May 10, 2014
"Drugs and Violence"
The title of this post is the title of this notable and important new paper I just noticed via SSRN authored by Shima Baradaran. Here is the abstract:
The war on drugs has increased the United States prison population by tenfold. The foundation for the war on drugs and unparalleled increase in prisoners rely on the premise that drugs and violence are linked. Politicians, media, and scholars continue to advocate this view either explicitly or implicitly.
This Article identifies the pervasiveness of this premise, and debunks the link between drugs and violence. It demonstrates that a connection between drugs and violence is not supported by historical arrest data, current research, or independent empirical evidence. That there is little evidence to support the assumption that drugs cause violence is an important insight, because the assumed causal link between drugs and violence forms the foundation of a significant amount of case law, statutes, and commentary.
In particular, the presumed connection between drugs and violence has reduced constitutional protections, misled government resources, and resulted in the unnecessary incarceration of a large proportion of non-violent Americans. In short, if drugs do not cause violence — and the empirical evidence discussed in this Article suggests they do not — then America needs to rethink its entire approach to drug policy.
May 9, 2014
Is it fair to read the Constitution as evidence the Framers were not fans of finality?
As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice. As explained in this prior post, one of the central themes of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction. But, before I dig too deeply into distinguishing conviction and sentence finality, my article starts by pondering briefly what might have been the Framing Era perspective on finality considerations more generally. In so doing, I have this to say about some key provisions in each Article of the US Constitution:
The Constitution’s text can be read to suggest the Framers were decidedly eager to provide or preserve opportunities for defendants to seek review and reconsideration of their treatment by government authorities. Article I, Section 9 instructs Congress that the “Privilege of the Writ of Habeas Corpus shall not be suspended,” Article II, Section 2 provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States,” and Article III, Section 2 provides that the Supreme Court “shall have appellate Jurisdiction.” These provisions codify in our nation’s charter all the traditional mechanisms long used by individuals to challenge or seek modification of the exercise of government power through criminal justice systems. These provisions alone may not support a strong originalist claim that the Framers disfavored treating criminal judgments as final. Nevertheless, by precluding Congress from suspending habeas review, by empowering the President to grant clemency, and by authorizing the Supreme Court to hear appeals, the Constitution ensured that criminal defendants in a new America would have various means to seek review and reconsideration of the application of governmental power even after an initial criminal conviction and sentencing. More broadly, given the checks and balances built into our constitutional structure and the significant individual rights and criminal procedure protections enshrined in the Bill of Rights, one might readily conclude that the Framers were likely far more concerned with the fitness and fairness of criminal justice outcomes than with their finality.
Because I am neither a constitutional historian nor a hard-core originalist jurisprude, I do not devote much more time to these matters in my article. Still, as I suggest in a footnote, given "the significant attention now paid to various theories of originalism in modern constitutional litigation and jurisprudence in recent years, modern criminal justice advocates and scholars might unearth interesting and consequential findings if they were now to engage in an in-depth historical exploration of criminal justice finality concerns and issues through U.S. legal history." Ergo the question in this post is an effort to encourage engagement with these historical ideas (and also to solicit views on whether folks think further historical inquiry here might be important for modern jurisprudential developments).
Prior posts in this series:
- Examining "sentence finality" at length in new article and series of posts
- Finality foundations: is it uncontroversial that "conviction finality" and "sentence finality" raise distinct issues?
Applying strict scrutiny, Louisiana Supreme Court upholds facial constitutionality of criminalizing gun possession with illegal drug possession
Thanks to this post by Eugene Volokh, I see that the Louisiana Supreme Court issued an interesting and important unanimous decision earlier this week upholding a state gun crime statute against a facial state constitutional challenge. Here is how this opinion in Louisiana v. Webb, No. 2013-KK-1681 (La. May 7, 2014) (available here), starts and ends:
We granted a writ to determine whether a recent constitutional amendment involving a fundamental right to bear arms found in La. Const. art. I, § 11 renders a criminal statute related to the possession of a firearm while possessing illegal drugs, facially unconstitutional.
According to the defendant, because the right to bear arms has been recently enshrined as a fundamental constitutional right, notwithstanding the fact the defendant was allegedly carrying illegal drugs while in possession of a firearm, La. R.S. 14:95(E) is facially unconstitutional. Essentially, the defendant argues that, even assuming he possessed illegal drugs, because La. R.S. 14:95(E) deals not only with illegal drugs but with firearms, the firearm aspect of the statute cannot survive strict judicial scrutiny, and the entire statute must be declared unconstitutional.
We disagree. Nothing in the recent constitutional amendment regarding firearms requires dismissal of the criminal charges against the defendant for carrying a firearm while in possession of illegal drugs.....
To promote public safety by curtailing drug trafficking, the state of Louisiana has a compelling interest in enhancing the penalty for illegal drug possession when a person engages in that illegal conduct with the simultaneous while in possession of a firearm. Undeniably, the right to keep and bear a firearm is a fundamental right in Louisiana. However, when a person is engaged in the unlawful conduct of possessing illegal drugs, the person’s own unlawful actions have “qualified his right” to engage in what would otherwise be the exercise of that fundamental right. See Helms, 452 U.S. at 420 (indicating “appellee’s own misconduct [in abandoning his child] had qualified his right to travel interstate.”).
Earlier, we observed that in amending Article I, § 11 of the constitution, the electorate tasked this court with applying a very technical legal test to answer a very practical question. From all aspects, we have found the technical points of the law constitutionally allow the state to make it a crime to possess an illegal drug with a firearm. We can now, therefore, answer this practical question: Is the act of possessing a firearm and illegal drugs so essential to the liberties citizens ought to be able to enjoy in an orderly society that a law to the contrary is unconstitutional? “We have held that the function of the court in construing constitutional provisions is to ascertain and give effect to the intent of the people who adopted it. It is the understanding that can reasonably be ascribed to the voting population as a whole that controls.” Caddo-Shreveport Sales and Use Tax Com'n v. Office of Motor Vehicles, Dept. of Public Safety and Corrections of State, 97-2233 (La. 4/14/98), 710 So.2d 776, 780. Nothing in Article I, § 11 of the constitution informs us that the electorate, whose intent is ultimately the intent that governs, believed that possessing firearms with illegal drugs meets the electorate’s expectations of a society whose hallmark is ordered liberty.
We, therefore, affirm the ruling of the district court, finding La. R.S. 14:95(E) is not unconstitutional, and that nothing in Article I, § 11 of the constitution requires the charges against the defendant to be quashed. This case is remanded to the district court for further proceedings.
Connecticut debate spotlights how fights over death penalty can impede other needed reforms
Long time readers know that one of my enduring frustrations with debates over the fate of death penalty concerns how this debate can sometimes get in the way of other important criminal justice work. A notable new example of this dynamic was on display this week in Connecticut, as evidenced by this local article headlined "Juvenile Sentencing Bill Fails Second Year In A Row." Here are the basic details:
A barrage of amendments, a planned Republican filibuster over the merits of reviving the death penalty, and recent charges against a Milford teen in the fatal stabbing of a classmate scuttled a criminal justice bill on the last day of the 2014 session.
The bill would have offered inmates serving long prison sentences for crimes they committed at a young age a chance at freedom. The measure was crafted in response to two U.S. Supreme Court rulings, in 2010 and 2012. The court held that life sentences for offenders younger than 18 are unconstitutional and that juvenile offenders must be given a "meaningful opportunity" to seek release.
The legislation cleared the House of Representatives on a broad and bipartisan vote in early April. But for the second year in a row, it failed to come up in the Senate by midnight Wednesday, when the General Assembly adjourned. Republicans signaled to Democratic leaders that they were going to block the bill by filing 22 amendments, including one to reinstate the death penalty in Connecticut for convicted terrorists and another to eliminate a program that aims to rehabilitate prisoners by offering them credit toward early release....
Senate President Pro Tempore Donald Williams said there were enough votes to pass the measure. But, facing Republican opposition and wanting to avoid votes on controversial issues like the death penalty, Williams opted not to bring the bill up....
The proposed bill was based on recommendations by the non-partisan Connecticut Sentencing Commission. It would have permitted prisoners who committed crimes as teenagers and are serving prison terms of 20 years or less to be eligible for a sentence review after they had served 60 percent of their time. Inmates serving 50 years or more could receive that "second look" 30 years into their sentences. The proposal would not have guaranteed freedom for the inmates but would have given them the opportunity to argue their case at a special parole hearing with highly restrictive criteria.
"We're disappointed with what happened in the Senate," said David M. Borden, a retired state Supreme Court justice who chairs the Sentencing Commission, the panel charged with reviewing criminal justice policy and proposing legislation. The commission's members include prosecutors, defense attorneys, police, corrections officials and the state victims advocate. "When you look at the bill dispassionately and look at the facts dispassionately and clear away all the underbrush of things that don't have anything to do with it, it's a very good bill," Borden said Thursday. "To the extent politics got in the way, well, we live in the real world ... we'll take the consequences."
The commission will meet in June and determine whether it will push for the measure again in 2015. "I don't think there's going to be a strong sentiment for giving up this fight," Borden said. He said 70 inmates in Connecticut already have filed cases seeking revisions in their sentences, based on the two Supreme Court rulings. "This bill would have set down reasonable parameters for how these cases should be handled," Borden said.
In the absence of legislation setting a legal framework, the decision of how to comply with the U.S. Supreme Court rulings likely will be left to state courts, Gov. Dannel P. Malloy said Thursday. "Don't be surprised if it goes to court," Malloy said. The courts "will do what the [legislature] should have done and perhaps do more."
May 9, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
"Legal Institutions and Social Values: Theory and Evidence from Plea Bargaining Regimes"
The title of this post is the title of this intriguing new empirical paper by Yehonatan Givati now available via SSRN. Here is the abstract:
How do social values shape legal institutions across countries? To address this question I focus on one important legal institution -- the use of plea bargaining in criminal cases. I develop a model in which the optimal scope of plea bargaining depends on social values. Specifically, a lower social emphasis on ensuring that innocent individuals are not punished, and a greater social emphasis on ensuring that guilty individuals are punished, lead to a greater use of plea bargaining. Using unique cross-country data on social preferences for punishing the innocent versus letting the guilty go free, as well as an original coding of plea bargaining regimes across countries, I obtain results that are consistent with the model.
May 8, 2014
Recognizing that mass incarceration has lately been a little less massive
The always astute commentator Charles Lane has this new astute commentary in the Washington Post under the headline "Reaching a verdict on the era of mass incarceration." Here are excerpts:
Though the U.S. prison population of 1.5 million in 2012 was far larger than that of any other country, both in absolute terms and as a percentage of population, the era of ever-increasing “mass incarceration” is ending.
The number of state and federal inmates peaked in 2009 and has shrunk consistently thereafter, according to the Justice Department. New prison admissions have fallen annually since 2005. The inmate population is still disproportionately African American — 38 percent vs. 13 percent for the general population — but the incarceration rate for black men fell 9.8 percent between 2000 and 2009, according to the Sentencing Project.
This is not, however, the impression one would get from a new 464-page report from the prestigious National Research Council, which, like other think-tank output and media coverage of late, downplays recent progress in favor of a scarier but outdated narrative. The report opens by observing that the prison population “more than quadrupled during the last four decades” and goes on to condemn this as a racially tainted episode that badly damaged, and continues to damage, minority communities but did little to reduce crime.
The study’s authors are right that the disproportionate presence of minorities in prison is a tragic reality, rooted at least partly in the post-1960s politics of white backlash. Today’s big prison population reflects the impact of mandatory minimums and longer sentences, which probably do yield diminishing returns in terms of crime reduction, especially for nonviolent drug offenses. Summarizing a relative handful of studies, the NRC report implies that we can have safe streets without the cost, financial and moral, of locking up so many criminals — since it’s “unlikely” that increased incarceration had a “large” positive impact on crime rates.
It would be nice if there were no trade-off between crime and punishment, but common sense says it’s not so. An analysis by the Brookings Institution’s Hamilton Project, similar in both tone and timing to the NRC report, acknowledges that increasing incarceration can reduce crime and that this effect is greatest when the overall rate of incarceration is low.
Ergo, increasing the incarceration rate now would do little to reduce crime, but the crime-fighting benefits were probably substantial back in the high-crime, low-incarceration days when tougher sentencing was initially imposed.
It’s easy to pass judgment on the policymakers of that violent era, when the homicide rate was double what it is today and crime regularly topped pollsters’ lists of voter concerns. That had a racial component, but minorities were, and are, disproportionately victims of crime, too. The NRC report extensively discusses the negative effect on communities of incarcerating criminals, but it has comparatively little to say about the social impact of unchecked victimization.
Buried within the report is the fact that, in 1981, the average time served for murder was just five years; by 2000, it had risen to 16.9 years. The numbers for rape were 3.4 and 6.6 years, respectively. Insofar as “mass incarceration” reflects those changes — and the majority of state prisoners are in for violent crimes — it’s a positive development....
Instead of ignoring recent positive trends, researchers should try to understand them. The decline in incarceration may represent the delayed effect of falling crime and the diminished flow of new offenders it necessarily entails.
Sentencing reform, too, is taking hold, based on changing public attitudes. The percentage of Americans who say criminals are not punished harshly enough has fallen nearly 23 points since 1994 — when the crime wave peaked — according to data compiled by Arizona State University professor Mark Ramirez.
After erring on the side of leniency in the 1960s, then swinging the opposite way in the 1980s and 1990s, the United States may be nearing a happy medium. But this probably would not be possible if 48 percent of Americans felt unsafe walking at night within a mile of their homes, as the Gallup poll found in 1982. To sustain moderate public opinion we must keep the streets safe, and to do that we must learn the right lessons from the recent past.
I largely concur with many of Lane's sentiments here, especially with respect to making sure we acknowledge that rates of violent crime have dropped dramatically in recent decades and trying our very best to identify and understand recent trends and to "learn the right lessons from the recent past." At the same time, though, I question the basis for asserting that we may "be nearing a happy medium" with respect to modern punishment policies and practices given that the vast majority of the most severe sentencing laws enacted in the the 1980s and 1990s are still on the books.
Some recent related posts:
- "The Growth of Incarceration in the United States: Exploring Causes and Consequences"
- Notable new data on crime, punishment and mass incarceration
- New Human Rights Watch report bemoans "Nation Behind Bars"
- Should Prez Obama create a "Presidential Commission on Mass Incarceration"? Who should be on it?
- Reviewing how US prisons now serve as huge warehouses for the mentally ill
- Lots of recent (and long-overdue) new concerns about solitary confinement
- "Fewer prisons — and yet, less crime"
Bipartisan statutory fix after SCOTUS Paroline mess for child porn restitution introduced in Congress
This new Washington Times article, headlined "Bill would address Supreme Court ruling on porn victims; Effort seeks 'full restitution' from porn viewers," details that a legislative fix to the Supreme Court's ruling last month in Paroline is in the works. Here are the details:
Reacting to a recent Supreme Court decision, a bipartisan group of senators introduced a bill that, in certain cases, would force people convicted of possessing child pornography to pay at least $25,000 in restitution to the victim.
The measure would rewrite a section of the Violence Against Women Act and make it easier for victims of child pornography to be granted “full restitution” from felons who have made, distributed or viewed images of their sexual abuse online.
The push follows an April 23 Supreme Court ruling in Paroline v. United States that, in essence, told federal courts to figure out how to assign a nontrivial amount of restitution to child-pornography victims. Currently, with little guidance from the law, courts have set awards ranging from zero to millions of dollars in restitution for victims of child pornography from those who collect and pass along their images.
Child pornography “is one of the most vicious crimes, one of the most evil crimes, in our society,” Sen. Orrin Hatch, Utah Republican, said on the Senate floor Wednesday to introduce the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014. “Victims of child pornography suffer a unique kind of harm and deserve a unique restitution process,” said Mr. Hatch, who sponsored the legislation with Sen. Charles E. Schumer, New York Democrat, and six other colleagues.
Under the bill, the law and its penalties are clarified, including minimum payments of $250,000 for production of child pornography, $150,000 for distribution of child pornography and $25,000 for possession of child pornography.
“The tragic effect of the Supreme Court’s decision in Paroline was this: The more widely viewed the pornographic image of a victim, and the more offenders there are, the more difficult it is for the victim to recover for her anguish and her damages,” said Mr. Schumer. There “should not be safety in numbers,” he added.
The restitution bill would require a court to consider the “total harm” to the victim, including harm from individuals who have not been identified; mandates “real and timely” restitution; and allows defendants to “spread the restitution costs” among themselves, Mr. Hatch and Mr. Schumer said.
Finality foundations: is it uncontroversial that "conviction finality" and "sentence finality" raise distinct issues?
As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts intended, in the words of my article's introduction, "to encourage more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final." This initial substantive post will set out a foundational conceptual idea from my article — an idea which drives much of my thinking about sentence finality and seems somewhat obvious to me, but one that others might consider controversial. Here is how I set up the idea in my article (with a lengthy footnote omitted):
The issue of sentence finality is necessarily connected, of course, to the status and treatment afforded final criminal judgments more generally. For more than a half-century, a robust jurisprudential debate has swirled in the Supreme Court and in academic circles concerning federal court authority to review final state criminal judgments using the historic writ of habeas corpus. But courts and scholars analyzing whether and how defendants should be able to attack final criminal judgments have too often failed to explore or even recognize that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction. It is curious and problematic that modern finality doctrines and debates rarely distinguish between final convictions and final sentences: curious because courts and commentators have long recognized that the determination of guilt and the imposition of punishment involve distinct stages of criminal adjudication calling for different rules and procedures; problematic because the strongest justifications for limiting reconsideration of final convictions are less compelling with respect to final sentences.
Stated a bit more directly, a foundational conceptual idea in my work here is that, whatever one may think about the importance of preserving final convictions and/or limiting ways in which final convictions can be reviewed or reconsidered, there are necessarily distinct concerns and issues surrounding the treatment of final sentences. Perhaps in part because I am a sentencing geek, it seems so very obvious to me that, in just about any and every setting, the legal questions and policy debates that surround sentences are distinct in kind from the legal questions and policy debates that surround convictions. But maybe this instinct and insight in the context of finality discussions is more controversial than I realize.
Prior post in this series:
Intriguing new BJS data about national jail populations
I just received notice of a new Bureau of Justice Statistics publication, excitingly titled "Jail Inmates at Midyear 2013 -- Statistical Tables" and available at this link. Though lacking a thrilling title, the data discussed in this publication are actually pretty interesting This official BJS press release, excerpted below, provides some highlights:
After a peak in the number of inmates confined in county and city jails at midyear 2008 (785,533), the jail population was significantly lower by midyear 2013 (731,208). However, the estimated decline between midyear 2012 and 2013 was not statistically significant. California’s jails experienced an increase of about 12,000 inmates since midyear 2011....
Local jails admitted an estimated 11.7 million persons during the 12-month period ending June 30, 2013, remaining stable since 2011 (11.8 million) and down from a peak of 13.6 million admissions in 2008. The number of persons admitted to local jails in 2013 was 16 times the estimated 731,352 average daily number of jail inmates or average daily population during the 12-month period ending June 30, 2013....
Males represented at least 86 percent of the jail population since 2000. The female inmate population increased 10.9 percent (up 10,000 inmates) between midyear 2010 and 2013, while the male population declined 4.2 percent (down 27,500 inmates). The female jail population grew by an average of about 1 percent each year between 2005 and 2013. In comparison, the male jail population declined an annual average of less than 1 percent every year since 2005.
White inmates accounted for 47 percent of the total jail population, blacks represented 36 percent and Hispanics represented 15 percent at midyear 2013. An estimated 4,600 juveniles were held in local jails (less than 1 percent of the confined population), down from 5,400 during the same period in 2012.
At midyear 2013, about 6 in 10 inmates were not convicted, but were in jail awaiting court action on a current charge—a rate unchanged since 2005. About 4 in 10 inmates were sentenced offenders or convicted offenders awaiting sentencing. From the first significant decline in the overall jail population since midyear 2009, the unconvicted population (down 24,000 inmates) outpaced the decline in the convicted inmate population (down 12,000 inmates).
Fascinating discussion of "mom movement" to reform sex offender registration laws
NBC News has this lengthy new piece about efforts to reform sex offender registration laws under the headline "My Son, the Sex Offender: One Mother's Mission to Fight the Law." The full piece is worthy of a full read, and here is how it gets started:
In the run up to Halloween one year, Sharie Keil saw something that really made her jump: Missouri governor Jay Nixon, then the attorney general. He was on television to announce that registered sex offenders were hereby banned from participating in her favorite holiday. On threat of a year in jail, they had to stay inside and display a sign saying they had no candy. The goal was “to protect our children,” as Nixon put it, but Keil heard only a peal of political hysteria.
She is not a sex offender nor, at 63, a new-age apologist for pedophiles or predators. She is a mother, however, and in 1998 her 17-year-old son had sex with a pre-teen girl at a party. He was convicted of aggravated sexual abuse, which got him six months in county jail and a lifetime of mandatory registration as a sex offender. Ten years later, after the Halloween law, Keil felt shocked into action.
”As my husband says, I decided to go on the war path,” she remembers. Today, she’s at the forefront of a growing fight against sex offender registries, a shame-free alliance of offenders and their families, supported by researchers and some advocates who helped pass stringent anti-abuse laws in the first place. They’re organized (albeit loosely) under Reform Sex Offender Laws, a five-year-old lobby that claims 38 state affiliates and a steady patter of legal and legislative victories.
Most of their progress, however, has been limited to a slice of the registry: juvenile offenders. That would remove Keil’s son, but this former soccer mom and chapter head of the League of Women Voters wants to abolish the public registry altogether. She funds a powerful RSOL affiliate, Missouri Citizens for Reform, which has helped push sweeping changes through the Missouri House four years in a row, only to see the effort smothered in the Senate or, last summer, stabbed by a governor’s veto.
“Changing the registry would provide relief for tens of thousands of Missourians,” Keil says. “Since there are nearly 800,000 people on the registry nationally, millions of lives would change for the better.”
As reckless as Keil’s ideas may sound, she and her intellectual allies—among them Nicole Pittman, an attorney who slammed registries in a Human Rights Watch report last year—are fervently opposed to sexual abuse and believe in jail time for law breakers. However, they also hope to realign the law with second-chance ideals and new research that shows rehabilitation is possible, even for America’s last pariahs.
If they succeed, Keil believes, public safety will actually improve. As the registries shrink or disappear, law enforcement will be freed to focus on crime prevention. If the movement fails, she warns, public safety could suffer. Truly dangerous people will be lost in the thousands that police must monitor, while relatively harmless offenders break bad in a system that gives them no hope for a normal future.
"In Defense of Capital Punishment: A 'botched' execution does not render the death penalty illegitimate"
The title of this post is the headline of this potent commentary by Jonah Goldberg at National Review. Here are excerpts:
Last week the state of Oklahoma “botched” an execution. Botched is the accepted term in the media coverage, despite the fact that Clayton Lockett was executed. He just died badly, suffering for 43 minutes until he eventually had a heart attack.
Oklahoma’s governor has called for an investigation. President Obama asked Attorney General Eric Holder (who is seeking the death penalty in the Boston Marathon bombing case) to review the death penalty. Obama’s position was a perfectly defensible straddle: “The individual . . . had committed heinous crimes, terrible crimes, and I’ve said in the past that there are certain circumstances where a crime is so terrible that the application of the death penalty may be appropriate.”
On the other hand, Obama added: “I’ve also said that in the application of the death penalty . . . we have seen significant problems, racial bias, uneven application of the death penalty, situations in which there were individuals on death row who later on were discovered to be innocent. I think we do have to, as a society, ask ourselves some difficult and profound questions.”
As a death-penalty supporter, I agree. Although I’m not sure we’d agree on what those questions — and answers — should be. As for Lockett, he was entitled to a relatively painless and humane execution under the law. As for what he deserved in the cosmic sense, I suspect he got off easy....
Capital-punishment opponents offer many arguments why people like Lockett shouldn’t be executed. They point out that there are racial disparities in how the death penalty is administered, for example. This strikes me as an insufficient argument, much like the deterrence argument from death-penalty supporters. Deterrence may have some validity, but it alone cannot justify the death penalty. It is wrong to kill a man just to send a message to others. Likewise, Lockett, who was black, wasn’t less deserving of punishment simply because some white rapist and murderer didn’t get his just punishment.
The most cynical argument against the death penalty is to point out how slow and expensive the process is. But it is slow and expensive at least in part because its opponents have made it slow and expensive, so they can complain about how slow and expensive it is....
Some believe the best argument against the death penalty is the fear that an innocent person might be executed. It’s hotly debated whether that has ever happened, but it’s clear that innocent people have been sent to death row. Even one such circumstance is outrageous and unacceptable. But even that is not an argument against the death penalty per se. The FDA, police officers, and other government entities with less constitutional legitimacy than the death penalty (see the Fifth and 14th amendments) have made errors that resulted in innocent deaths. That doesn’t render these entities and their functions illegitimate. It obligates government to do better.
Radley Balko, a death-penalty opponent, in a piece in the Washington Post, says that ultimately both sides of the death-penalty debate have irreconcilable moral convictions. I think he’s right. As far as I’m concerned, Lockett deserved to die for what he did. Everything else amounts to changing the subject, and it won’t convince me otherwise.
There are various parts of this commentary that I consider astute (e.g., I call Lockett's execution ugly, not botched, because he did end up dead), and others that seem to me quite peculiar (e.g., if deterrence cannot justify the death penalty, why can it be used to justify any state punishment?). But I find especially valuable this commentary's emphasis that "irreconcilable moral convictions" may be at the base of all modern heated death penalty debates.
Notable missing, though, is the parallel reality I see that irreconcilable political convictions seemingly influence both supporters and opponents of the death penalty. Notably, in this commentary from last year, Jonah Goldberg effectively explains why the "only people in the world who don’t want the government to get much smarter are the ones working for it." In light of that astute observation, how can he have any confidence that, in response to the ugly Lockett execution, governments can or will fulfill their "obligat[ion] to do better"?
Of course, similarly telling and curious view about government powers and possibilities often seems to infest liberal critics of the death penalty. As Goldberg highlights, a lot of claims about inevitable government dysfunction drives a lot of the modern abolitionist movement. But the modern death penalty is arguable the most effectively and comprehensive regulated of all government activities, and in other settings folks on the left often respond to government and regulatory failings by calling for more government and regulation, not less.
I make these points not to chide either supporters or opponents of the death penalty, but rather to encourage folks to notice not only that irreconcilable moral convictions are often involved in death penalty debates, but also that these moral convictions often regularly eclipse typical political convictions in this setting.
"Criminal Law Multitasking"
The title of this post is the title of this intriguing new article by Hadar Dancig-Rosenberg and Tali Gal. Here is the abstract:
Criminal law pursues multiple goals: retribution, deterrence, expressive justice, rehabilitation, restoration, and reconciliation. Scholars tend to analyze these goals and their implementation in separation from each other, without accounting for their interplay and coordination. A theory of criminal law multitasking is overdue.
This Article sets up a conceptual framework for such a theory. We develop a taxonomy that captures the interplay between various procedures and substantive goals promoted by criminal law. Based on this taxonomy, we discuss five mechanisms of criminal law. We propose that policymakers and law enforcers select one or more of these mechanisms to implement the chosen mix of retribution, deterrence, expressive justice, rehabilitation, restoration, and reconciliation. We provide reasons guiding this selection, among them constructive community involvement, offenders' responsiveness, and integration of victims' rights. We illustrate the operation of our multitasking approach in real-world cases and illustrate its ability to facilitate the implementation of the deferred prosecution and adjudication mechanisms promulgated by the current Draft of the Model Penal Code.
May 7, 2014
Boston Marathon bomber's defense team starts legal attack on federal death penalt
As reported in this Boston Globe article, "attorneys for accused Boston Marathon bomber Dzhokhar Tsarnaev today asked a federal judge to declare the federal death penalty unconstitutional for a number of reasons, including the fact that Massachusetts itself does not permit capital punishment." Here is more about the filing:
The attorneys also argued that the federal death penalty violates the Eighth Amendment ban on “cruel and unusual punishment" because there is the possibility that innocent people will be executed and there is a history of a “seemingly ineradicable pattern of racially disparate enforcement."
The attorneys, in a filing in US District Court in Boston, noted that the First US Circuit Court of Appeals had rejected similar arguments raised in the case of serial killer Gary Sampson in 2007. But the attorneys argued that new developments, including changes in the law and public revulsion over events such as the recent botched execution in Oklahoma, argued for US District Judge George A. O’Toole Jr. to take a new look.
“The vulnerability of this particular death penalty prosecution to Eighth Amendment challenge is all the greater in light of recent legal authority and scholarship that cast doubt on the power of the federal government to impose the death penalty in states, like Massachusetts, that have abolished it," the attorneys wrote. The attorneys argued that the Eighth Amendment was not just intended to secure individual rights but also to constrain the power of the federal government.
“When the Eighth Amendment is properly understood as part of an effort to limit the power of the federal government, it should prohibit the federal government from inflicting severe punishments that are not authorized by state law,” the attorneys said.
Tsarnaev, 20, is being held at the federal prison at Fort Devens in Ayer. Prosecutors are seeking the death penalty against him if he is convicted of setting off the April 15, 2013, bombs that killed three people and injured more than 260. He has pleaded not guilty to all charges. His older brother and alleged accomplice, Tamerlan, was killed in a confrontation with police in Watertown. The brothers also allegedly killed an MIT police officer; Tsarnaev faces state charges in that case....
In a separate motion, the lawyers also argued that if the grand jury that indicted Tsarnaev on 30 counts did not know he would face the possibility of the death penalty, then he should not be subject to it. The lawyers sought grand jury transcripts to find out what the grand jury knew about the possible consequences of its indictments.
Elderly coke dealer, on his 90th birthday, gets 3-year prison sentence
As reported in this local piece, headlined "90-Year-Old Drug Mule Sentenced To 3 Years For Part In Major Drug Scheme," a unique drug dealer got a pretty standard drug sentence in federal court in Michigan today. Here are the details:
Leo Sharp learned that he would spend three years in federal prison for his role in a major drug operation in which prosecutors say Sharp transported more than 2,000 pounds of cocaine to across the country before being caught in Michigan. Sharp was running bricks of cocaine from Tucson, Arizona, to Detroit when he was pulled over near Chelsea, 60 miles west of Detroit, after making a bad lane change in 2011.
Outside the courthouse Sharp cried that he was “heartbroken” and didn’t feel that his age had anything to do with the length of his prison sentence. When a state trooper approached, Sharp was upset and declared, “Just kill me and let me leave this planet.”...
Prosecutors were recommending a five-year prison sentence — urging the judge to look beyond Sharp’s age and health issues and lock him up for delivering more than a ton of cocaine. Assistant U.S. Attorney Christopher Graveline, noted that there’s video of Sharp — known as “grandpa” and “old man” — joking and laughing with others charged in the drug conspiracy.
Graveline said Sharp received at least $1.25 million from his handlers for hauling more than 2,750 pounds of cocaine to Michigan from the Southwest in 2010 and 2011. He’s one of 19 people under indictment in a case connected to Mexico’s Sinaloa drug cartel. Graveline said the cartel “literally flooded the streets of southeast Michigan and Fort Wayne, Indiana, with kilograms of cocaine.”
Sharp, of Michigan City, Indiana, had hoped to stay out of prison. Defense attorney Darryl Goldberg said Sharp has dementia and other issues, and would be a burden for the prison system. “Of course I respectfully disagree with the judge’s sentence but she is a very experienced jurist and I hope that Leo can survive the sentence,” said Goldberg....
During sentencing Judge Nancy Edmunds said Sharp was in the middle of a huge operation and transported cocaine six different times and was paid more than a million dollars.
Recent related post:
- You be the federal sentencing judge: what prison term for massive drug courier ... who is a 90-year-old WWII vet?
Examining "sentence finality" at length in new article and series of posts
I am pleased to report that an article I completed in conjunction with a wonderful symposium on "Finality in Sentencing" for the Wake Forest Journal of Law & Policy is now in print and available in full via this SSRN link.
The full title of my article is "Re-Balancing Fitness, Fairness, and Finality for Sentences," and here is the abstract:
This Essay examines the issue of “sentence finality” in the hope of encouraging more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final. Drawing on American legal history and modern penal realities, this Essay highlights reasons why sentence finality has only quite recently become an issue of considerable importance. This Essay also suggests that this history combines with modern mass incarceration in the United States to call for policy-makers, executive officials, and judges now to be less concerned about sentence finality, and to be more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences.
Regular readers know I have commented in the past in this space about my fear that too much stock and weight is often put on "sentence finality" (as distinct from "conviction finality"), and this article provided me the first real opportunity to think and write about this issue more thoroughly and systematically. And yet I fear I am only scratching the surface of various important conceptual and practical issues in this Wake article; as a result, I may end up writing a lot more on this topic in the months and years.
In service to my stated goal "to encouraging more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final," I am planning in the days ahead to reprint and discuss in separate posts a few of the ideas and themes that find expression in this article. For now, I am hopeful that readers will check out the full article and perhaps let me know via comments if they find this topic of sufficient interest and importance so as to justify many additional posts on sentence finality.
New Human Rights Watch report bemoans "Nation Behind Bars"
As reported in this press release, Human Rights Watch has issued a new report highlighting the problems of mass incarceration in the united States. Here are the details (and a link) via the the start of the press release:
The 36-page report, “Nation Behind Bars: A Human Rights Solution,” notes that laws requiring penalties that are far longer than necessary to meet the purposes of punishment have given the United States the world’s highest reported rate of incarceration. These laws have spawned widespread and well-founded public doubts about the fairness of the US criminal justice system.
“The ‘land of the free’ has become a country of prisons,” said Jamie Fellner, co-author of the report and senior advisor to the US Program at Human Rights Watch. “Too many men and women are serving harsh prison sentences for nonviolent and often minor crimes. How can a country committed to liberty send minor dealers to die in prison for selling small amounts of illegal drugs to adults?”....
Momentum to reduce mass incarceration is growing. Human Rights Watch is seeking to build on this momentum and offer a way forward. Federal and state legislators should ground their moves for reform in core principles of human rights, including prudent use of criminal sanctions, fair punishment, and equal protection of the laws.
To put those principles into practice, Human Rights Watch urges legislators at the very least to:
Ensure that the severity of the punishment does not exceed the gravity of the crime;
Reform or eliminate mandatory minimum sentencing laws that prevent judges from being able to tailor sentences to the individual crime and the particular defendant;
Ensure that adolescents and children are treated in a manner appropriate to their age and capacity for change, and that they are not subjected to all the same criminal procedures and sanctions as adults;
Reduce or eliminate criminal sanctions for immigration offenders, especially those who have done nothing more than enter the country illegally; End criminal sanctions for possession of illegal drugs for personal use; and
Ensure that criminal law is not by its terms or enforcement biased against any racial, ethnic, or religious group, as for example, in the disproportionate enforcement of drug laws against black people in the US.
So many marijuana developments, so many new posts at MLP&R
In part because there is so much activity on so many marijuana law and policy front, I have been remiss lately about doing my usual round ups of notable posts from Marijuana Law, Policy and Reform. I highly encourage everyone interested in drug reform topics to make regular stops at MLP&R, though I also will try to keep finding time to provide a sampling here of recent posts from MLP&R that help highlight how dynamic the (non-sentencing parts of the) marijuana reform world continues to be. So:
The Constitution Project issues big new report calling for broad reform of capital punishment administration
As reported in this Los Angeles Times article, a big new report by The Constitution Project recommends more than three dozen changes to the administration of the death penalty in the US. Here are the basic details:
The death penalty should be overhauled "from the moment of arrest to the moment of death," and the lethal drug cocktail used in Oklahoma's botched execution last week should be abolished in favor of a single drug, according to a bipartisan panel of criminal justice experts.
The committee, which included death penalty supporters who have been responsible for carrying it out, recommended using a single anesthetic or barbiturate approved by the Food and Drug Administration to bring on death, as well as 38 other changes.
"Without substantial revisions — not only to lethal injection, but across the board — the administration of capital punishment in America is unjust, disproportionate and very likely unconstitutional," said committee member Mark Earley, who was a Republican attorney general of Virginia when the state carried out 36 executions.
The study by the panel at the Constitution Project, a Washington legal research group, is billed as one of the most comprehensive reviews of the ultimate punishment ever undertaken in the U.S....
Particularly timely is the report's recommendation that the most commonly used drug protocol for lethal injections — a barbiturate for anesthesia, followed by a muscle relaxant to stop breathing and an electrolyte to stop the heart — be replaced by large doses of a single anesthetic or barbiturate. The report said that difficulties in obtaining the proper drugs, complicated procedures for mixing them and the lack of trained medical staff willing to administer them have led to unnecessary suffering on the part of the condemned....
The committee that undertook the two-year study was led by Mark White, former governor of Texas; Gerald Kogan, former chief justice of the Florida Supreme Court; and attorney Beth Wilkinson, who helped prosecute the Oklahoma City bombing case. The panel included former FBI Director William S. Sessions and several prosecutors and judges, as well as death penalty opponents....
White said the report should be useful to Atty. Gen. Eric H. Holder Jr., whom President Obama asked to examine how the death penalty is carried out in light of what happened in Oklahoma.
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro-death-penalty group in Sacramento, disputed the Constitution Project's claim that its report was bipartisan. "The Constitution Project always takes the side of the defendants," Scheidegger said. "Their claim to be neutral is dishonest." But he said he agreed with the one-drug approach to capital punishment.
The report says state and federal courts too often refuse to hear claims of new evidence presented by prisoners on death row and use other procedural means to deny prisoners their rights. It calls on states to adopt new procedures to evaluate whether a defendant is intellectually disabled. It urges new federal standards for forensic labs and examiners, and says they should operate independently from law enforcement, which would be a major change.
The report also says states should no longer execute people for "felony murder," in which someone who participates in a crime resulting in death can be convicted of murder even if he or she did not do the killing.
The 200+ page report by The Constitution Project is titled "Irreversible Error: Recommended Reforms for Preventing and Correcting Errors in the Administration of Capital Punishment," and it can be accessed at this link.
Within-guideline sentences dip below 50% according to latest USSC data
Due to a busy end-of-the-semester schedule, I only just this week got a chance to look at US Sentencing Commission's posting here of its First Quarter FY14 Quarterly Sentencing data. And, as the title of this post highlights, there is big news in these USSC data: for the first time, less than half of all federal sentences imposed were technically "within-guideline" sentences. To be exact, only 48.8% of the 18,169 sentences imposed during the last three months of 2013 were within-guideline sentences.
In this post following the previous quarterly USSC data release, I noted a small uptick in the number of below guideline sentences imposed by federal district judges (from around 18.5% of all federal cases to 19.3% in the last quarter of FY13). At that time, I hypothesized that perhaps a few more judges were willing to impose below-guideline sentences in a few more federal cases after Attorney General Eric Holder's big August 2013 speech to the ABA lamenting excessive use of incarceration in the United States. Now, in this latest quarterly data run, the number of judge-initiated, below-guideline sentences has ticked up again, this time to 20.4% of all sentenced federal cases. I now this this data blip is evidence of a real "Holder effect."
Though still more time and data are needed before firm causal conclusions should be reached here, I do believe all the recent talk about the need for federal sentencing reform is likely finding expression in the way federal judges are now using their post-Booker discretion. The data from the last six month suggest that, as we hear ever more public policy groups and politicians on both the right and the left echoing AG Holder's call for less reliance on long terms of incarceration, more federal judges feel ever more justified in imposing more sentences below the guidelines.
May 6, 2014
"The Growth of Incarceration in the United States: Exploring Causes and Consequences"
The title of this post is the title of the massive report released last week by the National Research Council (which is the operating arm of the National Academy of Sciences and the National Academy of Engineering). The report runs more than 450 pages and can be accessed at this link.
I was hoping to get a chance to review much of the report before posting about it, but the crush of other activities has gotten in the way. Fortunately, the always help folks at The Crime Report have these two great postings about the report:
I hope to be able to provide more detailed coverage of this important report in the weeks to come.
California Supreme Court decides Miller demands altering presumption for juve LWOP
As reported in this Los Angeles Times article, headlined "Ruling could reduce life-without-parole terms for juvenile offenders," the California Supreme Court issued a significant post-Miller ruling about juve murder sentencing in the state. Here are the basics:
In a decision likely to reduce life-without-parole sentences for teenage offenders, the California Supreme Court ruled Monday that judges are free to hand down 25-year-to-life terms for older juveniles convicted of serious crimes and must consider the defendants' youth before sentencing.
Before the unanimous ruling, California law had been interpreted as requiring judges to lean toward life without parole for 16-year-olds and 17-year-olds convicted of murder with special circumstances. The decision overturned decades of lower-court rulings and gave two men who were 17 at the time they killed the opportunity to have their sentences reconsidered by trial judges.
The court said the sentences should be reviewed because they were handed down when state law was being misconstrued and before the U.S. Supreme Court decided in 2012 that judges must consider a juvenile's immaturity and capacity for change. The ruling, written by Justice Goodwin Liu, stemmed from appeals in two cases.
In one, Andrew Lawrence Moffett robbed a store and his accomplice killed a police officer in Pittsburg, Calif. Moffett was convicted of murder, robbery and driving a stolen vehicle. Because the victim was a police officer and Moffett used a gun during the crime, he was subject to life without parole. In the other case, Luis Angel Gutierrez killed his uncle's wife while living with the family in Simi Valley. He received life without parole because the jury determined he had murdered Josefina Gutierrez while also raping or attempting to rape her.
"Because Moffett and Gutierrez have been convicted of special circumstance murder, each will receive a life sentence," wrote Justice Goodwin Liu for the court. "The question is whether each can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society."
Certain juvenile offenders became subject to life without parole when voters passed Proposition 115, the 1990 "Crime Victims Justice Reform Act." State appeals' courts ruled that the law required judges to favor imposing life without parole over a sentence that allowed for release after 25 years. For two decades, those rulings stood.
But Monday's decision said the lower courts had erred in the interpretation of the law. "Proposition 115 was intended to toughen penalties for juveniles convicted of first-degree murder by making them eligible for life without parole upon a finding of one or more special circumstances," Liu wrote. But he said neither the wording of the ballot measure nor any of the official analyses resolved whether "the initiative was intended to make life without parole the presumptive sentence." The court concluded it was not.
Four justices joined a separate opinion to stress that California judges may still sentence older juveniles to life without parole, despite the 2012 Supreme Court ruling. Justice Carol A. Corrigan, who wrote the concurrence, said the high court's ruling came under a law that was different from California's and involved mandatory lifetime sentences for much younger children.
Attorneys in the case said it was uncertain whether Monday's decision would apply retroactively to cases in which appeals have already been completed. Courts across the country have been divided over whether the 2012 U.S. Supreme Court ruling on juvenile sentencing applied retroactively, the lawyers said.
The full ruling in California v. Gutierrez, No. S206365 (Cal. May 5, 2014), is available at this link.
May 6, 2014 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
"Habeas and the Roberts Court"
The title of this post is the title of this intriguing new article by Aziz Huq. Here is the abstract:
Postconviction habeas comprises about seven percent of federal district courts’ dockets and between eight and twenty percent of Supreme Court certiorari work. Scholars of all stripes condemn habeas as an empty ‘charade’ lacking ‘coherent form.’ They urge as a result root-and-branch transformation. Contra that consensus, this Article first advances a descriptive hypothesis that the Roberts Court’s habeas jurisprudence is more internally coherent than generally believed — even if its internal logic has to date escaped substantial scholarly scrutiny.
The Article develops a stylized account of the Roberts Court’s recent jurisprudence as an instrument for sorting at the front end of litigation be-tween cases warranting either less or more judicial attention. This account suggests that the Roberts Court titrates judicial attention by streaming cases into one of two channels via a diverse set of procedural and substantive mechanisms. In Track One, petitioners obtain scanty review and almost never prevail. In Track Two, by contrast, petitions receive more serious consideration and have a more substantial (if hardly certain) chance of success. This stylized account of the case law enables more focused investigation of the values that the Roberts Court pursues through its current articulation of habeas doctrine — and this is the Article’s second task.
Drawing on both doctrinal analysis and law-and-economics models of litigation, the Article explores several possible justifications for the Court’s observed bifurcated approach. Rejecting explanations based on state-centered federalism values, sorting, and sentinel effects, the Article suggests that some conception of fault best fits the role of a central organizing principle. This aligns habeas with constitutional tort law, suggesting a previously unexamined degree of interdoctrinal coherence in the Roberts Court’s attitude to discrete constitutional remedies. While the central aim of this Article is positive and descriptive in character, it concludes by examining some normative entailments of habeas’s persistence in a bifurcated state. Specifically, I suggest that a better understanding of the Court’s fault-based logic casts skeptical light on existing reform proposals, and is at least consistent with the possibility that habeas could still serve as a tool in some larger projects of criminal justice reform.
May 5, 2014
Detailing notable legal challenge to juve sex offender registration requirements
The AP has this notable new article headlined simply "Juvenile Sex-offender Registries are Challenged." Here are excerpts:
By the time he was arrested for sexually assaulting two siblings, 15-year-old J.B. had been molested by his alcoholic father and subjected to 25 moves among his birth, foster and adoptive families. He had also suffered from untreated attention deficit hyperactivity disorder and depression.
Though tried in juvenile court, with its focus on privacy and rehabilitation, he was later required by a 2012 Pennsylvania law to register as a sex offender — branded a long-term danger to society, with no way off the list for at least 25 years. Juvenile law advocates campaigning against such automatic registries argue that they undermine the rehabilitative purpose of juvenile law and wrongly force judges to treat offenders the same, no matter their circumstances. In Pennsylvania, local judges increasingly agree with them.
Late last year, a central Pennsylvania judge weighing the cases of J.B., as he is known in court documents, and six others found the registration law violated the state constitution. Now the issue is headed to the state high court.... In the Pennsylvania Supreme Court on Tuesday, juvenile advocates will argue that the registration requirement amounts to cruel and unusual punishment and creates roadblocks for young people trying to rebuild their lives.
Across the country, a growing number of juvenile judges, advocates and policymakers are questioning the effect of the registration mandate Congress passed under the 2006 Adam Walsh Act, named after the Florida boy abducted and killed in 1981. States that don't comply risk losing millions in federal law enforcement grants. A few states, including Texas and California, decided it was cheaper to opt out of the Walsh Act, and the Ohio Supreme Court has since found the juvenile registry unconstitutional....
Prosecutors in York County defend the law. "The standards are not meant to be easy," said Tim Barker, the chief deputy district attorney. "They were created with an eye toward the protection of the public." Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorneys Association, said the law was forced on states by the funding tie-in. But he said he believes the mandate is appropriate in the most serious cases, including one in his county in which a teen raised amid violent pornography assaulted a 3-year-old neighbor....
The Philadelphia-based Juvenile Law Center, which successfully argued J.B.'s case, believes judges need the authority to fashion what they deem appropriate placement and treatment plans. "That's very separate and distinct from saying we're going to put a scarlet `A' on these kids for the rest of their lives," said Marsha Levick, the center's chief counsel.
Recent reports by Human Rights Watch and the Illinois Juvenile Justice Commission — both critical of juvenile registries — found that children lash out sexually for different reasons than adults and are less likely to reoffend. One survey involving about 11,000 young offenders put the recidivism rate at 7 percent, compared with 13 percent for adult sex offenders, according to the Human Rights Watch report.
Nearly all other states compile some sort of registry, although 11 states do so only if the juveniles are tried in adult court. Pennsylvania's law applies to teens 14 to 17 accused of rape, aggravated sexual assault and other serious sex crimes. In practice, though, lesser pleas are often being negotiated to avoid triggering the reporting mandate, prosecutors and defense attorneys said.
Some related posts:
- State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional
- Ohio Supreme Court finds required juve sex offender registration unconstitutional on numerous grounds
- New big Human Rights Watch report assails placing juve sex offenders on registries
- Missouri Gov vetoes bill to take juve sex offenders off state registry
- Illinois commission advocates against putting all juve sex offenders on registry
New York Times op-ed spotlights enduring flaw with modern drug sentencing
Today's New York Times has this notable new op-ed authored by Mark Osler under the headline "We Need Al Capone Drug Laws." Here are highights:
After a ruinous 30-year experiment in harsh sentences for narcotics trafficking resulting in mass incarceration, policy makers are having second thoughts. Many states, including Texas, have reformed their laws to shorten sentences. Congress is giving serious consideration to the Smarter Sentencing Act, which would do the same. The United States Sentencing Commission has just adopted a proposal to revise federal guidelines.
And most recently, Attorney General Eric H. Holder Jr. announced that President Obama intends to use his executive pardon power to release hundreds or even thousands of federal prisoners with narcotics convictions (I am on a committee to train lawyers for the project). Something like that hasn’t happened since President John F. Kennedy granted clemency to more than 200 prisoners convicted of drug crimes.
Unfortunately, none of this addresses a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy’s utter failure. If a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence. That’s because the laws peg minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant. It’s a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons....
Some laws create remarkably low thresholds for the highest penalties. For example, my home state of Minnesota categorizes someone who sells just 10 grams of powder cocaine (the equivalent of 10 sugar packets) as guilty of a first-degree controlled-substance crime — the most serious of five felony categories. There is no real differentiation between the most culpable wholesaler and an occasional street dealer.
The problem with recent legal reforms is that they don’t dispose of this rotten infrastructure. In 2010, Congress passed the Fair Sentencing Act, which changed the ratio between crack and powder cocaine for sentencing purposes from 100-to-1 (meaning the same sentence applied to 100 grams of powder cocaine and to 1 gram of crack) to 18-to-1.
What the Fair Sentencing Act didn’t do is change the basic weight-centric centric focus that has filled our prisons with narcotics convicts. There were 4,749 such prisoners serving federal time in 1980, before the harshest weight-based standards were implemented. As of 2013, that number was 100,026. As for the drugs themselves, they’re still here....
A better measure of culpability would be the amount of profit that any individual took from the operation of a narcotics ring. Because narcotics conspiracies are nothing more or less than a business, they operate like any other business. The people who have the most important skills, capital at risk or entrepreneurial abilities take the most money. Statutes and guidelines should be rewritten so that profit thresholds replace narcotic weight thresholds. Only then will mules and street sellers properly face much shorter sentences than real kingpins.
This would, of course, create a new challenge for prosecutors and investigators, who would have to prove the amount of profit made by an individual defendant. It wouldn’t be as easy as snatching up mules and street dealers. But then “easy” and “justice” rarely rest comfortably with each other.
Notable two-part account of constitutional "Case for Gradual Abolition of the Death Penalty"
I just learned about these two notable new articles by Kevin Barry available via SSRN:
This spring, the Connecticut Supreme Court will decide a novel issue in all of modern death penalty jurisprudence. The issue is this: Can a state gradually abolish its death penalty, that is, can it leave in place the sentences of those currently on death row but abolish the death penalty going forward? This Article argues that it can. As a matter of statutory construction, “prospective-only” repeals of death penalty legislation are not given retroactive effect. Although constitutional questions are admittedly less straightforward, prospective-only repeal does not offend either the Eighth or Fourteenth Amendments. The death penalty remains constitutional per se under the Eight Amendment, and “as applied” challenges fare no better. Under the Fourteenth Amendment’s Equal Protection and Due Process Clauses, rational reasons abound for abolishing the death penalty while maintaining death row intact.
Apart from the thorny legal question before the Connecticut Supreme Court, prospective-only repeal gives rise to two other difficult questions. The first is a pragmatic one: From the perspective of the abolition movement, is it wise to abolish prospective-only? The second is a moral one: Is it right to tell those who committed murder on Day 1 that they must remain on death row, while eliminating the death penalty for those who commit murder on Day 2? This Article answers both questions in the affirmative. Prospective-only death penalty repeal promises both retraction of the death penalty and preservation of the status quo and is therefore a useful tool for winning states with inmates on death row to the cause of abolition. Furthermore, by retaining the death penalty for some so that no others will ever face a similar fate, legislators transform an immoral punishment into an arguably moral sacrifice. This is the uneasy morality of gradual abolition; from wolves, lambs.
Can a state abolish its death penalty for future crimes while retaining it for those already on death row? This turns out to be a novel question in modern death penalty law, one that has not been answered in nearly a century. In 2014, in the case of State v. Santiago, the Connecticut Supreme Court will be the first court in modern times to answer the question. This Article predicts that the answer to the question will be yes.
Although the Connecticut Supreme Court will be the first court to answer this question in almost one hundred years, it will not be the last. Two inmates remain on death row in New Mexico following that state’s prospective-only repeal in 2009, five inmates remain on death row in Maryland following that state’s prospective-only repeal in 2013, and Kansas and Delaware, with a total of twenty-eight inmates on death row, are poised to abolish their death penalties prospective-only in the near future. If the Connecticut Supreme Court upholds Connecticut’s repeal in Santiago, the way will be clear for other courts to uphold legislation abolishing the death penalty prospective-only.
This Article is the second of two articles examining the emergence of this new trend of “gradual abolition” of the death penalty, by which state legislatures eliminate the death penalty for future crimes only and the executive retains it for those on death row. It begins with a discussion of the legislature’s strategic decision to abolish the death penalty prospective-only — a time-tested strategy that helped to end another infamous American institution: slavery. This Article next turns from the legislature to the courts, concluding, that prospective-only repeal does not violate the Fourteenth Amendment; rational reasons abound for repealing the death penalty for some but not all, and due process is not offended by retaining death row intact.
Lastly, this Article points the way forward — to the future of those who remain on death row and capital offenders who await sentencing post-repeal. It argues that, post-repeal, the executive should grant clemency and capital sentencing juries should return life sentences — not because it is unconstitutional to execute post-repeal, but because it would be an unfairness of the highest order. Indeed, there is no record of a death row prisoner ever being executed after prospective-only repeal of the death penalty; hopefully, there never will be.
SCOTUS summarily reverses grant of summary judgment to police in excessive force suit
The Supreme Court this morning issued a summary reversal in an intriguing little case from the Fifth Circuit. Here is how the per curiam opinion in Tolan v. Cotton, No. 13-551 (S. Ct. May 5, 2014) (available here) gets started:
During the early morning hours of New Year’s Eve, 2008, police sergeant Jeffrey Cotton fired three bullets at Robert Tolan; one of those bullets hit its target and punctured Tolan’s right lung. At the time of the shooting, Tolan was unarmed on his parents’ front porch about 15 to 20 feet away from Cotton. Tolan sued, alleging that Cotton had exercised excessive force in violation of the Fourth Amendment. The District Court granted summary judgment to Cotton, and the Fifth Circuit affirmed, reasoning that regardless of whether Cotton used excessive force, he was entitled to qualified immunity because he did not violate any clearly established right. 713 F. 3d 299 (2013). In articulating the factual context of the case, the Fifth Circuit failed to adhere to the axiom that in ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986). For that reason, we vacate its decision and remand the case for further proceedings consistent with this opinion.
Intriguingly, Justice Alito (joined by Justice Scalia) write separately to complain about this ruling only being a form of error correction and "that the granting of review in this case sets a precedent that, if followed in other cases, will very substantially alter the Court’s practice."
SCOTUS unanimously rejects defendant's effort to reduce restitution owing under MVRA
The Supreme Court handed down a unanimous ruling in a restitution case this morning. Here is how the opinion for the Court in Robers v. US, No. 12-9012 (S. Ct. May 4) (available here), gets started:
The Mandatory Victims Restitution Act of 1996 requires certain offenders to restore property lost by their victims as a result of the crime. 18 U. S. C. §3663A. A provision in the statue says that, when return of the property lost by the victim is “impossible, impracticable, or inadequate,” the offender must pay the victim “an amount equal to . . . the value of the property” less “the value (as of the date the property is returned) of any part of the property that is returned.” § 3663A(b)(1)(B). The question before us is whether “any part of the property” is “returned” when a victim takes title to collateral securing a loan that an offender fraudulently obtained from the victim.
We hold that it is not. In our view, the statutory phrase “any part of the property” refers only to the specific property lost by a victim, which, in the case of a fraudulently obtained loan, is the money lent. Therefore, no “part of the property” is “returned” to the victim until the collateral is sold and the victim receives money from the sale. The import of our holding is that a sentencing court must reduce the restitution amount by the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it.
May 4, 2014
Shouldn't Congress be holding hearings to explore federal and state execution methods?
The question in the title of this post is my reaction to this Wall Street Journal article headlined "Justice Department Expands Review of Death-Penalty Procedures." Here are excerpts, with the key fact prompting my question emphasized:
The Justice Department has launched a review of state-run executions of death-row inmates, after President Barack Obama raised concerns about a botched execution earlier this week in Oklahoma. A department spokesman said the agency would begin a review of state-run death-penalty programs, similar to one it has been conducting on federal capital punishment. Federal executions are rare, and there has been a moratorium in place since 2011 while the Justice Department reviews its policies. "The department is currently conducting a review of the federal protocol used by the Bureau of Prisons, and has a moratorium in place on federal executions in the meantime," said the spokesman, Brian Fallon. "At the president's direction, the department will expand this review to include a survey of state-level protocols and related policy issues."
Mr. Obama, speaking at a news conference Friday after a bilateral meeting with German Chancellor Angela Merkel, called the seemingly flawed execution "deeply troubling" and said he would discuss with Attorney General Eric Holder this particular case and an analysis of U.S. death penalty practices more broadly.
The Oklahoma execution highlights some of the wider problems with U.S. death-penalty practices, he said. Mr. Obama supports the death penalty, and noted the Oklahoma inmate's "heinous" crime, but he has raised questions about it, including racial bias in the American justice system.
Regular readers know I have long been wondering and worried about how the feds were dealing with lethal injection problems in light of the fact that there are nearly a half-dozen federal death row prisoners who have nearly exhausted their appeals and should be heading soon to the execution chamber. I surmise from this WSJ story that DOJ has been content to take its sweet time to "review its policies" on lethal injection and thus kick this controversial matter to the next person in the Oval Office. Now, I fear, this expansion of the DOJ review to include a "survey of state-level protocols and related policy issues" is likely to provide a convenient excuse for this "review" to take another couple of years or longer.
All the national and international attention following the ugly execution in Oklahoma, as well as the President's latest comments on this topic, provide further evidence that execution methods and practices are an important issues that implicate lots of federal interests. Federal courts, of course, have been the focal point of the constitutional debate over lethal injection now for well over a decade. The US Justice Department, it now seems, is heading toward a more than a half-decade of its own "review" of these matters. At some point I hope (but do not readily expect) that the Article I branch of our national government will finally decide it ought to get involved with these matters.
Some recent related posts:
- Split Oklahoma Supreme Court stays executions based on drug secrecy concerns
- Oklahoma Supreme Court allows executions to get back on track
- Double execution scheduled for tonight in Oklahoma drawing international interest
- First of two planned Oklahoma executions botched, though condemned dies of heart attack after getting execution drugs
- Ugly Oklahoma execution leading to calls for national moratorium
- Sampling of reactions and commentary in wake of Oklahoma's execution problems
- New details emerge concerning ugly Oklahoma execution
- Other than perhaps in Oklahoma, will this week's ugly execution change any death penalty dynamics?
Should those who really favor gun rights protest the right to sell and own a safer gun?
The question in the title of this post is a little of my usual topics, but I need to vent a bit about this discouraging story in the Washington Post highlighting that some folks who support gun rights are against the idea of using technology to produce a safer gun. The article is headlined "Maryland dealer, under pressure from gun-rights activists, drops plan to sell smart gun," and here are excerpts:
A Rockville gun store owner who said he would sell the nation’s first smart gun — even after a California gun store removed the weapon from its shelves to placate angry gun-rights activists — backed down late Thursday night after enduring a day of protests and death threats.
Andy Raymond, the co-owner of Engage Armament, a store known for its custom assault rifles, had said earlier this week that offering the Armatix iP1 handgun was a “really tough decision” after what happened to the Oak Tree Gun Club near Los Angeles. Oak Tree was lambasted by gun owners and National Rifle Association members who fear the new technology will be mandated and will encroach on Second Amendment rights.
Electronic chips in the gun communicate with a watch that can be bought separately. The gun cannot be fired without the watch....
[A]fter hundreds of protests on his store’s Facebook page and online forums — a repeat of what Oak Tree faced — Raymond released a long video on the Facebook page saying he had received death threats and would not sell the gun. He apologized and took responsibility for the decision. He had sold none of the smart guns and would not, he said.
Earlier, Raymond had said he’s on the “right-wing vanguard of gun rights” but is vehemently opposed to gun rights activists arguing against the idea of a smart gun — or any gun. “To me that is so fricking hypocritical,” Raymond had said. “That’s the antithesis of everything that we pro-gun, pro-Second Amendment people should be. You are not supposed to say a gun should be prohibited. Then you are being no different than the anti-gun people who say an AR-15 should be prohibited.”...
Besides reliability in the face of danger, the opponents’ most pressing fear is that sales of the iP1 will trigger a New Jersey law mandating that all handguns in the state be personalized within three years of a smart gun’s going on sale anywhere in the United States. Similar proposals have been introduced in California and Congress.
Raymond said he didn’t want the law to kick in and didn’t think he’d be responsible if it did, because Oak Tree already had the gun for sale. He said the law was not his problem or Armatix’s. “This is not Armatix screwing over the people of New Jersey,” he said. “It’s the legislature screwing over the people of New Jersey. Bushmaster didn’t screw over the people of Newtown. Adam Lanza did. It’s just disgusting to me to see pro-gun people acting like anti-gunners. What is free if it’s not choice?”...
The demand for smart guns is subject to debate. Gun rights advocates, including the National Shooting Sports Foundation, say there seems to be little desire for such weapons at the moment. They point to a survey the group commissioned last year showing that 14 percent of Americans would consider buying a smart gun. “We think the market should decide,” Lawrence G. Keane, general counsel for the National Shooting Sports Foundation, told The Post this year.
Gun-control advocates believe that smart guns could reduce gun violence, suicides and accidental shootings. A dream of researchers and politicians for decades, the idea found renewed interest within the federal government following the massacre at Sandy Hook Elementary School in Newtown, Conn., in 2012. A group of Silicon Valley investors led by Ron Conway recently launched a $1 million contest to encourage smart-gun technology.
Numerous approaches are in development. Armatix uses RFID chips like those in anti-theft tags attached to clothing in stores. Other companies use a ring to enable the gun’s operation. Grips that recognize an owner are being tested, as are sensors to detect fingerprints and voices. The iP1, developed over a period of years by Armatix, a German firm, is the first smart gun to be marketed in the United States.
Increasing gun ownership is what Raymond said he was after in planning to sell the iP1. “If this gets more people, especially those on the fence, to go out and enjoy their Second Amendment freedoms, to go sport shooting and realize how much fun it is, then I am all for it,” Raymond said before changing his mind. “This is really not a bad thing.”
Regular readers know that I am both a supporter of the Second Amendment and of smart gun technology. If developed effectively, smart guns ought be be able to increase gun rights and reduce gun violence: e.g., smart gun technology might be a way to allow a former non-violent felon, who now is prohibited by federal law from possessing any firearm, to own a gun for self-protection that can only operate from his home. And smart gun technology ought to be able to provide effective digital evidence of gun use (and misuse) to be used by police and other law enforcement officials to investigate and prevent crime.
I understand the fears that some gun rights advocates may have about possible "misuse" of smart gun technology, but these folks should realize that these kinds of concerns about the misuse of a good technology (i.e., guns) are exactly what motivates gun control advocates. Moreover, as smart gun technology improves, I suspect it is only a matter of time before the real issue is how these guns are made and sold, not whether they are available.
A few recent and older related posts:
- Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
- "Smart Gun Technology Could Have Blocked Adam Lanza"
- Sentencing "highlights" in President Obama's new gun control push
- Technology, smart guns, GPS tracking and a better Second Amendment
- More on smart guns, dumb technologies and market realities
- Interesting developments in "smart gun" discussions and debate
- "Can ‘Smart Gun’ Technology Change the Stalemate Over Gun Violence?"
"Criminals Get All the Rights: The Sociolegal Construction of Different Rights to Die"
The title of this post is the title of this intriguing new article available via SSRN authored by Meredith Martin Rountree. Here is the abstract:
In the United States, different people have different rights to die. After sketching the legal standards for hastening death, this article uses empirical research on “volunteers,” death-sentenced prisoners who hastened execution by dropping their appeals, to argue for integrating into adjudications of requests to hasten execution a Fourteenth Amendment analysis comparable to that used in medical cases.
The article discusses socio-legal influences contributing to death-sentenced prisoners’ simultaneously more expansive and less protective right to assistance in dying. Further, it contends that death-sentenced prisoners are more successful in hastening death not simply because of their sentence, but because the law is responding to differently defined social problems. Paradoxically, in this case, the more expansive right reflects and furthers social marginalization. In addition to raising important questions about the legitimacy of the American death penalty, the Article illuminates the different ways in which rights to accelerate death can be implemented. In so doing, the Article contributes to the increasingly pressing political debate over ordinary Americans’ ability to end their own lives.