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June 21, 2014

Citing Windsor, marijuana defendant aggressively attacks federal prosecution

This interesting local article from Michigan, headlined "Attorney says marijuana wrongly classified as dangerous drug, federal prosecution unfair," highlights interesting arguments being made in a local federal prosecution:

A West Michigan man facing federal marijuana charges has filed a constitutional challenge based, in part, on disparate federal prosecution in different states. Shawn Taylor, the alleged leader of a marijuana grow operation, also argues that marijuana has medicinal value and should not be classified as a Schedule 1 drug -- the designation for the most dangerous drugs.

Taylor is seeking an evidentiary hearing on the issues before U.S. District Judge Robert Jonker in Grand Rapids.  “We’re raising arguments that have really never been raised before in a federal marijuana case,” former Kalamazoo attorney John Targowski, now practicing in Santa Monica, Calif., said on Thursday, June 19, after he filed an 86-page brief on behalf of his client. “We’re arguing that cannabis is wrongly scheduled -- it has medicinal value,” Targowski said.

Taylor is one of 37 people arrested for alleged roles in grow operations in Kent, Muskegon, Oceana and Ottawa counties and Traverse City.

Targowski said that a U.S. Supreme Court decision invalidating the Defense of Marriage Act should have bearing on marijuana cases.  “Recognizing the historical support for defining marriage as between one man and one woman, the court determined that it was the duty of the judiciary to rectify past misperceptions which result in constitutionally unsound legislation,” Targowski wrote in court documents.

“Like the long held beliefs regarding the marital relationship, the long held beliefs about the effects of marijuana have evolved. While the former evolution has been the result of societal ideologies, the latter is predicated on scientific evidence, and therefore, can be more readily established through an evidentiary hearing.”

Targowski has asked that Jonker consider declarations of three experts, including a former FBI supervisor and a physician, to establish there is no rational basis to treat marijuana as a controlled substance.  Medical science has documented that “marijuana has a notably low potential for abuse,” Targowski wrote.

He said the Supreme Court has acknowledged its medical value.  “Compared to other over-the-counter substances, cannabis has the lowest potential for abuse, as it is impossible to die from an overdose: further, no studies have proven that the use of cannabis causes harms similar to those caused by the use of common over-the-counter medications, even at recommended dosages,” he wrote.  “In effect, the facts upon which marijuana was scheduled as one of the most dangerous narcotics in 1970 have been disproven.”

He also said that the government’s policy of not prosecuting those who comply with their state’s medical marijuana laws amounts to unequal prosecution based on where people live.  “The policy statement presented in the memorandum to U.S. Attorneys from Deputy Attorney General James Cole, issued on Aug. 29, 2013, by Attorney General Eric Holder has resulted in a discriminatory application of federal law, in that it protects similarly situated individuals from criminal sanctions for actions identical to that alleged to have been conducted by the defendant, and therefore violates the Equal Protection Clause,” Targowski wrote.

The government contends Taylor ran a large-scale drug operation that sold marijuana in Michigan, Indiana and Ohio.  He worked with a doctor for “certification clinics” for alleged patients, police said. The government said Taylor used the state’s medical marijuana law as a ruse.

As the title of this post suggests, I find the argument based on the Supreme Court's rejection of DOMA in the Windsor ruling the most intriguing (and perhaps most viable) argument here. Until I can see the defense's 86-page filing in this case, as well as the feds response, I am disinclined to predict whether the defendant here will even secure an evidentiary hearing to present all his best evidence to attack federal marijuana law and policy. But I am already inclined to predict that these kinds of arguments could become a real game-changer if hundreds of federal marijuana defendants were to start raising them in dozens of federal district courts.

Cross-posted at Marijuana Law, Policy and Reform

UPDATE:  The lawyer representing Shawn Taylor in the federal indictment in the western district of Michigan reported to me via e-mail that he "essentially replicated work that has been successful in another case in the Eastern District of California, which has led to the scheduling of an evidentiary hearing later this summer to allow the defendant to raise the issues with expert testimony." He tells me that "California attorneys Zenia Gilig and Heather Burke wrote the originally brief in the ED of CA case {though] their work didn't get any press." He also provided this link to a California blog covering the case out there which has some pdfs of some key documents.

June 21, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (9) | TrackBack

"Tales of a Jailhouse Gourmet: How I learned to Cook in Prison"

1403315752152.cachedThe title of this post is the headline of this new intriguing and entertaining new Daily Beast piece authored by Daniel Genis.  Here are excerpts:

In prison, food takes on a significance that’s nearly unimaginable in the outside world. Sometimes it’s a scarce resource that confers power; everywhere it’s a status symbol and a form of currency. Cooking behind bars, was one of the few kinds of freedom us convicts could enjoy. On the flip side, food symbolizes a rigid social order. It doesn’t matter what kinds of friends you had on the outside, in lockup you don’t eat with other races. Period. So, food is a powerful thing for convicts, both a daily reminder of your awful situation, and one of the only outlets for creativity and sources of pleasure.

Me, I was a jailhouse gourmet.

In some countries getting arrested means starving half to death, or making it the whole way there. But my own expertise is in American prisons, where obesity is actually a problem. We channeled all our criminal smarts into finding ways to con the food system. We got so good we actually managed to prepare dumplings, pupusas, and handmade pork rinds.

The implements used to cook in the New York state prisons where I spent a decade are a testimony to human ingenuity, and the desire to eat something special is yet another way that men preserve their individuality and humanity. Most everyone in prison cooks, and some convicts reach an incredible level of craft, considering that they are using nail clippers hooked to a power outlet.

The food that is served by the state is uniformly vile; it is an expression of hatred in soy-protein. I always felt especially despised during holiday meals; Thanksgiving was three slices of processed turkey, and I always seemed to get a beak in mine. After all, I did consume eleven of these meals, one on every holiday I spent inside.

Convicts do have favored items. Where I served people looked forward to the Jamaican beef patties, fried chicken legs and hamburgers. However, apart from the poultry, which is of the lowest FDA grade, soy protein plays a role in everything served. That is not the tofu you see in groceries or even the meat substitute sold in vegetarian places. It is the ‘whey’ left over from making such things — essentially a waste product — dried out into sheets that are folded and refolded until chunks are created. Brazil makes this stuff out of their enormous soy bean plantations and sells it to places that provide food for refugee camps and prisons. It has an enormous dose of estrogen in it, leading to many voluptuous prisoners in New York state prisons.

Given that the food they are served uses soy waste as a staple and is almost universally disgusting, convicts turn into cooks. At the commissary there was always raw spaghetti and rice for sale along with summer sausage (which strangely does not need to be refrigerated), chicken hotdogs, cans of mackerel, onions and garlic....

Heat is required for most forms of cooking. Not all; you can ferment, you can make ceviche, you can dry and salt… but for the limited array of foodstuffs we had access to, heat was required. In ‘non-cooking’ prisons they still sold raw macaroni but if you boiled water to cook it you were breaking the law. To cook the macaroni the commissary sold hotpots, which you needed a permit to possess and could only buy one a time. And for all that trouble, the hotpots were specially designed so they wouldn‘t actually boil water. You could tinker with them so they would boil but then the cops could take it away for being an ‘altered item’. In Mediums they had communal microwaves.

With time I learned to disassemble the entire hotpot and mount the heating coil on a roast beef can with a whole punched in it. My own personal prison grill. We called this rigged device an ‘eye’, and since the cops know that it is just for cooking, they mostly left them alone. The next step was to steal one of the six pound tuna cans from the warehouse. I had to retrieve the tin from a special compacter before it was crushed, an exercise in timing. Once the can was smuggled back to my cell, it became my wok and the stir fry was on.

But not every prison even sold hotpots. What then? Jailhouse ingenuity conquers all. It turns out that a nail clipper, divided into two halves and hooked up directly into a power socket will boil water. Dropping live wires into a plastic bag of water is terrifying, and you can’t forget to add a pinch of salt in order for the current to flow faster. Of course, this causes the nail clippers to oxidize and the water turns rusty, but it boils. The ochre spaghetti you get looks steampunk, but tastes just fine. And no worries about your iron content.

June 21, 2014 in Prisons and prisoners | Permalink | Comments (5) | TrackBack

Two more prominent conservative prosecutors call for less incarceration

Ken Cuccinelli, a former Virginia AG, and Deborah Daniels, a former DOJ official in the Bush Administration, have this notable new opinion piece in the Washington Post headlined "Less incarceration could lead to less crime." In part because this piece reflects a lot of my own views on the modern need for modern reforms, I will quote it at length:

When crime rates began rising in the 1960s and too many Americans felt unsafe walking in their neighborhoods, the idea of putting more people in prison — and keeping them there longer — made sense.

For the next three decades, our nation did just that, as public unease propelled lawmakers to promote longer sentences, curbs on parole and other measures making our correctional system ever tougher.

Now more than 2 million American adults are behind bars and nearly one of every 33 is under some form of correctional control — either incarcerated or supervised in the community. During Ronald Reagan’s presidency, the rate was one in 77.

As conservatives with backgrounds in law enforcement, we embraced the orthodoxy that more incarceration invariably meant less crime, no matter the offense or the danger posed by its perpetrator. But crime rates have been falling since the early 1990s, and a growing body of research combined with the compelling results of reforms in many states prove it is time to adjust our approach.

In short, we must reserve our harshest and most expensive sanction — prison — for violent and career criminals while strengthening cost-effective alternatives for lower-level, nonviolent offenders. The latter lawbreakers must be held accountable for their crimes, but they pose less risk and hold greater potential for redemption.

With today’s sophisticated assessment tools, we can better sort offenders and match them with the levels of treatment and community supervision that offer the best chance for them to stay crime free. Specialty courts that use swift and certain sanctions to promote compliance with drug tests and other conditions of probation are another key plank in this approach.

Let us be clear: Society’s treatment of dangerous, violent felons should remain as punitive as ever. Communities need protection from such predatory criminals, and incapacitation — for a long time, no matter the cost — remains the proper response. Widespread incarceration has played a role in making our streets safer. Estimates vary, but many social scientists believe that expanding imprisonment can be credited for up to a third of the crime reduction of recent years, with demographics, advances in policing and a hotly debated mix of other dynamics accounting for the rest.

However, when it comes to the public safety benefits of incarceration, at least for some offenders, it is clear that we are well past the point of diminishing returns. And given that recidivism levels remained disappointingly high as incarceration rates rose, we would be foolish to ignore the need for a course correction.

The Pew Charitable Trusts recently reported that states that have cut their imprisonment rates (coupled with other reforms) have experienced a greater crime drop than those that increased incarceration. Between 2007 and 2012, the 10 states with the largest decreases in imprisonment rates had a 12 percent average reduction in crime, while the 10 states with the largest imprisonment rate increases saw crime fall 10 percent....

When you see, as we have, what reduces criminal behavior, it’s easier to accept the notion that for many offenders, prison is not the best answer. That conclusion is part of what led us to join Right on Crime, a national movement of conservatives who support a criminal justice system reflecting fiscal discipline, a belief in redemption, the empowerment of victims and reliance on solid evidence to determine the most cost-effective use of taxpayer funds to reduce recidivism and improve public safety.

Much of the talk about such reforms highlights their fiscal payoff, and we’re all for saving taxpayer dollars. But as conservatives, we also applaud such efforts because they reflect an evidence-driven approach that values results, not imprisonment for imprisonment’s sake.

Let’s resist our old incarceration reflex and support a rational system anchored in the knowledge, experience and values of today. Let’s preserve families, restore victims, help willing offenders turn their lives around and keep the public safe.

Some older and recent posts on the "new politics" of sentencing reform:

June 21, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

June 20, 2014

"Ignoring Issues of Morality or Convicting the Innocent, Is Capital Punishment a Good Idea or a Bad Idea?"

The question in the title of this post is the title of this intriguing little essay by Ron Allen now available via SSRN. Here is the abstract:

The conventional debate over the risk of executing an innocent person is examined and shown to be vacuous.  More innocent lives, by orders of magnitude, are lost through incarceration (the alternative to a death penalty) than could possibly have result from executing innocent defendants.  This is an instance of the deadly dilemma of governing, which inevitably involves tradeoffs of social goods and costs, often of precisely the same variable.

June 20, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

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:

June 20, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

"A Suggested Minor Refinement of Miller v. Alabama"

The title of this post is the title of this new Comment by Devina Douglas now available via SSRN. Here is part of the abstract:

While some heralded the recent United States Supreme Court’s Miller v. Alabama decision — forbidding mandatory life without parole (LWOP) sentences for juveniles — as a step in the right direction for protecting the interests of juveniles within the adult criminal justice system, the decision is also a step backwards for the ability states to sentence their criminals as they sees fit....  This Comment argues the Court spoke too broadly applying its rule to all minors.

This essay will first summarize the Supreme Court’s previous sentencing precedent, the cases that paved the way for the Miller decision — establishing that “children are different,” — and then the Miller decision.  Next, it will highlight the troubles lower courts have faced in trying to implement the decision, the flaws in, and alternative interpretations of, the science relied upon, and then turn to the question of whether juveniles over the age of sixteen have reached sufficient maturity as to allow the system to hold them as accountable as adults for homicide crimes.  In response to the likelihood that those sixteen and over are sufficiently mature, this Comment will propose a way to preserve deference to the various state legislatures’ sentencing decisions while addressing increasing concern that juveniles should be treated differently.  The Miller pre-sentencing evaluation factors should only apply categorically to those under sixteen, and those sixteen and seventeen in cases where the juvenile offender is quite young or possesses what the Court calls twice-diminished culpability: where the system convicted the offender under an aiding and abetting or accomplice theory, or felony murder.

June 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

June 19, 2014

Notable AG Holder speech on modern approach to modern drug war

Attorney General Holder delivered this speech today at a government summit on heroin and prescription drugs use and abuse, and criminal justice fans might be especially interested in these excerpts:

Between 2006 and 2010 -- across America -- heroin deaths increased by 45 percent. That’s a shocking statistic, but it’s only one of many clear indications that we’re up against an urgent public safety and public health crisis -- one that affects Americans in every state, in every region, and from every background and walk of life.  We’ve learned from scientific studies, treatment providers, victims, and investigations that the cycle of heroin abuse commonly begins with prescription opioid abuse.  And this can make the problem exceedingly difficult to track and to overcome....

Since the beginning of this Administration, with DEA as our lead agency, the Justice Department has adopted a sweeping strategy to prevent pharmaceutical controlled substances from getting into the hands of non-medical users....

We also have stepped up our investigatory efforts, opening more than 4,500 heroin-related investigations since 2011, and increasing the amount of heroin seized along America’s southwest border between 2008 and 2013 by 320 percent.  Of course, like you, I recognize that we cannot solve this problem through enforcement alone.  And we will never be able to arrest or incarcerate our way to becoming a safer nation.

This is why education, prevention, and treatment -- along with vigorous enforcement -- must all be significant components of any comprehensive solution.  Over the past few years, the DEA and others within the Department of Justice have stepped forward to help educate pharmacists, doctors, and other health practitioners in the identification and prevention of controlled substance diversion during the healthcare delivery process....

On the national level, we’re moving even more broadly -- under the Smart on Crime initiative I announced last August -- to put in place a range of targeted, systemic reforms to ensure that 21st century challenges can be met with 21st century solutions.

This groundbreaking new effort relies upon proven, evidence-based strategies to achieve better outcomes throughout the federal criminal justice system -- and particularly with regard to nonviolent, drug-related crimes.  These policy changes are predicated on the notion that our work must be informed, and our criminal justice system continually strengthened, by the most effective and efficient strategies available.

We’re also strengthening diversion programs like drug courts, veterans courts, and community service initiatives -- so we can provide alternatives to incarceration for some people and offer treatment and rehabilitation to those who need it.  Nationwide, the Justice Department is supporting more than 2,600 specialty courts that connect over 120,000 people convicted of drug-related offenses with the services they need to avoid future drug use.

And we’re striving to improve and reinforce reentry programs and initiatives from coast to coast – so we can enable formerly incarcerated individuals to return to their communities better prepared to contribute, and to lead, as full and productive members of society.

Let me be clear: we will never waver in our commitment to act aggressively to keep America’s streets safe and our children free from drug addiction and abuse.  And we will never stop being tough on crime and the choices that breed it.  But, like you, we also recognize that we must be smart, efficient, and effective as we strive to disrupt and diminish the scourge of addiction -- along with the underlying conditions that trap too many individuals in a vicious cycle of drugs, criminality, and incarceration....

At the end of the day, the most important work we do is invariably the work that takes place within our own communities – not simply as professionals, but as mentors, advocates, and counselors; as parents, neighbors, and friends.  We need to make sure our kids live in neighborhoods where adults can reach out to them -- where moms and dads, teachers and faith leaders, little league coaches and Scoutmasters can be trusted and positive influences in young lives.  And this work must be embraced by whole communities – because it is only by standing together, through collective action and comprehensive effort, that we’ll be able to make the difference we seek.

June 19, 2014 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Florida completes third uneventful US execution in less than one day

As reported in this CNN piece, a "double murderer was executed in Florida Wednesday night, becoming the third man put to death in an American prison during a 24-hour period." Here are the basics:

John Ruthell Henry, 63, was declared dead at 7:43 p.m. ET at the Florida State Prison in Starke, according to CNN affiliate WFLA, which had a media witness inside the prison. Henry fatally stabbed his wife and her 5-year-old son from a previous marriage in December 1985.

In Georgia, Marcus A. Wellons, 59, was declared dead at 11:56 p.m. ET Tuesday. Wellons was convicted in 1993 of raping and killing India Roberts, 15, in Cobb County, just outside Atlanta. In Missouri, John Winfield was declared dead at 12:01 a.m. CT Wednesday, the state Department of Public Safety said....

Those three executions were the first in the United States since the botched execution of an Oklahoma man in April. The Oklahoma execution raised questions about how prisons use drugs in lethal injections.

June 19, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

June 18, 2014

Fascinating accounting of state incarceration rates in a global perspective

I just came across this interesting chart and discussion headlined "States of Incarceration: The Global Context," which reviews world incarceration rates if every U.S. state were a country. The chart and related discussion is both enlightening and depressing, and here is an excerpt:

Around the globe, governments respond to illegal activity and social unrest in many ways. Here in the United States, policymakers in the 1970s made the decision to start incarcerating Americans at globally unprecedented rates.... While there are certainly important differences between how U.S. states handle incarceration, placing each state in a global context reveals that incarceration policy in every region of this country is out of step with the rest of the world....

If we compare the incarceration rates of individual U.S. states and territories with that of other nations, for example, we see that 36 states and the District of Columbia have incarceration rates higher than that of Cuba, which is the nation with the second highest incarceration rate in the world.  New Jersey and New York follow just after Cuba.  Although New York has been actively working on reducing its prison population, it’s still tied with Rwanda, which has the third highest national incarceration rate. Rwanda incarcerates so many people (492 per 100,000) because thousands are sentenced or awaiting trial in connection with the 1994 genocide that killed an estimated 800,000 people.

Next comes the state of Washington, which claims the same incarceration rate as the Russian Federation. (In the wake of collapse of the Soviet Union, Russia used to rival the United States for the highest incarceration rate in the world.  An epidemic of tuberculosis in the overcrowded prisons, however, encouraged the Russian government to launch a major amnesty in 1999 that significantly lowered that country’s incarceration rate.)

Utah, Nebraska and Iowa all lock up a greater portion of their populations than El Salvador, a country with a recent civil war and one of the highest homicide rates in the world.8 Five of the U.S. states with the lowest incarceration rates — Minnesota, Massachusetts, North Dakota, New Hampshire, and Rhode Island — have higher incarceration rates than countries that have experienced major 20th century social traumas, including several former Soviet republics and South Africa.

The two U.S. states that incarcerate the least are Maine and Vermont, but even those two states incarcerate far more than the United State’s closest allies. The other NATO nations, for example, are concentrated in the lower half of this list.  These nations incarcerate their own citizens at a rate five to ten times lower than the United States does.

June 18, 2014 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Should feds agree to moving capital trial of Boston Marathon bomber?

As discussed in this USA Today article, headlined "Lawyers for Boston bombing suspect want trial elsewhere," the most notorious federal capital defendant is likely to seek to be tried in a jurisdiction outside the community he helped terrorize.  Here are the basic details, after which I explain why I think federal prosecutors might seriously consider agreeing to a change of venue:

Attorneys for Boston Marathon bombing suspect Dzhokhar Tsarnaev are due in federal court today in Boston, where they are expected to ask a judge to move their client's November trial.

Judge George A. O'Toole Jr. last week denied a motion that would have given attorneys Miriam Conrad and Judith Clarke until August to make their case for changing venues.  At issue is whether Tsarnaev can receive a fair trial in the city where two bombs went off near the Marathon finish line on April 15, 2013, leaving three dead and more than 260 wounded....

Questions of venue came up last month in three related obstruction of justice cases. Judge Douglas Woodlock said at the time that media coverage in Boston hasn't made it impossible to impanel local juries that will be fair to three friends of Tsarnaev who allegedly interfered with bombing investigations.  "I don't find it to be the kind of press coverage that on the whole creates presumptions," Woodlock said.

He added, however, that "the proof of the pudding is in the selection of the jury." If impartial jurors can't be found in Boston, then the upcoming trials of Azamat Tazhayakov, Dias Kadyrbayev and Robel Phillipos could be moved to Springfield, Mass.  Tsarnaev's trial is scheduled to begin Nov. 3.

I wonder if the feds have thought about agreeing to a change of venue, and also urging the new venue to be a nearly jurisdiction with some history with the death penalty like Connecticut or New York. I fear that, absent a change of venue, Tsarnaev's defense team will have a potent appeal issue for challenging a death sentence for many years to come. A venue change seems the only way to avoid years of litigation on this front, and such a venue change might arguably make it easier for the feds to ultimately secure the conviction and death sentence prosecutors are seeking.

Notably, a change of venue was granted in the other historic and horrific federal capital bombing trial of recent vintage: US. District Judge Richard Paul Matsch ordered that the venue for the trial of the Oklahoma City bomber Tim McVeigh be moved to Denver based on concerns he would be unable to receive a fair trial in Oklahoma. Given that history and precedent, I think the feds would be wise to agree rather than oppose the defense effort to have the trial moved.

June 18, 2014 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"Sentencing Terrorist Crimes"

The title of this post is the title of this notable new article by Wadie E. Said now available via SSRN. Here is the abstract:

The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Court’s sentencing jurisprudence requires district courts to make no factual findings that raise a criminal penalty over the statutory maximum, other than those found by a jury or admitted by the defendant in a guilty plea. Within those parameters, however, the Court has made clear that such sentences are entitled to a strong degree of deference by courts of review.

Historically, individuals convicted of committing crimes involving politically motivated violence/terrorism were sentenced under ordinary criminal statutes, as theirs were basically crimes of violence. Even when the law shifted to begin to recognize certain crimes as terrorist in nature — airplane hijacking being the prime example — sentencing remained relatively uncontroversial from a legal perspective, since the underlying conduct being punished was violent at its core. In the mid-1990s, the development and passage of a special sentencing enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the opportunity for district courts to significantly increase the penalty for certain activity that fell into a defined category of what was termed “a federal crime of terrorism.” Coupled with the post-9/11 trend of the government using a relatively new offense, 18 U.S.C. § 2339B, the ban on providing material support to designated foreign terrorist organizations, as its main legal tool in the war on terrorism, sentences for such crimes increased significantly, even in situations where there was no link to an act of violence. The application of section 3A1.4 invites a district court to find certain facts, under the preponderance of the evidence standard, which bring the conduct into the category of a federal crime of terrorism, thereby triggering greatly enhanced punishment. A review of the reported decisions involving section 3A1.4 reveals, however, that only in rare cases do courts find the enhancement to be improperly applied. This Article argues that, as currently understood, the application of section 3A1.4 raises serious concerns about its fidelity to the Supreme Court’s Sixth Amendment jurisprudence.

The existence of a terrorism sentencing enhancement also serves as a kind of statutory basis to embolden courts of appeals to overturn a sentence as too lenient, as has been the case in certain high-profile prosecutions, such as those of Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As the examples in this Article demonstrate, those courts of review that have engaged in this practice either fail to appreciate or disregard the Supreme Court’s instructions to engage in a highly deferential type of review of a district court sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting them cite no evidence or studies in support, creating the impression that a court of review may overturn a sentence in a terrorism case simply because it disagrees with the district court, something the Supreme Court has said is improper. In light of this recent development, this Article recommends that some combination of Congress, the United States Sentencing Commission, and the federal courts establish standards to better help a court decide when a heightened punishment might be warranted, free from unsupported assumptions about the nature of terrorism or a particular defendant.

June 18, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Georgia and Missouri complete uneventful executions, Florida up next

As reported in this AP article, "Within an hour, Georgia, then Missouri carried out the nation’s first executions since a botched lethal injection in Oklahoma in April raised new concerns about capital punishment." Here is more:

Neither execution had any noticeable complications. Another execution, the third in a 24-hour span, is scheduled Wednesday evening in Florida.

Georgia inmate Marcus Wellons, 59, who was convicted of the 1989 rape and murder of a 15-year-old girl, received a single-drug injection late Tuesday night after the U.S. Supreme Court denied his late appeals. His sentence was carried out about an hour before John Winfield, who was convicted of the 1996 killing two women, was executed early Wednesday in Bonne Terre, Missouri.

Looks like at least two states have their machineries of death up and running smoothly again.

June 18, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Senator Rand Paul continues making the conservative case for criminal justice reform

Regular readers know of my respect and admiration for Senator Rand Paul's modern efforts to explain to lots of folks how is modern conservative values call for modern crimnal justice reforms.  This Huffington Post article, headlined "Rand Paul Tackles Prisons 'Full Of Black And Brown Kids' Amid GOP Reach For Minority Votes," reports on how potent Senator Paul's points have become as he makes the case for criminal justice reforms:

In an ongoing effort to bridge the gap between the GOP and minority voters, Sen. Rand Paul (R-Ky.) deviated from traditional party lines during a speech at the Iowa State Republican Party Convention Saturday, criticizing racist drug policies in the United States and calling for the restoration of voting rights for ex-convicts.

After conceding that his position may not "bring everybody together" and establishing that "drugs are a scourge," Paul continued:

I also think it’s a problem to lock people up for 10 and 15 and 20 years for youthful mistakes. If you look at the War on Drugs, three out of four people in prison are black or brown. White kids are doing it too. In fact, if you look at all the surveys, white kids do it just as much as black and brown kids -- but the prisons are full of black and brown kids because they don’t get a good attorney, they live in poverty, it’s easier to arrest them than to go to the suburbs. There’s a lot of reasons.

The likely 2016 presidential contender, who previously compared federal drug laws to the racist policies of the Jim Crow era, also criticized the GOP for failing to live up to its platform emphasis on family values. “If we’re the party of family values, in 1980 there were 200,000 kids with a dad in prison. There’s now two million,” Paul said, calling on Judeo-Christian conservatives to set policies by the principle of redemption.

Some related posts:

June 18, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

June 17, 2014

"Six Reasons Why Support for the Death Penalty Is Evaporating"

The title of this post is the sub-headline of this new Slate commentary by William Saletan.  Here is how the piece previews six reasons that follows:

For 40 years American politicians have assumed that favoring the death penalty is a winning political position. Is that era coming to an end? Is support for capital punishment, like opposition to gay marriage, evaporating? 

We can’t be sure. But we’re seeing the first signs that it could happen.

Death penalty support peaked at 80 percent in 1994 in the Gallup poll and the National Opinion Research Center’s General Social Survey. Since then, it has been sliding. In the most recently published GSS sample, taken in 2012, support fell to 65 percent, the lowest number since the question was introduced in its current form four decades ago. If it falls any further, it’ll be in new territory. The latest Gallup sample, taken last year, found that support was down to 60 percent for the first time in 40 years.

In a Pew survey taken a year ago, support for executing murderers dropped to 55 percent, 3 points down from Pew’s previous low. Last month, in a CBS News survey, the support level fell to 59 percent (4 points down from the previous low) while the percentage of respondents who opposed the death penalty rose to 33 percent (6 points above the previous high). It’s the first time in the 26 years CBS News has asked this question that the support number has fallen into the 50s or the opposition number has climbed into the 30s.

A Washington Post/ABC News poll released this month points in the same direction. Given a choice between two punishments for murder, only 42 percent chose the death penalty. Fifty-two percent preferred life imprisonment without parole. That’s an 8-point drop in support for capital punishment since the previous Post/ABC poll in 2006. It’s the first time in recent history a majority has chosen life over death.

Why is enthusiasm for the death penalty declining? Will it keep falling? Let’s look at what has changed

June 17, 2014 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

June 16, 2014

"Lethal Injection Secrecy and Eighth Amendment Due Process"

The title of this post is the title of this timely new article by Eric Berger now available via SSRN.  Here is the abstract:

The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure with which the state plans to kill them.

This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal crucial details of its execution procedure, thereby effectively insulating it from judicial review.

As in other constitutional contexts, then, due process norms require that the inmate be permitted access to information necessary to protect his other constitutional rights. These same norms likewise require courts, rather than administrative agencies, to judge the execution procedure’s constitutionality. Indeed, judicial recognition of this due process right would not only protect Eighth Amendment values but would also encourage states to make their execution procedures more transparent and less dangerous. Just as importantly, judicial recognition would also discourage secretive governmental practices more generally, thereby promoting openness and fair process as important democratic values.

June 16, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Second Circuit rejects array of challenges to lengthy extension of sex offender registration requirement

For a number of years, sex offenders consistently lost in state and federal courts when challenging various sex offender registration requirements and other restrictions on various grounds.  In recent years, however, it seems at least a few registered sex offenders are having at least a little success with court challenges to new sex offender registration requirements that seem especially punitive or onerous.  But a Second Circuit panel ruling today in Doe v. Cuomo, No. 12-4288 (2d Cir. June 16, 2014) (available here), provides a useful reminder of the uphill battle registered sex offenders face in court. Here is how the opinion starts: 

John Doe appeals from the judgment of the United States District Court for the Eastern District of New York (Amon, C.J.) granting summary judgment in favor of the Governor of the State of New York and the Acting Commissioner of the State of New York Division of Criminal Justice Services on Doe’s as-applied constitutional challenges to the enforcement of certain amendments to the New York State Sex Offender Registration Act. The amendments we are asked to review were enacted after Doe pleaded guilty to misdemeanor attempted possession of a sexual performance by a child, as a result of which he was classified as a level-one sex offender required to register under SORA. The amendments extended the registration requirement for level-one sex offenders from ten years to a minimum of twenty years and also eliminated the ability of level-one sex offenders to petition for relief from registration.  Doe argues, among other things, that requiring him to comply with these post-plea amendments violates the Ex Post Facto Clause and the Fourth Amendment, and deprives him of due process and equal protection under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983.  We disagree and affirm the judgment of the District Court.

Notably, the defendant Doe in this case seems reasonably sympathetic for a registered sex offender: his offense was a misdemeanor charge stemming from possessing a few CP images back in 1999, and he fully complied with all registration requirements for a decade.  But, though the defendant presented an array of constitutional claims to argue he should not now be subject to a new extended registration requirement, the Second Circuit said he was Doe out of luck.

June 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

After two-month hiatus, will Georgia and Florida get US machineries of death back on line this week?

A few days after the ugly execution in Oklahoma at the end of April, I wondered in this post whether all the attention and controversy that one execution generated would impact death penalty administration outside the Sooner State.  Now, with nearly two months having gone by without any subsequent executions completed anywhere in the United States (and it seems only a handful of executions now scheduled for the coming summer months), I am prepared to assert that Oklahoma's woes have had a national impact.  

While litigation over lethal injection protocols and various drug shortages had slowed the pace of executions down considerably, before the ugly Oklahoma execution the pace was starting again to pick back up.  Indeed, over the first 4 months of 2014, the US completed on average five executions each month and was on pace for the highest yearly total of executions in more than a decade.  But with everything seemingly slowing down after the Oklahoma mess, it now seems possible the US will have the fewest executions in 2014 than in any year in over two decades.

For those who pay very close attention to the death penalty and wonder about its future in the US, this coming week is one to watch real closely.  As detailed in local press reports here and here, both Gerogia and Florida have executions schedule for the next few days.  If these executions go forward and lethal injections proceed without a hitch, there is a greater likelihood that the US will be starting its return to execution business as usual.  But if one or both of these executions get stayed or end up being botched in some manner, I suspect US death penalty and execution realities will remain quite dyanmic and unpredictable for the months and perhaps years ahead.

Some recent related posts:

June 16, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

SCOTUS takes up Facebook threats prosecution to consider First Amendment issues

FbcautionIn part because most of the Justices are the age of most grandparents, the Supreme Court takes up new technology in its cases at about the same pace most grandparents take up new technology.  This Term, for example, the Court has finally got around to considering the Fourth Amendment implications of smartphones (with a ruling likely coming in the next two weeks).  And, as this AP article details, this morning the Justice decided to pay some attention to Facebook and the First Amendment in a case to be argued next Term:

The Supreme Court will consider the free speech rights of people who use violent or threatening language on Facebook and other electronic media where the speaker's intent is not always clear.  The court on Monday agreed to take up the case of an eastern Pennsylvania man sentenced to nearly four years in federal prison for posting violent online rants against his estranged wife, law enforcement officials and former co-workers.

A federal appeals court rejected Anthony Elonis' claim that his comments were protected by the First Amendment.  He says he never meant to carry out the threats.  He claims he was depressed and made the online posts in the form of rap lyrics as a way of venting his frustration after his wife left him.

At his trial, the jury was instructed that Elonis could be found guilty if an objective person could consider his posts to be threatening.  Attorneys for Elonis argue that the jury should have been told to apply a subjective standard and decide whether Elonis meant the messages to be understood as threats.

Elonis's lawyers say a subjective standard is appropriate given the impersonal nature of communication over the Internet, which can lead people to misinterpret messages. They argue that comments intended for a smaller audience can be viewed by others unfamiliar with the context and interpret the statements differently than was intended. The Obama administration says requiring proof of a subjective threat would undermine the purpose of the federal law prohibiting threats....

For more than 40 years, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment.  But the court has cautioned that laws prohibiting threats must not infringe on constitutionally protected speech.  That includes "political hyperbole" or "unpleasantly sharp attacks" that fall shy of true threats....

Elonis' estranged wife testified at his trial the postings made her fear for her life. One post about his wife said, "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

FBI agents visited Elonis at home after the amusement park that fired him contacted law enforcement officials about his posts.  After the agents left, Elonis wrote: "Little agent lady stood so close, took all the strength I had not to turn the (woman) ghost. Pull my knife, flick my wrist and slit her throat."

I am not sure a ruling in this interesting case is likely to have huge sentencing consequences, but I am hopeful it might at least encourage ever more civility in the comments to this blog and throughout the rest of the (often too ugly) on-line world.

June 16, 2014 in Offense Characteristics, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Notable split 5-4 SCOTUS ruling against federal defendant shows power of gun politics

When I see that the Supreme Court has split 5-4 in a (non-sentencing) criminal case, I typically expect to see certain usual suspects on each side of the divide with Justice Kennedy serving as the swing vote.  Today, in Abramski v. US, No. 12-1493 (S. Ct. June 16, 2014) (available here), Justice Kennedy is the swing vote joining with the more liberal members of the Court. But they are together upholding a federal conviction  — no doubt, I am prepared to say, because at issue is the broad application of a federal gun control statute.

Here is how Justice Kagan's opinion for the Court gets started in Abramski:

Before a federally licensed firearms dealer may sell a gun, the would-be purchaser must provide certain personal information, show photo identification, and pass a background check. To ensure the accuracy of those submissions, a federal statute imposes criminal penalties on any person who, in connection with a firearm’s acquisition, makes false statements about “any fact material to the lawfulness of the sale.” 18 U.S.C. § 922(a)(6). In this case, we consider how that law applies to a so-called straw purchaser — namely, a person who buys a gun on someone else’s behalf while falsely claiming that it is for himself.  We hold that such a misrepresentation is punishable under the statute, whether or not the true buyer could have purchased the gun without the straw.

Justice Scalia's dissent, which garnered the votes of the Chief, Justice Thomas and even (the usually-consistent friend of federal prosecutors) Justice Alito, gets started this way:

Bruce Abramski bought a gun for his uncle from a federally y licensed gun dealer, using money his uncle gave him for that purpose. Both men were legally eligible to receive and possess firearms, and Abramski transferred the gun to his uncle at a federally licensed gun dealership in compliance with state law.  When buying the gun, Abramski had to fill out Form 4473 issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). In response to a question on the form, Abramski affirmed that he was the “actual/transferee buyer” of the gun, even though the form stated that he was not the “actual transferee/buyer” if he was purchasing the gun for a third party at that person’s request and with funds provided by that person.

The Government charged Abramski with two federal crimes under the Gun Control Act of 1968, as amended, 18 U.S.C. §§ 921–931: making a false statement “material to the lawfulness of the sale,” in violation of § 922(a)(6), and making a false statement “with respect to information required by [the Act] to be kept” by the dealer, in violation of § 924(a)(1)(A). On both counts the Government interprets this criminal statute to punish conduct that its plain language simply does not reach. I respectfully dissent from the Court’s holding to the contrary.

June 16, 2014 in Gun policy and sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

June 15, 2014

Is God a supporter of marijuana reform?

The question in the title of this post is my (only slightly) tounge-in-cheek response to this Christian Post article headlined "Oklahoma Senator Quotes Genesis 1:29 to Seek Marijuana Legalization." Here are excerpts:

Oklahoma state Sen. Constance Johnson announced the filing of a statewide initiative petition to legalize marijuana, telling supporters that the campaign is based on Genesis 1:29, which suggests that God created "this wonderful, miraculous plant."

"We're putting forth Genesis 1:29 as the basis of this campaign," KFOR.com quoted Sen. Johnson, a Democrat, as telling supporters at the State Capitol on Friday after filing the petition with the office of the Oklahoma secretary of state.

"God created this wonderful, miraculous plant and we know that it has been vilified for the last 100 years, and it's time to change that in Oklahoma," added the senator, who has led efforts, along with attorney David Slane, to legalize pot.  The advocates of marijuana will require 160,000 signatures from registered voters within three months to get the proposal on a statewide ballot....

The petition states that up to one ounce of marijuana should be allowed for recreational use, and three ounces for medical reasons.  The senator is of the opinion that resultant tax benefits would benefit the state.... Johnson also says that decriminalizing possession would ease the burden on prisons. "We're locking up non-violent, marijuana possessing people, giving them felonies and filling up our prisons."

"It's just the right thing to do. It's a plant. It's a God given plant and it could change the world," Fox 25 quoted a petition supporter, Pamela Street, as saying Friday....

Marijuana is different in nature from caffeine, Christian theologian John Piper wrote on the blog of his Desiring God ministry recently. While marijuana "temporarily impairs the reliable processing of surrounding reality," caffeine "ordinarily sharpens that processing," he said.

Cross-posted at Marijuana Law, Policy and Reform

June 15, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Religion | Permalink | Comments (9) | TrackBack

"Lawmakers should be parsimonious — not sanctimonious — on drug sentencing"

The title of this post is the headline of this new commentary at The Hill authored by Jamie Fellner.  Here are excerpts:

Hopes are high that the U.S. Congress will do the right thing this year and reform notoriously harsh federal drug sentencing laws that have crammed U.S. prisons with small-time offenders.

The bipartisan Smarter Sentencing Act, approved by the Senate judiciary committee and now awaiting debate in the full Senate, would reduce federal mandatory minimum sentences for certain drug offenders, increase the number who can avoid them altogether, and permit prisoners serving time under outdated crack-cocaine sentencing laws to seek lower sentences. Passage would begin to reverse a decades-long trend that's seen "too many Americans go to too many prisons for far too long and for no good law enforcement reason," as Attorney General Eric Holder put it earlier this year.

Although legislators may not realize it, reduction of unduly severe sentences for drug offenders will help bring federal sentencing back in line with the long-overlooked principle of "parsimony." In the criminal justice context, parsimony dictates that sentences should be no greater than necessary to serve the legitimate goals of punishment, namely, retribution for past crimes, deterrence of future ones, and rehabilitation of the offender.

Congress once recognized the importance of parsimony. In the Sentencing Reform Act of 1984, it instructed federal judges to impose sentences that were “sufficient, but not greater than necessary” to advance the purposes of punishment. But starting in 1986, against a backdrop of social and economic turmoil, racial tension, and the advent of crack cocaine, Congress enacted mandatory minimum drug sentencing laws with stunning disregard for whether they would yield needlessly harsh sentences -- which they invariably did for the low-level offenders who made up the bulk of those receiving them....

Opponents of the Smarter Sentencing Act, including some current and retired federal prosecutors, insist — without evidence – that the mandatory drug sentences are necessary to protect public safety. They also claim — and here the evidence is on their side — that the threat of high mandatory sentences helps convince defendants to plead guilty and cooperate with the government in exchange for lesser punishments. Because judges have no choice but to impose the mandatory minimums triggered by the charges prosecutors file, prosecutors can make good on the threat of higher sentences for those defendants who insist on going to trial: their sentences are on average three times longer than for those who plead. Not surprisingly, ninety-seven percent of drug defendants choose to plead guilty. Opponents of drug law reform seem to forget — or don't care — that the purposes of punishment do not include bludgeoning defendants into pleading.

Each year, hopes for federal drug sentencing reform are dashed by legislative inertia and a few powerful legislators who cling to outdated “tough on crime” notions. Perhaps this year will be different. A growing number of lawmakers, Republicans and Democrats, realize that lengthy mandatory minimum drug sentences are ineffective, wasteful, and expensive. And though few may use the term parsimony, many have come to understand that unnecessarily harsh sentences make a mockery of justice.

June 15, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack