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April 26, 2014

Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?

The questions in the title of this post is a by-product my reaction to the Supreme Court's work this week in Paroline (basics here) and draws from the title of this Slate essay by Eric Posner headlined "The Puzzle of Paying Amy: Congress has to fix the problem with restitution for child pornography victims that stumped the Supreme Court."   The analysis of the Paroline issues in this article is effective (though I disagree with some of it), and I recommend a full read.  Here are brief excerpts to set up the question in the title of this post, with a key issue and concern emphasized at the end:

The Violence Against Women Act provides for restitution for child pornography victims, so Amy sought payment from the people convicted of possessing her images.  She proved that she had lost almost $3.4 million in therapy expenses and future income as a result of the abuse and the viewing of the images, but because of the collective nature of the wrongdoing that caused her harm, she could not prove how much of the loss could be attributed to any specific defendant.  Doyle Randall Paroline was convicted of possessing two images of Amy.  This week’s puzzle for the Supreme Court: How much should he have to pay her?

Zero, three of the conservative justices argued in dissent Wednesday.  All $3.4 million, argued Justice Sonia Sotomayor, also in dissent.  Something, held the majority, in an opinion written by Justice Anthony Kennedy.  The conservatives got the law right, Sotomayor got the morality right, and Kennedy — characteristically trying to have it both ways — created a muddle....

The problems with Kennedy’s and Sotomayor’s approaches stem from the same source: When Congress drafted the provision about restitution in the Violence Against Women Act, it thought about traditional types of harms — when one person directly injures another — and not the unusual collective injury in this case.  That’s why the justices’ efforts to twist the statutory language lead to unfair and bizarre outcomes.

Congress created this mess, and only Congress can fix it.  Every person who is convicted of child pornography should pay a large fine into a government trust.  The fine would be tailored to the wealth of the defendant and the magnitude of his wrongdoing.  Then this fund would be used to compensate all the identified victims of child pornography, who would share it in proportion to the severity of their injuries.  That way, not Kennedy’s or Sotomayor’s, lies fairness.

Two quick responses right away, with a lot more to write on this topic in the days and weeks and months ahead:

1. Ironically, the basic substantive proposal for a statutory Paroline fix emphasized above is, in many significant respects, really something of a variation of the new judicial restitution doctrine functionally embraced/created by the Paroline court through Justice Kennedy's majority opinion, though it changes the key sentencing term a fine rather than restitution and would presumably require every CP defendant to pay rather than just the (vast majority of) defendants who have a picture of an identified victim.

Consequentially, I believe DOJ can (and should) on its own operationalize the post-Paroline restitution sentencing process somewhat along the lines Posner suggests: DOJ could (and should) announce formal guidelines concerning the amount of restitution it will request in each CP downloading case involving Amy (or Vicky or other victims) based on the the wealth of the defendant and the magnitude of his wrongdoing (with some reference to factors mentioned by the Paroline majority).  With such a restitution schedule created, Amy and other victims can reasonably expect DOJ will be mostly responsible for making sure she and other identified victims collects restitution reasonably efficiently and effectively without actually requiring these victims and their lawyers to be actively involved in every CP case.

2. Though there are lots of good reasons to contend that Congress should try to fix Paroline in some way via statutory reform, the fact that some (many? most?) proposals for such reform may look similar to the new judicial restitution doctrine functionally embraced/created by the Paroline court, I am not at all confident that Congress will get around to enacting a wise statutory fix anytime soon.  If the statutory interpretation proposed by CJ Roberts in dissent, which concluded Amy and other victims get nothing based on the existing statute, then I suspect even our divided/dysfunctional Congress would have gotten a lot of pressure from both victims and DOJ to enact a statutory fix.  But with the split-the-difference outcome (which was urged by DOJ) now the new post-Paroline status quo, I am not at all confident there will be the same momentum to push Congress to act.

Notably, one of Amy's lawyer, Professor Paul Cassell, has been talking up a legislative fix in posts here and here at The Volokh Conspiracy since Paroline was handed down.  In the first of these posts he states that he and "crime victims’ advocates around the country ... intend to take up with Congress the cause of Amy and the many other child pornography victims who suffer real, quantifiable losses from these serious crimes." Because Paul and other "crime victims’ groups can be very effective advocates, I certainly believe it may be possible that Congress will respond in some way after Paroline. But if (when?) the Justice Department is disinclined to join the call for statutory reform, I would predict that the post-Paroline status quo is could stay in place for some time.

A few (of many) prior posts on Paroline and child porn restitution issues:

April 26, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (30) | TrackBack

"Not just clemency, but smarter sentencing: Congress must act to make criminal justice more just"

The title of this post is the headline of this recent Washington Times op-ed authored by Craig DeRoche who is president of Justice Fellowship. Here are excerpts:

President Obama’s decision to grant clemency to a large number of nonviolent offenders in federal prison has ignited a much-needed national discussion on criminal justice reform, but voices on both sides are missing some key underlining problems.

Over the past several decades, Congress has passed disproportionate mandatory-minimum sentences for nonviolent offenses that infringe upon the moral and constitutional duties of judges to ensure fair and equitable justice.  As the head of a faith-based organization guided by the Christian values of redemption and transformation, I am called to advocate for a system that values compassion and mercy as necessary policy counterweights to justice.

Justice is giving someone what they deserve, based on the harm they have caused, whereas mercy is extending leniency that is undeserved.  Clemency was designed to be an instrument of mercy, while lawmaking is an exercise of justice.

If the aim of Mr. Obama’s clemency initiative is to correct unjust policy rather than extend mercy in specific cases, then it does nothing to address systematic problem plaguing America’s burgeoning criminal justice system; namely, the disproportionate and ineffective sentencing laws for nonviolent crimes that have led to a federal prison system at 38 percent above capacity.

This unacceptably high level of overcrowding is dangerous for both prison guards and prisoners.  It also diminishes the capacity for faith-based nonprofits such as ours to provide effective programming that helps transform prisoners into law-abiding citizens when they return to our communities.  Not to mention that paying for the skyrocketing federal prison population is essentially accomplished by theft from budgets that formerly went toward victims’ services, prosecutors, investigations and crime-prevention tools.

Some on the political right, in particular members of Congress, object to what Mr. Obama is proposing on the grounds that this is yet another executive action by an imperial president who they think is interfering with the constitutional prerogatives of lawmakers to make policy.

While there is no doubt that both the current and previous occupants of 1600 Pennsylvania Avenue have governed — sometimes questionably — through executive action, the Constitution clearly assigns the power of both clemency and pardons to the chief executive.  This is, in fact, a presidential prerogative inherited by way of ancient English constitutional law, which has always held the head of state to be the lead in executing prosecution, punishment and mercy.

The issue is not whether the president has the power to grant clemency, but rather whether Mr. Obama will overreach with that power in a way that undermines the long-term policy changes that can only be established through Congress’ lawmaking power.  Instead of using clemency as a blunt instrument to fix the broken policies and laws governing the criminal justice system, all three branches of government must work together to rebalance the scales of justice and restore a system that is no longer working for anyone....

Congress and the president have the opportunity to fulfill their constitutional obligations with two pieces of pending legislation that have attracted strong bipartisan support and affirm the growing consensus in support of reforming the criminal justice system.

One of the bills is the Smarter Sentencing Act, which has attracted the co-sponsorship of two polar opposites in the Senate: Mike Lee, a Tea Party Republican from Utah, and Richard J. Durbin, a liberal Illinois Democrat. The other is the Recidivism Reduction and Public Safety Act, co-sponsored by Sen. Sheldon Whitehouse, an unabashed liberal Democrat from Rhode Island, and John Cornyn, a Texas Republican conservative, which passed out of the Senate Judiciary Committee on a 15-2 vote.

This rare consensus should not be taken for granted. Discussions and hearings alone are lip service. If Congress wants to avoid an executive-dominated approach to the challenges facing our criminal justice system, it must take the lead in not only proposing, but passing, long-term solutions. All three branches of government working as our Founding Fathers envisioned will not only show the American public that our democracy still works, but that our society has become a more just one.

April 26, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack

Interesting articles about history and modern prison realities in United States

I just came across a set of interesting papers just made available on SSRN authored by criminologist Jeffrey Ian Ross examining the history and some modern realities about prisons in the United States. Here are links to these pieces via their titles:

April 26, 2014 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

April 25, 2014

Local California sex offender restrictions legally suspect after California Supreme Court (non)action

As reported in this local article, earlier this week that California Supreme Court "left intact a lower-court ruling that invalidates local ordinances aimed at restricting the movements of registered sex offenders in dozens of cities statewide." Local lawyers say this (non)action is a big deal:

The court’s decision Wednesday not to hear a case involving a Southern California sex offender means city and county ordinances banning such offenders from public parks and other public areas no longer may be enforced, attorneys say.  Instead, a state law governing where sex offenders on parole may live now stands as the main restriction.

“If I read the tea leaves correctly, it’s probably dead everywhere in California,” Susan Kang Schroeder, chief of staff to Orange County District Attorney Tony Rackauckas said Thursday.

The Orange County District Attorney’s Office had led the effort to tighten restrictions on sex offenders and advised communities in that area on how to enact such ordinances.  “We still believe that we were right on the law and we respectfully disagree,” Schroeder said. “We don’t regret the choices that we made in trying to keep sex offenders out of parks and keep children safe.”

The state Supreme Court’s action stemmed in part from an Orange County case in which a registered sex offender in Irvine went to a tennis court at a public park in violation of a local ordinance.  The offender pleaded guilty, but a public defender appealed the case and won a ruling that state law trumps such local ordinances, Schroeder said.  Her office appealed that to the 4th District Court of Appeal, which agreed with the appellate decision, so the Orange County District Attorney’s Office asked the state Supreme Court to hear the matter.

That court declined to do so Wednesday.  It also declined to hear a second, similar case involving an offender who was cited after going to a picnic at a county park. The move effectively invalidates such local ordinances, Schroeder said, and leaves Jessica’s Law, passed by voters in 2006, as the main enforcement tool over paroled sex offenders. That measure, which also has faced court challenges, prevents sex offenders on parole from living within 2,000 feet of schools and parks.

Santa Maria attorney Janice Bellucci, president of a group called “California Reform Sex Offender Laws,” said the Supreme Court’s move is a “major victory” for efforts to provide more rights for individuals who must register on California’s Megan’s Law list of people with sex offenses in their pasts.  “It means that our people on the registry — and we have over 105,000 now — can now go to public and private places that they could not go to before,” she said.

Bellucci has been waging a legal battle against such ordinances throughout the state and last month filed suit in U.S. District Court in Sacramento seeking to overturn a South Lake Tahoe measure.  The South Lake Tahoe ordinance prohibits sex offenders from being in or within 300 feet of public or private schools, parks, video arcades, swimming pools or other areas where children might congregate.  The ordinance allows for single trips traveling past such spots.

Bellucci said 70 cities and five counties in California have enacted such measures, and she has used a client, Frank Lindsay of San Luis Obispo, a registered sex offender, as the face of her lawsuits against such ordinances....   Bellucci said she views the matter as a “civil rights issue” that ultimately should be addressed by legislators to differentiate between people who made a mistake in their past — such as urinating in public or a young adult having consensual sex with a 17-year-old girlfriend, for example — from predators...

El Dorado County District Attorney Vern Pierson said Thursday that the Legislature has failed to address the need for balanced restrictions, something that may lead to new initiative drives. “This is more than anything else due to the Legislature’s inability to craft appropriate legislation to control the behavior and conduct of sex offenders that are out,” Pierson said.

He added that the county had crafted policies he thought were appropriate and similar to those in Orange County, allowing an offender to get written permission from the sheriff to be in certain public places around children. “I think there’s this misimpression that we want to ban sex offenders from going anywhere and doing anything,” Pierson said. “What we’re attempting to do is deal with the unusual situations where they’re predatory. If they go to an ice skating rink because they want to look at the young children, that’s who we’re trying to prevent from being in that kind of situation.”

April 25, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

"How America can — and will — abolish the death penalty"

20140426_LDC944The title of this post is the subheadline of this new commentary from The Economist with the main headline "Dismantling the machinery of death." Here are excerpts:

America is unusual among rich countries in that it still executes people. It does so because its politicians are highly responsive to voters, who mostly favour the death penalty. However, that majority is shrinking, from 80% in 1994 to 60% last year.  Young Americans are less likely to support it than their elders.  Non-whites, who will one day be a majority, are solidly opposed.  Six states have abolished it since 2007, bringing the total to 18 out of 50.  The number of executions each year has fallen from a peak of 98 in 1999 to 39 last year.

Many people regret this.  Some feel that death is the only fitting punishment for murderers: that it satisfies society’s need for retribution. Some find a religious justification, such as the line in Exodus that calls for: “life for life, eye for eye, tooth for tooth”.  Such appeals to emotion or faith are hard to answer, although the Bible also has passages about not casting the first stone, and many conservative evangelicals have ended up in the odd position of prizing life when it comes to abortion, but not when it comes to prisoners (the Catholic church is pro-life on both counts).  However, in a secular democracy a law of such gravity must have some compelling rational justification, which the death penalty does not.

Its advocates insist that it deters murderers, thereby saving lives.  If this were true, it would be a powerful argument, but there is scant evidence that it is.  The murder rate is far higher in America than in the European Union, which has no death penalty.  It is also higher in American states that carry out executions than in states that do not.  Granted, some studies have found that, if you control for other factors that also influence crime rates, you can make the case that each execution prevents three murders, or five, or even 18. But such studies are based on thin data and questionable assumptions.  There were nearly 15,000 murders in America in 2012. The chance of any individual killer being executed is thus microscopic — and distant, since the appeals process can grind on for decades.

Against the death penalty’s uncertain benefits must be set its certain defects. Juries, being human, are fallible.  If they jail an innocent man he can be freed and compensated, but he cannot be brought back to life.  Since the Supreme Court lifted its suspension of the death penalty in 1976, there are no proven cases where America has executed an innocent.  But there are at least ten that look horribly like it.  Cameron Todd Willingham, for example, was put to death for starting a deadly fire, although experts blamed faulty wiring.

To avoid miscarriages of justice, America has erected elaborate safeguards.  Capital cases are subject to multiple appeals; teams of lawyers haggle over them for years.  An unintended consequence of this is that executing a murderer is now perhaps three times more expensive than locking him up for life.  The money spent on the machinery of death would probably do more to improve public safety if it were spent on better policing, to catch the ones who currently get away.  Put simply, the death penalty looks like a colossal waste of taxpayers’ money, which conservative politicians would normally denounce.

Of late, abolitionists have put a lot of effort into lawsuits to make it harder for states to get hold of the drugs used in lethal injections.  This is more likely to delay executions than to end them.  A more democratic approach would be to persuade voters that capital punishment is not just barbaric but also costly, ineffective and prey to human error, and that they should therefore back politicians who oppose it.  That is how New Mexico, Oregon, Illinois, Connecticut, Maryland, Colorado and Washington stopped or suspended it. New Hampshire will try again.  State by state, abolitionists will prevail.  America is a nation founded on the principle that governments should not be trusted with too much power; that should include the power to strap people to a gurney and poison them.

The Economist also has this companion article about execution trends headlined "The slow death of the death penalty; America is falling out of love with the needle."

April 25, 2014 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

April 24, 2014

One older notable voter (and former Justice) eager to see marijuana legalized

Though his opinions no longer are very consequential, former Supreme Court Justice John Paul Stevens can still make news with his views.  This new NPR piece shows this to be true regarding marijuana reform:

Retired Justice John Paul Stevens made some news in an interview with NPR's Scott Simon on Thursday. Scott asked him if the federal government should legalize marijuana.

"Yes," Stevens replied. "I really think that that's another instance of public opinion [that's] changed. And recognize that the distinction between marijuana and alcoholic beverages is really not much of a distinction. Alcohol, the prohibition against selling and dispensing alcoholic beverages has I think been generally, there's a general consensus that it was not worth the cost. And I think really in time that will be the general consensus with respect to this particular drug."

April 24, 2014 in Pot Prohibition Issues | Permalink | Comments (18) | TrackBack

How many of current federal prisoners satisfy all six of the new DOJ clemency guidelines?

As reported here, yesterday the US Department of Justice announced more formally its plans and criteria for its Clemency Initiative, and this memo by Deputy AG Cole there set forth "six criteria the department will consider when reviewing and expediting clemency applications from federal inmates":

Under the new initiative, the department will prioritize clemency applications from inmates who meet all of the following factors [numbering added]:

  • [1] They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • [2] They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • [3] They have served at least 10 years of their prison sentence;
  • [4] They do not have a significant criminal history;
  • [5] They have demonstrated good conduct in prison; and
  • [6] They have no history of violence prior to or during their current term of imprisonment.

This BOP page indicates that, as of April 24, 2014, there are 216,614 total federal prisoners, and this BOP accounting of sentences imposed indicates that the majority of federal prisoners are serving sentences of less than 10 years. Moreover, I suspect that less than half of the roughly 45,000 federal inmates current serving prison terms of 15 years or more have already served at least 10 years of their prison sentence. In other words, clemency criteria #3 above alone probably cuts the number of possible "priority clemency applicants" down to around 20,000.

In a sound and cautious sentencing system (and likely in most state sentencing systems), there would be relatively few among the group of inmates serving over 10 years in prison who were "non-violent, low-level offenders" who lacked a "significant criminal history" and also have "no history of violence prior to or during their current term of imprisonment."  Nevertheless I fear that in the federal sentencing system under old-mandatory guidelines, there may be thousands of crack offenders and many other drug offenders (and perhaps even some white-collar offenders?), who have been imprisoned for a decade for non-violent, low-level offenses.  

Thanks to the Fair Sentencing Act, many of the crack offenders should be able to state that "by operation of law, [they] likely would have received a substantially lower sentence."  But can any lower-level non-violent drug offender also reasonably make this claim if she was sentenced before Booker? Could these drug defendants point to the now pending drug guideline amendments (as well as Booker) to claim they meet clemency criteria #1?

Long story short, I suspect there may well be perhaps 5000 or more federal prisoner who can make a plausible claim that they meet all six of clemency criteria.

April 24, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (22) | TrackBack

Oklahoma Supreme Court allows executions to get back on track

As reported in this local article, headlined "Oklahoma Supreme Court lets executions go forward; Justices lift stay after ruling inmates don’t have right to know source of drugs," a controversial execution stay put in plae in the Sooner State earlier this week will no longer mean executions in the states have to come much later.  Here are the basics:

The Oklahoma Supreme Court Wednesday evening ruled two convicted murderers’ executions can go forward. Justices had voted 5-4 Monday to halt the executions — until a legal challenge could be resolved.

Justices on Wednesday ruled unanimously against the inmates on that legal issue and let the executions proceed. Clayton Derrell Lockett and Charles Frederick Warner are now scheduled to be put to death by lethal injection next Tuesday.

Both complained in February that they need to know who was supplying the execution drugs. They contended they needed the information in order to challenge their executions as cruel and unusual punishment. Under state law, the identity of the drug supplier is confidential. An Oklahoma County judge in March — ruling in favor of the murderers — declared that law unconstitutional.

The Supreme Court Wednesday reversed the Oklahoma County judge’s ruling, saying the secrecy provision does not violate the inmates’ constitutional right of access to the courts. Justices noted that “the inmates have been provided with the identity of the drug or drugs to be used in the executions and with the dosages to be injected.”

The ruling Wednesday appears to put an end to what Attorney General Scott Pruitt had called a constitutional crisis. The Supreme Court had never before in its history blocked an execution. Both Gov. Mary Fallin and the attorney general complained after Monday’s ruling that the Supreme Court had overstepped its constitutional authority.

Normally, in Oklahoma, the Supreme Court handles civil issues and the Court of Criminal Appeals handles criminal matters. The Court of Criminal Appeals had not blocked the executions and Lockett was supposed to be put to death Tuesday. Faced with conflicting court orders, the governor on Tuesday rescheduled Lockett’s execution for next week.

Lockett, now 38, was convicted of the 1999 fatal shooting of Stephanie Neiman. Warner, 46, was convicted of killing his girlfriend’s baby daughter, Adriana Waller, in 1997.

In a strongly worded concurring opinion Wednesday, Supreme Court Justice Steven Taylor called the inmates’ challenge frivolous and a complete waste of the court’s time and resources.  Taylor has repeatedly contended the Supreme Court never should have taken up the inmates’ challenge at all.  He contends justices should have sent the issue to the Court of Criminal Appeals.

He wrote Wednesday the inmates had no right to information about where the execution drugs came from. “If they were being executed in the electric chair, they would have no right to know whether OG&E or PSO were providing the electricity,” he wrote.  “If they were being hanged, they would have no right to know whether it be by cotton or nylon rope; or if they were being executed by firing squad, they would have no right to know whether it be by Winchester or Remington ammunition.”

April 24, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

April 23, 2014

Round-up of some reactions to/reports on today's notable sentencing developments

My blogging cup runneth over today as I try to find time to read and process the Supreme Court's big child porn restitution in Paroline (basics here) and DOJ's new clemency guidelines (basics here).  Before I find time to share some of my reactions and perspectives (which may take a couple of days as I head on the road), I figured I can and should round-up here some of the reactions and perspectives of others of note:

Reactions to Paroline child porn restitution ruling:

Reactions to/reports on DOJ's new clemency guidelines:

April 23, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Split Fourth Circuit panel hold that Confrontation Clause does not apply in penalty phase of federal capital case

Today in US v. Umaña, No. 10-6 (4th Cir. Apr. 23, 2014) (available here) a Fourth Circuit panel affirms a federal capital conviction and sentence over numerous challenges. Here is how the panel majority opinion starts:

Alejandro Enrique Ramirez Umaña shot and killed two brothers, Ruben and Manuel Salinas, at point-blank range in a restaurant in Greensboro, North Carolina, because Umaña perceived that the brothers had insulted Umaña’s gang, Mara Salvatrucha, commonly known as MS-13.  A jury convicted Umaña of all counts for which he was charged, including two counts charging him with murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1), and two counts charging him with committing murder while using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and (j)(1). The convictions on those charges subjected Umaña to a maximum sentence of death.

Following the verdict of conviction, the same jury returned a verdict that Umaña was death eligible on the four capital counts, as provided in 18 U.S.C. §§ 3591-3596. The jury found that two statutory aggravating factors applied: (1) that Umaña had created a grave risk of death to one or more persons in addition to each victim, and (2) that he had killed more than one person in a single criminal episode.

Finally, in the sentence selection phase of trial, the jury imposed the death penalty, finding that four additional nonstatutory aggravating factors applied: (1) that Umaña had killed the two brothers to protect and maintain the reputation of MS-13 and to advance his position in that gang; (2) that Umaña had caused injury and loss to the brothers’ family and friends; (3) that Umaña had earlier intentionally committed several murders in Los Angeles; and (4) that Umaña posed a continuing and serious threat to the lives and safety of others, as evidenced by his lack of remorse, his allegiance to MS-13, his lack of rehabilitation, and his pattern of violence.  The jury also found several mitigating factors. After weighing the aggravating and mitigating factors, the jury imposed the death penalty.

On appeal, Umaña challenges every phase of the proceedings below.  After carefully considering each of Umaña’s arguments, we reject them and affirm the convictions and sentence.

Here is how the dissent by Judge Gregory gets started:

The majority opinion denies Mr. Umaña the right to confront his accusers in a jury proceeding to determine whether he lives or dies. The right to confront one’s accusers is a right as old as it is important.  Cf. Acts 25:16 (“[I]t is not the Roman custom to hand over anyone before they have faced their accusers...”).  The Sixth Amendment guarantees a defendant the right “to be confronted with the witnesses against him” “in all criminal prosecutions.”  U.S. Const. amend. VI. It also guarantees the right to an attorney, jury factfinding, notice of the crimes of which a defendant is accused, and a trial in the venue where the crime was committed. Id.

The last four of these Sixth Amendment rights -- counsel, jury, venue, and notice -- are not at issue today, nor are they controversial. During Federal Death Penalty Act (“FDPA”) proceedings, a defendant cannot be sentenced to death without these Sixth Amendment rights.  However, under the majority’s holding today, capital defendants are denied the right to confront their accusers throughout certain stages of an FDPA proceeding. In contravention of the history and text of the Confrontation Clause, and in spite of modern Supreme Court jurisprudence emphasizing the importance of the Confrontation Clause, the majority strips Umaña of the Sixth Amendment right most important for ensuring the accuracy of trial outcomes during the most important proceeding of his life.

April 23, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Justice Department formally announces its clemency initiative plans and guidelines

As expected, the US Department of Justice today announced some more formal plans and criteria for the long discussed new clemency initiative.  Two documents which I learned via an e-mail reprinted below provides the basics and links to the substance (which I will blog about a lot more in the hours and days ahead):
Announcing New Clemency Initiative, Deputy Attorney General James M. Cole Details Broad New Criteria for Applicants

As part of the Justice Department’s new clemency initiative, Deputy Attorney General James M. Cole announced six criteria the department will consider when reviewing and expediting clemency applications from federal inmates.

 Remarks as Prepared for Delivery by Deputy Attorney General James M. Cole at the Press Conference Announcing the Clemency Initiative

We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates, candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.

April 23, 2014 in Clemency and Pardons, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

SCOTUS reinstates Kentucky death sentence based on AEDPA deference

Via a 6-3 opinion in White v. Woodall, No. 12-794 (Apr. 23, 2014) (available here), the Supreme Court this morning reversed a Sixth Circuit opinion reversing a Kentucky death sentence. Justice Scalia wrote the majority opinion which starts and ends this way:

Respondent brutally raped, slashed with a box cutter, and drowned a 16-year-old high-school student. After pleading guilty to murder, rape, and kidnaping, he was sentenced to death. The Kentucky Supreme Court affirmed the sentence, and we denied certiorari.  Ten years later, the Court of Appeals for the Sixth Circuit granted respondent’s petition for a writ of habeas corpus on his Fifth Amendment claim.  In so doing, it disregarded the limitations of 28 U.S.C. §2254(d) — a provision of law that some federal judges find too confining, but that all federal judges must obey. We reverse.

Because the Kentucky Supreme Court’s rejection of respondent’s Fifth Amendment claim was not objectively unreasonable, the Sixth Circuit erred in granting the writ.  We therefore need not reach its further holding that the trial court’s putative error was not harmless. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justice Breyer authored a joined by Justices Ginsburg and Sotomayor, which starts this way:

During the penalty phase of his capital murder trial, respondent Robert Woodall asked the court to instruct the jury not to draw any adverse inferences from his failure to testify. The court refused, and the Kentucky Supreme Court agreed that no instruction was warranted. The question before us is whether the Kentucky courts unreasonably applied clearly established Supreme Court law in concluding that the Fifth Amendment did not entitle Woodall to a no-adverse-inference instruction.  See 28 U. S. C. §2254(d)(1).  In my view, the answer is yes.

April 23, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (12) | TrackBack

SCOTUS splits the difference for child porn restitution awards in Paroline

The Supreme Court handed down two criminal law opinions this morning, and the big one for sentencing fans is Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here). Intriguingly, Justice Kennedy authored opinion of the Court with Justices Ginsburg, Breyer, Alito and Kagan joining.. Chief Justice Roberts, Jr. issued a dissenting opinion joined by Justices Scalia and Thomas, while Justice Sotomayor issued a distinct a dissenting opinion. Here is the heart of the majority's ruling:

In this special context, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but but where it is impossible to trace a particular amount of losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims.

There remains the question of how district courts should go about determining the proper amount of restitution. At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.

Good luck with that, district courts! Snide comments aside, this ruling confirms my sense that these are really hard issues and that a majority of the Justice were uncomfortable with either a complete victory (which Justice Sotomayor urges) or a complete loss (which CJ Roberts urges) for child porn victims. Lots more on this ruling after I have a chance to process it fully.

April 23, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"Are female sex offenders treated differently?"

The title of this post is the headline of of this new Salon article which carries this subheadline: "A light sentence for a teacher suggests courts still don't get it about women predators." Here is how the piece begins:

It’s an all too common story – a high school teacher facing sex abuse charges involving students admits to the wrongdoing and faces the criminal justice system. But was a sentence of just one month in custody at a Community Correction Center sufficient punishment for a 39-year-old educator who has sex abuse investigations dating back six years? And could the slap on the wrist sentence have anything to do with the fact that in this case, the teacher sentenced is a woman, and the victim is a boy?

In a case that involves charges of abuse from two male students, Oregon teacher Denise Keesee has acknowledged multiple sexual encounters in 2008 with a then 16-year-old student, and currently faces a $5.1 million lawsuit from another male student. According to Oregon Live, court documents show that “Keesee told detectives she kissed [the other student] several times in 2012 when they were alone in her classroom. She also reportedly admitted to sending him photos of herself, including one of her naked.” Because that student was 18, no criminal charges were filed.

The justice system doesn’t lack for stories of male abusers who get off with relatively light punishments. And it’s important to note that every story involving sex abuse is unique. But at the same time that Denise Keesee is facing just 30 days of confinement for what happened between her and a 16-year-old, a male teacher in her same state was last week sentenced to nearly three years in prison for “an inappropriate sexual relationship” with a 16-year-old female student. Last month in Idaho, a special education teacher was sentenced to five to 20 years in prison for sexually abusing two adolescent girls.

April 23, 2014 in Offender Characteristics, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

President Bartlet urges Congress to pass the Smarter Sentencing Act

I am pleased and intrigued to learn via this Mother Jones piece, headlined "Martin Sheen Reprises His 'West Wing' Role — for a Sentencing Reform PSA," that a high-profile celebrity is making the case for federal sentencing reform. Here are the details (along with links):

On Tuesday, Brave New Films released a new PSA calling on Congress to pass the Smarter Sentencing Act. The proposed sentencing-reform legislation aims to reduce prison populations and costs by creating less severe minimum terms for nonviolent drug offenders. (On Monday,Yahoo News reported that President Obama could grant clemency to "hundreds, perhaps thousands" of nonviolent drug offenders by the end of his second term.) The video was produced in partnership with the ACLU and Families Against Mandatory Minimums (FAMM), and stars actor Martin Sheen. It's titled "President Bartlet has a message for Congress," in reference to Sheen's role on Aaron Sorkin's political drama The West Wing.

"When BNF joined with FAMM and the ACLU to rally support for the Smart Sentencing Act, we couldn't think of a better spokesperson than Martin Sheen," Brave New Films president Robert Greenwald said. "When he portrayed President Bartlett on The West Wing, his character commuted the sentences of nonviolent drug offenders. In the real world, Martin Sheen has been an advocate for sentencing reform and alternatives to the harsh, long prison sentences we give to nonviolent drug offenders."

April 23, 2014 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

April 22, 2014

Ohio prosecutors author lengthy minority report assailing work of death penalty task force

As reported in this local article, headlined "Critics: Supreme Court task force's death penalty recommendations would create legal 'nightmares'," Ohio prosecutors involved with the work of a task force created by the Ohio Supreme Court and the Ohio Bar Association have now circulated a lengthy draft minority report in response to the lengthy draft task force's report recommending 56 modifications to the administration of capital punishment in the state. The local article provides this summary the basics of this capital battle, along with links to both documents:

A series of capital punishment reforms being considered by a state Supreme Court task force would “render Ohio’s death penalty inoperable,” according to a draft report being circulated by critics on the panel, including many county prosecutors.

Earlier this month, the task force released a list of draft recommendations that, among other things, called for limits on when the death penalty could be sought, heightened evidence requirements, and the creation of a panel that would have to approve death penalty charges before cases could proceed.

According to the task force’s draft minority report, released Tuesday by the Ohio Supreme Court, many of the recommendations “would establish a series of procedural and legislative nightmares.”

“Some of the recommendations would tie the death-penalty system up in knots, creating procedural and litigative traffic jams that would potentially tie up particular cases in litigation even more than is already occurring,” the report stated.

Franklin County Prosecutor Ron O'Brien, along with representatives of Cuyahoga County Prosecutor Timothy McGinty and Hamilton County Prosecutor Joseph Deters, were involved in preparing the task force's dissent.

Here are are the first two paragraphs from the opening of the draft minority report:

The Joint Supreme Court/Ohio State Bar Association Task Force to Review the Administration of Ohio’s Death Penalty (hereinafter “Task Force”) was tasked with the assessment of whether the death penalty in Ohio is administered in the most fair and judicious manner possible; and to determine if the administrative and procedural mechanisms for the administration of the death penalty in Ohio are in proper form or in need of adjustment. The Task Force’s mandate specifically provided that “[t]he task force shall not review or report on the issue of whether Ohio should or should not have the death penalty.”

In several of its recommendations, however, the Task Force veered off its narrow mandate and is making recommendations that are anti-death penalty. The work of the Task Force was strongly influenced by a pro-defense majority bent on an agenda of abolition, not fairness. 

April 22, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Intriguing SCOTUS split over reasonable suspicion for traffic stop based on 911 call

The Supreme Court handed down two notable opinions this morning, and the one that should interest criminal justice fans is sure to get less attention than the one concerning state affirmative action laws. Nevertheless, the split of the Justices alone is intriguing in the 5-4 Fourth Amendment ruling in Navarette v. California, No. 12-9490 (Apr 22, 2104) (available here). Writing for the Court, here is how Justice Thomas's opinion begins and ends:

After a 911 caller reported that a vehicle had run her off the road, a police officer located the vehicle she identified during the call and executed a traffic stop. We hold that the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated....

Like White, this is a “close case.” 496 U. S., at 332. As in that case, the indicia of the 911 caller’s reliability here are stronger than those in J. L., where we held that a bare-bones tip was unreliable. 529 U. S., at 271. Although the indicia present here are different from those we found sufficient in White, there is more than one way to demonstrate “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U. S., at 417–418. Under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road. That made it reasonable under the circumstances for the officer to execute a traffic stop. We accordingly affirm.

Justice Scalia authored a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor and Kagan. Here is how it begins and ends:

The California Court of Appeal in this case relied on jurisprudence from the California Supreme Court (adopted as well by other courts) to the effect that “an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver” provides without more the reasonable suspicion necessary to justify a stop.... Today’s opinion does not explicitly adopt such a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated; it purports to adhere to our prior cases, such as Florida v. J.L., 529 U. S. 266 (2000), and Alabama v. White, 496 U.S. 325 (1990). Be not deceived.

Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures. I would reverse the judgment of the Court of Appeal of California....

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness.  All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.  If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of single instance of careless driving. I respectfully dissent.

April 22, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

"'Not Just a Common Criminal': The Case for Sentencing Mitigation Videos"

The title of this post is the title of this notable new paper by Regina Austin now available via SSRN. Here is the a abstract:

Sentencing mitigation or sentencing videos are a form of visual legal advocacy that is produced on behalf of defendants for use in the sentencing phases of criminal cases (from charging to clemency).  The videos are typically short (5 to 10 minutes or so) nonfiction films that explore a defendant’s background, character, and family situation with the aim of raising factual and moral issues that support the argument for a shorter or more lenient sentence.  Very few examples of mitigation videos are in the public domain and available for viewing.

This article provides a complete analysis of the constituent elements of these videos, particularly their narrative structure.  It raises strategic considerations that are pertinent to the decision to use a video during the sentencing process and explores questions of image ethics that can arise when a defendant’s children and parents are enlisted as video witnesses.  Finally and most importantly, it addresses the hearsay challenges that not only present obstacles to the admission of sentencing videos in formal sentencing proceedings, but also impact the weight they are accorded in general.

April 22, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (0) | TrackBack

Short federal sentence for cocaine offense when "'Breaking Bad' meets 'Walter Mitty'"

32-waltermittyA remarkable federal drug sentencing case culminated in a short prison sentence as reported in this local article headlined "'Breaking Bad' meets 'Walter Mitty' in Alachua County contractor's cocaine sentencing."  Here are the details:

The judge said the criminal case seemed to be more like a movie than an actual court proceeding. But on Monday the strange saga of an Alachua County man who went to Puerto Rico to try and dig up 11 pounds of cocaine ended in a short prison sentence and a pledge to volunteer with Habitat for Humanity.

U.S. District Judge Timothy Corrigan sentenced Rodney Hyden, 56, to 60 days in prison, one year of home detention and five years of supervised release.  In imposing the sentence, Corrigan said it was one of the most difficult decisions he’d had to reach in a long time.  He said he’s struggled with what the proper sentence should be.

Hyden, who owns his own construction company, will also be required to volunteer an average of 20 hours a week at Habitat for Humanity during his home detention and supervised release and will also be expected to build a Splash Park for the city of Newberry, where he lives.

Hyden could have faced 10 years in prison, but prosecutors waived the minimum mandatory laws and said the crime didn’t mandate a sentence that long.  The head of Habitat and the mayor of Newberry also wrote letters to Corrigan saying they were comfortable with Hyden providing his services.

Defense Attorney Mark Rosenblum argued that his client should be let off without jail time and required to do the community service with Habitat for Humanity and Newberry. Federal prosecutor Tysen Duva asked for 30 months of prison.  “Rodney Hyden is a good man who made a bad mistake,” Rosenblum said. “Luckily for him, the government was represented by an honest prosecutor and the case was presided over by an extremely fair judge.”

A neighbor of Hyden’s in Newberry told him that when he lived in Puerto Rico he found cocaine washed up on the beach and buried it near the trailer where he lived at the time. Hyden talked to several people about getting the cocaine, but he didn’t know that one of those people, Daniel Jimenez, was working as an informer for the Alachua County Sheriff’s Office.

Two undercover agents posing as narcotics traffickers met with Hyden and offered to help him get the drugs to Northeast Florida.  Hyden went to Puerto Rico twice seeking the drugs, but couldn’t find them.  He ended up giving a treasure map of where he thought the drugs might be to the undercover agents.  Police found the drugs, which had degraded to the point of being worthless, and arrested Hyden.

During the trial, Rosenblum argued that his client had been entrapped by the government and never would have gone after the drugs if people working for the government hadn’t encouraged it.  Jurors rejected that argument.

Hyden was convicted of a serious crime, but at the same time there was no real victim in the case, and even if he’d managed to retrieve the drugs he could not have sold them because they had degraded so much, Corrigan said.  Corrigan said the seriousness of the drug crime mandated some prison time, but not a lot.

The judge also dropped some pop culture references. “If this case wasn’t so serious it would make a great movie,” Corrigan said.  “It’s a combination of ‘Breaking Bad’ and the ‘Secret Life of Walter Mitty.’”

April 22, 2014 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

April 21, 2014

Split Oklahoma Supreme Court stays executions based on drug secrecy concerns

As reported in this AP article, headlined "Oklahoma Court Stays Executions of 2 Inmates," a lack of transparency about execution drugs has prompted court action in the Sooner state. Here are the basics:

A sharply divided Oklahoma Supreme Court on Monday stayed the execution of two death row inmates who have challenged the secrecy surrounding the source of the state's lethal injection drugs.

In a 5-4 decision, the state's highest court issued the stays just one day before death row inmate Clayton Lockett was scheduled to be executed for the 1999 shooting death of 19-year-old Stephanie Nieman. The second inmate, Charles Warner, was convicted in the 1997 death of his roommate's 11-month-old daughter. He was scheduled to die on April 29.

Oklahoma County District Judge Patricia Parrish last month struck down the state's execution law in a ruling that said the protocol that prevented the inmates from seeking information about the drugs used in lethal injections violated their rights under the state constitution....

On Friday, the Oklahoma Court of Criminal Appeals denied the inmates' request for a stay in spite of a ruling by the Supreme Court earlier in the week that the appeals court had the authority to issue a stay or reschedule an execution.

"The 'rule of necessity' now demands that we step forward," the Supreme Court's majority opinion says. "We can deny jurisdiction, or we can leave the appellants with no access to the courts for resolution of their 'grave' constitutional claims.

"As uncomfortable as this matter makes us, we refuse to violate our oaths of office and to leave the appellants with no access to the courts, their constitutionally guaranteed measure."

The full opinions in this matter appear to be available at this link.

April 21, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (5) | TrackBack