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September 7, 2013

Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?

As part of our Federalist Society Teleforum earlier this week (noted/linked here), Bill Otis started with a thorough and thoughtful defense of federal mandatory minimum sentencing statutes.  Helpfully, Bill has posted the full text of his "opening statement" at Crime & Consequences. I recommend a careful reading of Bill's advocacy, both to see how strong it is in many spots and also to notice its potential weaknesses.

As the title of this post highlights, I see one fatal weakness in Bill's advocacy for current federal mandatory minimums (FMMs).  Specifically, these passages showcase that, while Bill claims he is eager to champion FMMs as a benefit to the "rule of law" at sentencing, what Bill really favors is the "rule of prosecutors" at sentencing that FMMs in fact facilitate:

"The Attorney General's remarks [to the ABA suggests] ... he wants to discard the last pillar of law-driven sentencing, to embrace a luck-of-the-draw system that pretends sentencing is fairer if it's more idiosyncratic....
"It is one thing, and wise, to give judges substantial discretion.  It's another to give them all of it.  Because judges vary widely in temperament, ideology and experience, letting individual judges decide without legislative constraint what the sentence will be is sure to lead to irrational disparity.  Without Congressionally-imposed floors, we'll go back to the luck-of-the-draw.  Some judges will stick with mandatory sentences and some won't. Nearly identical defendants with similar records will get widely varying treatment based solely on whose courtroom they're assigned to....
"Finally, existing law already provides at least three escape hatches for deserving defendants facing a mandatory minimum.  Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved.  Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player, and makes a clean breast of his crimes.  This "safety valve," as it's known, has been in the law for almost 20 years.  Separately, under existing law (Section 3553(e)), a defendant can avoid a mandatory minimum by helping prosecutors bring his cohorts to justice.  Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down conspiracies.

These are all important points, but they are in significant tension.  Notably, despite his advocacy for "Congressionally-imposed floors," Bill seems to endorse the "three escape hatches for deserving defendants" that emerges from plea bargaining, providing substantial assistance or satisfying the statutory safety valve.  What he does not mention is that individual federal prosecutors (operating off-the-record and not subject to any legal constraint or review) generally have complete or nearly complete control as to whether and when a defendant is "deserving" of benefiting from these escape hatches.  In other words, it is FMMs with their prosecutor-controlled escape hatches in the current federal system that in fact create a true and pure "luck-of-the-draw system," but one in which it is only individual federal prosecutors get to "decide without legislative constraint what the sentence will be" because they get to decide, without any legal constraint or accountability, whether and when any Congressionally-imposed floors will be in play at sentencing.

Bill is often quick to assert in this setting that the Constitution demands prosecutors have complete and unfettered charging and bargaining discretion.  But the Constitution plainly does not demand that Congress enact FMMs that function to enhance the most pernicious idiosyncratic aspects of "luck of the prosecutor" federal sentencing.  Moreover, and even more worrisome, evidence collected by the US Sentencing Commission and federal judges and researchers about how federal prosecutors use their lawless discretionary powers in the modern federal sentencing era suggests defendants would be lucky to get "luck of the draw" sentencing from prosecutors.  Much of the most cogent and comprehensive data analysis at least suggest that race and others very suspect sentencing factors disproportionately impact how prosecutors exercise their lawless discretion in the shadow of current FMMs.  In other words, FMMs do not merely facilitate luck-of-the-draw prosecutorial sentencing, but may well foster discriminatory sentencing decision-making.

(As a relevant aside, I must note that Bill again avoids any discussion of perhaps the most troublesome of FMMs because neither law or logic begins to explain when and how idiosyncratic federal prosecutors use their charging and bargain powers to "decide without legislative constraint what the sentence will be." I speak here of federal child porn sentencing provisions in which downloaders charged by prosecutors with possession offenses face no mandatory minimum term, but those charged with receipt offenses face a FMM. In recent years, hundreds of "identical defendants with similar records [who download CP] get widely varying treatment based solely on" whether a federal prosecutor decided to charge a possession or receipt offense. And, of course, while the US Sentencing Commission and other researchers can and do scour transparent and documented courtroom sentencing decisions in CP cases to see if and when there is lots of unjustified sentencing disparity as a result of judicial sentencing discretion, it is near impossible even to collect data from the hidden and undocumented prosecutorial sentencing decisions that FMMs facilitate.)

In sum, I share Bill's profound disaffinity for a lawless "luck-of-the-draw system that pretends sentencing is fairer if it's more idiosyncratic." But that disaffinity is what makes me an advocate for reforming or eliminating many current FMMs. Both formally and functionally, the rule of law and our constitutional system of check-and-balances are better served by a federal sentencing system with few if any FMMs. But, if you prefer a "rule of prosecutors" to the "rule of law," if you think a lawless luck-of-the-draw system is okay as long as it is mostly run by partisan prosecutors, then the current FMM reality should be to your liking as well as to Bill's.

September 7, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (36) | TrackBack

Legal twists and turns continue in controversial rape sentencing case from Montana

As reported in this local article, there were a number of notable court developments on Friday in the Montana child rape sentencing case that has garnered national attention.  Here are the basics:

The Billings judge who drew local and national condemnation for sentencing a former Senior High teacher to 30 days in prison for raping a 14-year-old student canceled a second sentencing hearing on Friday after the Montana Supreme Court intervened in the case.

But District Judge G. Todd Baugh did address an audience of mostly media representatives for about 10 minutes, explaining the legal and procedural history of the Stacey Rambold rape case that has grabbed headlines across the country for the past two weeks.

Less than an hour before Baugh stepped into the courtroom, the Montana Supreme Court issued an order canceling the hearing, telling Baugh that he could not legally change Rambold's sentence as he intended. "We conclude that the stated intent of the District Court to alter the initially imposed oral sentence in today's scheduled hearing is unlawful and that proceeding should be arrested," the order stated.....

The hearing Baugh wanted to hold in order to change Rambold's sentence was opposed by both the Yellowstone County Attorney's Office and Rambold's defense attorney, who argued that Baugh did not have the authority to change the sentence after announcing it in court last week. In its order, the Supreme Court also said it "takes no position on the legality of the imposed sentence, and will address the parties' arguments in that regard on appeal."

Attorney General Tim Fox released a statement later Friday that his office would proceed with the appeal, which was filed on Tuesday. "While it's good that Judge Baugh recognizes that his August 26 sentence of Stacey Rambold is contrary to the law, today the state Supreme Court affirmed that Judge Baugh has no authority to amend the sentence unless ordered to do so by the Supreme Court," Fox said.

Though he did not impose a new sentence, Baugh went ahead with the unusual hearing. The hearing began 1:40 p.m., and Baugh announced that he had decided on Thursday, before the Supreme Court intervened, to cancel the hearing he intended to hold aimed at re-sentencing Rambold....

A reporter from the New York Times and a crew from CNN were among the media representatives at the hearing, which was held on the record with a court reporter and court clerk present. Baugh told the gathering that he had also on Thursday signed a written judgment altering the sentence he imposed orally against Rambold on Aug. 26. The judge said the new sentence was 15 years in prison, with all but two years suspended, which he said is the minimum legal sentence in the case.

Less than two weeks ago, Baugh sentenced the 54-year-old Rambold to 15 years in prison, with all but 31 days suspended and credit for one day served. After reviewing the Supreme Court order, Baugh said, he put a note in the file withdrawing that written judgment and signed a new judgment reflecting his original sentence.

Baugh said the confusion over the mandatory minimum sentence in the case "shouldn't have had to be addressed at all." The confusion could have been avoided if "I had been more alert" or if prosecutors had addressed the issue at Rambold's Aug. 26 sentencing hearing. At that hearing, the prosecution argued that Rambold should receive a sentence of 20 years in prison, with 10 years suspended.

Baugh instead imposed the sentence requested by Rambold's defense attorney, Jay Lansing. The sentence caused a national outrage, not only for the prison term imposed on the former teacher, but for the words the judge used to explain the sentence. Baugh said the victim, Cherice Moralez, who committed suicide in 2010, was "older than her chronological age" and was in some control of the relationship with Rambold.

The judge apologized for the statements two days later, but critics have continued to call for his resignation. Baugh explained on Friday that the case began with the charges filed in 2008, but resulted in an unusual deferred prosecution agreement in July 2010 after Moralez's death.... Baugh said the sentencing hearing on Aug. 26 happened almost six years after the crimes. Rambold was found to be treatable in the community, and had committed no new crimes, he said.

"It seemed to me a suspended sentence was the most appropriate," Baugh said. The case will now proceed to the appeal process, the judge said.

Recent related posts:

September 7, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

September 6, 2013

New commentary calls "creative" shaming punishments "terrible" (on curious grounds)

Dameron.png.CROP.rectangle3-largeSlate's crime correspondent, Justin Peters, has this notable new commentary headlined "Dear Judges: Your Creative Punishments Are Hilarious and Also Terrible. Please Stop."  I will reprint below the commentary in full (with original links also reproduced) because I always find these kinds of (purportedly rightous) attacks on creative shaming sentences puzzling and curious:

If there’s one thing Americans love, other than the troubled-restaurant-turnaround stylings of Gordon Ramsay, it’s judges who impose “stunt” sentences on defendants. These sorts of stories crop up a couple of times per year, and they always seem to make the “lighter side” segment on the 10:00 news.  The most recent example of this comes from Cleveland, where Judge Pinkey Carr sentenced a man named Richard Dameron, who threatened a police officer, to stand outside a police station wearing a sign that read “I apologize to Officer Simone and all police officers for being an idiot calling 911 threatening to kill you. I'm sorry and it will never happen again.” To give the sentence a personal touch, the judge hand-lettered the sign herself.  These sorts of “Oh, snap!” sentences are undeniably funny.  But are they actually legal?  Do public humiliations like these constitute cruel and unusual punishments?

Legislatures generally give judges a lot of latitude to freestyle from the bench, as long as they can make the case that their funny punishments serve some sort of rehabilitative purpose.  Federal courts have supported creative sentencing, too. In 2004’s United States v. Gementera, the Ninth Circuit ruled that a district court judge was well within his rights to sentence mail thief Shawn Gementera to, among other things, stand outside a postal facility wearing a sign that read “I stole mail; this is my punishment.” In his opinion, Judge Diarmuid O’Scannlain (!) determined that “the district court imposed the condition for the stated and legitimate statutory purpose of rehabilitation and, to a lesser extent, for general deterrence and for the protection of the public.”

So these sentences, although unusual, are not seen to be unconstitutionally cruel.  And they clearly stem from valid frustration with America’s imperfect criminal justice system, which sends convicted criminals into dangerously overcrowded prisons, fails to rehabilitate them, and then releases them back into society, where they are apt to offend again.  It’s a frustrating cycle, and so you can understand why, rather than send an abusive father to prison, a judge might think it more effective to have him sleep in the same doghouse where he allegedly used to banish his son, or to sentence a burglar to have something valuable stolen from his house.  Call it poetic justice.  Call it common sense.

But as George Washington University law professor Jonathan Turley has written, poetic justice rarely has anything to do with legal justice.  The entire point of a code of laws is to move away from “common sense” justice and its attendant inconsistencies, and to professionalize the process by establishing a standardized list of crimes and punishments that’s valid in all jurisdictions.  The judiciary’s role is to interpret these laws and pass judgment on behalf of the state; judges are theoretically elected or appointed based on their supremely nuanced understanding of these laws, not based on their ability to hand-letter punitive signage.  This doesn’t mean that the system always works.  But it’s meant to ensure that, at the very least, the system proceeds with a measure of fairness and dignity.

Theatrical, cornpone deviations from this standard undermine the judicial system.  A sentencing hearing becomes less about the state passing judgment on a convicted criminal than an individual judge imposing her standards of right and wrong.  Our criminal justice system might not work very well.  But it ought to be fixed in the legislatures, not on an ad hoc basis by grandstanding judges who act as though they won their robes in a raffle. Public shaming is better suited for courtroom reality shows, which, indeed, is where one of stunt sentencing’s most famous practitioners — Judge Joe Brown — ended up. If that’s where Judge Pinkey Carr is bound, then I wish her well, and I hope she gets there soon, because her brand of homespun, alternative justice has no business in a real courtroom.

In short, this commentary recognizes that both the Constitution and legislatures permit shaming sanctions if and when, to quote the Ninth Circuit, they seek to serve the "stated and legitimate statutory purpose of rehabilitation and ... for general deterrence and for the protection of the public." In addition, this commentary seems to acknowledge that in many cases, the traditional punishment of locking someone in a cage often will not effectively or efficiently serve these purposes.  Nevertheless, apparently because a judge's purported role is to "to interpret [criminal] laws and pass judgment on behalf of the state" and because the criminal justice system is to proceed "with a measure of fairness and dignity," then creative shaming punishments somehow "undermine the judicial system." 

Huh?  For me this kind of argument and its fuzzy logic just does not compute.  Perhaps this is fundamentally because I see very little "fairness and dignity" coming from locking humans in cages, but it is also because there is anecdotal evidence that creative shaming sanctions may be significantly more effective than imprisonment in serving the express statutory sentencing purposes set forth by Congress and state legislatures. 

If and when data indicate creative sanctions are less effective than imprisonment at achieving public safety, I will be moved by the notion that such punishments are bad policy.  If and when Congress or state legislatures expressly prohibit shaming sactions because the people's representatives conclude such punishments "undermine the judicial system," then I will support claims they are unlawful.  Until such time, and especially because I also think our traditional punishments "might not work very well," I have a hard time being convinced by reactionary criticisms of seemingly reasonable efforts by seemingly well-meaning judges to try to make the criminal justice system they help administer work just a little better for all of society's benefit.

I sometimes think that what really explains these kinds of criticisms of creative shaming sanctions is the discomfort that the critic feels from having to see on full display and then think seriously about the many ugly realities of crime and punishment in our modern criminal justice systems.  When tens of thousands of defendants are sent away to prison every year in the United States, and thus effectively hidden away from public view (absent hunger strikes or suicides or other dramatic and harmful actions), those who do not regularly encounter many crime victims and/or criminal defendants need not think too much to the ugly modern realities of crime and punishment in our modern criminal justice systems.  But when a just few defendants are given creative shaming sanctions each year by seemingly well-meaning judges who are trying to improve the system, we all must confront the disconcerting reality that these kinds of punishment may actually be a significant improvement over the "traditional" status quo. 

I understand why the notion that creative shaming sanctions are a possible improvement over traditional punishment is a reality that could be deeply disconcerting to those who want to champion (and cling to) high-minded conceptions of the importance of "fairness and dignity" in our criminal justice system.  But attacking judges who are looking for novel sentencing alternatives which could be more effective and efficient than locking humans in cages is, in my view, an example of shooting the messenger because you do not like the real-world news being delivered through these kinds of punishments.

September 6, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"McSentencing: Mass Federal Sentencing and the Law of Unintended Consequences"

The title of this post is the title of this provocative new paper by Melissa Hamilton now available via SSRN. And this abstract suggests the content of the article is as delicious as the title:

The law of unintended consequences conjectures that any legislative act will yield unanticipated, and likely undesirable, outcomes. Federal sentencing law is no exception. Federal sentencing reforms enacted in the 1980s were designed to achieve uniformity and proportionality in meting out punishments. Congress expected that the creation of a presumptive guidelines system and the frequent imposition of mandatory minimum sentencing laws would effectively operate to provide federal judges with a consistent and uniform set of rules to follow, while substantially curbing judicial discretion. The emergent sentencing system relies substantially on a mechanized system of assembly-line justice in which judges are demoted to merely terminal actors in issuing sentences. This Article posits that the system is a form of McDonaldization of society, a popular concept that recognizes the model of fast food consumerism is an ideal type of the bureaucratization of a modern rational system in America today. The federal sentencing system is intended by the reform legislation to comprise a sort of McSentencing in that the outputs — sentences — are produced through an automated process involving discrete quantifications of harm. The result is mass sentencing based on an extensive and refined rules and procedures manual, i.e., the guidelines, and relevant mandatory minimums.

As with the fast food chain, McSentencing offers such benefits as predictability, calculability, efficiency, and control. Theoretically, McSentencing should beget consistent, uniform, and normative punishments. Yet, as with any rational system, unintended consequences necessarily follow purposive legislative action. This Article explains how the federal sentencing system earns the McSentencing label and then addresses significant unanticipated consequences which have ensued. The actors in the proposed assembly-line of sentencing — the sentencing commission, prosecutors, probation officers, judges — have reacted to the reforms and to each other in ways that have biased the ability for the sentencing reforms to achieve the intended objectives. The federal sentencing system is in crisis as a result. This Article offers a unique perspective by utilizing the theoretical constructs of McDonaldization and the law of unintended consequences as orienting devices for a case study on federal sentencing law. Statistical measures derived from various government datasets supplement the analysis with empirical perspectives.

September 6, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

September 5, 2013

ABA Death Penalty Review Project releases its assessment for VIrginia

As reported in this Richmond Times-Dispatch article, headlined "Study urges fairness reforms in death penalty cases," a big new report on the operation of the death penalty in the Old Dominion has just been released. Here are the basics:

A two-year study of Virginia’s death penalty to improve fairness and accuracy calls for safeguards in the use of suspect lineups and more access by defense lawyers to information to help them prepare cases. The recommendations are among more than a dozen in the study sponsored by the American Bar Association and released this morning.

A top change urged by the Virginia Death Penalty Assessment Team is to require law enforcement agencies to adopt the Virginia Department of Criminal Justice Services’ model eyewitness identification policy for suspect photo and live lineups. Misidentification played a role in the wrongful convictions of 18 Virginians later proven innocent in non-death penalty cases. Although the model policy was released in 2011, a recent survey by the University of Virginia Law School found few police departments had adopted it.

According to the Virginia department of Corrections, Virginia has executed 110 killers – 31 by electrocution and 79 by lethal injection since the U.S. Supreme Court allowed capital punishment to resume in 1976. The toll is second nationally only to Texas, which has executed 503. But in Virginia three out of four persons sentenced to death since 1976 have been executed -- a higher rate than even in Texas, which has carried out roughly half its death sentences.

The ABA study complimented Virginia on improvements including the accreditation of the Virginia Department of forensic Science’s four laboratories and the state medical examiner’s office as well as the certification of their employees. Among the recommendations for improvement, however, was requiring law enforcement agencies to electronically record suspect interrogations and confessions. A recent survey found only nine Virginia police agencies record a majority of their interrogations.

The team also recommends that in capital murder cases the Virginia Supreme Court require prosecutors to disclose the identity and any prior statements of testifying witnesses to allow the defense adequate preparation time. Virginia’s pre-trial discovery rules providing the defense with information to prepare its case are more restrictive than in other states, the team concluded. A defendant in a death case could go to trial without knowing who will testify against them....

The assessment team was chaired by John Douglass, a former federal prosecutor and dean of the University of Richmond Law School where he still teaches. The panel also included Richmond Commonwealth's Attorney Michael Herring, who won a death sentence against Ricky Gray; Mark L. Earley, a former Virginia attorney general whose office defended many death sentences on appeal; and Craig Cooley, a Richmond lawyer who has represented clients in 70 capital murder trials including Lee Boyd Malvo, one of the two Maryland to Virginia snipers.

The report is the result of the ABA’s Death penalty Assessment project which since 2003 has studied and reported on the death penalty in 10 other states.

A copy of the full report is available via the ABA's website at this link.  And the other prior ABA state-specific assessment are available via this page.  Without reading this latest Virginia report in some detail, I cannot readily conclude whether this report's conclusions strike me as sound.  But I can already note that this new ABA state death penalty review report seems, in both tone and content, to be much more complementary about Virginia's administration of capital punishment than most if not all other ABA state death penalty review reports.

September 5, 2013 in Death Penalty Reforms, Detailed sentencing data, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (22) | TrackBack

Effective review of history and modern realities of felon disenfranchisement

0613_issuecover_0I just came across this effective recent article in the American Prospect which discusses the history of felony disenfranchisement laws in the United States and their continued impact and import. The piece is titled "The Ex-Con Factor: Felony-disenfranchisement laws suppress black turnout enough to swing elections, and the future of reform is murky," and here are just a few passages that caught my eye:

Virginia is one of four states — along with Florida, Iowa, and Kentucky — that strip voting rights from felons for life.  The U.S. is the world’s only democracy that permits permanent disenfranchisement.  While most states have some restrictions on felons voting, it takes a decree from the governor or a clemency board to restore voting rights in the four states with lifetime bans.  In Virginia alone, 450,000 residents are disenfranchised.  In Florida, the total is an astonishing 1.5 million....

All but two states, Vermont and Maine, disenfranchise felons for some period of time. Thirteen states strip voting rights only for the period of incarceration.  Most have waiting periods with various requirements, like paying fines and completing special applications. Seven states — Alabama, Arizona, Delaware, Mississippi, Nevada, Tennessee, and Wyoming — have lifetime bans for particular crimes or repeat felony offenders.  They aren’t the strictest laws, but they affect enough potential voters to sway statewide elections.  In Alabama, more than 260,000 residents are stripped of their voting rights; more than half, just over 137,000, are African American.  In Mississippi, blacks account for nearly 60 percent of the 182,000 disenfranchised citizens.

When you add it all up, the numbers are startling.  More than five million Americans are currently disenfranchised because of felony convictions — an increase of some 270,000 over the past decade.  Nearly 1.4 million are ... black men. They represent 24 percent of the total disenfranchised population and a whopping 13 percent of all voting-age African American men.

Black men’s overrepresentation is no accident.  Felony disenfranchisement laws trace back to the post-Reconstruction era when former Confederates and white Southern Democrats rolled back the political gains made by free slaves after the war.  The whole point of these laws was the mass exclusion of black men from mainstream civic life.  It still is.

You can see the effects most clearly in black turnout rates.  The nation’s 27 million African American voters are concentrated in the South and in Northern urban centers.  Almost two-thirds — 66 percent — voted in last year’s presidential election, giving African Americans higher turnout than any other racial group.  But unlike with other groups, there was an odd gender gap: While more than 70 percent of black women voted, only 60 percent of black men went to the polls.  The difference, according to Bernard Fraga of Harvard University, is explained entirely by the huge number of black men who are disenfranchised....

From the start, criminal disenfranchisement laws were part of the white Democrats’ Redemption campaign.  They were written as race-neutral but were racist in their effects, as Middle Tennessee State University history professor Pippa Holloway documents in her book Living in Infamy: Felon Disenfranchisement and the History of American Citizenship. In just the period between 1874 and 1882, every Southern state but Texas found ways to disenfranchise those convicted of minor crimes like petty theft.  “Some Southern states changed their laws to upgrade misdemeanor property crimes to felonies,” Holloway explains, “and finally, Southern courts interpreted existing laws to include misdemeanors as disenfranchising crimes.”...

For those who want to end this last vestige of Jim Crow, the past two decades have brought decidedly mixed news.  On the one hand, nine states — including the South’s two largest — have repealed or amended lifetime disenfranchisement laws since the late 1990s. In 1997, the Texas Legislature — under Governor George W. Bush — ended its two-year waiting period for regaining eligibility after release, restoring rights to 317,000 citizens.  Seven years later, in 2004, another Governor Bush — Jeb — ordered the state clemency board to simplify Florida’s procedure, leading to the restoration of voting rights for 152,000 people.

But after the Tea Party wave election of 2010, Republicans in several states began to call again for stricter disenfranchisement.  In Florida, Republican Governor Rick Scott reversed the reforms that had smoothed the process for ex-felons and added a five-year period for rights restoration for nonviolent felonies, and a seven-year period for violent ones and other serious crimes.  One in ten voting-age Floridians now lacks voting rights as a result of past crimes.  Florida’s harsh disenfranchisement laws are reflected in another stark statistic — more than 25 percent of all disenfranchised Americans reside in the state.

In North Carolina, where ex-felons are granted voting rights after completing parole or probation, Republican lawmakers began pushing one of the nation’s toughest laws this spring.  It would impose a five-year waiting period and then require the ex-felons to present affidavits from two registered voters vouching for their “upstanding moral character” and win unanimous approval from their local board of elections.  The bill’s primary sponsor, state Senator E.S. “Buck” Newton, told Raleigh’s News & Observer that he considered it a lenient measure, because “the vast majority of people I have spoken to regarding election laws think convicted felons should not be able to vote at all.”

Some recent and older related posts:

September 5, 2013 in Collateral consequences, Who Sentences? | Permalink | Comments (15) | TrackBack

September 4, 2013

How could and should folks view (or "spin") latest results from national survey on drug use and health?

Released today were the findings from the 2012 National Survey on Drug Use and Health by the U.S. Department of Health and Human Services.  Helpfully, thanks to our modern digital world, everyone can look at the full reported results from HHS here and a collections of "highlights" at this link.  Or one can look at these headlines from some early major media reports:

As these headlines highlight, there are lots of ways to view the latest survey data.  (Moreover, because the stigma associated with marijuana use has declined with evolving laws and policy perspectives, I cannot help but wonder if the measured increase in reported use of marijuana might, at least to some degree, reflect an increase in the willingness of persons to admit to marijuana use rather than an actual increase in use.)

Usefully, because the 2012 National Survey on Drug Use and Health also explores alcohol and tobacco use, as well as reported rates of "substantance dependence/abuse," there are a number of notable (though less reported) seemingly positive stories emerging from this latest government report concerning drug use and abuse over the last decade.  Specifically (and quoting now directly from the HHS highlights):

I am inclined to ultimately view the data emerging from 2012 National Survey on Drug Use and Health as evidence that, all things considered, Americans are somewhat healthier now than we were a year ago and a lot healthier now than we were a decade ago.  But most of the headlines I see from the media seem to be emphasizing reported increases in the use of certain substantances rather than reported decreases in the use of other substances.

September 4, 2013 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Another effective review of the messy Miller aftermath

Juve miller mapThis morning's Wall Street Journal has this new article reviewing all the legal uncertainty which persists in state courts more than a year after the Supreme Court's Miller ruling declared unconstitutional mandatory LWOP sentences for juvenile murderers. (Regular readers may recall similar recent AP and Stateline piecesfocused mostly on legislative responses to Miller discussed here and here.) This new WSJ piece is headlined "Courts Split Over Ruling on Juvenile Life Sentence: Confusion on 2012 Decision Creates a Legal Limbo for Inmates, Their Lawyers," and here are excerpts:

Jeffrey Ragland, sentenced to life without parole in 1986 for his involvement in the killing of a fellow teen with a tire-iron blow to the head, could soon be a free man. That outcome is the result of a ruling by the Iowa Supreme Court last month that found the sentence handed down to Mr. Ragland, now 44 years old, unconstitutional. The court concluded that a June 2012 ruling from the U.S. Supreme Court outlawing mandatory life-without-parole sentences for juveniles should be applied retroactively, rather than only to future cases.

Other high-level courts, including the Minnesota Supreme Court and the Eleventh U.S. Circuit Court of Appeals in Atlanta, have ruled otherwise, finding the Supreme Court's ruling in Miller v. Alabama shouldn't reach backward in time.  Inmates challenging their sentences in those cases had their appeals denied.

This schism over the Miller ruling has helped sow deep confusion among inmates, their lawyers, lawmakers and sentencing-policy advocates.  More than a year after the high court ruling, many of the approximately 2,100 people sentenced as juveniles to mandatory life-without-parole sentences before June 2012 are being held in a sort of legal limbo — with few answers in sight.

"The situation is an absolute mess," said Wendell Sheffield, a criminal defense lawyer in Birmingham, Ala., who represents a juvenile being held in jail on capital murder charges. "We got an opinion from the highest court in the land, but nobody knows how to implement it."... [S]o far, courts have largely divided over a highly technical question of constitutional law: whether the rule established in Justice Kagan's opinion is "substantive" in nature, and therefore should apply retroactively, or "procedural," which would only alter the method of determining a sentence going forward. 

Several Supreme Court rulings in recent years in regard to sentencing, such as the 2002 decision that banned the death penalty for the mentally disabled, were in the former category and applied to sentences already imposed. Justice Kagan's opinion didn't explicitly label the new rule as procedural or substantive....

Advocates for overhauling the juvenile-justice system hailed the Ragland ruling. "An incentive to rehabilitate should be part of most juvenile sentences," said Jody Kent, director of the Campaign for the Fair Sentencing of Youth. "So often we have no idea what a child is going to be like in 10, 20 or 30 years."

A spokesman for Iowa Gov. Terry Branstad, a Republican whose office had argued against Mr. Ragland's new sentence, said victims "must never be re-victimized and can never be forgotten from the process." It is a concern echoed by other victims' rights supporters, who think renewed parole hearings, with their promise of springing convicted murderers from prison, would open old wounds.

Since the Miller ruling, a handful of the 28 states with mandatory life-without-parole sentences for at least some juveniles have changed their laws.  Some, like Delaware and Texas, scrapped the option of such sentences entirely.  Others, like Arkansas and Nebraska, still allow judges to impose the sentence, but also let them consider a life sentence with the possibility of parole.

But the majority of states have yet to change their laws, leaving the status of scores of inmates and defendants up in the air.  Mr. Sheffield said his client in Alabama is "completely stuck in a holding pattern" until the legislature or the Alabama courts give some clarity. "I think the [U.S.] Supreme Court was hopeful that state legislatures would deal with this fairly quickly," he said. "But they haven't — and it's just adding to the chaos."

I suspect the US Supreme Court will eventually feel compelled to take up the issue of whether and how the Miller ruling is to apply retroactively to long ago final cases.  If (and when?) the Justice take up this matter, I think the case could end up being one of the most significant SCOTUS retroactivity decisions since Teague.

A few recent related posts:

September 4, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Florida prosecutors considering pursuing death penalty for doctor deemed responsible for overdose deaths

I am always looking for notable and interesting modern cases to use with my 1L Criminal Law class when covering the topic of causation.  Thanks to this local story, headlined "Former West Palm Beach doctor could face death penalty in patients' deaths," it looks like Florida prosecutors not only have presented me with a good classroom candidate, but also are talking up a possible punishment that could ensure the case garners national attention. Here are the details:

State prosecutors have filed court documents announcing their intent to seek the death penalty against a former West Palm Beach doctor facing two counts of first-degree murder for the overdose deaths of his patients.

Authorities with the state attorney's office said Tuesday they have not made a final decision about whether to pursue the ultimate punishment for former West Palm doctor John Christensen, 61, but want to keep that option open. The case will go before the office's death penalty committee, which is expected to review it and decide whether to pursue the penalty within the next month, Chief Assistant State Attorney Brian Fernandes said. "This is a case that's potentially eligible for the death penalty," he said. "We want to make sure that we preserve our rights."

If the state does pursue a death sentence against the doctor, it would be highly unusual. Just a handful of Florida physicians have faced homicide charges for the overdose deaths of their patients, and the majority have been manslaughter cases.

West Palm Beach defense attorney Grey Tesh, who until last month represented Christensen, said he was surprised when the state sent its notice of intent to seek the death penalty. The doctor's new attorney, Richard Lubin, did not return a call seeking comment Tuesday. "At least in Palm Beach County, I don't know of any doctor who has faced the death penalty on a case like this," Tesh said.

In 2002, West Palm Beach doctor Denis Deonarine became the first in the state to be indicted for first-degree murder in the death of a patient who was prescribed painkiller OxyContin. He was ultimately acquitted of first-degree murder charges, and released from prison in December, according to the state Department of Corrections. After the trial ended, one juror told the Sun Sentinel the jury ultimately believed the patient was responsible for his own death.

Christensen, who operated medical offices in West Palm Beach, Port St. Lucie and Daytona Beach, was arrested in July, after a two and-a-half year investigation that focused on the deaths of 35 of his patients. He's facing multiple charges, including the two counts of first-degree murder for prescribing oxycodone, methadone and anti-anxiety drugs to two patients who later overdosed....

Tesh said he expects it will be an uphill battle for the state to get a conviction against Christensen, making the death penalty irrelevant. He said it will be difficult to connect the deaths to him, noting that one of the patients had other substances in her system when she died. "I would be surprised if he's convicted," Tesh said. "The evidence is just not going to be there, not to be proved beyond reasonable doubt."

Even without knowing much about the particulars of Florida homicide law, I share the perspective that state prosecutors are likely to face an uphill battle getting a first-degree murder conviction, let alone a death verdict, from a jury in this kind of case.  But I also can identify lots of potential (utilitarian) benefits flowing from just a prosecutorial decision to talk up possible capital charges in this case.

As this very post reveals, simply mentioning the possibility of a death sentence ensures this case gets a lot more attention, and that attention should (and likely will) lead many more doctors in Florida and elsewhere to be at least a bit more careful when writing scripts for potent and potentially lethal prescription drugs.  In addition, as in many other cases involving lots of human carnage, the prospect of capital charges might encourage a guilty defendant to plead guilty to lesser (and more fitting) charges. (Of course, some may view the potentially coercive impact of capital charges in a case like this to be an injustice, but I suspect prosecutors might well concluse that such charges are a fitting prescription for this kind of case.)

September 4, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (11) | TrackBack

Cleveland kidnapper Ariel Castro gives himself death penalty (finding way to use hanging as execution protocol)

As reported in this ABC News piece, a final chapter of the summer saga concerning Cleveland kidnapper Ariel Castro was written by the offender himself: "Ariel Castro, who was convicted of kidnapping, torturing and imprisoning three young women for over a decade, has died after being found hanged in his prison cell, the Ohio Department of Corrections said."  Here is more:

Castro, 53, was found hanging in his cell at Correctional Reception Center in Orient, Ohio, Tuesday night at 9:20 p.m. local time, corrections spokeswoman JoEllen Smith said.

Facility staff tried unsuccessfully to resuscitate the prisoner, according to Smith. Castro was taken to Ohio State University Medical Center and was pronounced dead at 10:52 p.m. Officials didn't provide further details on the apparent suicide.

"Inmate Ariel Castro was found hanging in his cell this evening at 9:20 p.m. at the Correctional Reception Center in Orient. He was housed in protective custody which means he was in a cell by himself and rounds are required every 30 minutes at staggered intervals," Smith said in a statement. Castro was not on a suicide watch, which would have required constant observation. "A thorough review of this incident is underway and more information can be provided as it becomes available pending the status of the investigation," the statement concluded.

Castro was sentenced to life in prison without parole plus 1,000 years by an Ohio judge Aug. 1. Castro, a former school bus driver, kidnapped Michelle Knight, Amanda Berry, and Gina DeJesus between 2002 and 2004 and imprisoned them, sometimes restrained by chains, in his Cleveland home.

Castro pleaded guilty to 937 counts, including kidnapping, rape, assault and aggravated murder. The plea deal spared Castro the death penalty because he was accused of the aggravated murder of a fetus after forcibly causing an abortion in one of his victims that he is accused of impregnating....

Castro was also watched closely in the Cuyahoga County Jail in the weeks after his arrest. He was taken off county jail suicide watch in early June after authorities determined he was not a suicide risk.

September 4, 2013 in Prisons and prisoners | Permalink | Comments (22) | TrackBack

September 3, 2013

"Evidence-Based Sentencing and the Scientific Rationalization of Discrimination"

The title of this post is the title of this provocative new paper by Sonja Starr now available via SSRN. Here is the abstract:

This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables.  I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language.

To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature.  To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments.  I show that they provide wildly imprecise individual risk predictions, that there is no compelling evidence that they outperform judges’ informal predictions, that less discriminatory alternatives would likely perform as well, and that the instruments do not even address the right question: the effect of a given sentencing decision on recidivism risk.  Finally, I also present new, suggestive empirical evidence, based on a randomized experiment using fictional cases, that these instruments should not be expected merely to substitute actuarial predictions for less scientific risk assessments, but instead to increase the weight given to recidivism risk versus other sentencing considerations.

September 3, 2013 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

New hearing ordered by Montana judge in case involving controversial 30-day child rape sentence

As reported in this local article, headlined "Judge orders new hearing on controversial rape sentencing," a high-profile state sentencing case from Montana took another notable twist this afternoon. Here are the details:

Saying the sentence he imposed on a former Billings teacher for the rape of a student may be illegal, Yellowstone County District Court Judge G. Todd Baugh has ordered a new hearing.

In an order filed Tuesday, Baugh set a hearing for Friday at 1:30 p.m. to determine whether the sentence he imposed last week on Stacey Dean Rambold should be revised. Baugh said in the order that the mandatory minimum sentence Rambold should have received appears to be two years, not the 30-day sentence that Baugh ordered on Aug. 26.

Yellowstone County Attorney Scott Twito called Baugh’s order an "unusual occurrence." Twito has been consulting with the Montana Attorney General’s Office to determine whether to appeal the case to the state Supreme Court. "The state will review the issue and we will be prepared to be in court on Friday," Twito said in response to the judge’s new order.

Rambold, a former Senior High teacher who admitted to raping a 14-year-old female student who later committed suicide, received a sentence of 15 years in prison, with all but 31 days suspended. He was given credit for one day previously served.

The sentence, and statements made by Baugh at the hearing last week, drew international attention and calls for Baugh’s resignation.

Recent related post:

September 3, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Utah (re)considering its approaches to sex offender sentencing

The Salt Lake Tribune has this notable new article about its prison population and sex offender sentencnig under the headline "Utah sex offender policy in spotlight as numbers soar: More prisoners, longer sentences but funding for treatment stays flat, triggering concerns."   Here are excerpts:

A dramatic increase in the number of sex offenders incarcerated in Utah over nearly two decades is raising questions about how the state deals with such crimes and concerns about whether all inmates are able to get needed treatment before they return to their communities.

The number of sex offenders in state custody has more than doubled — to 2,194 or 31 percent of the prison population — since 1996, the last year Utah lawmakers approved an increase in treatment funding.  Although Utah’s incarceration rate is significantly lower than that of other Western states and the U.S., it leads surrounding states when it comes to the percentage of prison inmates who are sex offenders.

One reason for that: Lawmakers have taken a tough stance on sex offenses, setting stiff penalties, such as a law passed in 2008 that set a 25-years-to-life penalty for child rape. “Our culture has a very strict credo, a moral sense, of what is appropriate sexually and what is not appropriate sexually,” said Rep. Eric Hutchings, R-Kearns and a member of the Criminal Justice Appropriations subcommittee. “That may be why we incarcerate a little bit more.”

The state’s approach also has historically been shaded by the view that “once a predator, always a predator” — a misconception that may finally be poised to shift with the accumulation of evidence that shows treatment works, Hutchings said. “The discussion is not over, but it’s happening in earnest,” Hutchings said. “The mind-set for a long time has been what are we going to get by putting this money into treatment. Why not focus instead on mandatory minimum sentences and keeping these people locked away.”...

The numbers reflect that philosophy of warehousing inmates.  Today, more sex offenders in Utah are sent to prison rather than placed on probation, and they serve longer sentences.  In 2012, for example, 92 percent of first-degree felony sex offenders went to prison, up from 72 percent in 1988.  During that period, the length of time served has doubled....

Still, “The reality is we are talking about a very large group of people at the prison who are some day going to get released,” said Jonathan Ririe, a Utah psychologist who works with sex offenders in the community. And that makes investing in treatment, as well as supervision outside of prison, critical, he added....

Utah inmates convicted of first-degree felony sex offenses who were released from prison during the past five years had, on average, served 7½ years.  But some serve far longer....

One Utah analysis of inmates who completed treatment showed about 20 percent returned to prison within a year, compared with 42 percent of those who did not complete treatment.  In both groups, most offenders returned because of parole violations rather than because they committed new crimes.

A 2003 Bureau of Justice Statistics report found that sex offenders were less likely than non-sex offenders to be rearrested for any crime.  That report also found that 5.3 percent of all sex offenders were rearrested for a sex crime within three years of being released.  The percentage was even lower — 3.3 percent — for child molesters.

Ririe said it is “frustrating” that Utah’s approach has been to continually adopt more stringent sentencing guidelines that lump sex offenders together rather than adopting a system that appropriately categorizes offenders by risk factors and allows judges and the parole board a greater role in assessing them individually.

September 3, 2013 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Bill and Doug's excellent adventure ... debating mandatory minimums in Federalist Society Teleforum

Bill and tedFor anyone who especially enjoys the verbal sparring between me and Bill Otis in the comments to this blog, you may want to quickly become a member of the Federalist Society so you can hear us go at in for a full hour as part of this exciting event being put on this afternoon by the FedSoc folks:

Is Eric Holder Right About Mandatory Minimums?

Criminal Law & Procedure Practice Group

Douglas Berman, William G. Otis

Start : Tuesday, September 3, 2013 2:00 PM

Location:  Federalist Society Teleforum Conference Call

On August 12, U.S. Attorney General Eric Holder announced that the Justice Department will no longer pursue mandatory minimum sentences for what he described as certain low-level, nonviolent drug offenders.  Our experts will discuss Holder’s announcement and approach.  In addition, they will address a variety of other issues related to mandatory minimum sentencing, including the question whether or not mandatory minimums are conceptually sound.

Featuring:

  • Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center
  • Prof. Douglas A. Berman, Robert J. Watkins/Procter & Gamble Professor of Law, Moritz College of Law, The Ohio State University

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Post-forum UPDATE: As you might have expected, Bill and I had a grand time talking past each other in an effort to highlight the pros and cons of mandatory minumum sentencing statutes. In all seriousness, I share Bill's perspective appearing in the comments below that "listeners got a full airing of the most persuasive points on both sides." And, valuably, you can still hear for yourself as a podcast of the hour-long discussion is now available from The Federalist Society via this link.

September 3, 2013 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"Mercenary Criminal Justice"

The title of this post is the title of this notable new paper by Wayne Logan and Ronald Wright now available via SSRN. Here is the abstract:

Today, a growing number of bill collectors are standing in line to collect on the debt that criminals owe to society.  Courts order payment of costs; legislatures levy conviction surcharges; even private, for-profit entities get a piece of the action, collecting fees for probation supervision services and the like.  While legal financial obligations (LFOs) have long been a part of the criminal justice system, recent budget cutbacks have prompted an unprecedented surge in their use.  The resulting funds are dedicated to sustaining and even expanding system operations.  With this shift, criminal justice actors have become mercenaries, in effect working on commission.

While a significant literature now exists on the adverse personal consequences of LFOs for offenders, this article is the first to examine their legal and institutional ramifications. Although any single LFO might be justifiable, the cumulative effects of assessed LFOs might overwhelm offenders.  Further, when criminal justice actors find themselves collecting payments that benefit their own institutions or entities, there comes systemic risk of self-dealing.  To mediate these threats, the article proposes use of LFO commissions, which could inventory and assess the propriety of current and proposed LFOs, and monitor their use going forward.

September 3, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Second Circuit panel hints that SORNA might be subject to some Commerce Clause challenges

A helpful reader alerted me to a notable Second Circuit panel opinion today in US v. Robbins, No. 12-3148 (2d Cir. Sept. 3, 2013) (available here), in which the court hints that federal sex offender registration laws might at some point be subject to new Commerce Clause challenges in the wake of the Supreme Court's work in the "Obamacare" cases.  Here is how the opinion in Robbins gets started:

In August 2011, after traveling from New York to Nevada, defendant-appellant Nathan Robbins knowingly failed to update his registration as a sex offender, as he was required to do under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16913.  He subsequently pled guilty to violating 18 U.S.C. § 2250(a), which makes it a crime for someone who is required to register under SORNA to travel in interstate commerce and knowingly fail to update his registration.  Despite his plea, Robbins retained the right to challenge the constitutionality of the statutes he admitted violating, and he brings just such a challenge here.

This Court has previously held that Congress acted within its powers under the Constitution’s Commerce Clause when it enacted SORNA.  See United States v. Guzman, 591 F.3d 83 (2d Cir. 2010).  Since then, however, the Supreme Court has revisited and further clarified — if that is the appropriate word — the reach of Congress’s power “[t]o regulate Commerce . . . among the several States.” U.S. Const. art. I, § 8, cl. 3; see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (“NFIB”).  Robbins invites us to revisit our holding in Guzman in light of the Supreme Court’s decision in NFIB.

We decline Robbins’ invitation not because his arguments all lack force, nor because the constitutionality of SORNA — particularly when applied within the states — is beyond question, see United States v. Kebodeaux, 570 U.S. ___, No. 12-418, slip op. at 5 (U.S. June 24, 2013) (Roberts, C.J., concurring in the judgment) (“The fact of a prior federal conviction, by itself, does not give Congress a freestanding, independent, and perpetual interest in protecting the public from the convict’s purely intrastate conduct.”), but because the constitutionality of SORNA as applied to Robbins remains unaffected by any limitations on Congress’s Commerce Clause power that may be found in NFIB. Still bound by the precedent set in Guzman, we therefore AFFIRM Robbins’ conviction.

September 3, 2013 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

September 2, 2013

"Against Juvenile Sex Offender Registration"

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

Imagine if you were held accountable the rest of your life for something you did as a child?

This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration.  And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives.

No matter the constitutionality of adult sex offender registration — and on that point, there is debate — this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment.  Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses.  Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior.  And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent.

Compounding the problem is mandatory lifetime registration for child offenders.  This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida.  This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders.

Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children.  And on that issue, we are failing.  The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation.  In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.

September 2, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (22) | TrackBack

Lots of commentary on AG Holder's recent work on mandatory minimums in US News

I have just noticed a whole lot of recent commentary up at US News & World Report concerning AG Eric Holder's big speech to the ABA and his decision to provide new guidance to federal prosecutors concerning the charging of certain drug crimes.  Some of this commentary is assembled on this Debate Club page put up a few weeks ago under the heading "Is Eric Holder Making a Good Move on Mandatory Minimums?". Here are the three pieces from that locale:

In addition, US News has also recently posted these three other commentaries on these same issues:

September 2, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Restoration, Retribution, or Revenge? Time Shifting Victim Impact Statements in American Judicial Process"

The title of this post is the title of this intriguing looking new paper by Tracy Hresko Pearl now available via SSRN. Here is the abstract:

Courts currently permit victims to offer victim impact statement in criminal proceedings in all 50 states and federal jurisdictions. However, victim impact statements introduce serious constitutional problems into criminal cases by (1) creating inconsistencies in sentencing, (2) injecting bias and prejudice into formal courtroom proceedings, (3) giving judges and prosecutors an opportunity to reject testimony that might sway jurors toward more lenient punishments, and (4) leaving defendants with little opportunity to mitigate their impact on decision-makers. Scholars, therefore, have resoundingly called for the exclusion of victim impact statements from criminal proceedings in the United States.

In this article, I take a decidedly different position and argue instead that victim impact statements are, in fact, salvageable. Specifically, I look to lessons from the restorative justice movement and propose a solution that relies on time shifting victim impact statements to the close of criminal proceedings. By removing victim impact statements from trials and sentencing and requiring that they be offered afterwards, their constitutional deficiencies can be virtually eliminated and their numerous benefits preserved.

September 2, 2013 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

September 1, 2013

Assembling reactions of those most critical of AG Holder's announcement on federal pot policy

In these comments to a post about the recent announcement by Attorney General Eric Holder concerning federal marijuana policy, former federal prosecutor Bill Otis asserted that "what the AG is actually saying is that nothing is changing" and that the announcement was really no big deal.  But, as evidenced by some very negative reactions by some drug war supporters, not everyone shares Bill's perspective. 

This Huffington Post piece, for example, reports that police groups "that include sheriffs, narcotics officers and big-city police chiefs slammed Attorney General Eric Holder in a joint letter Friday [available here], expressing 'extreme disappointment' at his announcement that the Department of Justice would allow Colorado and Washington to implement state laws that legalized recreational marijuana for adults." Here is more via the Huff Post report:

"It is unacceptable that the Department of Justice did not consult our organizations -- whose members will be directly impacted -- for meaningful input ahead of this important decision," the letter reads. "Our organizations were given notice just thirty minutes before the official announcement was made public and were not given the adequate forum ahead of time to express our concerns with the Department’s conclusion on this matter. Simply 'checking the box' by alerting law enforcement officials right before a decision is announced is not enough and certainly does not show an understanding of the value the Federal, state, local and tribal law enforcement partnerships bring to the Department of Justice and the public safety discussion."

The missive was signed by the Major County Sheriffs’ Association, the National Sheriffs’ Association, the Association of State Criminal Investigative Agencies, the International Association of Chiefs of Police, the National Narcotic Officers Associations’ Coalition, the Major Cities Chiefs Police Association and the Police Executive Research Forum. Law enforcement, the police groups said, "becomes infinitely harder for our front-line men and women given the Department’s position."

In addition, this round-up from StoptheDrugWar.org reports on some other notable negative reactions from "opponents of marijuana law reform":

"Decades from now, the Obama administration will be remembered for undoing years of progress in reducing youth drug use in America," Dr. Paul Chabot of the Coalition for a Drug Free California said in a statement. "This president will be remembered for many failures, but none as large as this one, which will lead to massive youth drug use, destruction of community values, increased addiction and crime rates."...

"We can look forward to more drugged driving accidents, more school drop-outs, and poorer health outcomes as a new Big Marijuana industry targeting kids and minorities emerges to fuel the flames," warned former US Rep. Patrick Kennedy in a statement issued by Project SAM (Smart About Marijuana), a neo-prohibitionist organization that couches its policy aims amid public health concerns.

"This is disappointing, but it is only the first chapter in the long story about marijuana legalization in the US. In many ways, this will quicken the realization among people that more marijuana is never good for any community," said Project SAM cofounder and director Kevin Sabet....

The taxpayer-funded Community Anti-Drug Coalitions of America (CADCA) also weighed in with disappointment, doom, and gloom. "The Department of Justice announced that it will not sue to block the implementation of laws in Colorado and Washington that legalize marijuana, despite the fact that these laws are in conflict with federal law," said CADCA head Gen. Arthur Dean in a statement. "CADCA and its more than 5,000 community coalitions across the country have been anticipating a response from the administration that would reaffirm the federal law and slow down this freight train. Instead, this decision sends a message to our citizens, youth, communities, states, and the international community at large that the enforcement of federal law related to marijuana is not a priority."

"The fact remains that smoked marijuana is not medicine, it has damaging effects on the developing adolescent brain, and can be addictive, as evidenced by the fact that 1 in 6 youth who use it will become addicted," Dean claimed, adding that the country is in "a growing crisis" as marijuana law reforms take hold. "The nation looks to our Justice Department to uphold and enforce federal laws. CADCA is disappointed in the Justice Department's decision to abdicate its legal right in this instance. We remain gravely concerned that we as a nation are turning a blind eye to the serious public health and public safety threats associated with widespread marijuana use."

Cross-posted at Marijuana Law, Policy and Reform.

September 1, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (13) | TrackBack