June 7, 2014
Highlighting challenges when alternatives to incarceration become state priorities
The front-page of my own Columbus Dispatch has this interesting article about the Ohio's sentencing reform efforts and the challenges posed by a troublesome offender for a sentencing system that now seeks to emphasize alternatives to incarceration. The article is headlined "Church theft case tests rule on sentencing," and here are excerpts:
Cash Yoakem admitted that he broke into 29 churches and stole pretty much anything he could find — even communion trays — to fuel his drug habit. He has pleaded guilty to 44 counts of breaking and entering, all fifth-degree felonies, and the 26-year-old Chillicothe man will stand before a judge on Thursday and ask for leniency. Ross County Prosecutor Matt Schmidt will seek four years in prison for him instead.
Schmidt says that if any thief deserves to go to prison, it is Yoakem, who robbed from some of the churches more than once: “He broke into, damaged and stole from places of worship that many in this community consider sacred, thereby damaging their sense of sanctity.”
But under Ohio’s revamped criminal-sentencing laws, Yoakem doesn’t qualify for prison. Probation, yes, or a community-based therapeutic program, but he doesn’t meet the state’s latest criteria for prison for low-level, nonviolent, first-time offenders. Schmidt and Yoakem’s attorney each say this case sets the stage for what could be the first real test of the constitutionality of Ohio’s sweeping criminal-sentencing reforms that took shape in 2011.
At issue is a provision of the law that says that if a court cannot find a suitable sanction for a defendant who does not qualify for prison under the new guidelines, the judge can ask the Ohio Department of Rehabilitation and Correction to make a suggestion as to what local programs are available. The department then can either make a recommendation — which the judge is bound by law to follow — or say it doesn’t have a suggestion, in which case the judge then can send that person to prison if he chooses.
State records show that since the reforms took place, judges in 11 counties have sought a state recommendation a total of 27 times; 12 defendants went to prison as a result and 15 got probation. In Yoakem’s case, the Ross County Common Pleas Court asked for such a recommendation and the state gave none. As a result, it is expected that Judge Scott Nusbaum will sentence Yoakem to prison when he’s due in court on Thursday.
Some judges and prosecutors have long complained about this provision of the sentencing reform. Because one goal of the legislature when it enacted the changes was to see fewer people go to prison, defense attorneys have hailed the changes as positive. In this case, however, it is the defense attorney challenging the constitutionality of the law.
James Szorady, an assistant state public defender and Yoakem’s attorney, said the state prisons department’s involvement is a clear violation of the constitutional requirement for a separation of powers by the legislative, executive and judicial branches of government. “My argument is that the department is now holding sway over the court,” Szorady said. In his sentencing memo to the judge, he writes: “This is clear co-mingling of government branches ... and it is unconstitutional beyond a reasonable doubt.”
State Sen. Bill Seitz, a Cincinnati Republican who was instrumental in writing the changes, said there’s nothing unconstitutional about it because the Department of Rehabilitation and Correction is taking only an advisory role....
The Ohio Judicial Conference, a judges’ association created by state law, opposed this part of the sentencing reform since its inception and has asked the legislature several times to remove it because it’s a clear conflict, said Mark R. Schweikert, executive director of conference. “Frankly, I’m surprised a case hasn’t yet made it to the Ohio Supreme Court,” he said.
Schmidt said he thinks this is exactly where this one will end up. He said the reforms have hampered prosecutors and judges in their ability to punish certain offenders properly, simply to save the state money on housing prisoners, and this case is the best illustration of that so far.
“I’ve been beyond frustrated,” Schmidt said. “The sentencing reforms are not solving crimes and not rehabilitating people. They’re just making it harder to punish people, which is part of what a criminal sentence is about.”
Detailing how many more women have come to discover "Orange is the New Black"
To really appreciate the popular NetFlix show "Orange is the New Black," everyone should read and reflect on the data on modern female incarceration usefully assembled in this recent Fusion piece headlined "The Real Life Stats Behind Women in Prison and ‘Orange is the New Black’." Here are the data (with sources, emphasis and links included):
The series "Orange is the New Black" is based on a true experience that follows women in prison, which is one of the fastest growing prison populations. So, it’s only appropriate [with] the premiere of the second season of "Orange is the New Black" we look at some of the numbers of women in prison.
The number of women in prison increased by 646 percent between 1980 and 2010, rising from 15,118 to 112,797. If we include local jails, more than 205,000 women are now incarcerated. The female prison population is increasing at nearly double the rate for men. (The Sentencing Project-PDF)
Two thirds of women in prison are there for non-violent offenses, many for drug related crimes. (Women’s Prison Association - PDF)
Oklahoma is the greatest incarcerator of women. Oklahoma incarcerates more women per capita than any other state with 130 out of every 100,000 women in prison. Massachusetts has the lowest rate of female imprisonment at 13 per 100,000 women. (Women’s Prison Association - PDF)
1 in 25 women in state prisons and 1 in 33 in federal prisons are pregnant when admitted to prison. Women can be shackled during labor in at least 32 states. The majority of children born to incarcerated mothers are immediately separated from their mothers. (The Sentencing Project-PDF)
Women in prison are more likely than are men to be victims of staff sexual misconduct. More than three-quarters of all reported staff sexual misconduct involves women who were victimized by male correctional staff.(The Sentencing Project-PDF)
Black women represent 30 percent of all incarcerated women in the U.S, although they represent 13 percent of the female population generally.
Latinas represent 16 percent of incarcerated women, although they make up only 11 percent of all women in the U.S. (ACLU)
Transgender inmates are almost always housed according to their birth gender. The two most common responses are housing transgender prisoners on the basis of their birth gender or placing them in isolation. (American Academy of Psychiatry and the Law)
June 6, 2014
More critical analysis of NRC mass incarceration analysis from John Pfaff
As I highlighted in this post late last week, through a series of astute posts at PrawfBlawg, Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the National Research Council's analysis of mass incarceration. John's first five posts in that series are linked here, and now below I have linked his latest in this important series:
- The Flawed NRC Report: What Incentivizes Prosecutors?
Notable new federal drug war frontier: "DEA targets doctors linked to medical marijuana"
The title of this post comes from the headline of this lengthy Boston Globe report, which gets started this way:
US Drug Enforcement Administration investigators have visited the homes and offices of Massachusetts physicians involved with medical marijuana dispensaries and delivered an ultimatum: sever all ties to marijuana companies, or relinquish federal licenses to prescribe certain medications, according to several physicians and their attorneys.
The stark choice is necessary, the doctors said they were told, because of friction between federal law, which bans any use of marijuana, and state law, which voters changed in 2012 to allow medical use of the drug.
The DEA’s action has left some doctors, whose livelihoods depend on being able to offer patients pain medications and other drugs, with little option but to resign from the marijuana companies,where some held prominent positions.
The Globe this week identified at least three doctors contacted by DEA investigators, although there may be more. “Here are your options,” Dr. Samuel Mazza said he was told by Gregory Kelly, a DEA investigator from the agency’s New England Division office. “You either give up your [DEA] license or give up your position on the board . . . or you challenge it in court.”
Cross-posted at Marijuana Law, Policy and Reform
Why those who follow sentencing and corrections reform should be following drones
Regular readers and all my students know that I generally believe any and every important public policy issues is related in some significant way to sentencing and/or corrections issues. More support for this view comes from this local article highlighting why and how drone law and policy could have am impact on sentencing law and policy. The article is headlined "Drones over Ohio prisons? Officials mull the idea," and here are excerpts:
The Ohio Department of Rehabilitation and Correction has expressed interest in using drones to monitor the grounds around prisons, said Andrew Parker, director of WSRI. Drones would be able to not only sense if inmates were trying to escape, but also if people on the outside are trying to smuggle items into the prison.
“We’ve heard a lot of information about the precision agriculture uses of drones but this is another example of a use people might not have originally envisioned,” Parker said.
Drone sensor systems such as infrared sensors would be able to detect movement around the prisons in a less expensive way than setting up security sensors around the perimeter of the grounds. ODRC has considered using such drones as a service, Parker said, adding such a service could begin before the end of the year.
A spokesperson for the Ohio Department of Corrections confirmed officials were on site in Wilmington today for a demonstration, but said they would need to evaluate and discuss the demonstration before they could comment further on the idea.
I am not sure what civil liberties groups and Senator Rand Paul and others who've expressed concerns about drones might have to say about this use of the technology. But I suspect that prison guard unions are not likely to be too excited by the prospected of some other their jobs being replaced by the latest brave-new-world innovation.
June 5, 2014
Will Canada's courts continue to strike down mandatory minimums as unconstitutional?
The question in the title of this post is prompted by this interesting recent commentary in a Canadian paper sent my way by a helpful reader. The piece by Lisa Kerr is headlined, "Mandatory minimums for drug crimes have no future in Canada: As the B.C. Court of Appeal prepares to hear the first major challenge to mandatory minimums, there’s reason to think the policy will be rightly short-lived." Here are excerpts:
This week, the B.C. Court of Appeal hears the first major challenge to the latest symptom of a punitive plague: mandatory incarceration for a drug crime. The defendant, 25-year-old Joseph Lloyd, lives in the downtown eastside of Vancouver, where he struggles with addiction and regularly interacts with the court system. In the past, local judges could use their expertise to craft an individualized punishment for people like Lloyd. Community supervision, drug programming, or specific amounts of jail time could target his specific circumstances.
New legislation compels judges to impose a minimum one-year prison term on all individuals who meet a handful of criteria. Judges can no longer consider whether it is in the public interest to incarcerate someone like Lloyd, or for how long. They can no longer consider whether a person will lose housing or employment. While one year in a chaotic jail is unlikely to help a struggling individual to recover stability, that is a judge’s only option unless the law is struck down.
In the United States, the removal of discretion from sentencing judges is the central cause of its famously high rate of incarceration. There are nine million prisoners in the world. Over two million of them are in the U.S....
The arrival of mandatory sentences does not herald the “Americanization” of Canadian crime policy. The deep principles of our criminal justice system cannot be dismantled overnight. Our prosecutors are not a bloodthirsty lot — they are largely anonymous and professional public servants. Unlike many of their American counterparts, Canadian prosecutors are not subject to elections and public scrutiny. They are better positioned to pursue a broad notion of the public interest, rather than just long prison sentences.
Canadian judges are also likely to resist interference by politicians who are detached from the daily reality of human misery faced in criminal courts. And they have the tools to do so. While Canada and the U.S. have identical language in the constitutional prohibition against “cruel and unusual punishment,” the prohibition has been interpreted very differently in the courts.
In 2003, the U.S. Supreme Court upheld a life sentence for a third offence of stealing golf clubs. In 1987, the Canadian Supreme Court struck down the only previous attempt at automatic incarceration for drug crime: a seven-year term for drug trafficking. So far, mandatory sentences for non-violent drug offences are unconstitutional in this country.
Canadian institutions are likely to resist this untimely American policy transplant. There is no collapse of faith in our courts, there is no crime wave, and there is no Southern Strategy. Joseph Lloyd should encounter a court system that is free to encounter him.
Split Fourth Circuit highlights ugly mess of SCOTUS "crime of violence" jurisprudence
If you are sentencing nerdy like me, you often wonder what crimes are properly considered "crimes of violence" under federal law. And, if you are sentencing nerdly like me, you also know the Supreme Court's work on this issue sometimes makes very hard to answer whether a particular state crime is a "crime of violence" for federal sentencing law purposes. This reality is on stark display in a 40-page opinion handed down today by a Fourth Circuit panel in US v. Martin, No. 12-5001 (4th Cir. June 5, 2014) (available here).
At issue in Martin is the seemingly simple question of whether the defendant's prior Maryland conviction "for fourth-degree burglary constituted a crime of violence under U.S.S.G. § 2K2.1(a)(2)." But each judge on the panel had something distinct to say on the matter: "Chief Judge Traxler wrote the majority opinion, in which Judge Diaz joined. Judge Diaz wrote a separate concurring opinion. Judge O’Grady wrote a dissenting opinion." Gluttons for jurisprudential punishment will want to read the entire Martin ruling, but others will get a feel for this story from portions of Judge Diaz's concurrence:
This case raises a vexing question regarding the application of the crime of violence enhancement found in the Guidelines: To what extent does Begay’s “similar in kind” test for analyzing offenses under the residual clause survive Sykes v. United States, 131 S. Ct. 2267 (2011)? Specifically, would the Supreme Court apply that test in determining whether Martin’s fourth degree burglary conviction under Maryland law qualifies as a crime of violence? Or would the Court again change course?...
“[T]o put it mildly,” the residual clause is “not a model of clarity.” See James, 550 U.S. at 217 (Scalia, J., dissenting). The clause “is nearly impossible to apply consistently,” and the Supreme Court’s jurisprudence “has created numerous splits among the lower federal courts.” See Chambers v. United States, 555 U.S. 122, 133 (2009) (Alito, J., concurring in the judgment); cf. United States v. Vann, 660 F.3d 771, 797 (4th Cir. 2011) (en banc) (Davis, J., concurring) (“At the end of the day, it may well be that Justice Scalia is right: that the residual clause of the Armed Career Criminal Act is unconstitutionally vague.”)
The Supreme Court has struggled mightily to make sense of this sphinx-like provision, but the clause remains an elusive target. We are told that a prior conviction triggers the sentencing enhancement when “the risk posed by [the offense at issue] is comparable to that posed by its closest analog among the enumerated offenses.” See James, 550 U.S. at 203 (majority opinion). But, at least in some cases, the offense must also be “roughly similar, in kind as well as in degree of risk posed, to the [enumerated] examples.” See Begay, 553 U.S. at 143. To be roughly similar in kind, the crime must be “purposeful, violent, and aggressive.” See id. at 145. Fear not though, because “[i]n many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk.” See Sykes, 131 S. Ct. at 2275. As Justice Scalia noted in dissent in Sykes, however, why the inquiry will often be redundant, and when it will not be, “are not entirely clear.” See 131 S. Ct. at 2285....
Beyond this case, however, “[t]he Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come.” Id. at 2287 (Scalia, J., dissenting). I urge Congress or the Court to shed light on this “black hole of confusion and uncertainty.” See Vann, 660 F.3d at 787 (Agee, J., concurring).
"Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause"
The title of this post is the title of this notable new paper by Paul Larkin now available via SSRN. Here is the abstract:
The Supreme Court long ago rejected due process challenges to the government’s use of strict liability offenses, but the Court has never considered the issue of whether imprisonment for such crimes violates the Cruel and Unusual Punishments Clause. Being unable to persuade the Court to forbid strict liability crimes altogether, defendants incarcerated for those crimes are likely to argue that their punishment is cruel and unusual. It therefore may not be long before the courts, including the Supreme Court, must finally address the issue. When that day arrives, the Court should limit the penalties that can be imposed for strict liability crimes by forbidding any period of incarceration altogether or, at least, by outlawing imprisonment. The Constitution should not allow a person to be imprisoned for committing a strict liability offense.
New poll purports to show "New Low in Preference for the Death Penalty"
This new ABC News article, which has the headline quoted above, reports that a "majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls." Here is more about the latest findings from this latest poll:
Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty – the fewest in polls dating back 15 years. The result follows a botched execution by lethal injection in Oklahoma in late April.
Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the fewest in polls back to the early 1980s. That’s down sharply from 80 percent in 1994....
Another result finds that most supporters of capital punishment hold that position even if lethal injections became unavailable or were outlawed. Just 16 percent of death penalty supporters say either of those would constitute grounds for doing away with capital punishment; eight in 10 would shift to another method, e.g., the electric chair or gas chamber....
Support for the death penalty is higher in the 32 states that have it, 64 percent, vs. 54 percent elsewhere. In a wider gap, people in death-penalty states divide about evenly in their preference for capital punishment vs. life without parole, while in other states life imprisonment is preferred by a 20-point margin....
Views on capital punishment range among groups. Fifty-six percent of women support the death penalty, rising to 66 percent of men. And women prefer life in prison to the death penalty by 57-37 percent, while men are evenly divided.
There’s also a vast gap by race; whites are more likely than nonwhites to support the death penalty, and to prefer it over life in prison, by 23- and 22-point margins. The gaps are widest comparing whites to blacks, a group that’s generally skeptical of the criminal justice system. Their support for the death penalty is lower than that of any other group.
Among other groups, support for the death penalty peaks among evangelical white Protestants and Republicans, at eight in 10 each, dropping to 47 percent among Democrats. It’s 20 points higher among conservatives than liberals. Preference for capital punishment over life in prison follows similar patterns, peaking at 65 percent among evangelical white Protestants (vs. 36 percent of their non-evangelical counterparts). It’s 30 points higher among Republicans than Democrats, and 25 points higher among conservatives than liberals.
In terms of change, preference for the death penalty vs. life in prison is down by 8 points since 2006, with the most pronounced drops (by 10 to 20 points) among non-evangelical white Protestants, seniors, nonwhites, less-educated adults, liberals and independents.
June 4, 2014
Over 1000 faith leaders sign letter in support of Smarter Sentencing Act
As highlighted by this article, over "1,100 clergy and faith leaders urged Congress to pass legislation reducing federal mandatory minimum sentences for drug offenses in a June 3 letter to party leaders in the House and Senate." Here is more about the prominent voices joining the chorus advocating for federal sentencing reform:
A total of 1,129 signers asked Senate Majority Leader Harry Reed (D-Nev.), Senate Minority Leader Mitch McConnell (R-Ky.), House Speaker John Boehner (R-Ohio) and House Minority Leader Nancy Pelosi (D-Calif.) to support the Smarter Sentencing Act, a bipartisan measure that passed the Senate Judiciary Committee in January. The faith leaders said tough sentencing laws passed in the 1980s “war on drugs” disproportionately affect minorities....
“For too long, Congress has ignored the consequences of the harsh sentencing policies it approved during the 1980s and the disproportionate harm it has caused people of color and those convicted of low-level offenses,” the letter said. “The Smarter Sentencing Act is a step towards addressing racial injustice as well as reducing mass incarceration that characterizes our current justice system.”
Roy Medley, general secretary of American Baptist Churches USA, was a lead signer for the letter coordinated by the Faith in Action Criminal Justice Reform Working Group, a coalition of 43 faith organizations chaired by the United Methodist General Board of Church & Society.
Defendant's appeal gets his sentence increased(!) from 30+ years to LWOP
The First Circuit handed down a remarkable ruling in US v. Sevilla-Oyola, No. 12-1264 (1st Cir. June 3, 2014) (available here). As the start and end of the 30+ page majority opinion highlights, this case provides a remarkable reminder to becareful what you ask for when pursuing an appeal:
Sometimes it's better to quit while you're ahead. The district judge twice conducted plea colloquies and thrice imposed sentences for Carlos Sevilla-Oyola ("Sevilla"), each one shorter than the last. Still dissatisfied, Sevilla asks us for another bite at the sentencing apple before a different district judge. To support his claim before this court, Sevilla says the district judge lacked authority for actions taken after entry of the first sentence, and flaws in the initial plea colloquy warrant vacation of the first judgment. Alternatively, he says that even if the judge's later actions were authorized, they were plagued by additional errors.
We agree that the district judge lacked statutory authority to act after he entered the original sentence and that the initial plea colloquy was flawed. But we cannot say that the imperfections Sevilla cites justify setting aside the first judgment. Nor can we say, based on the arguments Sevilla puts forth before us, that the first sentence was unreasonable. Accordingly, the first and most severe sentence imposed by the district judge — 327 months plus a consecutive term of life imprisonment — stands. And Sevilla — who until today was facing a total sentence of 405 months — will likely find himself wishing he had left well enough alone....
We acknowledge that our result may seem harsh. Where Sevilla once faced 405 months' imprisonment, now he must grapple with a life sentence. But Sevilla chose to proceed with this appeal knowing he risked a higher sentence.
At oral argument, we explicitly asked Sevilla's counsel if Sevilla understood that this appeal could subject him to a sentence based on consideration of his alleged involvement in the Pitufo murder and longer than the 405-month term ultimately imposed by the district judge. We sought confirmation that Sevilla wished to appeal anyway. On the spot, counsel asserted that Sevilla understood these risks, but he agreed to call Sevilla to confirm.
A few days later, counsel filed an unresponsive motion that did not address whether Sevilla understood the risks he faced by seeking vacation of the third and most favorable 405-month sentence. We then entered a written order again instructing counsel to inquire whether Sevilla wished to pursue the appeal even though "re-sentencing in this matter presented the risk to [Sevilla] of receiving a sentence greater than his current sentence of 405 months and up to life imprisonment, particularly if the district court were to consider either [Sevilla's] alleged involvement in the 'Pitufo' murder or calculate a base sentencing level and make appropriate upward departures." (Emphasis in original.) Counsel filed a second motion saying he had explained those risks to Sevilla and Sevilla still wished to proceed.
While our order focused on the risk of a life sentence upon re-sentencing before the district court, the propriety of a life sentence was clearly before us in this appeal. And because we expressly warned Sevilla that a life sentence remained on the table, though the outcome we reach is not what Sevilla hoped for, at least it should come as no surprise.
Judge Torruella authored a lengthy dissent to the majority ruling, which gets started and ends this way:
Carlos Sevilla-Oyola ("Sevilla") was sentenced by the district court to 405 months in prison. On appeal, he brings to our court's attention numerous errors. The majority, finding several of these claims meritorious, has granted a most unusual form of "relief" — life in prison. From that irrational result, I respectfully dissent....
Sevilla's sentencing was fraught with mistakes, misstatements, and omissions on the part of the sentencing judge. The unique posture of this case, arising from a sentencing replete with errors of the court's own making, and concerning an error that no party seeks to defend, is well fit for a simple resolution: remand for a correction of the Rule 11 error and imposition of a new sentence. Instead, the majority now sua sponte chooses to summarily impose the first sentence, which the district court judge himself determined to be erroneous and improper, and which no party has sought to defend on appeal. In so doing, the majority — from a cold appellate record, and in contravention of the intent and discretion of the sentencing judge — has increased Sevilla's sentence from just under thirty-four years to life in prison. This life sentence is based in no small part upon uncharged conduct which the district court, in its discretion, ultimately deemed improper to consider in this case.
In attempting to defend this resolution, the majority states that Sevilla was put on notice of the fact that, upon remand and resentencing, his ultimate sentence might be greater than the 405 months on appeal. That notice, however, never so much as hinted at the idea that our court might short-circuit the accepted practice of remand, which would have provided Sevilla with a chance to be heard at a new sentencing hearing, and instead simply impose a sentence significantly higher than that from which he appealed.[FN 36]
From this result, a pyrrhic victory if there ever was one, I respectfully dissent.
[FN 36] I know of no other case — and the majority cites to none — in which an appellate court undertook to put in place a higher sentence than that from which the defendant's appeal was taken. The unusualness of this situation is surely cold comfort to Sevilla, who (as the majority suggests) will undoubtedly "wish he had left well enough alone." I hope, however, that it might mitigate the chilling effect of this result, such that future defendants are not made fearful of bringing even meritorious claims on appeal. While the majority seems to chide Sevilla for not "quit[ting] while [he was] ahead," I see no humor or harm in a defendant attempting to bring to our court's attention a heavily flawed sentencing process. If Sevilla is seeking "another bite at the sentencing apple," our court would do well to recognize that this is because his first was so thoroughly rotten.
I presume and expect that this defendant will not pursue en banc review and/or Supreme Court review. I wonder if he should worry that such further appellate efforts might risk earning him a death sentence.
Constitutional challenge to California's solitary confinement practices to proceed as class action
As reported in this Los Angeles Times article, headlined "Judge grants class action status to inmates' solitary confinement case," a notable procedural ruling in a notable prisoner suit was handed down earlier this week. here are the basics:
A federal judge in Oakland has granted inmates in solitary confinement at Pelican Bay State Prison class action status in their claims of unconstitutional treatment. The inmates allege physical and psychological abuse when California puts inmates in Pelican Bay's windowless isolation cells. The prisoners are confined 22 hours a day and, in some cases, have been in solitary for years and decades at a time....
The Pelican Bay inmates, in their federal lawsuit, also challenged the administrative process California uses to determine who to send to the super-maximum security cells for an indefinite stay....
In courtroom proceedings, lawyers for the state have argued that isolation is necessary to keep the peace within prisons, and to hinder gang activity inside and outside prison walls. They said that by creating a so-called "step-down" program last year that allows some prisoners to eventually earn their way out of isolation, the state had made sufficient improvements.
In her ruling Monday, U.S. District Judge Claudia Wilken narrowed the class action case to just those Pelican Bay inmates who have not been accepted into the state's step-down program. Civil rights lawyers litigating the case say they hope a victory will set a national precedent on the use of extended isolation in prisons across the United States....
The class action motion was filed by 10 Pelican Bay inmates in solitary confinement, but California has since moved five of them to other quarters. Wilken's order allows the remaining five prisoners to represent the larger class of some 500 Pelican Bay prisoners who have spent more than a decade in isolation, and some 1,100 put into solitary because of alleged gang associations....
Wilken refused to allow the state prison guard union to intervene in the lawsuit. The California Correctional Peace Officers Assn. had argued that it had an interest in protecting the safety of its members by preventing prisoners from leaving solitary confinement.
"Max Out: The Rise in Prison Inmates Released Without Supervision"
The title of this post is the title of a notable new report Public Safety Performance Project of The Pew Charitable Trusts. This press release about the report provides a helpful summary of its main findings, and here are excerpts from the release:
More than 1 in 5 state inmates maxed out their prison terms and were released to their communities without any supervision in 2012, undermining efforts to reduce reoffending rates and improve public safety, according to a report released today by The Pew Charitable Trusts.
A wide range of laws and policies adopted in the 1980s and ’90s has resulted in a sharp increase in the rate at which inmates serve their full sentences behind bars, leaving no time at the end for parole or probation agencies to monitor their whereabouts and activities or help them transition back into society by providing substance abuse, mental health, or other intervention programs....
Key findings of the report, Max Out: The Rise in Prison Inmates Released Without Supervision, include:
Between 1990 and 2012, the number of inmates who maxed out their sentences in prison grew 119 percent, from fewer than 50,000 to more than 100,000.
The max-out rate, the proportion of prisoners released without receiving supervision, was more than 1 in 5, or 22 percent of all releases, in 2012.
Max-out rates vary widely by state: In Arkansas, California, Louisiana, Michigan, Missouri, Oregon, New Hampshire, and Wisconsin, fewer than 10 percent of inmates were released without supervision in 2012. More than 40 percent of inmates maxed out their prison terms and left without supervision in Florida, Maine, Massachusetts, New Jersey, North Carolina, Ohio, Oklahoma, South Carolina, and Utah.
Nonviolent offenders are driving the increase. In a subset of states with data available by offense type, 20 and 25 percent of drug and property offenders, respectively, were released without supervision in 2000, but those figures grew to 31 and 32 percent, or nearly 1 in 3, in 2011.
In the past few years, at least eight states—Kansas, Kentucky, New Hampshire, North Carolina, Ohio, Oklahoma, South Carolina, and West Virginia—adopted reforms to ensure that authorities can supervise all or most offenders after release from prison. These policies, most of which are too new to evaluate, typically carve out the supervision period from the prison sentence rather than add time for it after release. This allows states to reduce prison spending and reinvest some of the savings in stronger recidivism-reduction programs....
These new policies are backed by data that indicate inmates released to supervision are less likely to commit new crimes than those who max out and return home without oversight....
The report outlines a policy framework to guide state leaders in reducing max-outs and recidivism. It recommends that policies require post-prison supervision, carve out the community supervision period from prison terms, strengthen parole decision-making, tailor conditions to offenders’ risks and needs, adopt evidence-based practices, and reinvest savings in community corrections.
June 3, 2014
After botching the first attempt, should Ohio be allowed a second chance to execute Romell Broom?
The old saying goes, "If at first you don't succeed, try, try again." But, as reported in this new AP article, the Ohio Supreme Court is going to considerwhether, after the state was unable to suceed in executing Romell Brown back in 2009, it will be permitted to try again. The AP article is headlined "Ohio Court to Weigh Repeat Execution Attempt," and here are excerpts:
Ohio's top court has agreed to hear arguments that the country's only survivor of a botched lethal injection would face cruel and unusual punishment and double jeopardy if the state again attempts to put him to death.
Romell Broom, 57, was sentenced to die for the 1984 rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland as she walked home from a Friday night football game with two friends.
His 2009 execution was stopped by then-Gov. Ted Strickland after an execution team tried for two hours to find a suitable vein. Broom has said he was stuck with needles at least 18 times, with pain so intense that he cried and screamed. An hour into the execution, the Department of Rehabilitation and Correction recruited a part-time prison doctor with no experience or training with executions to try — again, unsuccessfully — to find a vein.
Broom's appeals in federal court are on hold while the state court hears the constitutional arguments. Broom has been back on death row since. No new execution date has been set.
In 1947, Louisiana electrocuted 18-year-old Willie Francis by electric chair a year after an improperly prepared electric chair failed to work. The U.S. Supreme Court ruled 5-4 to allow the second execution to proceed, rejecting double jeopardy arguments. A state's administration of its criminal law isn't affected by due process rights, when "an accident, with no suggestion of malevolence, prevents the consummation of a sentence," the court ruled at the time.
Broom suffered more than inmates during "a normal execution," meaning a second attempt would punish him twice for the same offense, defense attorneys Tim Sweeney and Adele Shank told the state Supreme Court in a May 2012 filing.... The state argues that Broom never underwent the execution process since the procedure was called off before the drugs could be introduced into his veins.
For a number of reasons, the precedental force of the split SCOTUS ruling on this issue way back in 1947 is somewhat shaky. In addition, the Ohio Supreme Court might rely on state constitutional law to block giving Ohio officials another shot at completing Broom's death sentence. But I suspect the state will argue forcefully that it still can and should be allowed to carry out Broom's imposed sentence. Stay tuned.
Michigan Supreme Court holds that Gov cannot revoke a valid sentence commutation
Today in Makowski v Governor, No. 146867 (Mich. June 3, 2014) (available here), the Michigan Supreme Court declared unanimously that "the Michigan Constitution does not grant the Governor the power to revoke a valid commutation." Here is an excerpt from the start of the syllabus to the decision which provides context for and summarizes the context of the ruling:
Matthew Makowski filed an action in the Court of Claims against the Governor and the Secretary of State, seeking a declaratory judgment and injunctive relief to reverse then Governor Jennifer Granholm’s decision to revoke her commutation of plaintiff’s nonparolable life sentence that had been imposed for his first-degree murder and armed robbery convictions. The Governor had signed the commutation on December 22, 2010, after which it was signed by the Secretary of State and affixed with the Great Seal; however, four days later, the Governor decided to revoke the commutation order, and all copies of the commutation certificate were destroyed. Plaintiff alleged that the commutation was final when it was signed, sealed, and delivered to the Department of Corrections, and argued that the Governor lacked the authority to revoke a completed commutation. The court, Richard D. Ball, J., granted defendants’ motion for summary disposition, concluding that it lacked jurisdiction to review the governor’s exercise of discretion over commutation decisions. Plaintiff appealed. The Court of Appeals, O’CONNELL, P.J., and CAVANAGH and DONOFRIO, JJ., affirmed, holding that the Governor’s exercise of the commutation power presented a nonjusticiable political question. 299 Mich App 166 (2012). The Supreme Court granted plaintiff’s application for leave to appeal. 494 Mich 876 (2013).
In an opinion by Justice CAVANAGH, joined by Chief Justice YOUNG and Justices MARKMAN, KELLY, AND VIVIANO, the Supreme Court held:
The interpretation and exercise of the Governor’s powers under Const 1963, art 5, § 14 were justiciable questions properly before this Court. The Constitution did not give the Governor the power to revoke a validly granted commutation. A commutation is complete when it is signed by the Governor and the Secretary of State and affixed with the Great Seal. Because the Governor signed plaintiff’s commutation and delivered it to the Secretary of State, where it was signed and affixed with the Great Seal, plaintiff was granted an irrevocable commutation of his sentence.
Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
This notable new commentary in The Huffington Post by Megan Quattlebaum makes the case for the US Sentencing Commission to make fully retroactive its new guidelines amendment reducing most federal drug sentencing recommendations. Here are excerpts:
In a landmark decision, the United States Sentencing Commission voted last month to lower the recommended penalty for federal drug crimes by about 17 percent. As of now, the change will apply only to defendants who are sentenced after November 1, 2014. But the Commission is also exploring whether the reduction should be made retroactive, and it issued two reports two reports two reports (available here and here) analyzing that question last week.
Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences. That a large number of people will be affected is not surprising -- almost half of all federal prisoners (48 percent) are incarcerated for drug crimes. But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels. We incarcerated approximately 25,000 people in federal prisons in 1980. By 2013, that number had risen to over 219,000. As a result, the federal prison system is operating at 36 percent over capacity, costing taxpayers $6.4 billion per year and climbing....
Second, a significant percentage (about 25 percent) of the 51,141 potentially eligible for earlier release are non-citizens who may be subject to deportation. Many rightly question the wisdom of incarcerating large numbers of ultimately deportable non-citizens at taxpayer expense....
Third, the average age of an inmate who will be eligible for a sentence reduction is 38 years. In the universe of criminal justice, 38 is old. Researchers have consistently found that involvement in street crimes, like drug offenses, generally begins in the early teenage years, peaks in young adulthood, and dissipates before the individual turns 30. Explanations for this phenomenon are varied, but "[a] large body of research shows that desistance from crime... is... tied to the acquisition of meaningful bonds to conventional adult individuals and institutions, such as work, marriage and family..." These older offenders should have a low risk of recidivism generally. And the more that we can do to foster their re-engagement with their families and communities, the lower that risk will be.
Fourth, 20 percent of the individuals who may be eligible for earlier release come from one state: Texas. True, Texas is big and populous, but it's also punitive. The more heavily populated state of California only accounts for five percent of potential sentence reductions, while New York accounts for about four percent. Reading the charts that accompany the Sentencing Commission report is a statistical window into the American drug war, in which hang 'em high southern states feature prominently, if not proudly.
The Sentencing Commission is accepting public comments until July 7, 2014 on whether to make these changes to drug sentences retroactive. Some will no doubt argue against retroactivity, either out of fear that releasing individuals earlier will permit them re-offend sooner or out of concern for the serious workload that federal courts will have to take onin order to process so many applications for sentence reduction. But if we have revised our view of what constitutes a just sentence for a drug offense, then we cannot and should not justify continuing to incarcerate 51,141 people under an old, rejected understanding. We should never be afraid of too much justice.
I am grateful to see this thoughtful effort to dig into the US Sentencing Commission data concerning who could benefit from the new drug guidelines being made retroactive. And I think this commentary rightly highlights that the nationality status and the age profile of federal drug prisoners provide some important extra reasons for being comfortable with the new guidelines being made retroactive.
That said, the commentary about Texas justice and the state-by-state analysis strikes me a potentially a bit misguided. I suspect and fear that federal prosecution of drug crimes in Texas is higher than in other states not only because of the likely international dimensions to many drug crimes around the Mexican border but also because state drug laws in other states may be uniquely harsh. This commentary compares data from California and New York, but these two states have had a history of some notorious tough state sentencing laws (i.e., the Three Strikes Law in California, the Rockefeller Laws in NY). There may be so many federal drug prisoners from Texas not because state sentencing policies and practices are so tough, but because federal policies and practices relative to state norms are so much tougher and because local drug crimes are not really local along the border.
My point here is to highlight that state-by-state examination of federal drug sentencing patterns may reflect lots of distinct and dynamic factors. Notably, the Commission data indicate that about the same number of federal drug prisoners from Iowa will be impacted by retroactivity of the new drug guidelines as from Arkansas and Mississippi combined. These data alone hardly reveal the corn belt is the real "hang-em-high" center for the national drug war. Ultimaely, ever-changing local, state and national drug use and trafficking patterns along with dynamic prosecutorial policies and priorities likely better explain state-by-state federal prisoner data than any social or political conventional wisdom.
Some various somewhat recent related posts:
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- US Sentencing Commission to vote on reducing drug sentencing guidelines
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
- New York Times op-ed spotlights enduring flaw with modern drug sentencing
- Gov Chris Christie talking up drug sentencing reform as a pro-life commitment
Empirical explorations of modern capital clemency
Michael Heise has recently posted on SSRN two intriguing pieces concerning the modern patterns of capital clemency. Here are links and abstracts:
While America’s appetite for capital punishment continues to wane over time, clemency for death row inmates is all but extinct. Moreover, what little clemency activity that persists continues to distribute unevenly across gender, racial and ethnic groups, geography, governors’ political affiliation, and over time. Insofar as courts appear extremely reluctant to review — let alone interfere with — clemency activity, little, if any, formal legal recourse exists. Results from this study of clemency activity on state death rows (1973-2010) suggest that potential problems arise, however, to the extent that our criminal justice system relies on clemency to function as coherent extrajudicial check.
Conventional wisdom notes persistent regional differences in the application of the death penalty, with southern states’ appetite for capital punishment exceeding that of non-southern states. Scholars analyzing the distributions of death sentences and state executions find a geographic influence. Less explored, however, is a possible regional difference in the distribution of executive clemency even though clemency is an integral component of a criminal justice system that includes capital punishment. If geography influences the distribution of the death penalty, geography should also influence the distribution of clemency. Data, however, reveal some surprises. Using a recently-released data set of all state death row inmates from 1973 to 2010, this paper considers whether clemency is exercised in southern and non-southern states in systematically different ways. No statistically significant differences exist between southern and non-southern states when it came to clemency, even though southern states were more prone to execute and less prone to disturb death sentences through reversal on appeal than northern states. When it comes to the influence of geography in the death penalty context, the findings provide mixed support and convey a complicated picture.
June 2, 2014
"After 5 Months of Sales, Colorado Sees the Downside of a Legal High"
The title of this post is the headline of this lengthy recent article appearing in the New York Times. As the headline suggests, the article documents glass-half-empty data and perspectives on Colorado's on-going experiment with marijuana legalization. Here are excerpts:
Five months after Colorado became the first state to allow recreational marijuana sales, the battle over legalization is still raging. Law enforcement officers in Colorado and neighboring states, emergency room doctors and legalization opponents increasingly are highlighting a series of recent problems as cautionary lessons for other states flirting with loosening marijuana laws.
There is the Denver man who, hours after buying a package of marijuana-infused Karma Kandy from one of Colorado’s new recreational marijuana shops, began raving about the end of the world and then pulled a handgun from the family safe and killed his wife, the authorities say. Some hospital officials say they are treating growing numbers of children and adults sickened by potent doses of edible marijuana. Sheriffs in neighboring states complain about stoned drivers streaming out of Colorado and through their towns.
“I think, by any measure, the experience of Colorado has not been a good one unless you’re in the marijuana business,” said Kevin A. Sabet, executive director of Smart Approaches to Marijuana, which opposes legalization. “We’ve seen lives damaged. We’ve seen deaths directly attributed to marijuana legalization. We’ve seen marijuana slipping through Colorado’s borders. We’ve seen marijuana getting into the hands of kids.”
Despite such anecdotes, there is scant hard data. Because of the lag in reporting many health statistics, it may take years to know legal marijuana’s effect — if any — on teenage drug use, school expulsions or the number of fatal car crashes. It was only in January, for example, that the Colorado State Patrol began tracking the number of people pulled over for driving while stoned. Since then, marijuana-impaired drivers have made up about 1.5 percent of all citations for driving under the influence of drugs or alcohol.
Proponents of legalization argue that the critics s are cherry-picking anecdotes to tarnish a young industry that has been flourishing under intense scrutiny. The vast majority of the state’s medical and recreational marijuana stores are living up to stringent state rules, they say. The stores have sold marijuana to hundreds of thousands of customers without incident. The industry has generated $12.6 million in taxes and fees so far, though the revenues have not matched some early projections.
Marijuana supporters note that violent crimes in Denver — where the bulk of Colorado’s pot retailers are — are down so far this year. The number of robberies from January through April fell by 4.8 percent from the same time in 2013, and assaults were down by 3.7 percent. Over all, crime in Denver is down by about 10 percent, though it is impossible to say whether changes to marijuana laws played any role in that decline....
The argument is being waged with fervor because both sides say Colorado’s successes and failures with regulating marijuana will shape perceptions of legalization for voters considering similar measures in other states and for leery federal law enforcement officials. After the 2012 legalization votes in Colorado and Washington State — where recreational sales are expected to begin this summer — Justice Department officials gave the states a cautious green light. But they warned that they might intervene if marijuana ended up fueling violence or drug trafficking, or flowing across state lines or into the hands of children.
Marijuana opponents like Thomas J. Gorman of the Rocky Mountain High Intensity Drug Trafficking Area program, which helps law enforcement, say Colorado is already falling short of those standards. “In any other state if they were making as much money and growing as much dope, they’d be taken out by the feds,” Mr. Gorman said.
Few agree on how much legally purchased marijuana is being secreted out of Colorado. Michele Leonhart, the head of the Drug Enforcement Administration, told a Senate panel in April that officials in Kansas had tallied a 61 percent increase in Michele Leonhart, the head of the Drug Enforcement Administration, told a Senate panel in April that officials in Kansas had tallied a 61 percent increase inseizures of marijuana that could be traced to Colorado. But according to the Kansas Highway Patrol, total marijuana seizures fell to 1,090 pounds from 2,790 pounds during the first four months of the year, a 61 percent decline.
Some sheriffs and police chiefs along Colorado’s borders say they have noticed little change. But in Colby, Kan., which sits along an interstate highway running west to Colorado, Police Chief Ron Alexander said charges for sale, distribution or possession related to marijuana were rising fast. This year, he tallied 20 such cases through May 23. Two years ago, there were six during that same time period. Sheriff Adam Hayward of Deuel County, Neb., said he was locking up more people for marijuana-related offenses. “It’s kind of a free-for-all,” he said. “The state or the federal government needs to step up and do something.”...
Police and fire officials across the state have been contending with a sharp rise in home explosions, as people use flammable butane to make hashish oil.. And despite a galaxy of legal, regulated marijuana stores across the state, prosecutors say a dangerous illicit market persists....
Many of Colorado’s starkest problems with legal marijuana stem from pot-infused cookies, chocolates and other surprisingly potent edible treats that are especially popular with tourists and casual marijuana users. On Colorado’s northern plains, for example, a fourth grader showed up on the playground one day in April and sold some of his grandmother’s marijuana to three classmates. The next day, one of those students returned the favor by bringing in a marijuana edible he had swiped from his own grandmother. “This was kind of an unintended consequence of Colorado’s new law,” said John Gates, the district’s director of school safety and security. “For crying out loud, secure your weed. If you can legally possess it, that’s fine. But it has no place in an elementary school.”
So far this year, nine children have ended up at Children’s Hospital Colorado in Aurora after consuming marijuana, six of whom got critically sick. In all of 2013, the hospital treated only eight such cases.
Cross-posted at Marijuana Law, Policy and Reform
Tenth Circuit explains what's the matter with Kansas prior convictions as enhancers
Thanks to a helpful reader, I learned that today the Tenth Circuit handed down a significant opinion concerning the use of prior Kansas offenses in career offender guideline calculations in US v. Brooks, No. 13-3166 (10th Cir. June 2, 2014) (available here). Here is how the opinion in Books starts and ends:
Did Defendant Damian L. Brooks commit enough prior qualifying felonies to be considered a “career offender” under the Federal Sentencing Guidelines? The district court below said yes, relying on United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), to classify a prior Kansas conviction of Defendant as a felony because it was punishable by more than one year in prison. On appeal, Defendant admits Hill mandates this classification. He argues, however, that Hill was abrogated by the Supreme Court in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). We agree. As such, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reverse and remand for resentencing....
In conclusion, Hill — which looked to the hypothetical worst possible offender to determine whether a state offense was punishable by more than a year in prison — cannot stand in light of Carachuri-Rosendo. We now hold, in line with our pre-Hill precedent, that in determining whether a state offense was punishable by a certain amount of imprisonment, the maximum amount of prison time a particular defendant could have received controls, rather than the amount of time the worst imaginable recidivist could have received. As such, Defendant’s prior Kansas conviction for eluding police is not a felony for purposes of U.S.S.G. § 4B1.1(a). The district court’s imposition of a career offender enhancement was therefore in error and is REVERSED. This case is REMANDED for resentencing.
The helpful reader who alerted me to this opinion noted that "for those of us who deal with Kansas state convictions, it is (as Ron Burgundy would say), kind of a big deal." Here is part of this reader's explanation for why:
Previous 10th Circuit authority held that a conviction for a Kansas on grid "felony" was punishable by more than one year if a sentence more than one year could be imposed on any hypothetical defendant. That is, the analysis was not limited by a defendant's actual criminal history category on the state guidelines grid. If more than one year could be imposed for any criminal history category, the conviction = felony for purposes of federal law, even though a particular defendant may have only been exposed to a sentence less one year or less....
This ruling will impact multiple areas of federal prosecution and sentencing. For instance, if the high end of a defendant's KS gridbox is 12 months, then the conviction is not a disabling conviction for purposes of 18 USC 922(g)(1). Likewise, such a conviction would not be a predicate conviction for purposes of the Armed Career Criminal Act or the Career Offender guidelines enhancement.
A more limited effect will be that a few drug-grid convictions will not be a "prior drug felony" that can enhance a controlled substance offense under 21 USC 851.... Certain attempts/conspiracies/solicitations to commit drug crimes would also not be a federal felony for enhancement purposes.
Because I do not know how many federal sentencing cases are significantly impacted by how certain prior Kansas offenses are assessed, I cannot readily guess just how loudly this Brooks ruling might echo in other settings. But I do know that a similar type of ruling from the Fourth Circuit a few years ago concerning how North Carolina priors were to be treated has tied up a lot of federal courts in a lot of jurisprudential knots as they try to unwind the impact of "mis-assessed prior offenses." Consequently, I would advise court officials and federal practitioners in Kansas and perhaps throughout the Tenth Circuit to start reviewing and giving thought to what Brooks says and what it could mean for prior cases as well as future ones.
Is midazolam the key problem drug in recent lethal injection experiments?
The question in the title of this post is prompted by this informative new Wall Street Journal article headlined "Lethal-Injection Drug Is Scrutinized: Midazolam, Used in Botched Oklahoma Execution, Tied to Two Other Cases Seen as Troubling." Here are excerpts:
Anesthesiologists say midazolam works like a dream. A few milligrams of the sedative calms patients' preoperative anxiety, while leaving them alert enough to talk with doctors and nurses before the more potent drugs kick in.
Reviews of its newer role as part of states' lethal-injection protocols aren't as unanimous. The drug, made by several companies in the U.S., has come into the spotlight with April's high-profile botched execution in Oklahoma, the first in that state to use midazolam. State officials injected Clayton Lockett, convicted of kidnapping and murdering a 19-year-old woman, with 100 milligrams of midazolam to render him unconscious. They then injected another drug to paralyze him and a third to stop his heart....
The drug has been used in nine executions since last fall, and lethal-injection experts have voiced concerns about three of those—the Oklahoma case, one in Florida and another in Ohio.
In the past, executioners would typically use thiopental and pentobarbital, which belong to a class of drugs known as barbiturates. Anesthesiologists say thiopental, which has largely been phased out of use, was aimed mostly at preventing a patient from feeling stimuli that would typically be painful. Pentobarbital is still used, they say, mostly to induce comas.
The makers of thiopental and pentobarbital, worried about the drugs being associated with capital punishment, cut back their availability for executions, leading some states to turn to midazolam. It belongs to a drug class known as benzodiazepines, which anesthesiologists say are most often used to sedate or calm patients, not anesthetize them. Anesthesiologists say they typically administer midazolam to a patient only a few milligrams at a time and therefore know little about the effects of much larger doses, like those given in lethal-injection protocols.
There is little agreement about how much to use in executions. Florida uses 500 milligrams, while Oklahoma used 100 milligrams on Mr. Lockett. Ohio used only 10 milligrams of midazolam in a January execution, but in April announced that it would change to 50 milligrams. None of the three states would comment on why they chose midazolam or how they settled on dosages.
"It's uncharted territory," said David Waisel, an anesthesiologist at Boston Children's Hospital who has testified on behalf of death-row inmates. "States literally have no idea what they're doing to these people." Dr. Waisel and others say that even when administered properly and at high doses, it is unclear whether midazolam sufficiently anesthetizes the sensations caused by the other drugs often used alongside it, such as vecuronium bromide, a muscle relaxant that causes paralysis, and potassium chloride, which stops the heart. Both of those drugs were used on Mr. Lockett.
Conservative Justices debate treaty powers, local crimes and constitutional connections
The sole criminal justice ruling from the US Supreme Court this morning comes in Bond v. US, No. 12-158 (S. Ct. June 2, 2014) (available here), and conservative con law thinkers are likely to enjoy the lengthy read much more than sentencing fans. Writing for the Court, Chief Justice Roberts starts this way in Bond:
The horrors of chemical warfare were vividly captured by John Singer Sargent in his 1919 painting Gassed. The nearly life-sized work depicts two lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.
The painting reflects the devastation that Sargent witnessed in the aftermath of the Second Battle of Arras during World War I. That battle and others like it led to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings. Today that objective is reflected in the international Convention on Chemical Weapons, which has been ratified or acceded to by 190 countries. The United States, pursuant to the Federal Government’s constitutionally enumerated power to make treaties, ratified the treaty in 1997. To fulfill the United States’ obligations under the Convention, Congress enacted the Chemical Weapons Convention Implementation Act of 1998. The Act makes it a federal crime for a person to use or possess any chemical weapon, and it punishes violators with severe penalties. It is a statute that, like the Convention it implements, deals with crimes of deadly seriousness.
The question presented by this case is whether the Implementation Act also reaches a purely local crime: an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water. Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach. The Chemical Weapons Convention Implementation Act contains no such clear indication, and we accordingly conclude that it does not cover the unremarkable local offense at issue here.
Notably, all the Justices agree that the federal prosecution and conviction in Bond must be reversed, but Justices Scalia, Thomas and Alito write concurrences to explain why they view Bond's treatment as unconstititional not merely statutorily unauthorized. And while I suspect con law scholars will have a grand time debating the virtues and vices of the different perspectives of the different conservative Justices, I fear that criminal law practitioners are unlikely to find much in Bond to use in more traditional federal cases.
House votes to preclude funding for clemency efforts as well as for pot prosecutions
I was amazed and pleased upon learning that a majority of members of the US House of Representative voted for an appropriations measure that would preclude the Justice Department from using funds to prevent states from implementing their medical marijuana laws (basics here and here). But I was also amazed and peturbed upon learning that a majority of members of the US House of Representative also voted for an appropriations measure that would preclude the Justice Department from using funds to have more DOJ attorneys screen clemency petitions in conjunction with efforts to bring old excessive sentences in line with current laws and norms. This MSNBC article, headlined "House Republicans vote to block Obama’s new pardon attorneys," explains:
The U.S. House voted Thursday to block the Obama administration’s plan to add staff to the Pardon Attorney’s office, a potential barrier to the Justice Department’s efforts to scale back some lengthy prison sentences handed down in the war on drugs. The measure, sponsored by Republican North Carolina Rep. George Holding, bans any funding for staff who would conduct the administration’s planned review of applications from inmates seeking early release.
The measure is attached to a new Justice Department funding bill that passed on a party-line vote of 219-189. A Justice Department official told msnbc that Attorney General Eric Holder considers the new funding restriction “absurd.”
The department in April launched a new effort to review more clemency applications and expand the criteria for releasing inmates, particularly those still imprisoned under harsh sentencing laws that have since been reformed. Holding said he pushed the funding ban because he believes Obama is intent on using his presidential pardon power “solely on behalf of drug offenders.”
Speaking on the House floor, Holding also accused the administration of bulking up the Pardon Attorney’s office as a “political ploy” in order to “bypass Congress” and drug laws that are still on the books.
House Democrats objected, saying the funding ban would hamper the research and expertise of the Pardon Office. “If there were a resignation in the office and if you needed to have a temporary detailee, it would be prohibited from this amendment,” Pennsylvania Democratic Rep. Chakah Fattah said. “The last thing we would want is the President using such extraordinary power without the benefit of proper staff and due diligence,” he added.
Virginia Republican Rep. Bob Goodlatte, the House Judiciary Committee chairman, said that while “no one denies the constitutional power of the president to grant clemency,” the Justice Department’s encouragement of “thousands” of clemency appeals is an improper use of the clemency power. “Congress should not fund that office for that purpose,” Goodlatte said.
To date, President Obama has granted ten clemency petitions out of 11,218 clemency petitions received.
I am inclined to use the word asinine rather than absurd to describe this funding restriction and vote. Congress ought to pass a resolution if it is eager to provide advice or express concerns about how Prez Obama (or any other president for that matter) may be planning to use the constitutional clemency authority. But to prevent DOJ from having adequate resources to better screen the huge number of petitions coming from a huge number of federal prisoners serving now reformed sentences seems more likely to encourage misuse rather than better use of the clemency power. Sigh.
June 1, 2014
Some recent posts of note from Marijuana Law, Policy & Reform
Continuing the sporatic tradition of a review of activities on marijuana law and policy fronts, here is a round up of recent notable posts from Marijuana Law, Policy and Reform:
"Death penalty in Kansas: Will the state ever execute another prisoner?"
The title of this post is the headline of this lengthy article in the Lawrence Journal World. And though focused on the modern story of capital administration in the Sunflower State, there are likely at least a dozen other states which still have the death penalty on the books and a number of prisoners on death row (ranging from California to Pennsylvania, from North Carolina to Washington) for which the same question could be reasonably asked given the lack of execution in these states for more than half a decade. Here are excerpts abut the modern capital story in Kansas that is similar (though with distinct facets) to what happen in a number of states :
Moments before he was hung to death, George York expressed contrition for his sins....
The state of Kansas had not forgiven York, convicting him of one of several murders he had confessed to as part of a cross-country killing spree with fellow Army deserter James Latham. So on June 22, 1965, York was led up the 13 steps of the gallows at the Kansas State Penitentiary in Lansing. A prison chaplain read from the 23rd Psalm as the noose was placed around York's neck. At 12:53 a.m., the trap door dropped. The 22-year-old was pronounced dead 19 minutes later.
York was the last person executed by the state of Kansas. In recent years, several states have banned capital punishment. It is on hiatus in some states because of problems obtaining the drugs used in lethal injections, which has led to botched executions, mostly recently in Oklahoma. But in Kansas, the death penalty is in a sort of legal limbo: still on the books, just not being carried out.
There have been no executions in the 20 years since the death penalty was reinstated in Kansas, due, observers say, to an exhaustive appeals process, a cautious state Supreme Court dealing with a fairly new and restrictive law, and the state's relatively low murder rate. Nine men are currently on death row in Kansas.
Only two other states besides Kansas — Nebraska and California — have a lethal injection chamber that has never been used. The only death penalty state that has gone longer without an execution is New Hampshire, which last killed a prisoner in 1939 and has only one person on death row. Kansas doesn't even have lethal injection drugs in stock because a possible execution is so far in the future....
Earlier this year, the Kansas legislature debated a bill that proponents said would speed up the appeals process in capital cases. The legislation didn't pass. One of its supporters, state Sen. Greg Smith, R-Olathe, was asked why there have been no executions in Kansas in recent years. "Four words: the Kansas Supreme Court," he said. "It's not that we don't use the death penalty in Kansas. It's that the Kansas Supreme Court refuses to apply the law and allow a lawful sentence to be carried out."
Smith, whose daughter was murdered in Missouri in 2007, refuses to name death row inmates, instead invoking the names of victims when discussing cases. "What we tend to forget is the people who do this had zero mercy for the people they killed," he said. "The people who are murdered go through hell. After they're murdered, we forget about the victim. People say, let's not be inhumane, but what about the people they killed?" He said the drawn-out appeals process puts families of victims "right back into that emotional mess they were in when they loved ones were killed."
The state's top prosecutor, Attorney General Derek Schmidt, also supported the changes, saying the Supreme Court should review only the sentencing rather than the whole case and that defendants' ability to file successive, unnecessary motions clogs up the appellate system. "Attorney General Schmidt has a long record of supporting Kansas’ narrowly tailored death penalty," said his spokesman, Clint Baes. "In addition, our office this year supported a legislative proposal which would have held the courts accountable to their own procedural rules. A lack of adherence to these rules by our appellate courts has led to the long delays in death penalty appeals."
The state Supreme Court not only declared Kansas' death penalty statute unconstitutional in 2004 (a decision later reversed by the U.S. Supreme Court), it has overturned the death sentences in all five of the modern capital cases it has issued opinions on....
Some legal experts say the Supreme Court takes so much time reviewing death penalty cases because the law in its current form has only existed for 20 years....
Jeffrey Jackson, a Lawrence attorney and law professor at Washburn University, said he believes that the death penalty statute has a deterrent effect. The state's murder rate has declined since capital punishment was reinstated, from 170 in 1994 to 84 in 2012, though that mirrors a similar drop in homicides across the country.
He also noted that as the state Supreme Court continues to work through the issues surrounding Kansas' death penalty statute, the appeals process will likely quicken. "Unless the Legislature repeals the death penalty, I think there will eventually be an execution," he said. (A recent bill to abolish capital punishment in Kansas would not have applied to the nine men already on death row). "The more cases you have, the better the judges get at figuring out how to do these things. They're still going to take a lot of time, but it's not going to increase. It's almost assured that we will have an execution as long as the statute is in place."
That execution, if it comes, probably won't be happening in the near future. Even if the Kansas' high court affirms a death sentence, it will then have make its way through the federal appeals system. "The death penalty is by far the most complex set of laws there could be in criminal law," said Ron Wurtz, the former chief of the state's Death Penalty Defense Unit, who doesn't see a Kansas inmate being put to death anytime soon. "It's not even close right now. I'd say it's probably 10 more years out, at the very least."
Could video kill the sentencing brief?
The question in the title of this post is prompted by this notable Wall Street Journal article headlined "Leniency Videos Make a Showing at Criminal Sentencings: Some Lawyers Supplement Letters of Support With Mini-Documentaries; Effectiveness Is Debated." Here are excerpts:
Randy Ray Rivera, formerly of Springfield, Mass., and now a resident of the Metropolitan Detention Center in Brooklyn, is the subject of a documentary film that was made for a very limited audience: the federal district judge who held Mr. Rivera's fate in his hands.
It tells the story of a young man who began dealing drugs as a teenager to support his siblings and his heroin-addict mother, who died of AIDS in 2004. The 26-minute video includes emotional interviews with Mr. Rivera's brothers and sisters, daughters and son, current and ex-girlfriends and a social worker, as well as with Mr. Rivera himself, in white-and-gray prison garb.
Such films, while rare, have caught on in some federal public defenders' offices. Now, some private lawyers and investigators are attempting to unlock the potential of video in the sentencing phase of criminal cases, supplementing the memorandum and letters of support that are typically used to plead for leniency.
"The sentences are almost always better than they would otherwise be," said Doug Passon, a veteran assistant federal public defender in Arizona who is considered by his peers to be a pioneer of so-called sentencing-mitigation videos. For the past five years, he has held a sentencing film festival at an annual training conference for federal public defenders....
Judge William Sessions III, who sits on the federal district court in Vermont, gave Mr. Rivera 12 years in prison, after viewing the video Mr. Rivera's legal team put together. It captures the rundown buildings in Springfield that Mr. Rivera's family occupied, sometimes as squatters. At one point, Mr. Rivera's teenage daughter, through tears, calls him "one of the best dads ever."
Judge Sessions, speaking generally about sentencing videos, said, "When you have a video of either a defendant's life or a victim's life, it provides context for that life." But he said videos weren't a substitute for a good legal argument in a sentencing memorandum. "They are supplementary," he said....
Proponents say the videos fall within the scope of a federal rule that allows people convicted of a crime to "speak or present any information to mitigate the sentence" to the courts. But some courts have rejected sentencing videos, after prosecutors protested they weren't given an opportunity to question the witnesses who appeared in the videos, investigators said.
While investigators and lawyers say such videos are used in a small fraction of the tens of thousands of federal cases that end in a criminal sentence each year, the word appears to be slowly spreading. Susan Randall, a former documentary filmmaker who now works as a private investigator in Vermont, said she has created more than 20 sentencing videos for a range of white-collar and drug defendants, including Mr. Rivera....
Katrina Daniel, a former television news reporter who covered crime, started her own production company in 2012 and has made about 10 sentencing videos, charging anywhere from $5,000 to $20,000.Some are simply interviews with the defendants, while others draw on family, friends, co-workers and others. Ms. Daniel said she tries to convey the defendant's remorse and acceptance of responsibility.
Mr. Passon said he got the idea for sentencing videos from an attorney he clerked for in 1995, while he was law student at Washington University in St. Louis. They were representing a man charged with a drug crime whose wife was dying of lupus, and the defendant was her sole caretaker. "We were trying to show how desperately he was needed at home," Mr. Passon said. They went to the client's home with a clunky, tape-fed video camera and recorded the man as he cared for his wife. "It was very, very powerful," said Mr. Passon.
Pop culture fans will know that the title of this post is a bit of an homage to the very first video ever played on MTV and a song which may be my all-time favorite one-hit wonder. And long-time readers will know I cannot resist this excuse for a mini-song parody based on the start of the lyrics to Video Killed the Radio Star:
I heard you sold some drugs back in '92
Bad criminal intent will keep haunting you
Your criminal history points keep coming through
You now get credit for singing like a symphony
And will be helped by machine on new technology
And now I understand the post-Booker scene
We met your children
What will we show them?
Video killed the sentencing brief
Video killed the sentencing brief
Pictures came and eclipse my words,
We can't mitigate down too far