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September 21, 2013

"(Ad)ministering Justice: A Prosecutor's Ethical Duty to Support Sentencing Reform"

The title of this post is the title of this (quite timely) new article now available via SSRN and authored by R. Michael Cassidy. Among the reasons this article is notable is because its author was a state prosecutur for nearly a decade. Here is the abstract:

This article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as “ministers of justice” to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level ― promoting criminal justice policies that further broader societal ends.  While other authors have explored the tensions between a prosecutor’s adversarial duties and “minister of justice” role in the context of specific litigation, few have explored what it means to be an “administer” of justice in the wider political arena.  The author sets forth a new construct of what is required for a prosecutor to be a neutral, nonpartisan “administer of justice” in her legislative and public advocacy activities.

Applying this paradigm to the ongoing national debate about sentencing reform, the author argues that a prosecutor’s administrative responsibilities as a leader in the criminal justice establishment and her fiduciary responsibilities as a representative of the sovereign should compel her to join in the effort to repeal mandatory minimum sentencing provisions for most drug and non-violent offenses.  Not only are mandatory sentences in most instances unduly harsh, coercive, and inefficacious, but they allow for an arbitrary and discriminatory application that is essentially unreviewable by courts.  The author distinguishes this argument against mandatory minimum penalties from the so-called “Smart on Crime” movement, by grounding a prosecutor’s duty to promote sentencing reform in ethical reasoning as opposed to pragmatic or cost-savings considerations.

Even with robust political support from some of this nation’s most conscientious prosecutors, state legislatures are unlikely to repeal or cut back on all mandatory minimum sentences.  Some mandatory prison terms ― for crimes such as murder, repeat offense OUI, and aggravated sexual offenses — will likely stay on the books notwithstanding the advocacy recommended above.  A second question the author addresses in this article is how an ethical prosecutor should make plea bargaining decisions in the face of mandatory minimum prison terms retained by the legislature.  While there has been substantial legal scholarship to date that has decried the manner in which mandatory minimum penalties have transferred sentencing discretion from judges to prosecutors, beyond that descriptive lament there has been very little attention paid to how exactly prosecutorial discretion might be more meaningfully constrained through internal self-regulation. Prosecutors can mitigate many of the harsh and unjust consequences of mandatory minimum sentences by instituting and publishing clear office policies governing when line prosecutors may dismiss or reduce charges that carry them.  The author proposes specific guidelines that state prosecutors should adopt to ensure a consistent and even-handed application of mandatory minimum penalties, so that line prosecutors do not abuse the substantial discretion that has been afforded them in the plea bargaining process.

Based on this abstract, I surmise that the author would assert not merely that Attorney General Holder's recent policy changes concerning charging practices in drug cases was a good idea, but that they were ethically required. I hope to see discussion of prosecutorial ethics among prosecutors in the comments to this post.

Some recent and older related posts:

September 21, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

What are enduring lessons from "The Death and Resurrection of Capital Punishment in America"?

9780393239584_custom-f8e9cb67c091cd75f5a45cc9d90487109f9c5bb7-s2-c85The question in the title of this post is drawn from the title of Evan Mandery's notable new book titled "A Wild Justice: The Death and Resurrection of Capital Punishment in America."  Here is the description of the book from the publisher's website:

Drawing on never-before-published original source detail, the epic story of two of the most consequential, and largely forgotten, moments in Supreme Court history.

For two hundred years, the constitutionality of capital punishment had been axiomatic. But in 1962, Justice Arthur Goldberg and his clerk Alan Dershowitz dared to suggest otherwise, launching an underfunded band of civil rights attorneys on a quixotic crusade.  In 1972, in a most unlikely victory, the Supreme Court struck down Georgia’s death penalty law in Furman v. Georgia.  Though the decision had sharply divided the justices, nearly everyone, including the justices themselves, believed Furman would mean the end of executions in America.

Instead, states responded with a swift and decisive showing of support for capital punishment.  As anxiety about crime rose and public approval of the Supreme Court declined, the stage was set in 1976 for Gregg v. Georgia, in which the Court dramatically reversed direction.

A Wild Justice is an extraordinary behind-the-scenes look at the Court, the justices, and the political complexities of one of the most racially charged and morally vexing issues of our time.

I suspect I will not be able to find time to read this book until the end of classes this semester, but this recent NPR's Fresh Air interview of the author provides an effective and efficient glimpse into the stories therein. Here is how NPR sets up the interview:

In the mid-1970s, Arkansas' electric chair was being used by the prison barber to cut hair, and the execution chamber in New Hampshire was being used to store vegetables. That's because in 1972, the U.S. Supreme Court shocked the nation by striking down Georgia's death penalty law, effectively ending executions in the United States. But the decision provoked a strong backlash among those who favored the death penalty, and within four years the high court reversed course and issued a set of rulings that would permit the resumption of executions.

Evan Mandery, a professor at the John Jay College of Criminal Justice and a former capital defense attorney, has written a new account of the tumultuous legal and political battles over the death penalty. Mandery is sympathetic to those who tried to outlaw capital punishment, but his account focuses on attorneys for both sides in the battle, as well as the views and deliberations of the justices who decided the cases. His book is called A Wild Justice: The Death and Resurrection of Capital Punishment in America.

He tells Fresh Air's Dave Davies about how the Supreme Court decisions of the '70s changed capital punishment.

September 21, 2013 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

"The Modern Chain Gang: How Convict Leasing Can Help Repair the California Prison System"

The title of this post is the title of this intriguing new article by Ryan Minarovich now available on SSRN. Here is the abstract:

Inmates who work while incarcerated are less likely to succumb to the common negative effects of prison life both during their incarceration and after their release. Both the federal government and California, which have inmate labor programs already in place, realize the benefits and importance of inmate labor to the government, the individual inmate, prisons systems, and society. Labor as a means to reform served as the backbone of early private prison labor programs. These problems were vastly successful until opposition from organized labor caused their dissolution.

This article proposes a regulated and humane return to the convict leasing system. Because the private sector cannot currently utilize the benefits of inmate labor, using laws, regulations, and doctrine from both private prisons and labor, I propose a cooperation program between private industry and the California Department of Corrections and Rehabilitation (CDCR). This program will see private companies permanently house, secure, and care for inmates who produce goods or services for the companies on-site, or transport inmates between the prisons and the production facilities and secure and care for inmates who are in their custody while paying the state a fee for each inmate assigned a position with the company. This system will help defray the per inmate cost to the California prison system by requiring private industry to internalize inmate expenses while in their care and will also secure a recurring revenue stream for the CDCR while adhering to current political, cultural, societal, and legal standards that will insulate inmates from the problems of early convict leasing systems and current private prisons.

September 21, 2013 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

September 20, 2013

NY Times debates "Reconsidering Young Lifers’ Sentences"

The Room for Debate section of the New York Times has this new set of pieces discussing whether all juve murderers should get the retroactive benefit of the Supreme Court's Miller Eighth Amendment ruling.  Here is the section's set up:

In the wake of last year’s Supreme Court ruling in Miller v. Alabama that juveniles may never receive a mandatory sentence of life without parole, The Times editorial board has called for courts and legislators to apply this principle regardless of the date of conviction.

Courts in some states agree. Earlier this month, the Louisiana Supreme Court took on this question in the case of Darryl Tate, who was 17 when he robbed two men and killed one of them in 1981.

Should all people in prison for life without parole who committed their crimes before their 18th birthday be eligible for a new sentencing hearing?

Here are the contributions, with links via the commentary titles:

September 20, 2013 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

New report assails "lockup quotas" in private prison industry

Criminal-Lockup-Quota-InfographicThe organization In the Public Interest (ITPI), which bills itself as "a comprehensive resource center on privatization and responsible contracting," has just released this new report on the private prison industry titled "How Lockup Quotas and 'Low-Crime Taxes' Guarantee Profits Guarantee Profits."   Here is 17-page report's introduction:

In 2012, Corrections Corporation of America (CCA), the largest for-profit private prison company in the country, sent a letter to 48 state governors offering to buy their public prisons. CCA offered to buy and operate a state’s prison in exchange for a 20-year contract, which would include a 90 percent occupancy rate guarantee for the entire term. Essentially, the state would have to guarantee that its prison would be 90 percent filled for the next 20 years (a quota), or pay the company for unused prison beds if the number of inmates dipped below 90 percent capacity at any point during the contract term (a “low-crime tax” that essentially penalizes taxpayers when prison incarceration rates fall). Fortunately, no state took CCA up on its outrageous offer. But many private prison companies have been successful at inserting occupancy guarantee provisions into prison privatization contracts, requiring states to maintain high occupancy levels in their private prisons.

For example, three privately-run prisons in Arizona are governed by contracts that contain 100 percent inmate quotas.  The state of Arizona is contractually obligated to keep these prisons filled to 100 percent capacity, or pay the private company for any unused beds.

These contract clauses incentivize keeping prison beds filled, which runs counter to many states’ public policy goals of reducing the prison population and increasing efforts for inmate rehabilitation.  When policymakers received the 2012 CCA letter, some worried the terms of CCA’s offer would encourage criminal justice officials to seek harsher sentences to maintain the occupancy rates required by a contract.  Policy decisions should be based on creating and maintaining a just criminal justice system that protects the public interest, not ensuring corporate profits.

Bed guarantee provisions are also costly for state and local governments.  As examples in the report show, these clauses can force corrections departments to pay thousands, sometimes millions, for unused beds — a “low-crime tax” that penalizes taxpayers when they achieve what should be a desired goal of lower incarceration rates.  The private prison industry often claims that prison privatization saves states money.  Numerous studies and audits have shown these claims of cost savings to be illusory, and bed occupancy requirements are one way that private prison companies lock in inflated costs after the contract is signed.

This report will discuss the use of prison bed occupancy guarantee clauses in prison privatization contracts and explore how bed occupancy guarantees undermine criminal justice policy and democratic, accountable government. Section 1 explains the for-profit private prison industry’s reliance on high prison populations, and how these occupancy guarantee pr ovisions directly benefit its bottom line. Section 2 discusses the prevalence of bed guarantee clauses, drawing on a set of contracts that ITPI obtained through state open records requests. Section 3 describes how occupancy guarantees have harmed states, focusing on the experiences of Arizona, Colorado, and Ohio — three states that have agreed to these provisions to detrimental consequences. Lastly, Section 4 will discuss our recommendation that governments can and should reject prison occupancy guarantees.

Some related posts: 

September 20, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

September 19, 2013

"Holder directs attorneys to seek reduced sentences in pending drug cases"

The title of this post is the headline of this Washington Post report on the latest announcement from AG Eric Holder concerning federal drug prosecution policies. Here is how the article starts:

Attorney General Eric H. Holder Jr. said Thursday that he has directed U.S. attorneys across the country to apply new sentencing guidelines to ongoing drug cases so that low-level, nonviolent offenders will not face severe mandatory sentences.

The new guidelines will be applied to suspects who have been charged but not yet put on trial, as well as to individuals who have been convicted but not yet sentenced. The directive does not affect offenders already sentenced or serving time in prison.

Holder announced last month that low-level, nonviolent drug offenders would no longer be charged with offenses that impose severe mandatory sentences. The new directive marked an expansion of that effort.

“I am pleased to announce today that the department has issued new guidance to apply our updated charging policy not only to new matters, but also to pending cases where the defendant was charged before the policy was issued but is still awaiting adjudication of guilt,” Holder said in a speech to the Congressional Black Caucus.

AG Holder's full speech to the Congressional Black Caucus Foundation Criminal Justice Issues Forum is now available at this link, and here are some additional excerpts:

America’s criminal justice system is in need of targeted reform. Throughout this country, too many Americans are trapped – and too many communities are weakened – by a vicious cycle of poverty, criminality, and incarceration. Too many people go to too many prisons for far too long – and for no truly good law enforcement reason. The U.S. prison population has grown at an astonishing rate over the last three decades – by almost 800 percent since 1980, despite the fact that America’s overall population has increased by only about a third. As we speak, more than 219,000 federal inmates are currently behind bars. Almost half are serving time for drug-related crimes. And many have substance use disorders.

Outside of the federal system, an additional nine to 10 million people cycle through local jails each year. And roughly 40 percent of former federal prisoners – along with more than 60 percent of former state prisoners – are rearrested or have their supervision revoked within three years after their release, at great cost to American taxpayers.

It’s clear, in a broad sense, that 20th-century criminal justice solutions are just not adequate to address the 21st century challenges we face. There’s no question that incarceration will always have a role to play in our criminal justice system. But there’s also no denying that widespread incarceration at the federal, state, and local levels imposes significant human and moral costs – as well as a tremendous economic burden, totaling $80 billion in 2010 alone.

Especially in times of widespread budgetary difficulties and federal sequestration – when leaders at every level of government have been asked to do more with less – we must resolve, as a country and as a people, to do much better....

It’s time – in fact, it’s well past time – to take a fundamentally new approach. And today, I am proud to join you in working to ensure that – in this area and many others – the scales of justice find a more appropriate balance....

In addition – in recent months – the Justice Department also has updated its framework for considering compassionate release for some inmates who face extraordinary or compelling circumstances, and who pose no threat to the public. Of course, as our primary responsibility, we must ensure public safety. But considering the applications of certain people with convictions for nonviolent offenses – such as individuals seeking release on medical grounds, or elderly inmates who did not commit violent crimes and have served significant portions of their sentences – is the right thing to do. It is the smart thing to do. And it will allow the Bureau of Prisons to evaluate compassionate release applications through a careful review process before each case comes before a judge – who will make a final determination on whether release is warranted.

September 19, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Notable new empirical research exploring legislators, prosecutors and "Expressive Enforcement"

A helpful reader altered and recommended to me this notable new article on SSRN authored by Avlana Eisenberg and titled "Expressive Enforcement." Here is the abstract:

Laws send messages, some of which may be heard at the moment of enactment. However, much of a law’s expressive impact is bound up in its enforcement.  Although scholars have extensively debated the wisdom of expressive legislation, their discussions have focused largely on enactment-related messaging, rather than on expressive enforcement.  This Article uses hate crime laws — the paradigmatic example of expressive legislation — as a case study to challenge conventional understandings of the messaging function of lawmaking.  The Article asks: How do institutional incentives shape prosecutors’ enforcement decisions, and how do these decisions affect the message of hate crime laws?

To answer that question, the Article presents original data from the first multi-state qualitative empirical study of hate crime prosecution.  The findings help to explain a paradox: in archetypal hate crime cases involving animus directed at a victim’s core identity features — such as race or sexual orientation — prosecutors may decline to include hate crime charges because of statutory incentives, difficulty of proving motive, and concerns about jury reaction.  Conversely, hate crime enforcement may be appealing to prosecutors in precisely those cases that are least likely to further the expressive purposes of hate crime laws.  After exploring this mismatch, the Article identifies some areas where there may be irreconcilable tensions between the expressive goals of legislators and the incentives of prosecutors and, in other areas, offers recommendations to unify legislative goals with expressive enforcement.

September 19, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

A few recent medical marijuana highlights from "Marijuana Law, Policy and Reform"

Regular readers of this blog likely have come to notice relatively fewer posts of late on marijuana law and reform issues, and that reality is a direct result of the fact that my work on this topic is now being principally channelled to my new blog Marijuana Law, Policy and Reform.  While I urge everyone who is especially interested in drug policy reform topics to regularly check out my work over there, I also expect to make a habit of posting links to sets of posts from my MLP&R blog here in order to generate additional discussion and cross-pollination.

For example, I have over the last few weeks done a series of posts pondering medical marijuana laws and practices over at my MLP&R blog (in conjunction with my coverage of these topics in the "Marijuana Law, Policy & Reform" seminar I am teaching this semester).  Here are links to the main posts in this series:

There are a few answers to a few of these questions in the comments over at MLP&R, though I remain quite eager to get more input and reactions from readers here or there on these topics.

September 19, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (0) | TrackBack

Linda Greenhouse reflects on changing crime culture changing SCOTUS jurisprudence

Winds-of-changeLinda Greenhouse's new commentary piece at the New York Times "Opinionator" blog is focused on crime and punishment issues. The lengthy piece, headlined "Winds of Change," is worth a full read and here are excerpts:

Back in 1991, the Supreme Court upheld a Michigan man’s prison sentence of life without the possibility of parole for possessing more than 1.5 pounds of cocaine.  The sentence did not represent the third strike of a three-strikes law: the prisoner, Ronald A. Harmelin, 45, had no previous criminal record.  The police found the drugs when they stopped him for running a red light.  Since simple possession was enough to trigger Michigan’s mandatory life-without-parole sentence, the prosecution didn’t even have to bother trying to prove that Mr. Harmelin intended to sell the cocaine.

In upholding the sentence, the court rejected the argument that it was so disproportionate to the crime as to violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  The three justices who then occupied the middle of the court (yes, there was a multi-justice middle back then) — Anthony M. Kennedy, Sandra Day O’Connor and David H. Souter — voted with the 5-to-4 majority.

In “Five Chiefs,” the very interesting (and underappreciated) Supreme Court memoir he published in retirement, Justice John Paul Stevens reflected on the Harmelin decision, from which he dissented.  Those three justices were all relatively new to the court at the time, he wrote.  The justices they had replaced — Lewis F. Powell Jr., Potter Stewart and William J. Brennan Jr. — were all long-serving veterans who Justice Stevens speculated would have voted to invalidate the sentence.  It may be, he added, that “the views of individual justices become more civilized after 20 years of service on the court.”

That was an intriguing thought, and when I had a chance last year to interview Justice Stevens, I asked him to say more.  He said he still thought about the case “a lot.”  He was “quite sure” that Justice Kennedy would come to the opposite conclusion today, and that the other two probably would as well if they were still on the court.  Nonetheless, he added, “the precedent is still there, and it’s really a very unfortunate case.”

I’ve been thinking a lot myself about the Harmelin decision in light of recent events.  First there was the announcement last month by Attorney General Eric H. Holder Jr. that the Justice Department was revising its prosecution strategy in order to avoid the impact of mandatory minimum sentences for low-level drug offenses.  That was followed by the announcement that the federal government wouldn’t sue to block state laws that have legalized marijuana for medical or recreational use.  Either policy shift would have been greeted with amazement not too many years ago, but neither provoked anything approaching a fuss....

Something is clearly in the wind.  I’ve also been thinking about the New York City mayoral primary.  It’s impossible to read the election outcome as other than, at least in part, a public repudiation of the Bloomberg administration’s law-enforcement policies, particularly the administration’s embrace of stop-and-frisk. Mayor Michael R. Bloomberg not only denounced Federal District Judge Shira A. Scheindlin’s ruling last month that stop-and-frisk as the police were using it was unconstitutional, but he also attacked the judge herself as an “ideologically driven” judicial activist.

Unlike the days when politicians could score easy points by attacking courts as soft on crime, however, the mayor got no traction.  Bill de Blasio, the Democratic primary winner, ran as the non-Bloomberg, making opposition to stop-and-frisk a centerpiece of his campaign.  An exit poll indicated that black New Yorkers and white New Yorkers were equally supportive of Mr. de Blasio, who also received nearly identical support across the income spectrum — a fascinating development.  People so often separated by race and class, seemed to unite around the conclusion that enough was enough.

The question is what this shift in public attitudes might mean for the courts, the Supreme Court in particular.  The Supreme Court operates inside the mainstream culture — which is, after all, where the justices live — influenced not by the “weather of the day” but by the “climate of the age,” as Justice Ruth Bader Ginsburg likes to say, quoting the great constitutional scholar Paul Freund....

In his reflection on the Harmelin decision, Justice Stevens offered the tantalizing idea that longevity on the bench makes justices “more civilized.”  Can that prediction apply not only to individual members of the court, but also to the court as a whole?  As the Roberts court begins year nine, that may be a distant hope, but one worth clinging to.

The recent SCOTUS Eighth Amendment rulings in Graham and Miller reflect, in my view, the impact of these "winds of change." But it remains to see whether and when these winds will blow hard enough to knock over the problematic precedent set by the Harmelin decision 22 years ago.

September 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

"Rethinking the Timing of Capital Clemency"

The title of this post is the title of this notable new paper by Adam Gershowitz which now is available via SSRN.  Here is the abstract:

This article reviews every capital clemency over the last four decades.  It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals — years or even decades before the habeas process was concluded.  Yet, when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare.

Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation.  This article documents nearly 300 years of wasted habeas corpus review.  Additionally, last-minute commutations harm the victims’ families by delaying closure for years.  And placing clemency at the very end of the process creates an information cascade that makes it harder for governors to grant clemency in meritorious cases.  This article therefore argues for a threshold clemency determination in capital cases at the conclusion of direct review, before any state or federal habeas litigation has begun.

September 19, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

September 18, 2013

US Attorney defends fraud guidelines while others urge reform in USSC event

Today notable events in the federal sentencing reform arena were not confined only to today's U.S. Senate Judiciary Committee hearing on federal mandatory minimums (discussed here and here).  Also starting today was a two-day event in NYC in which the U.S. Sentencing Commission is discussing potential reform to the federal fraud guidelines.  This Reuters report, headlined "U.S. prosecutor cautions against white-collar sentencing revamp," provides a few notable highlights from the events in NYC:

The U.S. Justice Department opposes a wholesale revamping of white-collar criminal sentences that defense lawyers and some judges have urged, a top federal prosecutor said on Wednesday.

But Melinda Haag, the U.S. attorney in San Francisco, said the department was open to limited changes in white-collar sentencing that could reduce sentences in some fraud cases. The comments came as the U.S. Sentencing Commission is weighing revisions to advisory sentencing guidelines used by judges for securities, healthcare, mortgage and other fraud offenses.

Defense lawyers, the American Bar Association, some judges and others have criticized the guidelines, saying they emphasize financial losses caused by crime over all other factors, sometimes resulting in sentences that are too severe.

Haag, speaking at a symposium on white-collar sentencing in New York, said the Justice Department believes the current guidelines "result in tough but fair sentences in the vast majority of the cases." But she suggested that the department may be open to some changes, saying certain categories of cases, such as securities cases involving frauds on the market, warrant "careful study" by the commission. "Despite our questions and concerns, however, we do agree that in some cases, loss may overstate the seriousness of the offense," Haag said.

A growing number of judges have imposed terms less than prescribed by the guidelines, which became advisory rather than mandatory following a U.S. Supreme Court decision in 2005.

U.S. District Judge Loretta Preska, sitting on a panel with Haag, cited the case of Joseph Collins, a former partner at the law firm Mayer Brown, who was convicted for his role in a fraud at commodities broker Refco Inc. With losses calculated at $2.4 billion, Preska said under the guidelines Collins faced life in prison. She instead sentenced him in July to a year in prison, citing his community service and the fact he didn't financially benefit from the scheme. "This was absurd, absolutely absurd," she said.

Haag said the Justice Department recognized there "may be issues in some high-loss cases." But she said the department didn't believe a wholesale change was needed to the fraud sentencing guidelines or the loss table used to calculate sentences. She said it was a relatively small number of cases that had caused judicial concern. Citing commission statistics, she said 54 percent of economic crime cases involve less than $120,000 in losses and 83 percent involve less than $1 million.

Haag also argued that in some big cases involving investment fraud like Ponzi schemes, judges "don't seem to hesitate in imposing lengthy prison terms, noting the devastation these fraud schemes wreak on other people and the greed that motivated most of the defendants before them."...

In the last 18 months, federal prosecutors have handled investment fraud cases involving 800 defendants and more than $20 billion, she said. For the FBI, investment fraud is now 60 percent of its white-collar case load, she said.

Nonetheless, she said "certain categories of cases warrant careful study by the commission and potentially narrowly tailored amendments" to the fraud sentencing guidelines. Among the suggestions she gave would be for the Sentencing Commission to review how the guidelines treat loss in certain securities fraud cases where a drop in stock value by a few dollars per share can turn into a billion dollar loss.

September 18, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

The Sentencing Project releases "Life Goes On: The Historic Rise in Life Sentences in America"

I received an email alerting me to an important new publication about life and LWOP sentence just released by The Sentencing Project.   Here is the text of the email, which includes links to the publication as well as a summry of its key findings: 

While serious crime rates in the U.S. have been declining for the last 20 years, the number of prisoners serving life sentences has more than quadrupled since 1984.  As documented in our new report, Life Goes On: The Historic Rise in Life Sentences in America, by senior research analyst Ashley Nellis, over 159,000 people were serving life sentences in 2012, with nearly 50,000 serving life without parole.

Key findings from the report include:

  • One of every nine individuals in prison is serving a life sentence.
  • The population of prisoners serving life without parole (LWOP) has risen more sharply than those with the possibility of parole: there has been a 22.2% increase in LWOP since just 2008.
  • Approximately 10,000 lifers have been convicted of nonviolent offenses.
  • Nearly half of lifers are African American and 1 in 6 are Latino. 
  • More than 10,000 life-sentenced inmates have been convicted of crimes that occurred before they turned 18 and nearly 1 in 4 of them were sentenced to LWOP.
  • More than 5,300 (3.4%) of the life-sentenced inmates are female.
In order to reshape our crime policies to facilitaterehabilation, promote public safety, and reduce the high cost of massincarceration, the report recommends eliminating life without parole,increasing the use of executive clemency, preparing persons sentenced to lifefor release from prison, and restoring the role of parole in prisoner release.

September 18, 2013 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Scott Burns from National District Attorneys Association makes the prosecutors case for mandatory minimums

The Senate Committee on the Judiciary hearing entitled “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences” is now underway as I write up this post.  A live webcast can be accessed via this Senate webpage, which is also where the written testimony of all the witnesses are now linked.   Not surprisingly, the only written statement supporting the mandatory minimum status quo from among the scheduled witnesses is made by Scott Burns, the Executive Director of the National District Attorneys Association (NDAA), and here is the heart of his written presentation:

Prosecutors have many tools to choose from in doing their part to drive down crime and keep communities safe and one of those important tools has been mandatory minimum sentences. While Federal mandatory minimum sentences sometimes result in outcomes that seem harsh, the vast majority of those cases are the result of a defendant that rejected plea negotiations, went to trial, and then received the sentence he or she said would be mandatory if convicted by a jury or judge. In addition, mandatory sentences have been extremely helpful to state and local prosecutors as leverage to secure cooperation from defendants and witnesses and solve other crimes or, in a drug distribution case, “move up the chain” and prosecute those at higher levels of sophisticated trafficking organizations; it is a tool that has been used sparingly but effectively by state and local prosecutors.

I submit that prosecutors across the country collectively shook their heads when General Holder directed his United States Attorneys to no longer prosecute or send to prison those who are first time offenders or those who have committed low level drug offenses. US Attorneys have never, to my knowledge, prosecuted low level offenses and, unless it is a serious case and often must involve a firearm, first time offenders do not go to prison.  The prosecutors I know in America look at every available alternative before recommending that a person be sentenced to prison and, as such, are incensed by General Holder’s repetitive statements that America’s prisons are full of low-level drug offenders and non-violent offenders and first time offenders. That is a myth that must be dispelled if we are going to work together to try and make a great criminal justice system even better.  Unless it is a murder or rape or violent offense, it is difficult to be sentenced to prison in state courts across America.  The prosecutors I know look at probation, treatment programs, diversion, plea in abeyance, Drug Courts, supervised probation and work with Judges and defense counsel to look at every alternative but prison.  It is only in those instances where someone has committed a terribly serious crime or, after repeated attempts to stop the person from reoffending — sometimes literally six and seven violations of probation — that an offender is sentenced to prison. And the reality is, together with other tools like mandatory minimum sentences, it has worked. So for anyone to say that our prisons are full of low-level, first time, minor drug offenders simply could not be further from the truth.

Prosecutors will tell you that it is a very small percentage of offenders that commit the vast majority of crimes, people who insist no matter what we do to change their behavior, commit crime after crime.  Is it not appropriate, after all attempts have failed, or in the event the person commits a very serious offense, to sentence them to longer prison terms which has inarguably resulted in lower crime rates and safer communities?

A prosecutor told me the other day, after reading General Holder’s statements, “to me, I see this as we are three touchdowns ahead and many are now saying we should take out some of our best players — and mandatory minimum sentences are one of our best players”.  Why now, with crime at record lows are sweeping changes being suggested? Why now, as we are getting even smarter on crime with programs like Drug Courts, 24/7 and Project Hope as carrots would we take away one of the most effective sticks?

NDAA continues to be willing to work with Congress and the Department of Justice, as we did when we worked together to address the crack/powder sentencing disparity with the Fair Sentencing Act, and on several other Congressional initiatives that have been proposed over the years; but if this is solely about money, that the number of people we incarcerated in America is too expensive, then I know I speak for Police Chiefs, Sheriffs, law enforcement officers at every level and prosecutors in saying that crime will go back up and we may very well be back to the “catch and release” days of old, which many would tell you didn’t really save money at all when the costs of investigations and prosecutions of those that reoffend are analyzed.

I will not seek to refute all the points made in this statement (some of which are plainly inaccurate), but I will note the peculiarity of having someone mostly talk up state imprisonment and sentencing policies as part of a hearing focused on "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences."  More importantly, it is important to recognize that this statement does not really engage or even address the justice or fairness or even cost concerns stressed by the critics of federal mandatory minimums (not does it make claims about the rule of law). 

The essence of this defense of mandatory minimums is these mandated prison sentences have been prosecutors' "best player" in fighting the drug war and the broader war on crime.  In the end, I am pleased to see a state prosecutor here making an honest and straight-forward and relatively simple claim that the crime control ends are worth the mandatory minimum means.  And, candidly, if crime was still at levels that we saw 20 years ago, I might share this view.  But I think even fans who get excited by huge wins by their favorite team still believe it is more fair, more humane and ultimately more effective in the long-term to stop beating up on the other team with "the most effective sticks" once they are up three touchdowns.  And that is why I think it is time to see the federal prosecution team have to try to "running up the score" against serious crime at a lower human and economic costs than is currently being endured.

A few recent related posts:

September 18, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (55) | TrackBack

Florida Supreme Court considers important issues concerning Graham's meaning and reach

As reported in this local piece, headlined "Supreme Court hears juvenile sentencing arguments," the top court in Florida heard oral argument on a very important issues concerning the reach of the Supreme Court's recent Eighth Amendment jurisprudence concerning juvenile sentencing.  Here are the details:

In the wake of a 2010 U.S. Supreme Court ruling that upended sentencing guidelines for juveniles, the Florida Supreme Court on Tuesday heard oral arguments in a case involving Shimeeka Gridine, who was sentenced to 70 years in prison for crimes committed when he was 14 years old.

The case is one of several that have surfaced in Florida courts since the U.S. Supreme Court ruled that life sentences without parole for juveniles in non-homicide cases violate the Eighth Amendment, which bans cruel and unusual punishment.

Gridine, now 18, pleaded guilty to attempted first-degree murder, attempted armed robbery and aggravated battery after he shot a man in 2009 while trying to rob a Jacksonville gas station. He was sentenced to 70 years for the attempted murder and 25 years for the armed robbery, with the sentences to run concurrently.

Assistant Public Defender Gail Anderson argued Tuesday that amounts to a life sentence. A mandatory minimum sentencing requirement makes Gridine ineligible for gain time for good behavior on the 25-year sentence.  And under Florida’s “truth-in-sentencing” law requiring offenders to serve at least 85 percent of their prison sentences, he must then serve at least 85 percent of the remaining 45 years of the 70-year sentence. “Assuming he got all the gain time he was eligible for on the remainder of the sentence, he would be 77 years old before he was released,” Anderson said. “And I think that, under any reasonable construction, is a life sentence.”...

But Assistant Attorney General Kellie Nielan said the Graham ruling provided no time limits. “(The) Graham (decision) has said that someone needs review sometime within their life,” she told the court. “They need an opportunity for release within their life. It doesn’t say when.”

“Aren’t we condemning him from the outset?” asked Justice James E.C. Perry. “I thought he had to have a meaningful review at the outset.”

“No, Graham does not require that,” Nielan replied. “And Graham only applies to the life sentences — or, if you want to extend that to de facto life sentences, which are going to be sentences of at least 50 years. So a juvenile who is sentenced to 40 years is not entitled to any review.”

Justice Charles Canady said that was hypothetical.  “We’ve got cases here where it seems like by just about any reasonable understanding of what a life sentence is, this case falls into the equivalent of a life sentence,” he said.

In Gridine’s 2009 trial, Judge Adrian G. Soud of the 4th Judicial Circuit in Duval County ruled that the teen was not protected by the Graham decision “because he had a clear and premeditated intent to kill. … Just because this juvenile defendant failed in his criminal and deadly endeavor does not preclude this court from sentencing the defendant commensurate with the defendant’s intent — the same intent possessed by a juvenile murderer.”

After the hearing, Anderson said she was hoping the justices would find unconstitutional the 85-percent law that abolished parole as it applies to Gridine and make him eligible for parole after 25 years. She said another possibility is that the high court could order that Gridine be resentenced. “That’s what the district courts have been doing — just ordering a resentencing,” she said. “But that just leaves everybody in the same limbo they’ve been in up to now.”

Since the Graham decision, the Florida Legislature has taken up bills that would have allowed life sentences for juveniles with the possibility of release after 20 years if they show signs of rehabilitation. So far, however, none has passed.

This report suggests that the Florida Supreme Court could find two ways to avoid declaring the long juvenile sentence here unconstitutional, but it also suggests that at least some of the Florida Justices may not be so eager to do so.

September 18, 2013 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

While praising modern reforms, ABA still (unsurprisingly) critical of Texas capital punishment system

As detailed in this Texas Tribune report, "a new study the American Bar Association will release Wednesday finds that the death penalty system here still falls far short when it comes to fairness and eliminating the risk of executing the innocent." Here is more:

“In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the administration of the death penalty and provides the public with inadequate information to understand and evaluate capital punishment in the state,” the report says.

The report, which outlines a host of recommendations to improve the criminal justice system, is part of the bar association’s national project examining the implementation of the death penalty in states. While it praises Texas for recent improvements intended to increase fairness, the report says much work remains. The organization says its recommendations would restore public confidence in the system and help to ensure that Texans aren't wrongfully convicted and sentenced to death. Those include requiring the indefinite preservation of biological evidence in violent crimes, abandoning the evaluation of "future dangerousness," banning the execution of those with mental retardation and mental illness and establishing an innocence commission to examine the lessons of wrongful convictions.

“Texas has made some good policy decisions over the last couple of years,” said Royal Ferguson, the founding dean of the University of North Texas at Dallas College of Law and a former U.S. district judge who served on the association’s Texas Capital Punishment Assessment Team. “There are a lot more that need to be made.”...

A key recommendation in the report, Ferguson said, is the elimination of the use of “future dangerousness” as an element in the jury’s decision-making in death penalty cases. In Texas, juries are asked to determine whether the defendant would commit violent crimes in the future before sentencing a person to death.

In 2002, then-Attorney General John Cornyn acknowledged that Texas had made a mistake in seven cases where prosecutors used testimony from a doctor who indicated to the jury that the defendants would present a bigger risk for future violence because they were black or Hispanic. “It’s impossible for anybody to try to predict the future,” Ferguson said. “That part of the law needs to be repealed immediately.”

The report also suggests that Texas lawmakers should specifically ban the death penalty in cases where the defendant suffers from mental retardation or mental illness. And it urges the state to require the use of current scientific standards in evaluating whether a defendant is mentally retarded or mentally ill....

Finally, the report calls on Texas to create a commission to investigate each of the state’s wrongful convictions, identify the factors that contributed to them and consider ways to solve those problems through legislation or other policy changes.

Lawmakers have proposed such a commission in recent legislative sessions, but the measures have failed. State Sen. Joan Huffman, R-Southside Place and a former prosecutor and judge, was one opponent during the 2013 legislative session. "Anyone listening to this could not argue we haven't made significant reforms in criminal justice," Huffman said during a legislative hearing in May. "We do not need yet another layer to go through this again."

Jennifer Laurin, a University of Texas School of Law professor and chairwoman of the team that prepared the report, said its goal was not to call into question the use of the death penalty in Texas. Instead, she said, it was to ensure that it is implemented fairly.

Former Texas Supreme Court Justice Deborah Hankinson, who also worked on the report, said lawmakers must take steps to restore public confidence in Texas' court system. “For citizens to have confidence in the process, it requires transparency in every phase,” she said.

A copy of the full report should soon be available via the ABA's website at this link.  And the other prior ABA state-specific assessment are available via this page

September 18, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Gearing up for Senate hearing on "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences"

In just a few hours, on Tuesday September 18, 2013 at 10am, as detailed at this official webpage, there will be Hearing before the United States Senate Committee on the Judiciary on “ “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences." Here is the official agenda/hearing list:

Panel I

Panel II

I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the few hours, and I am planning to watch the webcast of the hearing (and perhaps even live-blog some of it here).

Though I expect lots of interesting discussion in this hearing, I am surprised and a bit disappointed that there is no Department of Justice representative. Also, the absence of anyone from the U.S. Sentencing Commission is also significant. But perhaps these institutions, as well as others, may be submitting written testimony as the debate over federal mandatory minimum sentencing reform kicks into another gear.

Not suprisingly, the folks at FAMM are already all geared up for today's events inside the beltway, as showcased here at FAMM's website.

Just a few recent and older related posts:

UPDATE:  Sure enough, not long after finishing this post I received an e-mail with links to this news release titled "Sentencing Commission Issues Statement For Senate Judiciary Committee Hearing On Federal Mandatory Minimum Penalties: Calls for Congressional Action Including Reduction of Mandatory Minimum Penalties for Drug Offenses." The news release references this 13-page statement from the USSC Chair, Judge Patti B. Saris, which begins this way:

Chairman Leahy, Ranking Member Grassley, and distinguished members of the Committee, thank you for providing me with the opportunity to submit this statement on behalf of the United States Sentencing Commission about mandatory minimum sentences in the federal criminal justice system.

We are particularly pleased that the Judiciary Committee is addressing this vital issue that has been a key focus for the Commission for several years. The bipartisan seven-member Commission unanimously agrees that mandatory minimum sentences in their current form have led to unintended results, caused unwarranted disparity in sentencing, and contributed to the current crisis in the federal prison population and budget. We unanimously agree that statutory changes to address these problems are appropriate.

September 18, 2013 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

September 17, 2013

Two notably different sentencing requests from two killers

The two distinct headlines concerning two distinct requests in two California capital cases caught my eye this afternoon:

Based on a (too) quick review of the substance of both of these article, I am inclined to predict that neither of these killers are likely to have their requests granted.

September 17, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

"Brown seeks 3-year delay on easing prison crowding"

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

Following through on a deal struck with legislative leaders, Gov. Jerry Brown told federal judges Monday that he is prepared to spends hundreds of millions of dollars moving inmates out of crowded prisons — but would rather use the money to rehabilitate prisoners so they don't come back.

To do that, the state is asking for a three-year delay in meeting the inmate population caps the judges ordered in 2010. "For prison population reduction measures to be effective and lasting, they cannot be unilaterally imposed," the governor's lawyers said in a late-night filing, arguing that "state prisons are just one part of the larger, interconnected criminal justice system."

The proposal Brown submitted is based on a compromise hammered out with lawmakers who opposed his plan to reduce crowding by sending thousands of inmates to privately owned prisons and other detention facilities.

If judges agree to delay the deadline, Brown will still move 2,500 inmates out of state lockups and into alternative facilities within California, according to the court filing. And he will set aside $150 million next year for treating drug abuse and mental illness and other rehabilitation programs.

If the judges say no, the state proposes to meet their Dec. 31 deadline by spending $315 million this year — and more the next — to move more than three times as many prisoners, primarily to private lockups as far away as Mississippi.

September 17, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

September 16, 2013

Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform

I-love-randMy (unhealthy? appropriate?) bromance with U.S. Senator Rand Paul has reached a whole new level based on this notable new article from Kentucky.  The piece is headlined "Sen. Rand Paul calls for restoring felons' voting, gun rights," and here are excerpts:

U.S. Sen. Rand Paul told a largely black audience Monday in Louisville that he will push to restore the voting and gun-ownership rights of felons who have completed their sentences — and he will urge state Senate Republicans to follow his lead. Currently in Kentucky, felons must petition the governor to get their voting rights restored.

“I am in favor of letting people get their rights back, the right to vote ... Second Amendment rights, all your rights to come back,” he said. “I know of one man who 30-some-odd years ago had pot plants in his closet in college, got a felony conviction in college, still can’t vote, and it’s plagued him his whole life trying to get work.”

The Republican’s comments came at the Plymouth Community Renewal Center in western Louisville as he spoke with community leaders about issues that affect African Americans. Additionally, as he has done in the past, he called for doing away with mandatory minimum sentences in the federal criminal justice system, saying they are often too harsh.

The Rev. Patrick Delahanty, the executive director of the Catholic Conference of Kentucky and who was not at the meeting, applauded Paul’s stance on restoring voting rights in a later interview. He said Paul’s comments could help advance the issue during the next session of the General Assembly....

Paul said during the meeting in western Louisville that he believes felons should have their rights restored automatically — either immediately after completing their sentences or at some specified point after the sentences are served. He said he plans to talk to leaders in the Kentucky Senate about their opposition and would be willing to travel to Frankfort to testify in favor of legislation to restore voting rights....

The League of Women Voters found in a 2006 study that nearly one in four African Americans is banned from the polls because of a felony conviction, compared with 1 in 17 Kentuckians overall.

Paul, who has said he is considering running for president in 2016, has been meeting with African-American groups in an effort to bridge the gap between blacks and the Republican Party. Paul also met this year with students at the historically black Howard University in Washington, D.C., and then later with students at historically black Simmons College in Louisville.

During an hourlong discussion Monday, Paul listened as black leaders talked about issues that hinder African Americans’ ability to get a leg up and fully participate in the community. Much of their concern centered around helping black men who committed crimes but have turned their lives around.

This AP article about Senator Paul's comments today also contributes to my man-love for this GOP leader:

U.S. Sen. Rand Paul drew a favorable response Monday in a mostly black Louisville neighborhood as the tea party favorite promoted the ideas of giving judges more sentencing flexibility, restoring voting rights for felons and offering tax breaks to lure businesses into struggling communities....

Paul spoke with a group of ministers and community activists during a meeting that lasted more than an hour. The senator told the group at the Plymouth Community Renewal Center that the "War on Drugs" unfairly targeted blacks. "We went crazy on the 'War on Drugs,'" the libertarian-leaning senator said. "Drugs aren't good. We should have some laws. ... We have to figure out how to go forward, so changing those laws is important."

Paul criticized federal mandatory minimum penalties that he said have clogged prisons with non-violent drug offenders. Blacks make up a disproportionately high number of those inmates, he said. "We have people in jail for life for non-violent drug crimes," he said. "I think this is a crime, in and of itself."

The first-term senator is a leading sponsor behind legislation that would give federal judges greater flexibility in sentencing. The measure is scheduled to be reviewed at a Senate Judiciary Committee hearing later this week.

"Mandatory minimums have trapped a lot of people, made them felons, made it hard for them to get jobs, for non-violent crimes," Paul said. "I would just as soon take some of these non-violent crimes and make them misdemeanors so you don't get in that trap."

Paul said he's also considering legislation that would restore voting rights for non-violent felons of federal crimes. The bill is still in draft form, he said, but the restoration of rights would apply to non-violent offenders who haven't committed other crimes for perhaps five years.

Paul said such a bill would especially be aimed at people who committed drug offenses as young adults — which he referred to as a "youthful mistake." Such offenders pay for those indiscretions for decades to come, he said. "I think the biggest problem right now with voting rights is ... not being allowed to vote because the law says you can never vote," he said.

Some recent and older related posts:

September 16, 2013 in Collateral consequences, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Second Amendment issues, Who Sentences? | Permalink | Comments (16) | TrackBack

New York Times editorial says "End Mandatory Life Sentences"

The title of this post is drawn from the headline of this new New York Times editorial, which is actually focused mostly on giving Miller v. Alabama retroactive application.  Here are excerpts:

Young people are different. The Supreme Court has delivered that message repeatedly over the last decade in limiting or flatly prohibiting the most severe criminal punishments for those under 18 at the time of their crime.

In 2005, the court banned the death penalty for juveniles.  In 2010, it outlawed sentences of life without parole for juveniles convicted of crimes other than homicide.  And, in a 2012 case, Miller v. Alabama, it said juveniles may never receive a mandatory sentence of life without parole, which prisoners refer to as “the other death penalty.”...

In each case, the court was silent on the question of whether its ruling applied retroactively to inmates who had already been convicted.  The just answer would surely be yes, and courts have largely agreed, making those first two juvenile justice rulings retroactive.  But some states insist that the ban on mandatory life without parole does not apply to offenders who have already been sentenced.

In the Miller case, the court required lower courts to make “individualized sentencing decisions” for juvenile defendants because juveniles are not as morally culpable as adults, and they are more capable of changing over time.  If the ban on mandatory life without parole is retroactive, more than 2,000 prisoners would be eligible for a new sentencing hearing.  So far, whether these individuals can get a new hearing depends on where they live.

Courts in Michigan, Iowa and Mississippi have ruled that the ban applies to previously sentenced juveniles.  The Department of Justice takes that position as well.  Yet the Minnesota Supreme Court and one federal appeals court have taken the opposite view....

Critics fear that allowing resentencing would increase violent crime.  But courts may still impose life without parole, provided that the judge first gives proper consideration to the mitigating effects of youth.  The Alabama Supreme Court set out guidelines last week that require a court to consider 14 factors, including a defendant’s age, emotional maturity, family environment and potential for rehabilitation before issuing such a sentence.

Ideally, life without parole would never be a sentencing option for juveniles.  The Supreme Court’s own logic suggests this, even if it was not willing to go that far.  After the Miller case, three states entirely eliminated juvenile life without parole, joining six other states that had already banned the sentence, and lawsuits on the retroactivity issue are pending in several states.  As lawmakers and courts deal with this issue, they should remember — as the Supreme Court has declared — that adolescents are not adults, and that principle should apply regardless of the date of a conviction.

September 16, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack