December 7, 2013
"How should states decide if someone convicted of a crime has an intellectual disability, when the answer means life or death?"
The title of this post is the first sentence of this lengthy USA Today article headlined "Supreme Court to revisit death penalty for mentally disabled." Here is more from an effective review of the challenging capital procedure issues now before SCOTUS:
In its 6-3 decision in Atkins v. Virginia, authored by Justice John Paul Stevens, the court prohibited states from executing anyone with "mental retardation." Mental health professionals define it as substantial limitations in intellectual functions such as reasoning or problem-solving, limitations in adaptive behavior or "street smarts," and evidence of the condition before age 18. (Mental retardation is the term used in law, but most clinicians and The Associated Press refer to the condition as intellectual disability.)
After the decision, most states stuck with the three-pronged clinical definition, but Florida, Georgia, Mississippi and Texas set their own standards. Under Florida's law, if you have an IQ over 70, you're eligible for execution regardless of intellectual function or adaptive behavior.
Freddie Lee Hall, who has been on Florida's death row for more than 30 years and scored in the mid-70s on IQ tests, is arguing the state's standard amounts to unconstitutional punishment. Most likely, the case won't result in a dramatic shift in national criminal justice policy, but will further clarify who should and should not be eligible for execution, said Ronald Tabak, an attorney who has represented multiple clients with intellectual disabilities and chairs the American Bar Association's death penalty committee....
The court's makeup has shifted since the 2002 Atkins decision. But if the justices split along ideological lines, the vote could favor Hall, assuming that swing vote Justice Anthony Kennedy sides with Hall, as he did with Atkins in 2002. Arguments are set for March 3.
Similar cases are percolating beyond Florida. In Georgia, death row inmate Warren Hill is fighting execution based on substantial evidence that he is intellectually disabled. In Texas, where the courts use an anecdotal seven-part test largely based on the characteristics of the fictional character Lennie from John Steinbeck's novel "Of Mice and Men" to determine intellectual disability, multiple prisoners have been executed in recent years even when they've scored well below 70 on IQ tests.
Last year, Texas executed Marvin Wilson, who was convicted of murder in 1994, even though he had an IQ of 61. In 2010, Virginia executed Teresa Lewis for her role in a murder-for-hire scheme, even though she had an IQ of 72 and her co-conspirators admitted Lewis did not plan the murder....
Still, the Atkins decision has had an impact on executions. At least 98 people have had their death sentence changed since 2002 by proving that they were intellectually disabled, according to data from the Death Penalty Information Center. By their count, in the 18 years before the Atkins decision, at least 44 people who likely suffered from intellectual disabilities were executed.
December 6, 2013
Federal judge in Washington finds Sixth Amendment violations from cuts to local public defender programs
As reported in this AP piece, a pair of "Washington cities have systematically violated the constitutional rights of poor defendants to effective legal representation, a federal judge ruled Wednesday, blaming city officials for being 'willfully blind' to the effects of their cost-cutting." Here is more about what seems to me to be a landmark ruling handed down earlier this week:
The state chapter of the American Civil Liberties Union sued the Skagit County towns of Mount Vernon and Burlington two years ago, alleging that public defenders there were so overworked that they amounted to little more than "a warm body with a law degree."
U.S. District Judge Robert Lasnik agreed. He issued a ruling Wednesday, following a two-week trial in June, that could have broad ramifications for how cities provide legal help to the poor: "In the state of Washington, there are undoubtedly a number of municipalities whose public defense systems would, if put under a microscope, be found wanting," he wrote.
The judge ordered the cities to hire a part-time public defense supervisor to oversee whether poor defendants are receiving adequate legal counsel, saying "the court has grave doubts regarding the cities' ability and political will to make the necessary changes on their own."
Lawyers involved said they believed it was the first time in the nation's history a federal court had appointed such a supervisor to oversee a public defense agency. Sarah Dunne, the ACLU of Washington's legal director, said in an emailed statement she was thrilled to see the ruling this year, which marks the 50th anniversary of the U.S. Supreme Court's decision in Gideon v. Wainright that the right to counsel applies in state courts as well as federal ones....
Andrew Cooley, who represented the cities, said he was gratified the judge did not impose a case-load limit on their public defenders. The state Supreme Court has adopted such standards as it wrestles with how to improve the representation of indigent defendants, but they aren't scheduled to take effect until January 2015.
He also said the cities have doubled their public-defense budget since the lawsuit was filed, and it remained unclear whether officials could stomach spending any more. Instead, Burlington and Mount Vernon might simply disband their municipal courts, leaving Skagit County District Court to handle those cases.
Lasnik noted that two lawyers who formerly handled public defense cases for the cities each took on about 1,000 cases a year from 2009-2011 and often spent less than an hour per case. There was almost no evidence they investigated their clients' cases, met with their clients confidentially, or performed any legal analysis of the cases, the judge said.
Instead, they simply assumed police had done their jobs correctly. "The services they offered to their indigent clients amounted to little more than a 'meet and plead' system," he wrote....
Ironically, Lasnik said the failings of the public defenders in Mount Vernon and Burlington didn't necessarily result in their clients getting worse deals. With a note of chagrin, he said the penny-pinching of city administrators faced with tough budgetary times had also hit prosecutors, who in turn offered "overly lenient plea deals."
But that's not the point, Lasnik said: "Advising a client to take a fantastic plea deal in an obstruction of justice or domestic violence case may appear to be effective advocacy, but not if the client is innocent, the charge is defective, or the plea would have disastrous consequences for his or her immigration status."
The 23-page ruling in Wilbur v. City of Mount Vernon, No. C11-1100RSL (D. Wash. Dec. 4, 2013), is available at this link and it concludes with this poetic paragraph:
It has been fifty years since the United States Supreme Court first recognized that the accused has a right to the assistance of counsel for his defense in all criminal prosecutions and that the state courts must appoint counsel for indigent defendants who cannot afford to retain their own lawyer. The notes of freedom and liberty that emerged from Gideon’s trumpet a half a century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that reduce the promise to a hollow shell of a hallowed right.
December 5, 2013
Remarkable new HRW report details massive "trial penalty" due to mandatory minimums in federal system
As highlighted in this press release discussing a new important report, in federal courts "drug offenders convicted after trial receive sentences on average three times as long as those who accept a plea bargain, according to new statistics developed by Human Rights Watch." Here is more from the press release about the report and its findings:
The 126-page report, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty,” details how prosecutors throughout the United States extract guilty pleas from federal drug defendants by charging or threatening to charge them with offenses carrying harsh mandatory sentences and by seeking additional mandatory increases to those sentences. Prosecutors offer defendants a much lower sentence in exchange for pleading guilty. Since drug defendants rarely prevail at trial, it is not surprising that 97 percent of them decide to plead guilty.
“Prosecutors give drug defendants a so-called choice -- in the most egregious cases, the choice can be to plead guilty to 10 years, or risk life without parole by going to trial,” said Jamie Fellnew, senior advisor to the US Program at Human Rights Watch and author of the report. “Prosecutors make offers few drug defendants can refuse. This is coercion pure and simple.”...In one of hundreds of cases Human Rights Watch reviewed, Sandra Avery, a small-time drug dealer, rejected a plea of 10 years for possessing 50 grams of crack cocaine with intent to deliver. The prosecutor triggered a sentencing enhancement based on her prior convictions for simple drug possession, and she was sentenced to life without parole.
In addition to case reviews, the report is also based on numerous interviews with federal prosecutors, defense attorneys, and judges. It also includes new statistics developed by Human Rights Watch that provide the most recent and detailed measure of what the report calls the “trial penalty” -- the difference in sentences for drug defendants who pled guilty compared with those for defendants convicted after trial. The trial penalty is, essentially, the price prosecutors make defendants pay for exercising their right to trial. “Going to trial is a right, not a crime,” Fellner said. “But defendants are punished with longer sentences for exercising that right.”
Prosecutors are able to impose the trial penalty because judges have been reduced to virtual bystanders in cases involving mandatory sentences. When prosecutors choose to pursue mandatory penalties and the defendant is convicted, judges must impose the sentences. They cannot exercise their traditional role of tailoring sentences to each defendant’s conduct and culpability and of making sentences no longer than necessary to serve the purposes of punishment....The new statistics Human Rights Watch developed for the report, based on raw federal sentencing data for 2012, include the following:
• The average sentence for federal drug offenders who pled guilty was five years, four months; for those convicted after trial the average sentence was sixteen years.
• For drug defendants convicted of offenses carrying mandatory minimum sentences, those who pled guilty had an average sentence of 82.5 months compared with 215 months for those convicted after trial, a difference of 11 years.
• Among drug defendants with prior felony convictions, the odds of receiving a sentencing enhancement based on those convictions was 8.4 times greater for those who went to trial than for those who pled guilty.
• Among drug defendants with a gun involved in their offense, the odds of receiving the statutory gun sentencing enhancement were 2.5 times greater for those who went to trial than for those who pled guilty.
"Treating Juveniles Like Juveniles: Getting Rid of Transfer and Expanded Adult Court Jurisdiction"
The title of this post is the title of this notable new piece by Christopher Slobogin which I just noticed via SSRN. Here is the abstract:
The number of juveniles transferred to adult court has skyrocketed in the past two decades and has only recently begun to level off. This symposium article argues that, because it wastes resources, damages juveniles, and decreases public safety, transfer should be abolished. It also argues that the diminished culpability rationale that has had much-deserved success at eliminating the juvenile death penalty and mandatory life without parole for juveniles is not likely to have a major impact on the much more prevalent practices of transferring mid- and older-adolescents to adult court and expanding adult court jurisdiction to adolescents; neither the law nor developmental science justifies the conclusion that juvenile offenders deserve significant mitigation in the non-capital context.
If instead juvenile justice is reconceptualized as a preventive mechanism rather than a punishment regime (as laid out in the book I co-authored, "Juveniles at Risk: A Plea for Preventive Justice"), transfer becomes much less alluring. If the primary goal of juvenile justice is public safety, with retribution conceived as an important goal only to the extent that recognizing it is necessary to ensure systemic legitimacy, then maintaining an adult court option for juveniles (and imposing long sentences on them) becomes unnecessary and counterproductive. Appended to this article is another article, written for the ABA’s Criminal Justice Magazine, that fleshes out how a risk management regime would work in a prevention-oriented juvenile justice system
Yet another effective review of the child porn restitution challenges facing SCOTUS
I have already blogged some previews of the fascinating Supreme Court case of Paroline v. United States even though oral argument is still six weeks away because the issues strike me as so interesting and dynamic. (The parties' main briefs and now lots of amicus briefs are now available via SCOTUSblog on this Paroline case page.) And I suspect we are seeing other notable coverage of the case already because lots of others are also intrigued by the issues and arguments now before the Justices in Paroline. The latest example comes via Emily Bazelon here at Slate, and it is headlined "Paying Amy: Doyle Paroline owned two pornographic pictures of an 8-year-old girl. How much should he have to pay?" Here are a few excerpts (with cites to some of the filed briefs):
In January, the Supreme Court will hear the appeal of Doyle Randall Paroline, who was caught with two pictures of Amy among 280 illegal images and was found liable by the U.S. Court of Appeals for the 5th Circuit for the full amount of the restitution Amy, who is now 24, has claimed. The 5th Circuit said it was up to Paroline — not Amy — to find the other men who could also be on the hook for restitution and go after them for contributions. The legal theory is called joint and several liability. It’s the way courts deal with pollution cases in which a bunch of defendants all dump toxic waste into a single lake. A plaintiff sues one wealthy company for all the damages, and then that defendant has to sue other companies to share the costs.
Is this how Congress intended victims to recover from sex offenders when it passed [the Violence Against Women Act] in 1994?...
Of the eight appeals courts that have heard challenges by men like Paroline, only the 5th Circuit agreed entirely with Amy’s theory of recovery. The Department of Justice also disagrees with a key to it, saying that joint and several liability doesn’t apply in these cases. But a bipartisan group of U.S. Senators have filed a brief before the Supreme Court arguing that Congress wanted to give Amy an easy path to restitution. VAWA could “hardly be clearer,” say the senators (roll call: Orrin Hatch of Utah, Dianne Feinstein of California, Charles Grassley of Iowa, Edward Markey of Massachusetts, John McCain of Arizona, Patty Murray of Washington, and Charles Schumer of New York)....
Five appeals courts have said they doubted that victims like Amy can win more than nominal restitution. Two others let her keep awards of only $10,000 or less. She has been able to collect larger amounts only from men who have agreed to settle or waived their right to appeal. The senators, though, say that all these courts got it wrong and the 5th Circuit got it right. They quote Vice President Joe Biden, chief architect of the VAWA, who called it “the most victim-friendly bill [the Senate] ever passed.” And they provide an important piece of history about how VAWA was drafted....
Here’s the clearest way to think about how and why Amy and other victims like her should win restitution. Their trauma can’t be neatly parceled out among the individual men convicted for possessing their pictures. But the harm is crystal clear in the aggregate. And so Paroline and other defendants shouldn’t be relieved of their obligation to pay “simply because Amy would continue to suffer harm if there were one less child-pornography consumer in the world,” as the Department of Justice puts it. This makes sense to me: You can’t let each viewer off the hook because he is merely one small part of the whole.
How much does each viewer who is convicted have to pay? The Department of Justice argues — vaguely and without any basis I can see in VAWA — that each defendant should pay restitution in an amount greater than zero but less than the whole. Courts should use their discretion to pick some place in the middle, the government says. It rejects the idea of joint and several liability as “practically unworkable” and “unduly harsh.”
If Paroline had to pay millions of dollars for his two pictures of Amy, then yes, that would be unfair. But that’s not how joint and several liability works. It works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants. Then it would be up to those men to find the others who are also legally responsible. This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts. If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.
Money can make a huge difference for victims of sexual abuse. For Amy and Nicole, it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times. Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution. The Supreme Court should too. And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.
A few prior posts on Paroline:
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
December 5, 2013 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack
December 4, 2013
"How Bureaucrats Stand in the Way of Releasing Elderly and Ill Prisoners"
The title of this post is the headline of this notable new ProPublica piece about (the paucity of) compassionate release in the federal criminal justice system. Here are excerpts:
The government has long been criticized for rarely granting compassionate release. This August, Attorney General Eric Holder announced the Justice Department would try to change that by expanding criteria for who can apply.
Under the new guidelines, compassionate release can be granted not just to prisoners who have terminal illnesses, but also to those with debilitating conditions. Prisoners who need to serve as caregivers for family members may now also seek reductions in sentencing. And for the first time, elderly federal inmates who aren’t necessarily dying or incapacitated can apply to be let out early.
Holder touted the compassionate release initiative as one way to cut down on the “astonishing” federal prison population, which has grown by nearly 800 percent since 1980.
But even if the changes enable more inmates to apply for compassionate release, prison officials still have almost total discretion over who is approved. A federal prison’s warden, as well as the Bureau of Prisons’ regional director and central office must sign off on an inmate’s application before it is passed on to a judge. Any of those officials can reject applications for a number of reasons, from a perceived risk of recidivism to concern for what’s best for a prisoner’s child.... There is no process for inmates to appeal those decisions in court.
Many advocates say they expect eligible inmates will remain behind bars despite the changes. “I don’t believe it’s going to change at all,” said lawyer Marc Seitles, whose client was denied release despite terminal cancer. “It’s still the same people making decisions.”
In September, Bureau of Prisons Director Charles Samuels said he predicted expanding eligibility would result in the “release of some non-violent offenders, although we estimate the impact will be modest.” (The agency declined to make Samuels available for comment to ProPublica.)
As of October 29, The Bureau of Prisons had approved and passed along 50 compassionate release requests to judges this year. That’s up from 39 in 2012 and 29 in 2011. It’s impossible to know if the overall rate of approval has increased, as the federal Bureau of Prisons hasn’t released the number of inmates who have applied.
The Bureau says it recently started to track inmate requests, after an Inspector General report earlier this year excoriated the department for failing to do so. The report also found most inmates didn't even know the program existed.
The expansion of compassionate release was motivated in part by the rising number of sick and elderly inmates incarcerated in the U.S. As of 2011, there were over 26,000 inmates over 65 in state and federal custody. And as the elderly population in prison grows, so do their medical bills. Housing an inmate in a prison medical center costs taxpayers nearly $60,000 a year — more than twice the cost of housing an inmate in general population.
Many lawyers and prisoner advocates have said the “jailers are acting as judges” by rejecting most compassionate release cases without ever passing them onto the courts for a final decision. “The Bureau of Prisons should be letting judges have the opportunity to decide every time extraordinary and compelling reasons come to their attention, and [they are] not doing that,” said federal public defender Steve Sady, who has written extensively on the issue and represented clients requesting early release. “We believe that, under the statute, the sentence is for the judge to decide.”
Prisons spokesman Edmond Ross said in an emailed statement that “Congress gave the [Bureau of Prisons] authority” to decide which inmates should be granted release. “Review includes deliberation on the most important factor, ensuring that an inmate's release would not pose a danger to the safety of any other person or the community,” he said. “This must be considered before any request is submitted to a court.”
Mary Price, general counsel for Families Against Mandatory Minimums, says prison officials are ill-equipped to make those kinds of decisions. Prison officials’ “job is to keep people locked up. Identifying people who should no longer be incarcerated is just not what they do,” she said....
Prisoner advocates at Human Rights Watch and other organizations have proposed allowing inmates to go before a judge to appeal rejections. “Unless there’s an institutional change or a criteria that they have to follow, this will never change,” Seitles said.
Interesting split DC Circuit opinions about challenging prior convictions and supervised release conditions
While I was spending all my extra time yesterday reviewing the big Blewett en banc Sixth Circuit decision (basics here and here), the DC Circuit handed down two little penal decision concerning relatively technical aspects of modern federal sentence in US v. Martinez-Cruz, No. 12-3050 (DC Cir. Dec. 3, 2013) (available here) and US v. Malenya, No. 12-3069 (DC Cir. Dec. 3, 2013) (available here).
Federal sentencing practitioners ought to check out both rulings for the merits, and others may be interested in the lengthy dissenting opinions in each case authored by Judge Kavaugh. Indeed, to provide a summary of each ruling, I will us the first paragraph of the Judge's dissents.
KAVANAUGH, Circuit Judge, dissenting: As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme Court opinions. This case is controlled by at least the music, if not also the words, of the Supreme Court’s decision in Parke v. Raley, 506 U.S. 20 (1992). There, the Supreme Court made clear that the defendant in a recidivist sentencing proceeding may be assigned the burden of proof when challenging the constitutionality of a prior conviction that is being used to enhance or determine the current sentence. Consistent with Parke v. Raley, every court of appeals to consider the question has reached that same conclusion. By ruling otherwise here, the majority opinion, in my view, both deviates from Supreme Court precedent and creates an unwarranted circuit split.
KAVANAUGH, Circuit Judge, dissenting: Malenya, then a 41-year-old man, attempted to have sex with someone he knew to be 14. Malenya’s attempt was thwarted only because the 14-year-old’s mother fortuitously intercepted explicit text messages Malenya sent to the 14-year-old. For his conduct, Malenya ultimately pled guilty and received a relatively short prison sentence of one year and a day in prison, followed by three years of supervised release with certain special conditions attached. On appeal, Malenya objects to the special conditions imposed by the District Court and asks that they be vacated. The majority opinion vacates the special conditions. With one exception, I would affirm the special conditions. I therefore respectfully dissent.
"The wrong people decide who goes to prison"
The title of this post is the headline of this notable new CNN commentary authored by US DIstrict Judge Mark Bennett and Prof. Mark Osler. Here are some of the on-the-mark views coming today from these Marks:
Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors. After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.
This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion. It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.
The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.
After nearly 30 years, we know how Congress' experiment turned out, and the results are not good. Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way. Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities....
Let's look at just one way that prosecutors exercise this discretion: the enhancement of narcotics sentences under 21 U.S.C. 851, or proceedings to establish prior convictions. These enhancements, at a minimum, double a drug defendant's mandatory minimum sentence and may raise the maximum possible sentence.... [O]ur analysis of the way these enhancements have been used reveals a deeply disturbing dirty little secret of federal sentencing: the stunningly arbitrary application of these enhancements by prosecutors within the Department of Justice.
The numbers tell the story. Our home states are fairly typical in their wild disparities: A federal defendant in Iowa is more than 1,056% likely to receive a 851 enhancement than one in Minnesota. Nor are these Midwestern neighbors an anomaly. In the Northern District of Florida, prosecutors apply the enhancement 87% of the time, but in the bordering Middle District of Georgia, they are used in just 2% of relevant cases.
There is also breathtaking disparity within federal district within the same state (PDF). For example, in Florida, prosecutors in the Northern District apply the enhancement 87% of the time, but in the Southern District, it is used only 14% of the time. In the Eastern District of Tennessee, offenders are 3,994% more likely to receive an enhancement than in the Western District of Tennessee. In the Eastern District of Pennsylvania, a defendant is 2,257% more likely to receive the enhancement than in the Middle District of Pennsylvania. The disparities are startling.
In August, Attorney General Eric Holder announced steps to establish more discipline within the Department of Justice in how this discretion is used. It is a promising step but only that: a step. It is unclear how firm the attorney general is willing to be in tracking and constraining the use of this kind of discretion by prosecutors in different areas.
The larger lesson, and the more important one, is that after nearly 30 years, we still have gross and tragic disparities in federal sentencing, with the added burden of too many people put in prison, caused by mandatory sentencing and harsh sentencing guidelines. Tentative steps at reform will not be enough. It is time for a radical rethinking of the project as a whole and a recognition that this grand experiment in shifting discretion to prosecutors has failed.
December 4, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack
Interesting (similar?) accounts of distinct forms of tough justice being reconsidered
Yesterday's New York Times had two distinct pieces telling similar types of stories about the review and reconsideration of tough sanctions that have not always worked out ideally. Here are the headlines and links, with just a bit of excerpted content:
Faced with mounting evidence that get-tough policies in schools are leading to arrest records, low academic achievement and high dropout rates that especially affect minority students, cities and school districts around the country are rethinking their approach to minor offenses.
To most of the world – back in 1992 and even now — Mike Reynolds’s effort to keep repeat violent offenders locked up for life after the murder of his 18-year-old daughter, Kimber, in Fresno, Calif., was a non-event, not the opening salvo of what would become a barrage of state laws and referendums eventually known as the “Three Strikes and You’re Out” movement....
A few noted criminologists predicted at the time that “three strikes” laws, which would sweep the nation, were unlikely to have much effect on crime, would fill the nation’s prisons to bursting and would satisfy frustrated voters at the expense of bad public policy. They were largely ignored. As this Retro Report points out, California voters eventually concluded that its three strikes law was excessive in its zeal and financial burden, and last year they amended the law that Mr. Reynolds had put before them two decades earlier.
December 3, 2013
Doesn't the Sixth Circuit Blewett majority opinion contradict SCOTUS precedent that the Eighth Amendment evolves?
Though lacking time to fully consume all the opinions in today's lengthy Sixth Circuit en banc ruling in Blewett (basics here), I did this morning find time to read the discussions of Eighth Amendment issues because they are relatively brief and cursory. And, as the the title of this post reveals, I believe that the majority's treatment of the Eighth Amendment is wrong and contradicts clear Supreme Court precedent concerning the evolving nature of the Constitution's prohibition of cruel and unusual punishments.
Here are the key passages from the majority's (far too brief) discussion of Eighth Amendment issues that have me all worked up (with cites left out but emphasis in the original):
Even if the Fair Sentencing Act applies only to individuals sentenced after its effective date and even if § 3582(c)(2) does not convert the Act into a retroactive change to these mandatory minimums, the Blewetts claim that the Constitution’s equal-protection and cruel-and-unusual-punishment principles give them relief. Long before the passage of the Fair Sentencing Act, our court and others repeatedly rejected similar constitutional challenges to the crack and powder cocaine sentencing disparities....
Congress’s mitigation of the crack and powder disparities does not weaken these precedents; it strengthens them. Besides, the Blewetts cite no cases that call these conclusions into question....
Turning to another part of the Constitution, the Blewetts and Judge Merritt (with support from Judge Moore’s opinion) contend that the Eighth Amendment prohibits the continued imprisonment of a defendant sentenced under the old mandatory minimum laws. Yet they cannot contend that their 10-year sentences were cruel and unusual when imposed. After all, the Supreme Court has upheld a mandatory minimum of life without parole for possession of 672 grams of cocaine without intent to distribute. Harmelin v. Michigan, 501 U.S. 957 (1991). The Blewetts’ crimes are less serious in one respect (they possessed less cocaine), but more serious in two others (they possessed with intent to distribute and they had prior felony drug convictions). Harmelin precludes the conclusion that the Blewetts’ much shorter mandatory minimum sentences were cruel and unusual.
The Blewetts persist that their sentences became cruel and unusual when Congress passed the Fair Sentencing Act. But the Eighth Amendment is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted, a theory that would have the perverse effect of discouraging lawmakers from ever lowering criminal sentences. Withholding the benefits of a change from previously sentenced defendants at a any rate is not “unusual”; it is the general practice in federal sentencing, as Dorsey and § 109 confirm.
With all due respect to the Sixth Circuit and the author of this opinion (whom I know well and respect greatly), these passages seem deeply misguided in light of the evolving nature of the Eighth Amendment and the importance of objective factors in assessing the Amendment's evolution that have been repeatedly stressed by the Supreme Court.
To begin, it is just flat out wrong that Congress's decision to repeal the Blewetts sentences makes stronger prior rejections of their Eighth Amendment claims. The Supreme Court's Eighth Amendment ruling in Atkins stressed that legislative decisions by states to repeal the death penalty for mentally retarded defendants showed that society's view had evolved so that in 2002 it was unconstitutional to execute the mentally retarded even though the Court had held in 1989 in Penry that the Eighth Amendment did not preclude such executions. In other words, there is clear Supreme Court precedent demonstrating legislative repeal(s) of a punishment makes a defendant's Eighth Amendment claims stronger, not weaker.
In addition, the question here (as it was in Atkins and all other Eighth Amendment cases) is not just "when" a sentence might have become unconstitutional, but rather whether an extreme punishment is cruel and unusual now. Thus, it is misguided to assert that the Blewetts claim "that their sentences became cruel and unusual when Congress passed the Fair Sentencing Act" back in 2010. Rather, the issue needing to be resolved under the Eighth Amendment is whether now, in December 2013, after Congress passed the FSA in 2010 repealing the sentences being served by the Blewetts, AND after the US Sentencing Commission made lower guidelines retroactively available to tens of thousands of more serious crack offenders (and Congress approved that decision), AND after thousands of judges have lowered the sentences of thousands of more serious crack offenders by an average of more than two years, AND after the US Attorney General has given major speeches and issued new policies assailing the application of mandatory minimums in these kinds of cases, whether it is now cruel and unusual that only less serious crack offenders like the Blewetts do not even get a chance to ask a judge to have their sentences lowered.
My view on these issues is, of course, deeply biased by my involvement in this case in which I authored a brief for NACDL explaining why I think the Blewetts' sentences are unconstitutional under the Eighth Amendment. The reason I come to this view is because I take very seriously the Supreme Court's frequent and repeated admonition that Eighth Amendment's prohibition of cruel and unusual punishments evolves. I fully understand those who disagree with this jurisprudential approach to the Eighth Amendment and who advocate that the Supreme Court no longer analyze and apply the Amendment this way. But, as an inferior court, the Sixth Circuit has to follow even parts of SCOTUS precedent it does not like. In this case, however, it seems the Sixth Circuit was content just to ignore that precedent rather than consider it honestly and seriously.
In lengthy split opinions, en banc Sixth Circuit rejects all efforts to give any relief to pre-FSA crack defendants still serving mandatory minimums
The Sixth Circuit this morning has handed down a lengthy set of opinion in the closely-watched Blewett litigation. All the opinions, which can be accessed here, run a full 79 pages. It appears the vote to reject providing any relief to pre-FSA defendants still serving now-repealed mandatory minimums was 10-7, and here is the complicated accounting of the votes and opinions:
SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J., BOGGS, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN and KETHLEGE, JJ., joined, and MOORE, J., join ed in the result. MOORE, J. (pp. 21–33), delivered a separate opinion concurring in the judgment. MERRITT, J. (pp. 34–37), delivered a separate dissenting opinion, in which DONALD J., joined. COLE, J. (pp. 38–43), delivered a separate dissenting opinion. CLAY, J. (pp. 44–58), delivered a separate dissenting opinion, in which DONALD, J., joined. ROGERS, J. (pp. 59–67), delivered a separate dissenting opinion, in which WHITE and STRANCH, JJ., joined, MERRITT, J., joined in part, and COLE, J., joined except for the last paragraph. WHITE, J. (pp. 68–79), delivered a separate dissenting opinion.
I am not at all surpsised by the line-up here, which notably seems to go down party lines save for Clinton appointees Judges Gilam and Moore with the Republican-appointee-heavy marjority, and Bush appointees Judges Rogers and White voting with the Democratic-heavy dissenting minority. Here is how the opinion of the Sixth Circuit majority ends:
At the end of the day, this is a case about who, not what — about who has authority to lower the Blewetts’ sentences, not what should be done with that authority. In holding that the courts lack authority to give the Blewetts a sentence reduction, we do not mean to discount the policy arguments for granting that reduction. Although the various opinions in this case draw different conclusions about the law, they all agree that Congress should think seriously about making the new minimums retroactive. Indeed, the Fair Sentencing Act, prospective though it is, dignifies much of what the Blewetts are saying as a matter of legislative reform and may well be a powerful ground for seeking relief from Congress. Yet the language of the relevant statutes (the Fair Sentencing Act, § 109 and § 3582(c)(2)) and the language of the relevant decisions (Dorsey, Davis and Harmelin) leave us no room to grant that relief here. Any request for a sentence reduction must be addressed to a higher tribunal (the Supreme Court) or to a different forum altogether (the Congress and the President).
Especially because I have a very busy teaching week, I am unlikely to find the time to read and assess these opinions in full for a little while. Moreover, because I have a much more robust view of the limits of the Eighth Amendment than most members of the federal judiciary, I suspect I will not be moved by how the majority disposed of this matter with reference to Harmelin and other cases which do not involve the sui generis reality of sustaining lengthy federal prison terms that have been resoundly and repeatedly rejected and disavowed by all other branches of the federal government and by all the states in the Union as well.
December 3, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Calling out DOJ for talking the talk, but not walking the walk, on mandatory minimums
Andrew Cohen has this lengthy and effective new piece via The Atlantic highlighting a case in the SCOTUS cert pool that highlights the ways federal prosecutors are able to use mandatory minimums to force judges to impose lengthy prison terms for drug offenders. The piece's headline and sub-head highlight its themes: "Attorney General Mean What He Says About Sentencing Reform?: Eric Holder has spent a great deal of time and energy lately advocating for reforms to mandatory minimum sentences. So why is the federal government trying to stiff Clarvee Gomez in court?". And here is how piece starts and concludes:
When the justices of the United States Supreme Court confer Friday morning to consider new cases they will have the opportunity to accept for review a dispute that tests not just the meaning of their own recent Sixth Amendment precedent but the viability of a major new policy initiative implemented this summer by the Justice Department to bring more fairness to federal sentencing while reducing the terrible costs of prison overcrowding.
In Gomez v. United States, a Massachusetts case, the justices have been asked to determine whether they meant what they wrote about juries and drug sentences in Alleyne v. United States, decided just this past June, and at the same time whether Attorney General Eric Holder meant what he said, in August, when he promised to curb the ways in which his federal prosecutors abuse "mandatory minimum" sentences in drug cases to obtain guilty pleas (or higher sentences).
The justices should accept this case for review. And the Court should affirm the just principle that a man cannot constitutionally be sentenced based upon charges that are not brought or upon facts a jury does not even hear. But even if the justices aren't willing to muster up that level of indignation, they ought to at least take the opportunity to call out federal prosecutors for saying one thing in front of the microphones and another in court papers....
The government's positions in this case — both the tactics employed by Gomez's prosecutors and the arguments made now by federal attorneys — are utterly inconsistent with the much-publicized policies the Attorney General himself promulgated this summer....
Even after the Court's mandate in Alleyne, even after the Attorney General's pointed memorandum, even after all the public speeches about sentencing reform, federal attorneys still are trying to argue that the result in the Gomez case is both fair and constitutional. It is neither and the Supreme Court ought to say so — or at least expose the incoherence and hypocrisy of the government's position. If true sentencing reform is going to come it's going to come one case at a time — and this is as good a case as any to start.
December 2, 2013
Another preview of Paroline via the New York Times
As I noted in this post a few weeks ago, oral argument in the fascinating Supreme Court case of Paroline v. United States is not until January. But the parties' opening briefs, all of which are now in and are available via SCOTUSblog on this Paroline case page, already provide a full review of the challenging issues that restitution sentences for child porn downloading victims presents for the Justices. Adam Liptak in this new New York Times piece, headlined "Evaluating the Liability of Viewers of Child Pornography," effectively reviews the issues and arguments now before the Justices in Paroline:
The notices arrive almost every day. They tell a young woman named Amy, as she is called in court papers, that someone has been charged with possessing child pornography. She was the child. “It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it,” Amy, then 19, wrote in a 2008 victim impact statement. “It’s like I am being abused over and over and over again.”
Next month, the Supreme Court will consider what the men who took pleasure from viewing Amy’s abuse must pay her. Images of Amy being sexually assaulted by her uncle are among the most widely viewed child pornography in the world. They have figured in some 3,200 criminal cases since 1998.
Amy is notified through a Justice Department program that tells crime victims about developments in criminal cases involving them. She has the notifications sent to her lawyer. There have been about 1,800 so far. Her lawyer often files a request for restitution, as a 1994 law allows her to do. Every viewing of child pornography, Congress found, “represents a renewed violation of the privacy of the victims and repetition of their abuse.”
Amy’s losses are in most ways beyond measure, but some of them can be calculated in dollars. She has found it hard to hold down a job. She needs a lifetime of therapy. She has legal bills. Her lawyers say it adds up to about $3.4 million. The question for the justices is how to allocate that sum among the participants in the sordid marketplace for pictures of her.
One of those men is Doyle R. Paroline, who was caught with 280 images of children, including toddlers, being sexually abused. Two of the pictures were of Amy. The 1994 law allows victims of child pornography to seek the “full amount” of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million....
Mr. Paroline was sentenced to two years in prison, but the trial judge, Leonard Davis, did not order him to give Amy anything. The link between Amy’s losses and what Mr. Paroline did, Judge Davis said, was too remote. The United States Court of Appeals for the Fifth Circuit, in New Orleans, disagreed and awarded Amy the $3.4 million she sought. Mr. Paroline should pay what he could and seek contributions from his fellow wrongdoers if he thought it too much, the court said, relying on the legal doctrine of “joint and several” liability....
Mr. Paroline said the ruling was deeply unfair. “An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate to the offense conduct,” he told the Supreme Court. Requiring him to seek payment from his fellow sex offenders, he added, “would create a procedural nightmare.”
Amy’s lawyers countered that it should not be her burden to pursue her abusers over “decades of litigation that might never lead to a full recovery.” She has received restitution in 180 cases so far, she told the justices, and has recovered a little more than 40 percent of her losses.
The Justice Department took a middle ground before the Supreme Court, saying that Amy deserved something from Mr. Paroline, but that $3.4 million was too much. The right amount, the department’s lawyers said, was “somewhere between all or nothing.” They did not specify what Mr. Paroline’s share might be, saying the trial court should decide.
A few prior posts on Paroline:
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
A must-read issue of the FSU Law Review for sentencing fans
Thanks to being sent a reprint of one article from the Summer 2013 issue of the Florida State University Law Review, I happened to discover that Issue 4 of Volume 40 of this august journal actually has three must-read pieces for sentencing fans. Two of these pieces (one article, one note) concern the Supreme Court's recent Eighth Amendment jurisprudence, and the other provides a proposed solution to one of the thorniest doctrinal problems concerning the federal sentencing guidelines. All three look great, and here are their titles with links in the order they appear within the issue:
- A Quantity-Driven Solution to Aggregate Grouping Under the U.S. Sentencing Guidelines Manual by Kevin Bennardo
Strict Scrutiny Under the Eighth Amendment by Ian P. Farrell
What sentencing issues should SCOTUS be taking up to fill out its docket?
I have noted (and been disappointed by) the relative paucity of major sentencing cases on the Supreme Court docket this Term. But, as highlighted by this new Washington Post article, headlined "Supreme Court busy looking for cases — but finding fewer than usual," SCOTUS is now facing a relative paucity of all cases on its docket.
That all said, this recent Politico article, headlined "Digital era confounds the courts," spotlights that a number of cases concerning the intersection of the Fourth Amendment and new technology likely to be on the SCOTUS docket soon:
[T]he nation’s top court is set to consider whether to take up three key related cases ... [with] big tech issues that could finally get decided:...
Lower courts have been split on the authority of police to search your technology [incident to an arrest]. Currently, court rulings have required warrants to search a cellphone in six states, while they are not required in 20 other states, according to a map put together by Forbes and the Electronic Frontier Foundation.....
In the age of encryption and passwords, law enforcement officials can obtain a warrant for a hard drive, but they may not be able to access the material on it. So can police compel someone to provide a password or to unlock an account or decrypt a file? Courts have in some cases ruled that individuals can refuse to provide a password under their Fifth Amendment right not to incriminate themselves....
Another nettlesome issue brought up in part by the ubiquity of cellphones and smartphones is the ability of police to track a person’s movements. While the Supreme Court ruled last year that police cannot affix a GPS tracking device to a car without a warrant, it decided U.S. v. Jones based on a question of trespassing, which doesn’t apply when police get location information from a suspect’s devices or service provider.
The courts are also split on this issue. In July alone, two courts made opposite rulings: The 5th Circuit Court of Appeals in Texas found that law enforcement may get cell location data from service providers without a warrant. In a New Jersey case, a very different result -- the state supreme court held that the state’s constitution requires a warrant.
Like all criminal procedure issues, these constitutional search question are sure to have eventual sentencing echoes. But, of course, hard-core sentencing issues are the ones that really get me excited, and I think there are plenty the Justices should be taking up to fill out their docket.
Some of the most obvious sentencing issues seemingly ready for SCOTUS review are follow-ups to its recent Eighth Amendment work in Graham and Miller. Lower courts are deeply split over the retroactivity of Miller and also concerning what kinds of crimes and sentences fit within the categorical ban of juve LWOP sentences for nonhomicide offenses announced in Graham.
In addition, plenty of federal sentencing issues in the post-Booker world are still roiling district and circuit courts. I personally would like to see the Justices throw some more dirt on the worst guidelines by taking up, and then reversing as unreasonable, a poorly-justified, within-guideline sentence based on guidelines widely recognized to be badly broken (e.g., the crack or CP or fraud guidelines). But I doubt many Justices are eager to spend their spring further fighting with Justice Breyer over the mysteries of his Booker remedy.
I could go on issue spotting here for the Justices, but I am really eager to hear from informed readers about the question in the title of this post. What issues do folks working day-to-day in the sentencing vineyards believe the Supreme Court should take up ASAP?
December 2, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack
December 1, 2013
"Death penalty for Boston bomber a complicated question"
The title of this post is the headline of this new piece from USA Today. Here are excerpts:
The high-security wing at the U.S. Penitentiary in Terre Haute, Ind., now represents an increasingly complicated backdrop for a decision Attorney General Eric Holder is set to make in the next several weeks on whether to pursue the death penalty in the federal government's prosecution of Boston Marathon bombing suspect Dzhokhar Tsarnaev.
There is little argument about the strength of the case against Tsarnaev, charged with 30 criminal counts in connection with the blasts that killed three and wounded more than 260 others. There are photographs of Tsarnaev allegedly planting explosives at the site of one of the bombings.
Yet the government's record in carrying out the death penalty is mixed at best, and there are conflicting views about whether the often-delayed penalty is an appropriate punishment if the 20-year-old defendant is convicted in the bombing case. Since the federal death penalty was reinstated in 1988, only three offenders have been executed and none in the past 10 years....
In the case of Tsarnaev, there are other potentially complicating factors at play for the federal government in Massachusetts, a state long opposed to the death penalty. In September, less than six months after the attack, a poll commissioned by The Boston Globe found that 57% of Boston residents favored Tsarnaev's facing life in prison without parole, while only 33% supported death. The opposition, in the city deeply scarred by the bombing, crossed political lines with Democrats overwhelmingly favoring life in prison at 61%-28% and Republicans more narrowly supporting prison over death at 49%-46%.
"It's one thing for the government to be willing to impose the death penalty; it will be a lot harder to find people in Massachusetts to serve on a jury who would vote for the death penalty," said Andrew Smith, director of the University of New Hampshire Survey Center, which conducted the poll. "It's not terribly surprising given that it is Massachusetts."
Aitan Goelman, a former federal prosecutor who assisted in the Oklahoma City prosecutions, said the federal government's rarely used execution chamber reflects a system "slanted against" execution. From the mandatory pre-prosecution review to determine whether to pursue the maximum punishment to the actual prosecution, Goelman said, there are required thresholds in the federal system that don't exist in most states....
"The system seems to bend over backwards not to have executions,'' said Goelman, though he said he believes that "at the end of the day," Holder will likely certify the Tsarnaev prosecution as a death penalty case. "If you put a bomb down in a crowd, it becomes one of those cases where you say, 'If not now, when do you ever certify a case as a death penalty case?'" Goelman said.
Richard Dieter, executive director of the Death Penalty Information Center, which advocates against the death penalty, said possible considerations that could work in Tsarnaev's favor are his relative youth and whether Tsarnaev's older brother, Tamerlan Tsarnaev, may have pushed him to take part in bombings.... "Justice might approve seeking the death penalty just to keep their options open," Dieter said, referring to a possible strategy to exact a guilty plea from the defendant.
Among those who have little doubt that death should be pursued against Tsarnaev is a former top Boston police official who worked closely on the investigation. "I don't believe in the death penalty in most cases," former Boston Police commissioner Ed Davis said. "I believe it is appropriate in this case. I would caution everyone to wait until all of the evidence comes out. … There is no explanation for what happened here."
I would be very surprised if AG Holder does not approve seeking the death penalty in this case, and I will be similarly surprised if the case is not ultimately resolved through a plea deal providing for an LWOP sentence.
Some prior related posts:
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
- "The Boston Bomber Should Face The Possibility Of The Death Penalty"
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- Intriguing sparring over federal capital recommendation procedure in Boston bombing case