyers for one of the men to be executed, Robert Moeller, who had kidnapped, raped and murdered a 9-year-old girl, filed a lawsuit to obtain information about the supplying pharmacy.  The state resisted, and a federal judge sided with the state.

South Dakota was among the states to recently pass a law exempting the names of suppliers of lethal injection drugs from its public records law.  The change was necessary, said South Dakota State Sen. Jean Hunhoff, "because there's been harassment that has occurred against non-protected manufacturers and pharmacists, thereby causing difficulty for the state in obtaining the necessary chemicals for the lethal injection."  South Dakota's law passed in the state senate without opposition, and the house by a lopsided 60-8.

May 22, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (15) | TrackBack

Due to budget concerns, Oregon prosecutors advocating for lower drug sentences

Providing a bit of a man-bite-dog sentencing story, this local article reports on a notable set of lawyers advocating for lower sentences in Oregon.   The story is headlined "District attorneys favor drug sentencing decrease," and here are the basics:

A group of Oregon’s top prosecutors on Tuesday advocated lower prison sentences for marijuana and other drug crimes as a way of curbing the growth of state prisons.  The Oregon District Attorneys Association unveiled a plan to cut prison costs at a press conference in Oregon City.

Clackamas County DA John Foote said in a later interview that the plan is a response to legislation intended to save $600 million over the next decade by capping the prison population at 14,600 people.  The legislation has the support of a public safety commission appointed by Gov. John Kitzhaber and relies on reducing sentences for violent and property crimes.

Foote served on that committee and offered a minority report, which Tuesday’s proposal built on. It avoids any changes to Measure 11, but the prosecutors said it still would achieve the desired savings.  However, critics said the plan doesn’t go far enough and would require opening more prisons.

The bill that came out of the committee would remove first-degree sex abuse, second-degree assault and second-degree robbery from Measure 11 sentencing, and some property crimes from Measure 57.  Foote said the DA’s can’t support those ideas.  He said reducing Measure 11 sentences would be dangerous, and said a brief suspension of Measure 57 in 2009 caused property crimes to spike across the state, giving Portland one of the highest rates in the nation.

“(Reducing drug sentences) isn’t something we would do in a perfect world,” he said. “But we think these are the most responsible options available.”

May 22, 2013 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

New report assails criminal justice approach to illegal immigration problems

Us0513_immigration_reportcoverAs detailed in this press release, Human Rights Watch has today released this notable new report titled "Turning Migrants Into Criminals: The Harmful Impact of US Border Prosecutions."  That title reveals the major theme of the report, but here is more from the start of the press release:

The skyrocketing criminal prosecutions of migrants for illegally entering or reentering the United States carry huge human and financial costs, Human Rights Watch said in a report released today.  Imprisoning migrants with minor or no criminal records before deporting them often affects people seeking to reunite with their families in the US or fleeing persecution.

The 82-page report, “Turning Migrants Into Criminals: The Harmful Impact of US Border Prosecutions,” documents the negative impact of illegal entry and reentry prosecutions, which have increased 1,400 and 300 percent, respectively, over the past 10 years and now outnumber prosecutions for all other federal crimes.  Over 80,000 people were convicted of these crimes in 2012, many in rapid-fire mass prosecutions that violate due process rights.  Many are separated from their US families, and a large number end up in costly and overcrowded federal prisons, some for months or years.

“The US government is turning migrants into criminals by prosecuting many who could just be deported,” said Grace Meng, US researcher at Human Rights Watch and author of the report.  “Many of these migrants aren’t threats to public safety, but people trying to be with their families.”

The Senate immigration reform bill, proposed by the bipartisan “Gang of Eight,” calls for an additional US$250 million for increased prosecutions of these cases in Tucson, Arizona, and increasing the maximum penalties for many categories of people charged with illegal entry and reentry.  The US government should instead end unnecessary prosecutions for illegal entry or reentry.

The report is based on a thorough analysis of US government data and interviews with more than 180 people, including migrants and their families, lawyers, prosecutors, and judges.

The rapid growth in federal prosecutions of immigration offenses is part of a larger trend in which criminal law enforcement resources have been brought to bear on immigration enforcement, traditionally considered a civil matter.  Illegal entry — entering the country without authorization — is a misdemeanor.  Illegal reentry — reentering after deportation — is a felony.

May 22, 2013 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

"[W]hen viewed through the lens of organizational science, courts boggle the mind."

The title of this post is a sentence from this interesting new commentary by Babak Armajani and Judge Kevin Burke, which is headlined "Creating the Courts Americans Want: The public is dissatisfied with our courts; What the judicial system needs is a culture of performance-based innovation." (Hat tip: How Appealing.)  Here is what follows the insight in the title of this post:

External sources (the voters or elected officials) select the "partners of the firm" (the judges) with little or no input from the court or even any understanding of what needs a court may have.  Judges' vision of sharing power with each other is often no more than an office-sharing arrangement, as if they were solo-practitioner lawyers whose practice specialty is being a judge.  The result is that it is a challenge for courts to establish and maintain a sense of unity, let alone an organizational culture of innovation.

There are some bright spots on the court landscape.  Arizona, Colorado, Maryland and Nebraska are among states giving a lot of attention to how to create stronger court organizations and, more important, conditions that foster change and innovation.  The courts in Maryland, for example, have partnered for several years with Johns Hopkins University's Institute for Policy Studies to enhance the courts' leadership capabilities.

Leadership is especially important when it comes to creating a culture of performance in the courts.  As in other organizational settings, meaningful change is initiated not by using technology to pave the cow paths of past practice but by first defining the outcomes the courts seek and then getting all involved to focus on improving those outcomes.

One outcome that most courts have the capacity to measure is the speed or timeliness of their decisions.  Many courts, among them those in Maryland and Minnesota, are working to improve this crucial measure.

Another important measure is the "customer" experience.  Was the litigant heard?  Did the litigant understand the reasoning and terms of a ruling?  The response to questions such as these on simple surveys can provide valuable information about the customer experience.  A decade ago, no court focused on these types of performance measures. Today, the court systems in Alaska, Colorado and Washington State have initiatives focused on measuring and improving the litigant experience, and many local courts have moved in a similar direction.

Where there is measurement, change usually follows. In places where such measures are used as tools for learning how to improve rather than to assign credit or blame, we are seeing the beginnings of dramatic changes in the culture and operations of our courts.

This article is not focused only on sentencing decision-making or criminal case adjudication.  But concerns about the timeliness of decisions are especially acute in death penalty litigation, and I surmise many sentencing "customers" (prosecutors and defendants and their lawyers) are rarely fully satisfied with their court experiences. Thus, I think the themes and ideas of this article should be of special interest to sentencing fans.

May 22, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Notable Miller-aftermath news from three states

Coincidentally, I saw these three news stories this morning concerning how three states are dealing (or not dealing) with the Supreme Court's 2012 Miller ruling concerning the sentencing of juvenile murderers:

In addition to urging readers to comment on which of this trio of states seems to be doing better or worse job with Miller management, I wonder if anyone knows of a collection of resources (ideally on-line) with a state-by-state accouting of responses to Miller and/or a defendant-by-defendant review of efforts to obtain resentencing based on Miller.

May 22, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

May 21, 2013

Jodi Arias now pleading for a life sentence before sentencing jury

As reported in this new USA Today piece, "Jodi Arias, who said after her murder conviction she would prefer death to life imprisonment, stood before the jury Tuesday and pleaded for her life instead, asking them not to punish her family for her actions."  Here is more on today's action in a high-profile capital case:

Speaking as the only witness on her behalf in the penalty phase of her trial, she also referred to the family of her victim, onetime lover Travis Alexander, saying, "I never meant to cause them pain."...

Last week, the jury determined that the murder was committed in an "especially cruel manner," making Arias eligible for the death penalty. They heard tearful comments from Alexander's brother and sister as they described how his killing has torn their lives apart.

Arias acknowledged that her plea for life was a reversal of remarks she made to a TV reporter shortly after her conviction, when she said she preferred the death penalty. "Each time I said that, I meant it, but I lacked perspective," the former waitress said. "Until very recently, I could not imagine standing before you and asking you to give me life."

She changed her mind, Arias said, to avoid bringing more pain to members of her family, who were in the courtroom. "I cannot in good conscience ask you to sentence me to death, because of them," Arias said, pointing to her family. "I think death is tantamount to suicide. Either way, I will spend the rest of my life in prison. It will either be shortened, or not. If it is shortened, the people who will be hurt is my family. I am asking, please, please, don't do that to them."

After she finished speaking, the judge told jurors they can consider a handful of factors when deciding what sentence to recommend, including the fact that Arias has no previous criminal record. They also can weigh defense assertions that Arias is a good friend and a talented artist. Arias, wearing glasses, looked at the jury from time to time, but largely read from notes on a sheaf of papers she clutched in her hand.... At one point, she held up a white T-shirt with the word "survivor" written across it, telling the jurors that she would sell the clothing and donate all proceeds to victims of domestic abuse. She also said she would sell her hair to charity while in prison, and had already done so three times while in jail.

At one point in her remarks, Arias said she regretted how her trial, which drew national attention, had become a spectacle. She said she especially regretted testifying to the "darker elements" of her relationship with Alexander and how the "graphic, mortifying, horrific details" got into the public arena.

She said she had tried, instead, to avoid a trial. "I got on TV and lied about what I did and lied about the nature of my relationship with Travis," she said. "It has never been my intention to malign his name or character. In fact, it was a goal of mine to protect his reputation."

Recent related posts:

May 21, 2013 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Guest post on DOJ Report: Victimization of Mentally Ill Prison and Jail Inmates

Hello, all. I'm Lea Johnston, and I'd like to thank Doug Berman for inviting me to guest-blog about the new Department of Justice report released last week on sexual victimization in prisons and jails. I write in the area of mental disorder and sentencing, so I will focus on the mental health aspects of the data.

The DOJ report is based on inmate surveys conducted in over 600 state and federal prisons, local jails, and special correctional facilities between February 2011 and May 2012, and it includes the first national estimates of the sexual victimization of inmates with mental health problems.

The report found that inmates with serious psychological distress — elevated levels of nervousness, hopelessness, restlessness, depression, fatigue, or feelings of worthlessness — reported high rates of sexual victimization by staff and other inmates in 2011-12. In the words of the report:

The report also found that inmates with a history of mental health problems had higher rates of victimization than other inmates. The report ascertained that these characteristics were correlated with significantly elevated rates of sexual victimization:

These findings are significant because they demonstrate that mental disorder serves as a potent risk factor for victimization in correctional facilities. The report reinforces what academics — particularly Professor Nancy Wolff and her colleagues in important articles such as this one — have shown in recent years, but it goes further in detailing the current and historical offender characteristics that may signal risk of victimization.

There are three points related to this report that I think are worth making:

1)      Victimization rates may vary among facilities due to operational differences. The DOJ report shows that victimization rates vary widely among facilities for inmate populations as a whole. I suspect that victimization rates are especially likely to vary for mentally disordered prisoners, given differences in facilities’ housing policies for inmates with mental illnesses. Many facilities house offenders with serious mental illnesses (including clinical syndromes like schizophrenia, bipolar disorder, and major depression) with the general prison population until they reach a state of crisis — a potentially dangerous arrangement for a vulnerable inmate.  Some prisons, however, house disordered, vulnerable inmates in special facilities, wings, or units.  These arrangements may be temporary (designed to equip the offender, for instance, with coping mechanisms) or last for the entirety of the inmate’s confinement. Segregated housing may protect disordered inmates from abusive prisoners in the general population and yield lower rates of victimization.

2)      Victimization rates may improve under national standards released by the DOJ in May 2012 under the Prison Rape Elimination Act.  The PREA standards are aimed at detecting and preventing sexual abuse in correctional facilities and impose new screening, monitoring, reporting, and investigating requirements on prisons and jails.  Beginning in August, audits of facilities will take place every three years.

3)      Sexual victimization is not the only source of serious harm that mentally ill offenders face when incarcerated. They are prone to physical victimization due to their inability to assess danger sufficiently and to modify their behavior to ward off attacks. Cognitive and behavioral limitations can render strict conformance with prison rules difficult, and thus offenders with mental illnesses have elevated rates of disciplinary infractions. Consequently, disordered inmates are disproportionately punished in isolation, where they are especially susceptible to decompensation, psychotic breaks, and suicide ideation.  (I have explored this body of research in several articles, including one article on vulnerability and just desert.) 

As the aforementioned correlation between offenders’ history of mental disorder and sexual victimization suggests — and as the federal government has recognized in the PREA standards — it is possible to identify individuals at a heightened risk of sexual victimization at intake. This information is also available to judges at sentencing. 

My next guest blog will explore whether — and how — vulnerability to serious harm might inform the sentencing of offenders with mental illnesses.

May 21, 2013 in Offender Characteristics, Prisons and prisoners, Who Sentences? | Permalink | Comments (6) | TrackBack

"Colorado Department of Corrections to Pilot Telemedicine for Prisoners"

The title of this post is the headline of this interesting report, which starts this way:

In June, the Colorado Department of Corrections (DoC), in partnership with Denver Health Medical Center, will launch a pilot project designed to treat inmates using telemedicine. Doctors will start by providing consultations in areas like rheumatology, orthopedics, infectious disease and general surgery.  Nineteen correctional facilities will participate in the pilot.

Driving prisoners to the hospital can be costly.  Transportation usually happens after hours, which means that the DoC has to pay overtime wages to security officers.  Also, prisoners could potentially escape during the trip.  "The program improves accessibility to specialty care, and there’s been some use cases throughout the U.S. about inmates escaping, so this decreases the risk," explained Chris Wells, who is director of health IT architecture for Colorado's Governor's Office of Information Technology.

May 21, 2013 in Prisons and prisoners, Technocorrections | Permalink | Comments (1) | TrackBack

May 20, 2013

Notable developments in penalty phase of Jodi Arias' capital trial

As reported in this new USA Today article, the "sentencing hearing for convicted killer Jodi Arias ground to a halt Monday when her lawyers refused to call any witnesses and a judge refused their requests for a mistrial and to withdraw from the case." Here is more:

Judge Sherry Stephens stopped proceedings and released the jury for the day, telling them to return Tuesday morning. Defense attorney Kirk Nurmi later said he will allow Arias to speak to the jury Tuesday.

Nurmi clashed with Stephens over a motion he filed seeking a mistrial in the sentencing hearing. Nurmi said a witness who was supposed to testify regarding Arias' character had been threatened and was refusing to testify. Patricia Womack has been receiving "threats on her life if she were to testify on Ms. Arias' behalf," Nurmi wrote in the mistrial motion.

But Stephens refused his motion, saying she could not determine why Womack would not testify because she was not present in the courtroom. Nurmi and co-counsel Jennifer Willmott then asked to drop out of the case. Stephens again refused.

Nurmi then refused to present any witnesses, and Stephens called for the recess. Nurmi later said Arias will speak Tuesday. Also previously scheduled to testify on Arias' behalf was a former boyfriend of Arias'.

Arias, 32, was found guilty May 8 of first-degree murder for the 2008 slaying of Travis Alexander, 30, who was found dead in his suburban Mesa, Ariz., home. He had been shot in the head and stabbed nearly 30 times, and his throat was slit. Arias said she killed Alexander, her secret lover, in self-defense; the jury thought otherwise.

Last week, the jury determined that the murder was committed in an "especially cruel manner," making Arias eligible for the death penalty. They heard tearful comments from Travis Alexander's brother and sister as they described how his killing has torn their lives apart.

Now the jury is to consider mitigating factors — evidence about Arias' character and background that may sway them not to impose a death sentence. Stephens instructed jurors that they could consider a handful of factors when deciding what sentence to impose, including Arias' lack of a prior criminal record and assertions that she was a good friend, had an abusive childhood and is a talented artist....

Under Arizona law, if the jury cannot reach a unanimous decision on sentencing, the panel would be dismissed and a new jury would hear arguments and determine a sentence. If the second panel cannot reach a unanimous agreement, the judge then would sentence Arias....

Earlier this week, her lawyers asked to be allowed to step down from the case, but a judge denied the request. Legal experts say the decision was not a surprising one because the lawyers have a conflict of interest with their efforts to save her life after Arias said she would rather die.

Recent related posts:

May 20, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (14) | TrackBack

"How to Legalize Pot"

The title of this post is the headline of this notable new op-ed in today's New York Times authored by Bill Keller.  Here are some excerpts from an interesting read:

The marijuana debate has entered a new stage.  Today the most interesting and important question is no longer whether marijuana will be legalized — eventually, bit by bit, it will be — but how....

A few places, like the Netherlands, have had limited legalization; many jurisdictions have decriminalized personal use; and 18 states in this country have approved the drug for medical use.  (Twelve others, including New York, are considering it.)   But Washington and Colorado have set out to invent a whole industry from scratch and, in theory, to avoid the shortcomings of other markets in legal vices — tobacco, alcohol, gambling — that lurched into being without much forethought, and have supplied, along with much pleasure, much misery.

The biggest shadow hanging over this project is the Department of Justice.  Federal law still makes felons of anyone who trades in cannabis. Despite the tolerant drift of the polls, despite evidence indicating that states with medical marijuana programs have not, as opponents feared, experienced an increase in use by teenagers, despite new moves toward legalization in Latin America, no one expects Congress to remove cannabis from the list of criminal substances any time soon....  But federal authorities have always left a lot of room for local discretion on marijuana enforcement.  They could, for example, declare that they will prosecute only drug producers who grow more than a certain amount, and those who traffic across state lines.  Attorney General Eric Holder, perhaps preoccupied with scandal management, has been slow to come up with enforcement guidelines that could give the states a comfort zone in which to experiment.

One practical challenge facing the legalization pioneers is how to keep the marijuana market from being swallowed by a few big profiteers — the pot equivalent of Big Tobacco, or even the actual tobacco industry — a powerful oligopoly with every incentive to turn us into a nation of stoners.  There is nothing inherently evil about the profit motive, but there is evidence that pot dealers, like purveyors of alcohol, get the bulk of their profit from those who use the product to excess. “When you get a for-profit producer or distributor industry going, their incentives are to increase sales,” said Jonathan Caulkins of Carnegie Mellon, another member of the Washington consulting team.  “And the vast majority of sales go to people who are daily or near-daily consumers.”

What [UCLA Professor Mark] Kleiman and his colleagues (speaking for themselves, not Washington State) imagine as the likely best model is something resembling the wine industry — a fragmented market, many producers, none dominant.  This could be done by limiting the size of licensed purveyors.  It would help, too, to let individuals grow a few plants at home — something Colorado’s new law permits but Washington’s does not, because polling showed Washingtonians didn’t want that.

If you read the proposal Kleiman’s team submitted to Washington State, you may be a little boggled by the complexities of turning an illicit herb into a regulated, safe, consumer-friendly business.  Among the things on the to-do list: certifying labs to test for potency and contamination.  (Pot can contain, among other nasty things, pesticides, molds and salmonella.)  Devising rules on labeling, so users know what they’re getting. Hiring inspectors, to make sure the sellers comply.  Establishing limits on advertising, because you don’t want allowing to become promoting....

And then there is the issue of drugged driving.  Much about the chemistry of marijuana in human beings remains uncertain, in part because the government has not supported much research. So no one has come up with a pot version of the breathalyzer to determine quickly whether a driver is impaired.  In the absence of solid research, some legalization advocates insist stoned drivers are more cautious, and thus safer.  (Hands up if you want Harold and Kumar driving your taxi.  Or piloting your airplane.)  On this and much else, Washington and Colorado will probably be making it up as they go, waiting for science to catch up.

May 20, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack