October 3, 2014
SCOTUS preview guest-post: "Measuring the Dangerousness of Felonies for Sentencing Purposes"
In this post I lamented that the Supreme Court this week did not grant cert on any new sentencing cases. But there is still some sentencing fun on the SCOTUS docket thanks to the Justices seemingly never having enough fun with interpretations of the Armed Career Criminal Act. Helpfully, Professor Stephen Rushin, who filed in an amicus brief in the latest ACCA case, was kind enough to prepare for posting here a thoughtful preview of a case to be argued to the Justices in early November.
With kudos and thanks to Prof Rushin for this material, here is his preview:
What criminal offenses pose the greatest risk of injury to others? This is the empirical question at issue in a case, Johnson v. United States, before the U.S. Supreme Court this coming term. The case stems from the Armed Career Criminal Act (ACCA), which provides for punishment enhancements for offenders previously convicted of burglary, arson, extortion, use of explosives, and any other felony that presents “serious potential risk of injury to another.”
Since the passage of the ACCA, courts and litigants have struggled to determine which felonies pose such a “serious potential risk of injury to another.” The Court has interpreted this so-called residual clause of the ACCA to cover a range of felonies, including attempted burglary and fleeing from a police officer in a motor vehicle.
In Johnson, the Court must now decide whether the residual clause also covers the possession of a short-barreled shotgun. So how dangerous is mere possession of an unlawful weapon? Professors Evan Lee, Eric Johnson, and I recently submitted an amicus brief in the Johnson case, arguing that the ACCA ought to cover these sorts of weapons law violations.
At first, our argument may seem counter-intuitive. How, after all, can mere possession ever pose a “serious potential risk of injury to another?” Well that depends on how you define a “potential risk of injury.” Admittedly, offenses like weapons possession cannot, or usually do not, injure another person directly. But that does not mean that such offenses do not pose “serious potential risk of injury to another.” Congress’s use of the word “potential” in conjunction with the word “risk” suggests that a felony need not be the direct or exclusive source of an injury in order to qualify under the residual clause. We read the ACCA to mean that any offense that facilitates or is otherwise meaningfully associated with highly injury-prone offenses “poses a serious potential risk of injury.”
Of course, this raises the next obvious question—to what extent are weapons law violations, like possession of a short barreled shotgun, associated with injuries to victims? In previous ACCA cases, the Court has turned to a wide range of statistical data to measure the dangerousness of various felony offenses. In each case, the Court has attempted to find accurate statistical measures of how frequently a particular felony offense leads to injuries. The Court then compares this to the approximate injury frequency of injuries stemming from the offenses explicitly enumerated in the ACCA—burglary, arson, extortion, and use of explosives.
This basic methodology makes perfect sense. Since Congress specifically enumerated a small number of offenses as “violent felonies” in the ACCA, the Court should presume that any offense of equal or greater dangerousness also warrants inclusion under the residual clause. But in employing this methodology, the Court has often relied on weak statistical data.
In entering into this ongoing debate, my coauthors and I make a simple recommendation to the Court in our amicus brief. We suggest that the Court should use the National Incident Based Reporting System (NIBRS) in measuring the dangerousness of offenses under the ACCA residual clause. For the unfamiliar, we have traditionally recorded crime data in the U.S. via the Uniform Crime Reports (UCR), which primarily record aggregate-level information on the prevalence of eight major criminal offenses—homicide, aggravated assault, rape, burglary, larceny, arson, and auto-theft. With the exception of homicides, these UCR records little to no details about the circumstances surrounding each offense. Recently, though, the FBI has begun collecting additional crime data through the database known as NIBRS. This system requests information from local law enforcement agencies on 46 different offense categories. NIBRS also groups together criminal offenses into incident-level data. This means that if an offender commits two different offenses as part of a single criminal incident, NIBRS groups these two offenses together for data analysis purposes. For example, suppose that an offender commits an assault in the course of committing a burglary. Traditionally, the UCR would register that event as two separate criminal events. By contrast, NIBRS groups together these two criminal offenses into a single incident. Police agencies that use NIBRS also report information on the circumstances of each criminal incident, including whether the incident resulted in any physical injuries to victims.
Of course NIBRS is not perfect. The NIBRS database is not perfectly representative of the United States. Although NIBRS greatly expands on the number of offense categories traditionally used in the UCR, it still cannot capture every single offense category. Nevertheless, NIBRS represents perhaps the best statistical resource available for measuring the “potential risk of injury” associated with felony offenses. For one thing, NIBRS represents the largest and most comprehensive database on injuries associated with criminal offenses. In addition, because NIBRS groups together multiple offenses into incidents, it allows researchers to measure more accurately the risk associated with criminal offenses. And NIBRS allows the Court to compare the dangerousness of different felony offenses accurately because it uses a consistent methodology across reporting jurisdictions.
So how do weapons law violations stack up compared to the explicitly enumerated felonies listed in the ACCA? In a previous study, Evan Lee, Lynn Addington, and I found that weapons law violations like possession of a short-barreled shotgun were more frequently associated with injuries than burglaries, arsons, or extortions. 5.36 percent of incidents involving weapons law violations in 2010 led to some type of physical injury to a victim, compared to just 4.41 percent of extortions, 1.11 percent of arsons, and 1.02 percent of burglaries.
Of course, these sorts of statistics alone cannot resolve the question before the Court. But we argue that this data cuts in favor of including weapons law violations under the ACCA residual clause.
"The Future of Juvenile Appeals in the United States"
The title of this post is the title of this new paper by my OSU colleague Katherine Hunt Federle now available via SSRN. Here is the abstract:
Appellate review of delinquency adjudications is necessary to protect the rights of juvenile defendants and preserve the integrity of the juvenile process. Review is no less important than in adult criminal courts, where the reversal rate on appeals is high enough to suggest that “depriving defendants of their right to appeal would expose them to an unacceptable risk of erroneous conviction.”
Unfortunately, juveniles often fail to exercise this essential right because they are discouraged to do so by courts, denied access to the tools necessary to appeal, or lack the sophistication or means to file appeals. Moreover, because of strict time limits for filing, appellate rights expire. These time frames, which impose an unnecessary and unfair bar to effective review, are inconsistent with protections afforded juveniles in non-delinquency matters. Tolling the time within which to file an appeal during minority, however, may ensure greater (and necessary) access to the appellate courts.
Should advocates of federal criminal justice reform be rooting for Republicans to take control of Senate?
The question in the title of this post is prompted by the closing paragraphs of this new National Journal article. The article is headlined "How Republicans Stopped Being 'Tough on Crime': GOP lawmakers in Congress are moving toward prison reform. Is this the final frontier for bipartisanship?". Here are some extended excerpts from an article that reinforcement my sense that reform advocate might be wise to root for Republicans to have lots of success on Election Day next month:
[M]any Republicans in Congress are moving away from the tough-on-crime philosophy that dominated the Nixon, Reagan, and Bush eras. At a time when people complain about historic levels of gridlock, there is more bipartisan support for reforming the criminal-justice system than there has been in the past four decades.
This newfound Republican support isn't just the product of tokenism. Among the members of Congress who have cosponsored legislation on this issue are Sens. Rand Paul, John Cornyn, Chuck Grassley, Mike Lee, Rob Portman, and Orrin Hatch, along with Reps. Raul Labrador, Paul Ryan, and Jason Chaffetz.
"This certainly is something that has gained momentum among many Republicans — not all," Lee told National Journal. "There's still a number of Republicans who don't agree with me on this, that this ought to be a priority. But I've been pleased by the number of Republicans who have joined me in this effort."
Of course, that doesn't mean the Republican colleagues always agree with each other. Grassley recently blasted the Smarter Sentencing Act, which was introduced by Lee and Sen. Dick Durbin. The bill would allow federal judges to use their discretion when sentencing some nonviolent drug offenders, instead of having to obey mandatory minimums. Grassley said the bill would "put taxpayers on the hook for close to $1 billion in entitlement spending." What Grassley didn't mention was that the bill would also lead to $4 billion in budget savings over the next 10 years, according to the Congressional Budget Office.
Levin, the Right on Crime founder, says the financial burdens imposed by the justice system — which often disproportionately targets minorities and hamstrings those not wealthy enough to afford their own attorney — should especially outrage conservatives. "Look, I'm a free-market guy, so I say the fact that rich people can get a better car, nicer jewelry, that's all well and good. But here we're talking about justice," Levin said. "Conservatives ought to be particularly receptive to these things, and I think they are, because at some point it just becomes like a tax."
But Lee emphasized that sentencing reform isn't just a fiscal issue for Republicans. "There's no question that reforming our sentencing system could save us money. I want to point out, though, that that is not our primary objective in this," Lee told National Journal. "An even more important objective involves not the financial costs, but the human costs."
That human cost is very real. The violent-crime rate is the lowest it's been in 20 years, yet there hasn't been a corresponding decrease in incarceration. Nearly a third of the world's female prisoners are incarcerated in the U.S. Between 1991 and 2007, the number of children with a parent in prison increased by 80 percent—so widespread that Sesame Street recently aired a segment dealing with the issue.
The prison population is the oldest it's ever been. In West Virginia, 20 percent of the prison population is over the age of 50. This raises the question: What is the advantage of the U.S. spending billions of dollars to house prisoners who may not present any real public danger?...
Criminal-justice reform has united other odd couples like [Senators Rand] Paul and [Cory] Booker. In March, the Senate Judiciary Committee approved a bill put forward by Republican Sen. John Cornyn of Texas and Democratic Sen. Sheldon Whitehouse of Rhode Island that would try to triage the likelihood that a prisoner would commit another crime, if released. The law would also give time credits to "low-risk" offenders and allow some to complete their prison sentences under "community supervision."
Cornyn said it's time to move away from the one-size-fits-all approach to treating American prisoners. "When I went to law school, we'd learn in criminal law class that rehabilitation was always one of the goals of our criminal justice system. But honestly, in my lifetime, we've done a lousy job at rehabilitating people," Cornyn told National Journal. "Instead, they have taken an approach that's more like warehousing people."
Cornyn said he's confident that if the GOP retakes the Senate in November, prison reform will be one area where they will be able to work with the White House. Even Whitehouse — Cornyn's Democratic counterpart on this legislation — sees this as an upside to a possible Republican-controlled Congress. "Frankly, I think the biggest danger to these bills is not really on their substance. It's just the threat of partisan and obstructive mischief by the more extreme Republican senators," Whitehouse told National Journal. "The motivation for that mischief evaporates once they're in control."
There you have it — prison reform, the final frontier of bipartisan legislation. But as Levin points out, there's just one last thing for Republicans and Democrats working on the issue to sort out: "The only disagreement sometimes is who's gonna get the credit."
A few recent and older related prior posts:
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- Could "momentum for sentencing reform [now] be unstoppable" in the federal system?
- Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform
- Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms
- Senator Rand Paul and Governor Chris Christine continue to make the case for criminal justice reforms
- "4 Reasons Conservatives Are Embracing Prison Reform"
October 2, 2014
"Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel"
The title of this post is the title of this intriguing looking article authored by Sara Mayeux now available via SSRN. Here is the abstract:
The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer.
In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.
Up and down the east coast, notable white-collar federal sentencings
My usual review of the week's sentencing news with Google's help turned up a number of noteworthy federal while collar sentencing stories. These three especially cuaght my eye:
From Delaware, via "Delaware multimillionaire gets prison," we learn: " Former eBay executive Christopher Saridakis of Greenville, Delaware, was sentenced to 15 months in prison for insider trading Wednesday by a U.S. District Court judge. Saridakis, 45, tipped off two family members and two friends in 2011 to the pending sale of GSIC – where he was chief executive officer – to eBay days before the sale was announced. The tip allowed those individuals to realize more than $300,000 profit, according to prosecutors."
From Florida, via "Ponzi schemer Rothstein’s former law partner sentenced to nearly three years," we hear: "The wife and children of Stuart Rosenfeldt said they have forgiven him for spending the dirty money of his former law partner, Ponzi schemer Scott Rothstein, on prostitutes and other criminal conduct. They and other supporters crowded into a Miami federal courtroom Thursday to point out Rosenfeldt’s long history of donating free legal work and personal time to charities in South Florida. But their pleas for mercy did not sway U.S. District Judge Marcia Cooke, who sentenced Rosenfeldt to almost three years in prison instead of a lesser term sought by his defense attorney. His sentencing came almost five years after the collapse of a $1.2 billion investment scheme that Rothstein ran out of their Fort Lauderdale law firm."
From New Jersey, via "RHONJ's Teresa Guidice gets 15 months; 41 for Joe," we see: "Two stars of the Real Housewives of New Jersey will be trading the drama of reality TV for prison after being sentenced on conspiracy and bankruptcy fraud charges. After an initial delay, U.S. District Court Esther Salas sentenced Teresa Guidice to 15 months in prison Thursday afternoon. Earlier in the day, her husband Giuseppe "Joe" Giudice was ordered to serve more than three years in prison on conspiracy and bankruptcy fraud charges. He was also ordered to pay $414,000 in restitution."
Notable new empirical research on citizenship's impact on federal sentencing
I just came across this notable new empirical article on federal sentencing patterns published in American Sociological Review and authored by Michael Light, Michael Massoglia, and Ryan King. The piece is titled "Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts," and here is the abstract:
When compared to research on the association between immigration and crime, far less attention has been given to the relationship between immigration, citizenship, and criminal punishment. As such, several fundamental questions about how noncitizens are sanctioned and whether citizenship is a marker of stratification in U.S. courts remain unanswered. Are citizens treated differently than noncitizens — both legal and undocumented — in U.S. federal criminal courts? Is the well-documented Hispanic-white sentencing disparity confounded by citizenship status? Has the association between citizenship and sentencing remained stable over time? And are punishment disparities contingent on the demographic context of the court?
Analysis of several years of data from U.S. federal courts indicates that citizenship status is a salient predictor of sentencing outcomes — more powerful than race or ethnicity. Other notable findings include the following: accounting for citizenship substantially attenuates disparities between whites and Hispanics; the citizenship effect on sentencing has grown stronger over time; and the effect is most pronounced in districts with growing noncitizen populations. These findings suggest that as international migration increases, citizenship may be an emerging and powerful axis of sociolegal inequality.
Intriguing new research on criminal justice impact of distinct marijuana reforms
The Center on Juvenile and Criminal Justice has produced this interesting new research report titled "Reforming Marijuana Laws: Which Approach Best Reduces The Harms Of Criminalization? A Five-State Analysis." Here is what the report's Introduction:
The War on Marijuana is losing steam. Policymakers, researchers, and law enforcement are beginning to recognize that arresting and incarcerating people for marijuana possession wastes billions of dollars, does not reduce the abuse of marijuana or other drugs, and results in grossly disproportionate harms to communities of color. Marijuana reforms are now gaining traction across the nation, generating debates over which strategies best reduce the harms of prohibition.
Should marijuana be decriminalized or legalized? Should it be restricted to people 21 and older? Advocates of the latter strategy often argue their efforts are intended to protect youth. However, if the consequences of arrest for marijuana possession — including fines, jail time, community service, a criminal record, loss of student loans, and court costs — are more harmful than use of the drug (Marijuana Arrest Research Project, 2012), it is difficult to see how continued criminalization of marijuana use by persons under 21 protects the young. Currently, people under 21 make up less than one-third of marijuana users, yet half of all marijuana possession arrests (ACLU, 2013; Males, 2009).
This analysis compares five states that implemented major marijuana reforms over the last five years, evaluating their effectiveness in reducing marijuana arrests and their impact on various health and safety outcomes. Two types of reforms are evaluated: all-ages decriminalization (California, Connecticut, and Massachusetts), and 21-and-older legalization (Colorado and Washington). The chief conclusions are:
• All five states experienced substantial declines in marijuana possession arrests. The four states with available data also showed unexpected drops in marijuana felony arrests.
• All-ages decriminalization more effectively reduced marijuana arrests and associated harms for people of all ages, particularly for young people.
• Marijuana decriminalization in California has not resulted in harmful consequences for teenagers, such as increased crime, drug overdose, driving under the influence, or school dropout. In fact, California teenagers showed improvements in all risk areas after reform.
• Staggering racial disparities remain— and in some cases are exacerbated — following marijuana reforms. African Americans are still more likely to be arrested for marijuana offenses after reform than all other races and ethnicities were before reform.
• Further reforms are needed in all five states to move toward full legalization and to address racial disparities
Cross-posted at Marijuana Law, Policy & Reform
SCOTUS grants cert on lots of new cases, with only two on criminal procedure and one on prisoner suits
The Supreme Court this morning released this list of order, which includes orders granting certiorari review in ten new cases. A quick scan of the list does not reveal any notable sentencing cases and only two criminal law cases: Ohio v. Clark, which seems to involve a Confrontation Clause issue; Rodriguez V. US, which seems to involve a Fourth Amendment traffic stop matter. In addition, Coleman v. Tollefson was granted concerning a prisoner's ability to bring a civil suit against correction officials.
I am quite bummed that this order list suggests the Justices are not interested in any sentencing issues raised in the long conference. It is possible that SCOTUS may "relist" rather than outright deny some sentencing petitions I have been following concerning issued like acquitted conduct guideline enhancement and/or Miller retroactivity. But after a period of years in the aftermath of Blakely and Booker, when we could expect a number of major sentencing rulings almost every Term, it lately seems like the Justices are actively trying to avoid taking up any major sentencing cases. Oh well.
October 1, 2014
More proof of ________?: violent crime hits historic lows in crazy California
I have long thought sentencing fans and criminal-justice reformers should always pay special attention to happenings in California because the state so often seems like a model of every ugly facet dysfunctional sentencing law and politics. The state's death penalty system has been more fiction than reality for decades as condemned killers stack up (and expire) on death row while almost nobody ever gets executed. The state's criminal laws and sentencing structures have been subject to very little well-planned policy-mkaing in part because of the passage of many competing voter initiatives and elected officials often unable to champion sound reforms because of various cross-cutting political concerns. And the state's corrections system has been beset with more constitutional issues and practical problems than one can name.
And yet, California must be doing something right: as this local article reports in its headline, in 2013 "California murder, violent crime rates hit 50-year low." Here are the details, which prompts the "fill-in-the-blank" game appearing in the title of this post:
Californians today are less likely to be murdered or fall victim to violent crime than during any other time since the 1960s, according to new figures from the California Department of Justice.
The murder rate last year was 4.6 killings per 100,000 California residents, an 8 percent decline from 2012 and a 64 percent decline from 1993, when cities throughout the state struggled to stop gang killings. The violent crime rate last year was 397 per 100,000 Californians, down 7 percent from 2012 and a 64 percent decline from 1992.
Experts have a variety of explanations for the decline, which is a long-term, nationwide trend. Top theories include better policing methods that utilize data to pinpoint crime hotspots, harsher criminal sentences for repeat crime offenders and a sharp drop in gang warfare.
But the trend has also confounded many predictions. Some anticipated that California prison realignment would increase violent crime. It hasn't. Others decried the rise of violent video games and music, but those forms of entertainment have been around for decades now and crime continues to fall. Others believed desperation from the Great Recession would increase crime. It didn't.
Because I struggle to find any other especially good explanation for modern crime trends, I keep returning to the lead poisoning data and claims. (Notably and disappointingly, the lead-exposure-crime connection fails to get mentioned in most modern discussions of crime rates and yet that connection continues to explain modern crime trends as well (if not much better) than any other theory put forth by criminologists these days.)
Some recent related posts:
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Do lead exposure realities continue to best explain modern crime-rate realities?
- Fascinating lead-crime-rate forecast that incarceration levels will decline significantly in coming years
- "Research on [lead]’s effects on the brain bolsters the hypothesis that childhood exposure is linked to criminal acts"
- More useful discussion of the (under-discussed) lead-crime-rate connections
- Finding an age-based silver lining — or lead lining — in latest BJS prison data
"Prison bankers cash in on captive customers: Inmates' families gouged by fees"
The title of this post is the headline of this one part of some impressive reporting about the economic realities facing prisoners and their families being done by the Center for Public Integrity and CNBC. Here is an excerpt from this piece that provides a basic summary:
JPay and other prison bankers collect tens of millions of dollars every year from inmates’ families in fees for basic financial services. To make payments, some forego medical care, skip utility bills and limit contact with their imprisoned relatives, the Center for Public Integrity found in a six-month investigation.
Inmates earn as little as 12 cents per hour in many places, wages that have not increased for decades. The prices they pay for goods to meet their basic needs continue to increase.
By erecting a virtual tollbooth at the prison gate, JPay has become a critical financial conduit for an opaque constellation of vendors that profit from millions of poor families with incarcerated loved ones.
JPay streamlines the flow of cash into prisons, making it easier for corrections agencies to take a cut. Prisons do so directly, by deducting fees and charges before the money hits an inmate’s account. They also allow phone and commissary vendors to charge marked-up prices, then collect a share of the profits generated by these contractors.
Taken together, the costs imposed by JPay, phone companies, prison store operators and corrections agencies make it far more difficult for poor families to escape poverty so long as they have a loved one in the system.
Here are links to additional related reporting as part of this project:
From CNBC: "The big business of selling apps to prison inmates"
- From the Center for Public Integrity: "Inside the virtual tollbooth at many U.S. prisons"
This is your federal sentencing data on drugs (after the minus-2 amendment)
I could not help but think about the famous 1980s "This Is Your Brain on Drugs" campaign from Partnership for a Drug-Free America once I took a close look at the US Sentencing Commission's latest greatest data on federal sentencing appearing now in this Third Quarter FY 2014 Sentencing Update. The famous "egg" ad make clear that drugs could scramble your brain, and a "Note to Readers" appearing early in the latest USSC data report makes clear that a recent amendment to the drug sentencing guidelines has started to scrambling cumulative federal sentencing data.
Here is the USSC's "Note to Readers," which highlights why it will prove especially challenging to fully assess and analyze federal sentencing practices in FY14 because of mid-year drug sentencing reforms:
On April 30, 2014, the Commission submitted to Congress a proposed amendment to the sentencing guidelines that would revise the guidelines applicable to drug trafficking offenses. That amendment will become effective on November 1, 2014 and will be designated as Amendment 782 in the 2014 edition of Appendix C to the Guidelines Manual. Amendment 782 changes the manner in which the statutory mandatory minimum penalties for drug trafficking offenses are incorporated into the base offense levels in the drug quantity table in section 2D1.1 of the Guidelines Manual. Specifically, the amendment generally reduces by two levels the offense levels assigned to the quantities described in section 2D1.1 and makes corresponding changes to section 2D1.11. On July 18, the Commission voted to give retroactive effect to Amendment 782, beginning on November 1, 2014.
On March 12, 2014, the Department of Justice issued guidance to all United States Attorneys regarding the sentencing of drug trafficking offenders in anticipation of an amendment to the guidelines lowering the base offense levels for drug trafficking cases. In that guidance, the Attorney General authorized prosecutors to not object to a defense request for a two-level variance from the sentencing range calculated under the current version of the Guidelines Manual in drug trafficking offenses, provided that several other conditions were met. Judges and probation offices have informed the Commission that in some districts the prosecutors themselves are requesting that the court depart from the sentencing range calculated under the Guidelines Manual and impose a sentence that is two levels below that range.
The data the Commission is reporting in this Preliminary Quarterly Data Report appears to reflect those practices. On Table 1 of this report, the Commission reports the rate at which the sentence imposed in individual cases was within the applicable guideline range. The rate through the third quarter of fiscal year 2014 was 47.2 percent. This compares with 51.2 percent in fiscal year 2013. However, as can be seen from Tables 1-A and 1-B, most of this decrease is attributable to sentences imposed in drug offenses. As shown on Table 1-A, the within range rate in cases not involving a drug offense was 53.3 percent through the third quarter of fiscal year 2014, compared with 54.8 percent in fiscal year 2013.
Table 1-B presents data for drug cases only. As shown on that table, the within range rate for sentences imposed in drug cases through the third quarter of fiscal year 2014 was 30.0 percent, a decrease of more than eight percentage points from the rate of 38.8 percent at the end of fiscal year 2014. This decrease in the within range rate resulted from an increase in the rate at which the government requested a below range sentence, from 39.4 percent in fiscal year 2013 to 45.7 percent through the third quarter of fiscal year 2014, as well as an increase in the rate of non-government sponsored below range sentences, from 20.8 percent in fiscal year 2013 to 23.5 percent through the third quarter of fiscal year 2014.
Because this change in sentencing practices did not occur until more than five months into the fiscal year, the impact of this change is not fully reflected in the average data presented in this cumulative quarterly report. The Commission expects a further reduction in the within range rate for drug offenses to be reflected in the data for the completed fiscal year 2014.
Peculiar (judicial?) screed against evidence-based sentencing "fad" based on the "need to be realistic"?!!?
I have long been intrigued and generally impressed by the writings and work of Colorado state judge Morris Hoffman. However, this new USA Today commentary by Judge Hoffman, headlined "Emptying prisons is no panacea: Deterring others matters as much as rehabilitation," has me scratching my head about what prompted a thoughtful judge to produce a peculiar screed against evidence-based sentencing. At the risk of making this post much too long, I will reprint the whole commentary before explaining why it made my head hurt this morning:
Just days before Attorney General Eric Holder announced his resignation, the Department of Justice announced one of his signature achievements. After growing for decades, the federal prison population has started to decline. The new data were greeted with wide acclaim, but before we embrace the idea that fewer prisoners is always good, let's step back and consider whether at least one of the drivers of our declining prison population is a good idea.
Like all humans, judges are susceptible to fads. Anger management became a popular feature of American probationary sentences in the 1980s. Teen courts and drug courts followed. The new fad is "evidence-based sentencing." It is both a refreshing attempt at rationality and a dangerous rejection of human nature.
Evidence-based sentencing purports to redirect judges' attention from old-fashioned retribution to enlightened deterrence and rehabilitation. Judges across the country are attending innumerable evidence-based sentencing conferences that focus on how incarceration affects recidivism rates. The claim is that incarceration costs much more than its deterrent benefits. Judges should think twice before throwing away the key.
We don't need conferences to make that point. One of the hidden truths of criminal justice is that most judges, including me, give criminals chance after chance before we sentence them to prison. There are exceptions, such as serious violent crimes and drug crimes that carry mandatory prison sentences. But, for the most part, defendants have to really work hard to land in prison.
We should applaud efforts to put data over gut instinct when trying to predict the future behaviors of our defendants. But we also need to be realistic. There's a reason science stinks at predicting individual behavior. An almost infinite number of bits of data contribute to human decision-making, including the billions of base pairs in our DNA and a lifetime of brain-changing individual experiences, among other things. Not to mention that unscientific interloper: free will.
There is a much more serious problem with evidence-based sentencing. It ignores the most important reason we punish wrongdoers. When I sentence a bank robber to prison, the idea is not just to deter him from robbing again ("specific deterrence"). I also want to deter other people who might be considering robbing a bank ("general deterrence").
General deterrence is what makes us a civilized society. It is the glue that holds us together under the rule of law. It is so deeply engrained, every human society that has left a record shows evidence it punished its wrongdoers. Indeed, our tendency to punish wrongdoers is most likely an evolved trait, which we needed in order to keep our intensely social small groups from unravelling in selfishness. By focusing on specific deterrence, evidence-based sentencing mavens ignore 5,000 years of civilized wisdom and 200,000 years of human evolution.
They seem to recognize this failing, but only half-heartedly. They tend to downplay crimes such as rape and murder to focus on low-harm crimes. But burglary and theft tear the social fabric more broadly simply because they are more frequent. Indeed, low-harm crimes are often crimes of cold economic predation rather than hot emotion. For them, deterrence can be more effective. Giving thieves and burglars a stern lecture and probation, just because some social scientists tell us prison doesn't rehabilitate them, is a surefire way to increase thefts and burglaries.
Those of us fortunate enough to live in civilized societies owe that civilization to the rule of law, which means nothing without the bite of punishment. Punishment must be merciful, but it should not be abandoned to misguided claims that it does not deter.
Candidly, this commentary has so many disconnected and illogical assertions, I have too many criticisms to fit into this blog space. But I can start by highlighting how curious it is that the AG's discussion of the reduction in the federal prison population, brought about largely through changes in federal drug sentencing policies and practices, leads to a state judge worrying we risk not punishing "thieves and burglars" enough to achieve general deterrence. Moreover, AG Holder was bragging last week that in recent years we have lowered prison populations AND lowered crime rates. What evidence-based sentencing seeks to do is find ways to better achieve both specific and general deterrence without continue to rely so heavily on the very costly and too-often-ineffective punishment of imprisonment.
More fundamentally, what really troubled me about Judge Hoffman's analysis is his misguided and harmful perspectives (1) that focused attention to data and evidence about imprisonment's impact on crime is a "fad," and (2) that only lengthy terms of incarceration constitute "real" punishment that can deter. On the first point, I wonder if Judge Hoffman urges his doctors not to be caught up in the "fad" of practicing "evidence-based" medicine. After all, given that "almost infinite number of bits of data contribute" to human health (not to mention that "unscientific interloper, free will"), perhaps Judge Hoffman encourages his doctors to be "realistic" that he is going to die eventually anyway. Indeed, perhaps we ought to be suspect about all efforts to improve and extend human life by "evidence-based [medicine] mavens [who] ignore 5,000 years of civilized wisdom and 200,000 years of human evolution" which shows we all end up dead anyway.
Truth be told, what is truly a "fad" in light of "5,000 years of civilized wisdom and 200,000 years of human evolution" is the extreme use of extreme terms of imprisonment that has come to define the modern American experience with punishment. Brutal physical punishments and public shaming punishment have been the norm and the means use to deter crime in most other societies throughout human history (and in the US until fairly recently). Moreover, all serious social and scientific research on human behavior has demonstrated that the swiftness and certainty of punishment, not its severity, is critical to achieving both specific and general deterrence. That is one (of many) reasons evidence-based sentencing makes long-terms of imprisonment look a lot less effective, at least relative to its high costs, than various other possible punishments.
I could go on and on, but I will conclude by encouraging everyone to appreciate that evidence-based reforms in lots of settings often provoke these kinds of old-world reactions: typically, folks who benefit from or prefer an old-world "faithful" view about how they think the world works will be eager to question and seek to discredit reformers who suggest science and data provides a new perspective that requires significant reform and changes to the status quo. And though I always hope to show respect for old-world "faithful" perspectives, I get worked up by attacks on evidence-based reforms because I am ultimately much more a creature of science than a creature of faith.
"The Curious Disappearance of Sociological Research on Probation Supervision"
The title of this post is the title of this new paper available via SSRN. The piece strikes me as timely, intriguing and important. It is authored by sociologist Michelle Phelps, and here is the abstract:
At the start of the prison boom, scholars in the U.S. vigorously debated the future of “alternative” sanctions, particularly community supervision, and whether they represented a true avenue for potential decarceration or a widening of the net of social control. Community supervision, particularly probation, was central to these debates and the empirical literature. Yet as the carceral state ballooned, sociological scholarship on punishment shifted almost entirely to imprisonment (and, to a lesser extent, parole supervision), despite the fact that probationers comprise nearly 60 percent of the correctional population.
This article invites criminologists to turn their attention to sociological or macro-level questions around mass probation. To help start this new wave of research, I provide an intellectual history of sociological research on probation and parole, review the national-level data available on probationers and probationer supervision today, and outline an agenda for future research.
September 30, 2014
What should be made of the tough prosecution/punishment trend for animal abuse?
The question in the title of this post is prompted by this front-page New York Times article headlined "He Kicked a Stray Cat, and Activists Growled." Here are excerpts:
On one side are the activists. Once dismissed as cat ladies or fringe do-gooders, they have come to wield real power through funding, organization and a focus on legal remedies for animal abuse. They have embraced social-media campaigns; offered rewards to potential witnesses to animal abuse; trained prosecutors; and made inroads in pushing law enforcement across the country to arrest, and seek jail time for, animal abusers.
Yet lawyers defending the accused say that punishment can seem disproportionate to the crime when an animal is the victim. They say that putting people in jail can have serious long-term effects, from starting or strengthening gang affiliations, to taking someone away from school or a job to which they may not return. “The nature of the crime should not automatically mandate a jail sentence if a person is found guilty,” said Tina Luongo, acting attorney in charge of the Legal Aid Society’s criminal practice.
At the moment, the activists seem to be winning the fight. The Federal Bureau of Investigation announced this month that it would track animal abuse as a separate crime, rather than lumping it in the “other” category.
In New York City, the Police Department took over responsibility for animal abuse complaints in January, and created an Animal Cruelty Investigation Squad. Arrests for animal abuse increased about 250 percent through September, compared with the same period last year....
Houston’s district attorney said this month that she would seek jail time in animal cruelty cases, and Massachusetts passed a bill increasing maximum prison time for animal abuse cases to seven years from five. In Virginia, after a push from People for the Ethical Treatment of Animals, a man was sentenced in February to a year in jail for starving a pit bull. And in Texas this year, a man received five years after offering to guide a wayward pet donkey home, then dragging the donkey behind his truck. The donkey, which was found in a ditch, survived....
Not long ago, animal cruelty was “considered a side issue, relegated to something a few overpassionate people cared about, basically,” said Assemblywoman Linda B. Rosenthal of the Upper West Side, who has backed several bills strengthening animal cruelty laws. “Now, it’s a mainstream concern.”
And it is one that animal groups are trying to make even more central.... The groups say they have captured law enforcement’s attention in part by emphasizing that animal cruelty can be a “red flag” for future crimes, particularly domestic violence. Prosecutions nationwide are becoming much more frequent, said Sherry Ramsey, the director of animal cruelty prosecutions for the Humane Society of the United States, “and a lot of it’s based on what we know now about the link between animal cruelty and human violence.”
Yet defense groups say animal abuse cases ... should be handled individually, and are not necessarily predictive of worse behavior. “We don’t punish individuals for alleged future misconduct they might at some point in the future engage, but have not,” Theodore Simon, president of the National Association of Criminal Defense Lawyers, said in an email. “To do so would be to punish a person for a ‘crime’ that has not occurred and was not committed.” Defense advocates also say more needs to be done if society wants to tamp down animal abuse.
Ohio AG puts onus on Ohio legislature to reboot state's machinery of death
As reported in this local article, headlined "DeWine: Executions on hold until legislators change law," Ohio's Attorney General has now suggested that the state will not even seek to move forward with executions in 2015 unless and until Ohio's General Assembly passes legislation he thinks is needed to enable a constitutionally sound and effective execution protocol. Here are the details:
Ohio will not resume executions next year unless legislators enact two key changes in state law, Attorney General Mike DeWine said yesterday. “You’re not going to see a death penalty take place until the General Assembly takes action,” DeWine said during a joint meeting with David Pepper, his Democratic opponent in the Nov. 4 election. The session with Gannett newspaper editors in Ohio was streamed live on the Internet.
The execution issues deal with providing anonymity for “compounding pharmacies” and immunity protection for physicians who help the state with legal support for executions, DeWine spokesman Dan Tierney said. Tierney said DeWine thinks two pieces of legislation, not yet final, must be passed in order to meet stipulations set down by U.S. District Judge Gregory Frost. Frost halted all lethal injections in Ohio until early next year because of concerns about the drugs and how they are used.
Convicted killer Ronald Phillips is set to die on Feb. 15, followed by five other executions next year.
Ohio and most other states have exhausted their options for purchasing chemicals used in lethal injections, largely because manufacturers, many of them European, will not sell drugs for executions. States are now turning to compounding pharmacies, which combine materials into compounds on demand for customers. The proposal would allow the pharmacies to do that without being cited as the source, Tierney said.
Pepper spokesman Peter Koltak said Pepper agrees that Ohio’s death penalty should be “free from constitutional concerns.” He said, “Future legislation on Ohio’s death penalty should be given thorough and thoughtful consideration.”
Making the full case for Mitt Romney, drug czar
Regular readers may recall this post from a few months ago in which I highlighted the brilliant and provocative commentary by Mark Osler headlined "Mitt Romney for drug czar." Now I can post Mark's fuller explication of the ideas that lead to the notion of Drug Czar Romney as they appear in this article now available on SSRN headlined "1986: AIDS, Crack, and C. Everett Koop." Here is the abstract:
In 1986, Ronald Reagan’s America confronted twin public health crises: AIDS and crack. There were striking similarities between the two, in that both developed quietly before public alarms were raised; both were identified with traditionally oppressed groups; both spread in a similar pattern; and both created fear in the American public. Where they differed, though, was in the reaction. After initial missteps, AIDS was approached through problem-solving doctors and researchers rather than quarantine. In contrast, crack was confronted with a heavy retributive hand. AIDS was transformed to a chronic, treatable illness. In contrast, crack not only continued to plague communities, but the use of mass incarceration created new problems.
Four striking personalities shaped these differing outcomes. With AIDS, the chief strategist was the remarkable C. Everett Koop, and the public face was a young boy named Ryan White. For crack, a chief strategist was the vituperative William Bennett, and the public face was basketball player Len Bias. The latter pair drove the fight against crack towards disaster, while the former created a more humane world.
This article argues that it is not too late to learn the lessons of 1986 and take a better approach towards narcotics, and that this approach might best be led by someone who understands the driving force behind drugs (the profit motive) the way that Koop understood the driving force behind AIDS (a virus). In our present era, that person may be someone who straddles business and politics, such as former presidential candidate Mitt Romney.
Reviewing how death is different (but still being used) in Japan
This new piece from The Economist, headlined "The death penalty in Japan: Hanging tough," discusses the on-going debate over capital punishment in the Land of the Rising Sun. Here are excerpts:
It is one of the anomalies of Japan’s approach to the death penalty that a stricken conscience can bring the system grinding to a halt. At least two Japanese justice ministers have refused to sign execution orders, most recently Seiken Sugiura, a devout Buddhist who oversaw a 15-month moratorium from 2005 to 2006. But Japan’s new justice minister, Midori Matsushima, seems unburdened by such doubts.
Ms Matsushima, who took office this month, has swatted away demands to review the system. Japan is one of 22 nations and the only developed country — apart from America, where it is falling out of favour — that retains capital punishment. “I don’t think it deserves any immediate reform,” she said last week: in her view the gallows are needed “to punish certain very serious crimes”.
Calls for a review have grown since the release earlier this year of Iwao Hakamada, a 78-year-old who spent 45 years of his life in a toilet-sized cell awaiting execution. A Japanese court said the police evidence that put him behind bars in 1966 was probably fabricated. Mr Hakamada, dubbed the world’s longest-serving death-row prisoner, is awaiting a fresh verdict later this year. Prosecutors have lodged an appeal against his retrial.
Opponents are hoping that the state’s stubborn fight to wheel another elderly man back to the gallows (he is severely ill and suffers from advanced dementia) may trigger debate and a backlash. But critics face an uphill struggle. Japan’s media largely steers clear of the topic. Ms Matsushima points to public support of over 85% on carefully-worded surveys put out by the cabinet: respondents reply to whether execution is “unavoidable if the circumstance demands it”.
Mr Hakamada would not be the first elderly or infirm inmate to be hanged in Japan. On Christmas day in 2006, Fujinami Yoshio, aged 75, was brought to the gallows in the Tokyo Detention Centre in a wheelchair. Even the openly abolitionist Keiko Chiba, who was justice minister from 2009 to 2010, failed to make a dent in the system. In July 2010 she signed and attended two executions in a bid, she said, to start a public discussion that quickly petered out.
"A Plea for Funds: Using Padilla, Lafler, and Frye to Increase Public Defender Resources"
The title of this post is the title of this notable new paper by Vida Johnson available via SSRN. Here is the abstract:
In the same way that the Court revolutionized the criminal justice world with its ruling in Gideon, Padilla, Lafler, and Frye might also radically change the criminal justice landscape. This Article will attempt to answer the following question: if there is a solution for the ever-growing case load of the public defender and the crisis of indigent defense, can Padilla, Lafler, and Frye be a significant part of the solution?
This Article will proceed by examining whether these three opinions create a bar too high for most public defender offices to meet. It also seeks to suggest the kinds of changes needed for public defender offices to meet these basic requirements. To do so, I will begin in Part II by discussing guilty pleas in general. I will then describe the legal landscape prior to Padilla, Lafler, and Frye in Part III, and discuss the three cases themselves and their ramifications in Part IV. In Part V, I will then introduce the requirements for effective assistance of counsel, and describe the best practices for public defenders to use during plea bargaining. In Part VI, I will discuss the problem of the overburdened public defender office. Finally, in Part VII, I will conclude by addressing how overburdened public defender offices might employ these cases to help ease their case loads.
September 29, 2014
Notable new AG Holder memorandum on charging policies and plea negotiations
I learned over the weekend that last week Attorney General Eric Holder issued a short memo to DOJ lawyers to provide "Guidance Regarding § 851 Enhancements in Plea Negotiations." This full one-page memo, which is dated September 24, 2014, can be downloaded below. Here are its most notable sentences, with my emphasis added:
The Department provided more specific guidance for charging mandatory minimums and recidivist enhancements in drug cases in the August 12, 2013, "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases." That memorandum provides that prosecutors should decline to seek an enhancement pursuant to 21 U.S.C. § 851 unless the "defendant is involved in conduct that makes the case appropriate for severe sanctions," and sets forth factors that prosecutors should consider in making that determination. Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy. Prosecutors are encouraged to make the§ 851 determination at the time the case is charged, or as soon as possible thereafter. An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty. This is consistent with long-standing Department policy that "[c]harges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant's conduct." "Department Policy on Charging and Sentencing," May 19, 2010.
While the fact that a defendant may or may not exercise his right to a jury trial should ordinarily not govern the determination of whether to file or forego an § 851 enhancement, certain circumstances -- such as new information about the defendant, a reassessment of the strength of the government's case, or recognition of cooperation -- may make it appropriate to forego or dismiss a previously filed § 851 information in connection with a guilty plea. A practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea, however, is inappropriate and inconsistent with the spirit of the policy.
I am inclined to speculate that AG Holder felt a need to issue this short memo in part because of reports that some US Attorneys may have had a "practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea."
District Court embraces as-applied Second Amendment limit on federal felon-in-possession prohibtion
As long-time readers know, ever since the Supreme Court's Second Amendment Heller ruling, I have long thought federal criminal law's threat of severe sentences on any and all felons in possession of any and all firearms is constitutionally questionable. Now, thanks to this post by Eugene at The Volokh Conspiracy, I see that one federal district court has finally held that there are as-applied Second Amendment problems with the federal felon-in-possession criminal statute.
The notable Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014) (available here). Interestingly (and perhaps not surprisingly), Binderup is a civil rights suit brought by a relatively sympathetic individual with a minor criminal past, not a case involving a federal criminal defendant claiming the Second Amendment precludes his prosecution. And here are excerpts from the start and end of the lengthy opinion:
As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011)....
Because plaintiff’s statutory claim fails, I reach his alternative constitutional claim asserted in Count Two. For the reasons expressed above, I conclude that plaintiff has demonstrated that, despite his prior criminal conviction which brings him within scope of § 922(g)(1)’s firearm prohibition, he poses no greater risk of future violent conduct than the average law-abiding citizen.
Therefore, application of § 922(g)(1) to him violates the Second Amendment to the United States Constitution under the framework set for the by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011). Accordingly, plaintiff is, and defendants are not, entitled to summary judgment on plaintiff’s as-applied constitutional challenge asserted in Count Two of the Complaint.
It now will be real interesting to see if the feds will appeal this ruling to the Third Circuit or instead just leave it be.
Rooting for acquitted conduct petition grant from SCOTUS long conference
Today, on the first Monday before the first Monday in October, the US Supreme Court Justices meet for the so called "long conference" at which they consider which of the large number of cert petitions that piled up over the summer ought to be heard during the Court's upcoming term. SCOTUSblog this morning here reviews some of the highest profile matters sure to generate the bulk of coverage and commentary.
Of course, I am always hoping/rooting for the Justices to grant cert on any and all sentencing issues. But there is one particular case, Jones v. US coming up from the DC Circuit, in which I filed an amicus in support of cert and thus in which I have a particular interest. Regular readers of this blog are familiar with this case, which concerns judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. (In prior posts (some of which appear below), I stressed the sentence given to one of the co-defendants in this Jones case, Antwan Ball.)
Over at SCOTUSblog, Lyle Denniston provided this effective review of the case and the SCOTUS filings a few weeks ago, and I encourage readers to check out that post or my prior posts linked below for context and background. Here I will be content to provide this link to the cert petition and this link to my amicus brief in support of cert, as well as these paragraphs from the start of my amicus brief:
Sentencing rules permitting substantive circumvention of the jury’s work enables overzealous prosecutors to run roughshod over the traditional democratic checks of the adversarial criminal process the Framers built into the U.S. Constitution. When applicable rules allow enhancement based on any and all jury-rejected “facts,” prosecutors can brazenly charge any and all offenses for which there is a sliver of evidence, and pursue those charges throughout trial without fear of any consequences when seeking later to make out their case to a sentencing judge. When acquittals carry no real sentencing consequences, prosecutors have nothing to lose (and much to gain) from bringing multiple charges even when they might expect many such charges to be ultimately rejected by a jury. Prosecutors can overcharge defendants safe in the belief they can renew their allegations for judicial reconsideration as long as the jury finds that the defendant did something wrong. Indeed, piling on charges makes it more likely that the jury will convict of at least one charge, thus opening the door for prosecutors to re-litigate all their allegations before the judge. Under such practices, the sentencing becomes a trial, and the trial becomes just a convenient dress rehearsal for prosecutors....
The Petitioners contend, as several Justices have already observed, that the Sixth Amendment is implicated whenever a legal rule (in this case, substantive reasonableness review) makes judge-discovered facts necessary for a lengthy sentence. Amicus further highlights that this case presents the narrowest and most troubling instance of such a Sixth Amendment problem — namely express judicial reliance on so-called “acquitted conduct” involving jury-rejected, judge-discovered offense facts to calculate an enhanced Guideline sentencing range and thereby justify an aggravated sentence. By allowing prosecutors and judges to nullify jury findings at sentencing such as in the case at bar, the citizen jury is “relegated to making a determination that the defendant at some point did something wrong,” and the jury trial is rendered “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, 542 U.S. at 306-07.
Though various forms of judicial fact-finding within structured sentencing systems may raise constitutional concerns, this case only concerns the uniquely serious and dangerous erosion of Sixth Amendment substance if and when Guideline ranges are enhanced by facts indisputably rejected by the jury. It may remain possible “to give intelligible content to the right of a jury trial,” Blakely, 542 U.S. at 305-06, by allowing broad judicial sentencing discretion to be informed by Guidelines calculated based on facts never contested before a jury. But when a federal judge significantly enhances a prison sentence based expressly on allegations indisputably rejected by a jury verdict of not guilty, the jury trial right is rendered unintelligible and takes on a meaning that could only be advanced by a Franz Kafka character and not by the Framers of our Constitution.
Previous related posts on this case and acquitted conduct sentencing enhancements:
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
- Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
- Strong commentary on acquitted conduct sentencing
- Sincere questions about acquitted conduct sentencing
- Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
September 29, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack
"Mitigating Foul Blows"
The title of this post is the title of this intriguing new paper by Mary Bowman available via SSRN. Here is the abstract:
For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.
Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases. This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize. As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases. These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.
September 28, 2014
Another round of highlights from Marijuana Law, Policy and Reform
It seems like a good time to do another round up of notable bew posts from Marijuana Law, Policy and Reform, so here goes: