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January 11, 2014

A few notable headlines concerning notable state prison realities

My review of sentencing law and policy stories this morning revealed this array of noteworthy reports and commentary pieces concerning a number of state prison systems across the US.  I have reprinted the headlines and subheading, which serve as a kind of summary of the issues covered:

January 11, 2014 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

January 10, 2014

Mass incarceration, marijuana and deeper dives into national employment data

The title and topic of this post is driven by the curious news today, reported here by the AP, that US employers "added a scant 74,000 jobs in December after averaging 214,000 in the previous four months," but that also "the unemployment rate fell from 7 percent in November to 6.7 percent, its lowest level since October 2008."  The standard "official reason" for low job growth but a big dip in the unemployment rate is "because many Americans stopped looking for jobs."  But I started then thinking about whether and how the thousands of people now employed in state-legal (but federally-prohibited) marijuana businesses are counted in this national data.  Could it be that a significant number of people working in the state-legal marijuana industry are now counted as unemployed and/or not looking for work (just as I assume all illegal cocaine dealers are counted)?

These thoughts are based in part on this one notable Montana study, which students in my marijuana seminar found when they assembled information about job creation in marijuana industry. Though the data in this 2011 study may be hinky because it was produced by the Montana Medical Growers Association, the study estimated that 1,400 new jobs had been created in the sparcely populated state of Montana alone and that "approximately 70% of employees [in the Montana marijuana industry] were previously unemployed."  Extrapolating from these numbers, it seems plausible that there may already be 50,000 or more Americans already working in state-legalized medical marijuana businesses, and these employment numbers are certain to grow in states like Colorado and Washington now with a huge new recreational marijuana market.

But do all Americans now working in the (cash only) state-legal marijuana industry count as employed in the federal data?  I would suspect not given that the federal law still regards all these folks as illegal drug dealers on par with a guy on a street-corner trying to peddle crack.  Perhaps more worrisome for those concerned about the abuse of federal benefits, how many Americans have acquired jobs in the state-legal marijuana industry but remain happy and eager to report they are "still looking for (fully legal) work," and thus are collecting federal unemployment insurance while actually working in the marijuana industry?  Or instead, once formerly unemployed folks get a job within a state-legal (but federally-prohibited) marijuana business, do they tend then to just report that they have given up looking for work?

As the title of this post suggests, I am asking these questions about the mariujuana industry and employment data in part because shrewd labor-force data-crunchers have long known that the massive increase in incarceration during the 1990s played a huge role in making national unemployment data look better than the reality.  During from 1985 to about 2005, hundreds of thousands of unemployed (and mostly low-skilled) Americans were added to our prison population, taking them out of the labor force entirely and thus (artificially) driving down the unemployment rate statistic.  (In addition, the need to build and staff ever more prisons was a terrific government stimulus program for low-skilled labor.)  But in the last decade or so, the national prison population has been relatively stable: each year roughly 700,000 new persons get admitted to prison and another 700,000 get released.  However, the reality of prison life and the challenges of a criminal record mean that every person newly released from prison each year is all but certain to have a harder time finding legal employment than every person newly admitted to prison that year.

Put differently, growing the prison-industrial complex often makes for better superficial national job numbers, while keep America's prison population stable (or getting it to decline) can end up hurting simplistic national job numbers.  (That reality is one of many reasons it is often so much easier to get politicians to support laws that fuel prison growth rather than laws that fuel prison reduction.)  

With these statistical realities in mind, I am now wondering and worrying in light of the latest national employment data whether a reverse data-collection problem could be at work with the marijuana-industrial complex as long as pot prohibition is still the law at the federal level.  Could significant growth of a state-legal "marijuana-industrial complex" actualy produce federal data that makes national employment data look worse than it really is? 

Obviously, I am not a labor economist, and I could be waaaaaay off base here.  But I suspect and fear few serious US labor economists are even considering these realities much, if at all, as they think about the modern American labor force and its needs in the years ahead.   More broadly, the only key takeaway from this post should be that just as mass incarceration is a labor issue as well as a criminal justice issue, so too do I think marijuana law and policy is a labor issue as well as a criminal justice issue.

January 10, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

"A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service?"

The title of this post is the title of this very interesting new empirical paper by James Michael Binnall now available via SSRN. Here is the abstract:

In the United States, a vast majority of jurisdictions statutorily exclude convicted felons from jury service. Justifying these exclusions, lawmakers and courts often cite the inherent bias rationale, which holds that convicted felons harbor a prodefense/antiprosecution pretrial bias that would jeopardize the impartiality of the jury process. The inherent bias rationale has never been the subject of empirical analysis. Instead, authorities seemingly accept the logic of the rationale unconditionally.

This study (1) explores the prevalence, strength, and direction of convicted felons' pretrial biases; (2) compares the group‐level pretrial biases of convicted felons, nonfelon eligible jurors, and nonfelon law students; and (3) examines if and how a felony conviction shapes pretrial biases. The results of this study indicate that a majority of convicted felons harbor a prodefense/antiprosecution bias and, in this way, differ from eligible jurors generally. Yet, the results of this study also show that many convicted felons are neutral or harbor a proprosecution pretrial bias, and that the strength and direction of convicted felons' group‐level pretrial biases are similar to those of other groups of nonfelon jurors. In sum, this study suggests that while felon jury exclusion does not offend applicable constitutional standards, it is an imprecise and perhaps unnecessary practice that may come at substantial costs.

January 10, 2014 in Collateral consequences, Who Sentences? | Permalink | Comments (13) | TrackBack

January 9, 2014

US Sentencing Commission suggests lowering drug guideline sentences across the board!

In a vote that may not be historic but is still very important and a sign of the times, the US Sentencing Commission earlier today voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all drug offenses.  This official press release effecively summarizes and contextualizes this proposed amendments and others that were voted upon today at the USSC's public meeting:

The United States Sentencing Commission voted today to publish proposed guideline amendments, including possible reductions to the sentencing guidelines levels for federal drug trafficking offenses.  Another proposed amendment addressed implementation of the Violence Against Women Reauthorization Act of 2013.

The bipartisan Commission voted to seek comment on a proposed amendment to lower by two levels the base offense levels in the Drug Quantity Table across drug types in guideline §2D1.1, which governs drug trafficking cases. Commission analysis indicates that such a change in the guidelines would result in a reduction of approximately 11 months for those drug trafficking offenders who would benefit, resulting in a reduction in the federal prison population of approximately 6,550 inmates by the fifth year after the change.

With this reduction, the sentencing guideline penalties for drug traffickers would remain consistent with pertinent drug trafficking statutes, including existing 5 and 10 year statutory mandatory minimum penalties, by structuring the Drug Quantity Table based on levels 24 and 30 (which correspond to a guideline range of 51 to 63 months and 97 to 121 months, respectively), rather than the existing levels of 26 and 32 (which correspond to 63 to 78 months and 121 to 151 months, respectively).

“The Commission’s proposal reflects its priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety,” said Judge Patti B. Saris, Chair of the Commission. A Commission study of offenders who received a reduced sentence pursuant to a similar two-level decrease in guideline levels for crack cocaine offenders in 2007 found no difference in recidivism rates for those offenders released early compared to those who served their full sentence.

“Like many in Congress and in the executive and judicial branches, the Commission is concerned about the growing crisis in federal prison populations and budgets, and believes it is appropriate at this time to carefully consider the sentences for drug traffickers, who make up about half of the federal prison population,” Saris said. “Our proposed approach is modest,” Saris said. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...

Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission voted to publish a proposed amendment responding to the Violence Against Women Reauthorization Act of 2013 (Pub. L. No. 113–4).... The Commission also asked for comment on whether the guidelines adequately address the environmental and other harms of drug production operations, in particular the cultivation of marijuana, and requested comments on issues related to the alien smuggling guideline and on resolving circuit court conflicts regarding the sentencing guidelines, among other matters.

The proposed amendments and issues for comment will be subject to a 60-day public comment period running through mid-March. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 13, and a hearing concerning issues related to the reauthorization of the Violence Against Women Act will be held February 13.

For a whole bunch of reasons, this strikes me as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months. Indeed, this action by the USSC, though only now a proposal for comment, strikes me as the most important tangible federal sentencing development since the passage of the Fair Sentencing Act. Let me explain why:

1. This proposed amendment is essentially a statement by the USSC that it believes, in its expert opinion, the current guideline sentences for ALL drug offenses are ALL too harsh. Consequently, even before this amendment becomes official and gets even closer to becoming law, every defendant to be sentenced for ALL drug offenses ought to be arguing for a two-level reduction in the calculated guideline range (and/or a variance from the calculated range) based on the Commission's expert advice and opinion that the current guideline sentences for ALL drug offenses are ALL too harsh.

2. The usual critics of the current drug guidelines as way too harsh are sure to advise the USSC in the days ahead that this proposed amendment is a great idea (and, if they were shrewd, they might push for the amendment reduce sentences even more). Meanwhile, we will get to see if anyone will actively oppose this proposed amendments. In the past, DOJ could often be counted on to oppose any proposed pro-defendant guideline amendment. But these days, in the wake of AG Holder's recent speeches and work, I suspect DOJ will not actively oppose the amendment (and may even support it). If it turn out there is little or no opposition to this amendment, federal judges could and should feel even more confident now and in the near future to lower drug sentences when permitted in the exercise of their post-Booker discretion.

3. If (and when?) this guideline lowering amendment becomes official in November 2014, the US Sentencing Commission will have authority to decide to make it retroactive (as it did with all of recent prior crack amendments). Thus, not only could this amendment start lowering many federal drug sentences now and going foward, there is a chance it could end up lowering many long federal drug sentences already being served.

Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote.  But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.

January 9, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (11) | TrackBack

"Are there no limits on Second Amendment rights?"

The title of this post is the title of this new entry by Lyle Denniston at the "Constitution Daily" blog of the National Constitution Center.  After I reprint some excerpts, I will explain why I see more limits on Second Amendment rights than any other right in the Constitution:

In only one place in the Constitution’s Bill of Rights is there a provision that flatly bars the government from regulating one of the protected rights. That is in the First Amendment, declaring that “Congress shall make no law respecting” the rights listed in that Amendment. The “right to keep and bear arms” is not one of those rights; it is contained in the Second Amendment.

The Second Amendment’s text, of course, does say that the right it protects “shall not be infringed.” Is that the same thing as saying that government may pass “no law respecting” gun rights?...

The only place that Americans can look for a binding interpretation of what the Constitution’s words mean – other than to the people acting through the amendment process to make a new constitutional declaration – are the decisions of the U.S. Supreme Court....

Over the time since 1791, when the Bill if Rights was ratified, the Supreme Court has given its blessing to an entire governing edifice that regulates First Amendment rights: the laws of libel and defamation, limits on publishing secret military strategy, regulation of “obscene” and “indecent” expression, and limits on “hate speech.” Famously, the court has said that one has no right to shout “Fire!” in a crowded theater. Even the right to worship freely sometimes is curbed by laws that regulate conduct that has religious meaning.

In contrast to the First Amendment, there is very little constitutional history about the meaning of the Second Amendment. In fact, until just five years ago, the “right to keep and bear arms” was not generally understand as a personal right to have a gun, even for self-defense. It was only in 2008 that the Supreme Court declared that such a personal right does, indeed, exist.

That decision, in the case of District of Columbia v. Heller, is – so far – the most important decision the court has ever issued on the scope of the “right to keep and bear arms.” But in that very ruling, the Court said explicitly: “Like most rights, the right secured by the Second Amendment is not unlimited.” It went on to say just as clearly that it was not barring the government from imposing “reasonable regulation” on that right.

Is a “reasonable regulation” of gun rights, then, an “infringement” on those rights? If the word “infringement” means to encroach on something, as one does when one “trespasses” on someone else’s private property, that does not support the idea that Second Amendment rights are absolutes. Government can “trespass” on private property to put out a fire, for example....

The Supreme Court, of course, could re-enter into that national debate if it felt a need to clarify just what kind of “regulation” of gun rights is allowed without being found to violate the Second Amendment. Up to now, however, the Court does not seem to sense that need. It has issued only one significant gun rights decision since the 2008 ruling, and that 2010 decision in McDonald v. Chicago expanded the personal right to a gun to exist at the state and local level, as well as at the federal level. The court did not go further to explain what it would allow in gun regulation by state and local governments.

It has been asked, every year since then, to take on a variety of new cases, to answer some of the lingering questions: does the personal right to have a gun extend beyond one’s own home, who can be forbidden to have a gun at all, when can a gun be carried in public in a concealed way, what types of guns or ammunition can be regulated or even banned, what places in a community are too sensitive or too prone to violence to allow guns in them, how can the government trace a gun that has been used in a violent incident, how freely should gun shows be allowed to operate?

However, the Court has resisted giving an answer to any follow-up questions. And what that has meant, in the national conversation over gun rights, is that anyone’s argument about the extent of those rights is just as good as anyone else’s, and neither side needs to listen to the arguments that the other side makes.

As regular readers know, I have long highlighted (and lamented) that so far the Second Amendment has been interpreted by lower courts to mean that, if an American ever does one bad thing once (a felony or certain misdemeanors), she can forever be subject to a criminal convction for exercising Second Amendment rights. I know of no other express right set forth in the Bill of Rights that a person forever forfeits based on a single prior bad act. Thus, from my perspective, the Second Amendment is subject to many more rigid limits than any other constitutional right.

January 9, 2014 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (6) | TrackBack

January 8, 2014

A mid-week round up of notable marijuana stories

I have not blogged much about marijuana reform in this space despite all the notable experiences now that recreational marijuana sales are legal and operational in Colorado, in part because the traditional media is now (finally) all over the story. But because there are so many notable marijuana reform reports and discussions going on, I cannot resist some links to a quick sampling of just come of the headlines and commentaries that have recently caught my eye from traditional and alternative media:

January 8, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (4) | TrackBack

Seeking input on "must-teach" units as I start a new version of my Sentencing Law course

CasebookI am very excited that in a few hours I will begin teaching to a new group of bright Ohio State students my Sentencing Law course.  I have taught this three-credit, upper-level course every other year since I started teaching in 1997; since 2003, I have had the added pleasure of teaching from my own co-authored casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines.  Joyfully, the new Third Edition of this casebook was published this past summer, so this semester I will get to experience a new version of the text as I work my way through a new version of the course. 

As regular readers can imagine, because sentencing law has changed a lot over the past 15 years, my course coverage has changed a lot over the years.  Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and mentally retarded murderers and why federal judges were required to enhance federal guideline sentences based on acquitted conduct.  

Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring.  But each time I teach this course, in addition to reviewing the basics of capital and federal sentencing doctrines, I often end up focusing a lot of energy on the then-most-pressing topics of current doctrinal debate.  The last time I taught this class, for example, in Fall 2011, I spent lots of extra time on the Eighth Amendment's application to prison sentences in the wake of the SCOTUS ruling in Graham and its cert grant in Miller.

Because there are so many sentencing topics, both big and small, that interest me greatly and that I think students should get exposed to, I often struggle to make sure I cover all the "must-teach" sentencing topics each semester.  Of course, because there has never been an established "canon" for what must be covered in a sentencing course, students do not know what are all the "must-teach" sentencing topics.  But, because there has never been a established "canon" for what must be covered in sentencing course, I likewise have never been sure just what are all the "must-teach" topics for my course.

So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider "must-teach" units in a three-credit, upper-level Sentencing Law course.   Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they assume my students learn about when they hear they have taken a course on Sentencing Law.

Cross-posted at PrawfBlawg

January 8, 2014 in Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21) | TrackBack

Unwrapping the Eleventh Circuit's final 2013 holiday present to prisoners challenging sentencing errors

Late last year, a helpful reader alerted me to an important (and very lengthy) new Eleventh Circuit panel decision in Bryant v. Warden, FCC Coleman, No. 12-11212 (11th Cir. Dec. 24, 2013) (available here). I have waited to blog about it until now because (1) I did not want this important Christmas Eve decision to be overlooked during the holiday weeks, and (2) federal public defender Amy Baron-Evans said I could use her new summary of the 110-page ruling to highlight why Bryant is the first must-read of 2014.  Here is the heart of Amy's summary of Bryant:

Eleventh Circuit Holds Savings Clause Opens the Door to a 2241 Petition Raising an Error Resulting in a Sentence Exceeding the Statutory Maximum

In Bryant v. Warden, __ F.3d __, 2013 WL 6768086 (11th Cir. Dec. 24, 2013), the Eleventh Circuit reversed the district court’s dismissal of Bryant’s 28 USC § 2241 habeas petition brought pursuant to the savings clause, 28 USC 2255(e), which permits a prisoner to file a 28 USC § 2241 petition when a § 2255 motion is “inadequate or ineffective to test the legality of his detention.”

This is an important decision for successive petitions raising claims under DesCamps or any other claim that the sentence exceeds the lawful statutory maximum. If you file a successive petition under 28 USC § 2255, and it is dismissed because it doesn’t meet the successor standard under § 2255(h), a § 2255 motion is “inadequate or ineffective to test the legality of [the prisoner’s] detention” under § 2255(e), and you can file a habeas petition under § 2241.

Leland Kynes of Holland & Knight was appointed to represent Bryant.

Savings Clause

Bryant proved that his prior § 2255 motion was “inadequate or ineffective to test the legality of his detention” and so his 2241 petition could now proceed under § 2255(e) because: (1) throughout his sentencing, direct appeal, and first § 2255 proceeding, binding circuit precedent held that a Florida concealed-firearm offense was a “violent felony” and squarely foreclosed his 924(e) claim that he was erroneously sentenced above the 10–year statutory maximum in 924(a); (2) subsequent to Bryant’s first § 2255, the Supreme Court’s decision in Begay, as interpreted by the circuit, “busted” circuit precedent holding that the Florida concealed-firearm offense was a “violent felony”; (3) Begay’s new rule applies retroactively on collateral review; (4) as a result, Bryant’s 235–month guideline sentence exceeds the 10–year statutory maximum authorized by § 924(a); (5) the savings clause in § 2255(e) reaches his claim of illegal detention above the statutory maximum.

The government raised no objection to Bryant’s attempt to proceed under the savings clause, so the court appointed amicus counsel to argue that it does not apply even when the sentence exceeds the statutory maximum. The court rejected amicus counsel’s arguments.

Procedural Default

The Eleventh also held that procedural default (by not raising the issue on direct appeal or in his first § 2255) did not bar the claim. While futility does not constitute cause to excuse procedural default, the procedural default rule is not jurisdictional but is an affirmative defense that the government can waive, and the government waived it. In addition, the savings clause under § 2255(e) applies regardless of whether the prisoner “has failed to apply” for § 2255 relief or the sentencing court “has denied him” § 2255 relief. Whether the savings clause may open the door to a § 2241 petition is jurisdictional, and so the court had to decide it.

Government’s Position

As noted, the government waived procedural default and any objection to Bryant proceeding under the savings clause.  The docket notes that the government has conceded the savings clause issue in other cases, and I’m told the government has not raised procedural default in other cases in other districts.  So this appears to be coming from the Solicitor General’s office, and its position is apparently that ACCA cases are different because a sentence above the statutory maximum is per se illegal.

The government did argue that a 1988 burglary conviction could be substituted for the concealed weapons conviction as the third ACCA predicate.  The court of appeals rejected that argument because the government did not object at sentencing to the district court’s finding that there were only three predicates or suggest at sentencing that the burglary conviction could be a predicate.

Other Circuits

The court of appeals describes a “deep and mature circuit split” on the reach of the savings clause at pages 24-26 of its decision. This part of the decision is not entirely clear and you should check your circuit caselaw.  Other circuits may adopt the Eleventh Circuit's approach, and if not, file a cert petition.

January 8, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

"Probability and Punishment"

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

Imagine two defendants, A and B, who have each been convicted of drug trafficking. Defendant A was arrested with 1,000 grams of crack-cocaine.  Defendant B was arrested with only 100 grams of crack but also a large quantity of cash, which he more than likely, though not certainly, earned by selling 900 grams of crack shortly before his arrest.  Should A and B receive the same punishment?

Federal criminal law says that they should.  This Article will argue that they should not. The probability that A sold 1,000 grams is higher than the probability that B did, so B deserves the lighter sentence.

The justice system can never determine with absolute certainty that an accused defendant committed a particular crime.  To render judgment, therefore, the criminal law must estimate the probability that each defendant is guilty of the offense charged and then translate that probability into specific penal consequences.  The guilt stage of criminal proceedings — the criminal trial — uses what scholars have called a “threshold model” of translation. Under this model, the prosecution may convict a defendant by establishing that the likelihood that he committed the crime charged exceeds a certain “threshold” level of probability.  If it is “beyond a reasonable doubt” that the defendant did the deed, he will receive a guilty verdict.  Otherwise, he will walk free.  Neither outcome will reflect a precise measure of the odds of the defendant’s guilt. A “probabilistic model” of translation, by contrast, would vary the outcome of each trial depending on the probability that the defendant committed the crime of which he is accused.

This Article breaks new ground by demonstrating that the penalty stage of criminal proceedings — the sentencing hearing — also uses a “threshold model.” The United States Sentencing Guidelines instruct federal judges to make a series of factual findings that either add to or subtract from a recommended sentence for every case.  Each adjustment to the recommended sentence depends on whether a certain factual predicate is “more likely than not” to be true — just like at trial, this threshold level of probability fails to precisely measure the odds of the defendant’s culpability.  However, while scholars have offered several important justifications for the threshold model of conviction, these arguments do not hold up for the threshold model of sentencing.  Moreover, the two flaws identified with the threshold model of conviction — inefficiency and unfairness — are not only present at the penalty stage of the proceedings, but in fact are exacerbated by a few unique features of the law of sentencing.

The threshold model of sentencing poses a particular problem when it comes to determinations of drug quantity in the punishment of drug offenders.  Courts often rely on extrapolation and inference to make such determinations, and as a result, they frequently mete out lengthy sentences based on quantity estimations that carry a high risk of error. District courts and policymakers should mitigate the inefficiencies and injustices that result from these fact-findings by incorporating probability into drug quantity determinations at sentencing.

January 8, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

January 7, 2014

Another new legal challenge as Ohio prepares to conduct an execution with another new protocol

As reported in this AP piece, headlined "Attorneys cite 'agony and terror' in untried execution method," Ohio has an execution scheduled for next week that is generate a new round of litigation because of a new execution method. Here are the basics:

Ohio's untried execution method, the first of its kind in the nation, will cause the condemned killer of a pregnant woman "agony and terror" as he struggles to breathe, attorneys trying to stop the execution argued in federal court.

The two-drug combination won't sedate death row inmate Dennis McGuire properly, and he will experience a suffocation-like syndrome known as air hunger, the attorneys said in filings Monday and Tuesday. The drugs were chosen because of a shortage of other lethal injection drugs.

Lawyers had also asked Gov. John Kasich to spare McGuire on the grounds that a jury never got to hear the full details of his chaotic and abusive childhood and abuse. Kasich rejected that request without comment Tuesday. The governor typically does not give a reason when he turns down clemency requests by death row inmates.

McGuire, 53, is scheduled to die Jan. 16 for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. McGuire's lawyers asked federal judge Gregory Frost to delay the execution while they challenge the proposed lethal injection system. "McGuire will experience the agony and terror of air hunger as he struggles to breathe for five minutes after defendants intravenously inject him with the execution drugs," the inmate's attorneys said in a Monday court filing.

They also said McGuire exhibits several symptoms of sleep apnea, which could exacerbate the problem. The dose planned for McGuire isn't enough to properly sedate him, meaning he'll experience "the horrifying sensation" of being unable to breathe, Harvard anesthesiology professor David Waisel said in a Tuesday filing in support of the inmate.

A message was left with the Ohio attorney general's office, which was expected to oppose McGuire's filing. Frost scheduled a Friday hearing. Supplies of Ohio's former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions. It's a challenge facing other death penalty states as well.

Missouri gave up attempts to use propofol over concerns the move could create a shortage of the popular anesthetic if the European Union, which opposes the death penalty, restricted its export. In Georgia, the state's attempt to use a non-federally regulated dose of pentobarbital is the subject of a lawsuit.

Instead, Ohio's Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative, combined with hydromorphone, a painkiller, to put McGuire to death.

That combination of drugs has never been used in a U.S. execution. They are included in Kentucky's backup execution method, while Florida uses midazolam as part of its three-drug injection process.

Regular readers know that there is a long history of notable developments in Ohio as a result of federal court litigation over new execution methods. It will be interesting to watch how this round of the litigation plays out.

January 7, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

"Should We Let Prisoners Upgrade Their Prison Cells?"

9515_luxury_prison_by_iMoo_pupuDesign-1The title of this post is the headline of this interesting report from the OZY media resource. Here are excerpts:

Would prison be so bad if your cell was spacious and included a private bathroom, kitchen and cable TV? These are the accommodations for some prisoners at San Pedro prison in La Paz, Bolivia. But luxury isn’t free: For about $1,000-1,500, an inmate can purchase a high-class cell for the duration of his or her sentence.

San Pedro is divided into eight sections ranging from shared small cells with risks of stabbings at night to the opulent cells that have access to billiard tables and fresh juice stands. Every person must buy or rent a cell, no matter the quality, and many inmates have jobs as hairdressers, laundry staff, food stall operators or TV repairmen.

Does the idea of paying for better prison accommodations sound ludicrous? Would you bet this could never happen in the U.S.? Think again.

In California there are multiple jails with “pay-to-stay” programs where inmates can pay from $75-155 a day for a private cell in quiet areas away from violent offenders, and they are occasionally allowed to bring in an iPod or computer for entertainment. They must be approved for the program and their crimes are usually minor offenses. The ACLU is not a fan, calling the program a “jail for the rich.”

Supporters of pay-to-stay say they benefit the cities where they are located by providing revenue. For example, if the Fremont jail — which spends $8.35 a day on each inmate — houses 16 inmates for two nights per week a year, the city would net a profit of about $244,000. One immediate question is whether cities should make a profit off of prisoners. Another question has to do with equality.

Two people who commit the same crime but end up in different facilities depending on their ability to pay isn’t exactly equitable, but the American incarceration system doesn’t have the best record when it comes to treating the poor and rich equally....

But what if you weren’t allowed to use Daddy’s dollars to secure better living conditions while serving time for a DUI? What if, instead, you started out the same as every other inmate, regardless of personal wealth or outside resources?

Could a fairer option be that you start your sentence with a financial blank slate, earn money by taking jobs inside the prison or jail and then apply your self-earned dollars to book a nicer and more comfortable living situation? Should prisoners be allowed to pay to upgrade the quality of their cells, or should the nature of their crime be the sole factor in how they live out their prison terms?

January 7, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Notable (and amusing?) account of an execution method gone to the dogs

In various settings, some folks are quick to point out that the United States is uniquely punitivie in its use of imprisonment compared to all other nations in the world and also that the United States is one of the few nations in the western world to make continued and somewhat regular use of the death penalty.  And advocates for sentencing and corrections reform (myself included) sometimes contend that the US ought to try to learn from the policies and practices of other nations.  These realities came to mind when I read this notable recent article sent my way by a helpful reader reporting on a recent high-profile sentencing and punishment in another part of the world:

The execution of Jang Song Thaek, the No. 2 man in North Korea, took Beijing by surprise and will adversely affect bilateral relations. Beijing's displeasure is expressed through the publication of a detailed account of Jang's brutal execution in Wen Wei Po, its official mouthpiece, in Hong Kong, on Dec 12.

According to the report, unlike previous executions of political prisoners which were carried out by firing squads with machine guns, Jang was stripped naked and thrown into a cage, along with his five closest aides.  Then 120 hounds, starved for three days, were allowed to prey on them until they were completely eaten up. This is called "quan jue", or execution by dogs.

The report said the entire process lasted for an hour, with Mr Kim Jong Un, the supreme leader in North Korea, supervising it along with 300 senior officials. The horrifying report vividly depicted the brutality of the young North Korean leader. The fact that it appeared in a Beijing-controlled newspaper showed that China no longer cares about its relations with the Kim regime.

Amusingly, as this new Reuters piece reports, it now appears that the "international media frenzy over reports that North Korean leader Kim Jong Un's uncle had been executed by throwing him to a pack of dogs appears to have originated as satire on a Chinese microblogging website."  Here is more:

One of the pitfalls of reporting on North Korea is that few independent media have offices there and visiting media are tightly controlled in a country which ranks among the lowest in global surveys of press freedom. Because of the lack of first hand information, many lurid stories about the country gain credence.

Trevor Powell, a Chicago-based software engineer, who first spotted the link to the Weibo post and reported it on his own blog said that analysts and experts were "still all missing the obvious fact that the original source of the Wen Wei Po story was a tweet from a known satirist or someone posing as him/her." Powell blogged about the post here.

January 7, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (23) | TrackBack

January 6, 2014

Lamenting the "ghosts ... still serving time under [crack] sentences that would not have been imposed under the new law"

Linda Greenhouse has this notable new op-ed in the New York Times headlined "Crack Cocaine Limbo." Here are excerpts:

President Obama earned a rare moment of bipartisan acclaim last month when he commuted the sentences of eight long-serving federal prisoners. Their crack cocaine offenses had resulted in the harsh penalties mandated by a sentencing formula that Congress repudiated when it passed the Fair Sentencing Act of 2010. The old formula, under which possession of a quantity of crack earned the same sentence as possession of 100 times that quantity of powdered cocaine, was “now recognized as unjust,” the president said.

But there were ghosts at last month’s party: thousands of federal inmates still serving time under sentences that would not have been imposed under the new law. Most are black. As is widely recognized, crack has been the cocaine of choice for African-American users and dealers even as white offenders choose powder. The racially disparate impact of the old law, which dates from the crack-cocaine panic of the mid-1980s with its now-discredited theory that crack was many times more dangerous, made reform a civil rights priority.

These prisoners remain in drug-sentencing limbo. When Congress passed the Fair Sentencing Act, which reduced the crack-to-powder sentencing ratio from 1:100 to 1:18, it was silent on retroactivity. The Supreme Court granted limited relief two years ago, ruling that those who committed their crimes before the law took effect in August 2010 but who were not sentenced until later could retroactively get the new law’s benefit....

Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, introduced a bill last summer to authorize judges to grant relief to pre-2010 prisoners on a case-by-case basis. But the Smarter Sentencing Act, as its sponsors call it, has yet to move toward a vote....

Society made a judgment, expressed in a bipartisan political consensus, that disparities of this kind were irrational and racially inequitable. Passage of the Fair Sentencing Act was preceded by years of debate, including pleas by federal judges who hated what the law made them do. Gradually, insight emerged. Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.

January 6, 2014 in Clemency and Pardons, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

"Sex offender seeks admission to Kentucky bar"

The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures.  Here are the details, followed by a bit of commentary: 

Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender.  In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.

“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.

Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. In an email, Hamilton-Smith referred Associated Press questions to his attorney, who said the reconsideration request will be filed.

Nationally, cases of felons seeking admission or re-admission to the bar are common. But situations of registered sex offenders attempting to do so appear to be rare. Beyond a recent rejection in Ohio and an ongoing case in Virginia, legal experts and those who work to rehabilitate sex offenders couldn’t recall a similar situation arising in recent years.

But Shelley Stow of Reform Sex Offender Laws — a Massachusetts-based organization that seeks to ease restrictions on offenders and promote rehabilitation — said she wouldn’t be surprised to see more cases out there. “It is so difficult for registrants to even get jobs and support themselves and function day to day, let alone pursue a law career,” she said.

The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith’s attorney, Scott White, of Lexington. “It’s a highly stigmatized thing,” White said.

Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years — until 2027.

After disclosing the conviction and sex offender status on his applications, Chase Law School at Northern Kentucky University and Brandeis Law School at the University of Louisville both rejected him in 2008. But the University of Kentucky College of Law accepted him in 2008 and he graduated in 2011. Hamilton-Smith later competed on the National Trial Team and National Moot Court Team, and he had a piece published in the Berkeley La Raza Law Journal through the University of California law school.

Since graduating in 2011, Hamilton-Smith has held a non-lawyer position for Baldani, Rowland and Richardson. The Lexington firm has filed letters in support of Hamilton-Smith taking the bar exam, White said. But Hamilton-Smith still has not been cleared by the Kentucky Office of Bar Admissions to take the exam that would allow him to practice law.

White called Hamilton-Smith “a classic sex addict.”

“The classic example is somebody who just downloads buckets of pornography,” White said. “In that download, there just happened to be child pornography.” In this case, Hamilton-Smith has gone through Sex Addicts Anonymous, despite a few admitted relapses with adult, but not child, pornography, White said.

White also said his client used law school as a redemptive and rehabilitative effort while owning up to his criminal conduct. “He just hasn’t let it define him,” White said....

For the justices, the nature of the crime defines someone lacking in the “requisite character and fitness” to be admitted to the bar.  “Indeed, our certification could significantly mislead the public into believing that we vouch for (Hamilton-Smith’s) good character,” Minton wrote.  “Consequently, a client’s subsequent discovery of the registry listing could then justifiably lead him to question the value of this court’s certification of the good character of those who are permitted to take the bar examination.”

I find this matter interesting for lots of reasons, especially because I suspect that Hamilton-Smith's personal background and recent professional challenges are likely to make him a much better lawyer to serve the (ever-growing) legal needs of the (ever-growing) sex offender population.  Indeed, were I running a law firm that often dealt with sex offense cases and offenders, I would be very eager to hire Hamilton-Smith to help me serve this client population whether or not he ever gets admitted to the bar.

That said, it is quite possible (even likely?) that Hamilton-Smith is eager to develop a legal practice that has nothing to do with sex offenders.  If that is true, I cannot help but wonder and worry that his status as a registered sex offender may always serve as a problematic disability in the competitive legal marketplace: I fear Hamilton-Smith's adversaries may be inclined (even perhaps eager) to use the modern stigma associated with sex offenders to harmfully impact both Hamilton-Smith and his clients.

More broadly, if the goal of the barring process was only to ensure that only those capable of being a competent lawyer served in this profession, it would be clear that Hamilton-Smith should be allowed to sit for the bar exam.  Conversely, if the goal the barring process was only to ensure that nobody with a blemished past could become a lawyer, it would be clear that Hamilton-Smith should not be allowed to sit for the bar exam.  But because it seems the goal of the barring process is a little of both, this is an interesting case.

Cross-posted at PrawfsBlawg

January 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

January 5, 2014

A political and media tipping point?: New York's Gov to reform state's marijuana laws

The title of this post is prompted the fact that today's New York Times has this lengthy lead story on its front page above the fold under the headline "New York State Is Set to Loosen Marijuana Laws." Here are excerpts:

Joining a growing group of states that have loosened restrictions on marijuana, Gov. Andrew M. Cuomo of New York plans this week to announce an executive action that would allow limited use of the drug by those with serious illnesses, state officials say.

The shift by Mr. Cuomo, a Democrat who had long resisted legalizing medical marijuana, comes as other states are taking increasingly liberal positions on it — most notably Colorado, where thousands have flocked to buy the drug for recreational use since it became legal on Jan. 1.

Mr. Cuomo’s plan will be far more restrictive than the laws in Colorado or California, where medical marijuana is available to people with conditions as mild as backaches. It will allow just 20 hospitals across the state to prescribe marijuana to patients with cancer, glaucoma or other diseases that meet standards to be set by the New York State Department of Health.

While Mr. Cuomo’s measure falls well short of full legalization, it nonetheless moves New York, long one of the nation’s most punitive states for those caught using or dealing drugs, a significant step closer to policies being embraced by marijuana advocates and lawmakers elsewhere. New York hopes to have the infrastructure in place this year to begin dispensing medical marijuana, although it is too soon to say when it will actually be available to patients.

Mr. Cuomo’s shift comes at an interesting political juncture. In neighboring New Jersey, led by Gov. Chris Christie, a Republican whose presidential prospects are talked about even more often than Mr. Cuomo’s, medical marijuana was approved by his predecessor, Jon S. Corzine, a Democrat, but was put into effect only after Mr. Christie set rules limiting its strength, banning home delivery, and requiring patients to show they have exhausted conventional treatments. The first of six planned dispensaries has already opened. Meanwhile, New York City’s new mayor, Bill de Blasio, had quickly seemed to overshadow Mr. Cuomo as the state’s leading progressive politician.

For Mr. Cuomo, who has often found common ground with Republicans on fiscal issues, the sudden shift on marijuana — which he is expected to announce on Wednesday in his annual State of the State address — was the latest of several instances in which he has embarked on a major social policy effort sure to bolster his popularity with a large portion of his political base....

The governor’s action also comes as advocates for changing drug laws have stepped up criticism of New York City’s stringent enforcement of marijuana laws, which resulted in nearly 450,000 misdemeanor charges from 2002 to 2012, according to the Drug Policy Alliance, which advocates more liberal drug laws. During that period, medical marijuana became increasingly widespread outside New York, with some 20 states and the District of Columbia now allowing its use....

[Mr. Cuomo's] shift, according to a person briefed on the governor’s views but not authorized to speak on the record, was rooted in his belief that the program he has drawn up can help those in need, while limiting the potential for abuse. Mr. Cuomo is also up for election this year, and polls have shown overwhelming support for medical marijuana in New York: 82 percent of New York voters approved of the idea in a survey by Siena College last May.

Still, Mr. Cuomo’s plan is sure to turn heads in Albany, the state’s capital. Medical marijuana bills have passed the State Assembly four times — most recently in 2013 — only to stall in the Senate, where a group of breakaway Democrats shares leadership with Republicans, who have traditionally been lukewarm on the issue.

Mr. Cuomo has decided to bypass the Legislature altogether. In taking the matter into his own hands, the governor is relying on a provision in the public health law known as the Antonio G. Olivieri Controlled Substance Therapeutic Research Program. It allows for the use of controlled substances for “cancer patients, glaucoma patients, and patients afflicted with other diseases as such diseases are approved by the commissioner.”

Mr. Olivieri was a New York City councilman and state assemblyman who died in 1980 at age 39. Suffering from a brain tumor, he used marijuana to overcome some of the discomfort of chemotherapy, and until his death lobbied for state legislation to legalize its medical use. The provision, while unfamiliar to most people, had been hiding in plain sight since 1980. But with Mr. Cuomo still publicly opposed to medical marijuana, state lawmakers had been pressing ahead with new legislation that would go beyond the Olivieri statute.

Richard N. Gottfried, a Manhattan Democrat who leads the assembly’s health committee, has held two public hearings on medical marijuana in recent weeks, hoping to build support for a bill under which health care professionals licensed to prescribe controlled substances could certify patient need. Mr. Gottfried said the state’s historical recalcitrance on marijuana was surprising. “New York is progressive on a great many issues, but not everything,” he said.

Mr. Gottfried said he wanted a tightly regulated and licensed market, with eligible patients limited to those with “severe, life-threatening or debilitating conditions,” not the broader range of ailments — backaches and anxiety, for instance — that pass muster in places like California, which legalized medical marijuana in 1996. “What we are looking at bears no resemblance to the California system,” Mr. Gottfried said....

Ethan Nadelmann, the executive director of the Drug Policy Alliance, praised Mr. Cuomo’s decision as “a bold and innovative way of breaking the logjam” in Albany, though it may not be the final word on medical marijuana. Mr. Cuomo “remains committed to developing the best medical marijuana law in the country,” Mr. Nadelmann said. “And that’s going to require legislative action.”

For a host of (mostly economic and practical) reasons, legal reforms and policy developments in New York often can and usually will get more than its fair share of national political and media attention from elites up and down the east coast and even around the nation. Indeed, the very fact this story in not due to break "officially" until later this week, but is still now front-page news in the first Sunday New York Times in 2014 shows how some New York stories often are treated like national and nationally-important stories from the get-go.

Especially interesting in this coverage and in the development of this issue in 2014, it seems that Gov. Cuomo has decided he needs to make a (bold?) move toward marijuana reform for political reasons. I am not surprised that recent developments in Colorado and elsewhere may change political calculations by lots of politicians on these matters over time, but I did not expect to see things moving so fast in important places like New York and involving important established state officials with national political aspirations.

Cross-posted at Marijuana Law, Policy & Reform

January 5, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

"The Punishment Imperative The Rise and Failure of Mass Incarceration in America"

9780814717196_FullThe title of this post is the title of this notable new book published by NYU Press authored by Todd R. Clear and Natasha A. Frost.  Here is the book's description from the NYU Press site:

“Backed up by the best science, Todd Clear and Natasha Frost make a compelling case for why the nation’s forty-year embrace of the punitive spirit has been morally bankrupt and endangered public safety. But this is far more than an exposé of correctional failure. Recognizing that a policy turning point is at hand, Clear and Frost provide a practical blueprint for choosing a different correctional future — counsel that is wise and should be widely followed.” — Francis T. Cullen, Distinguished Research Professor of Criminal Justice, University of Cincinnati

Over the last 35 years, the US penal system has grown at a rate unprecedented in US history — five times larger than in the past and grossly out of scale with the rest of the world.  This growth was part of a sustained and intentional effort to “get tough” on crime, and characterizes a time when no policy options were acceptable save for those that increased penalties.  In The Punishment Imperative, eminent criminologists Todd R. Clear and Natasha A. Frost argue that America’s move to mass incarceration from the 1960s to the early 2000s was more than just a response to crime or a collection of policies adopted in isolation; it was a grand social experiment.  Tracing a wide array of trends related to the criminal justice system, The Punishment Imperative charts the rise of penal severity in America and speculates that a variety of forces — fiscal, political, and evidentiary — have finally come together to bring this great social experiment to an end.

Clear and Frost stress that while the doubling of the crime rate in the late 1960s represented one of the most pressing social problems at the time, this is not what served as a foundation for the great punishment experiment.  Rather, it was the way crime posed a political problem — and thereby offered a political opportunity — that became the basis for the great rise in punishment.  The authors claim that the punishment imperativeis a particularly insidious social experiment because the actual goal was never articulated, the full array of consequences was never considered, and the momentum built even as the forces driving the policy shifts diminished.  Clear and Frost argue that the public’s growing realization that the severe policies themselves, not growing crime rates, were the main cause of increased incarceration eventually led to a surge of interest in taking a more rehabilitative, pragmatic, and cooperative approach to dealing with criminal offenders.

The Punishment Imperative cautions that the legacy of the grand experiment of the past forty years will be difficult to escape.  However, the authors suggest that the United States now stands at the threshold of a new era in penal policy, and they offer several practical and pragmatic policy solutions to changing the criminal justice system’s approach to punishment.  Part historical study, part forward-looking policy analysis, The Punishment Imperative is a compelling study of a generation of crime and punishment in America.

January 5, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (3) | TrackBack