December 5, 2014
SCOTUS takes up new capital procedures case from Louisiana
As reported in this SCOTUSblog post, the Supreme Court this afternoon granted cert on three new cases, one of which involves death penalty procedure. Here is Lyle Denniston's description of Brumfield v. Cain, the new capital case on the Supreme Court's agenda:
In accepting a Louisiana murder case for review on Friday, the Court agreed to sort out whether an individual accused of a capital crime has a right to an independent court hearing on whether he suffers from mental incapacity, and thus could not be sentenced to death. In the case of Brumfield v. Cain, the issue of Kevan Brumfield’s mental state was decided as an issue at the penalty phase of his murder trial, rather than at a separate inquiry.
Brumfield was sentenced to death for the shooting death of an off-duty Baton Rouge, La., police officer during an attempted robbery at a night deposit box at a bank in 1993. The officer had used a police car to transport a store manager on a trip to the bank to deposit the store’s proceeds. Brumfield was charged with killing the officer and wounding the store manager.
In taking the case to the Supreme Court, Brumfield’s lawyers argued that he has a serious defect in his intellectual capacity, but that state courts dealt with that only as an issue during his death sentencing hearing to determine whether it should mitigate the penalty. The petition contended that he was entitled to a separate hearing on that question. His petition raised a separate question on whether Brumfield was entitled to have the state pay for gathering evidence of his mental incapacity.
UPDATE: A lot more information about this crime and the defendant in this new SCOTUS case can be found in this local article, headlined "U.S. Supreme Court to hear mental retardation claim of Baton Rouge convicted killer: Mental retardation, execution eligibility at heart of the matter."
District Judge pushes federal prosecutors to back off extreme trial penalty sentence
As reported in this Reuters article, headlined "Prosecutors rethink convict's sentence after judge cites Holder," a federal judge earlier this week put some bite into the Attorney General's advocacy for reducing reliance on extremely long prison term by urging local federal prosecutors to reconsider an extreme sentence driven by application of mandatory minimum sentencing provisions. Here are the details of an interesting on-going sentencing story:
Prosecutors are reconsidering a 50-year sentence for a convicted robber and drug dealer, after a judge on Wednesday suggested they call Attorney General Eric Holder to ask him whether it was fair to "punish" a man for rejecting a plea deal and opting for a trial.
Randy Washington, 27, the Bronx man who faced the lengthy term after turning down a 10-year plea deal and getting convicted at trial, had been scheduled for sentencing in New York federal court on Wednesday. But the hearing was adjourned so prosecutors could rework a deal carrying a shorter sentence, after U.S. District Judge Richard Sullivan repeated his criticism that the 50-year mandatory minimum sentence appeared to "punish" Washington for going to trial.
Sullivan even suggested prosecutors call Holder himself to ask if their actions comport with his recent directive cautioning prosecutors against routinely using the threat of harsher sentences to induce defendants to plead guilty. "He won't look with pride on what you're doing here today," Sullivan said....
In September, Holder issued a memo advising prosecutors to avoid employing the prospect of longer mandatory minimum prison terms in plea talks. Sullivan cited the memo Wednesday in criticizing the sentence for Washington, who was convicted of robbery, narcotics and related charges.
In July, Sullivan said the potential 50-year term was legal but "unnecessary and unjust" and in a rare move pushed Manhattan U.S. Attorney Preet Bharara's office to seek a reduced sentence. In response, prosecutors offered to drop a 10-year enhancement based on a prior felony conviction for Washington.
They separately offered Washington a new 25-year deal, which Washington rejected as it included an appellate waiver, a provision Sullivan questioned on Wednesday. "I'm not sure there's great consistency in the position that says, 'We agree that 50 years is too long, but it's too long only if you give up your appellate rights,'" he said.
After prosecutors consulted with Bharara himself, Assistant U.S. Attorney Telemachus Kasulis told Sullivan they would consider a 25-year deal without requiring Washington to waive all of his appellate rights. Sentencing was rescheduled for Dec. 12.
December 4, 2014
"The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling"
The title of this post is the title of this notable and timely new paper by Scott Sundby now available via SSRN. Here is the abstract:
In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court's Eighth Amendment jurisprudence that has found the death penalty "disproportional" for certain types of defendants and crimes. This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding. In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated "evolving standards of decency." This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decision making.
The Court thus articulated expressly for the first time what this Article calls the "unreliability principle:" if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed. In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants. And, unlike with the "evolving standards" analysis, the unreliability principle does not depend on whether a national consensus exists against the practice.
This Article identifies the six Atkins-Roper factors that bring the unreliability principle into play and shows why they make application of the death penalty to mentally ill defendants unconstitutional. The principle, which finds its constitutional home in the cases of Woodson v. North Carolina and Lockett v. Ohio, has profound implications for the death penalty, and if taken to its logical endpoint calls into question the Court's core premise since Furman v. Georgia, that by providing individualized consideration of a defendant and his crime, the death penalty decision will be free of arbitrariness.
December 4, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack
Fourth Circuit find LWOP + 60 month sentence (!?!) for drug offenses substantively unreasonable
Thanks to a few helpful readers, I was alerted to a notable opinion from a Fourth Circuit panel today in US v. Howard, No. 13-4296 (4th Cir. Dec. 4, 2014) (available here). Here are excerpts from the start, middle and end of the lengthy opinion:
In appeal No. 13-4296, a jury convicted Dennis Ray Howard on one count of conspiracy to distribute and possess with intent to distribute a controlled substance, phencyclidine (“PCP”), nine counts of distribution of PCP, and one count of possession of a firearm in furtherance of a drug trafficking offense. The district court sentenced Howard to a term of life imprisonment plus 60 months.... For the reasons set forth within, we affirm the convictions, vacate the sentence as substantively unreasonable, and remand for resentencing....
The district court reached its life imprisonment sentence by making an upward departure based on Howard’s de facto career offender status, and by reasoning that the § 3553(a) factors supported a sentence at the top of the Guidelines range determined after the departure. Because we are persuaded that the extent of the upward departure is unwarranted and amounts to an abuse of discretion, and because, in any event, a sentence of life in prison on this record is not justified by consideration of the § 3553(a) factors as articulated by the district court, we conclude that the sentence imposed is substantively unreasonable....
By declaring Howard a serial recidivist dedicated to dispensing “poison” with no hope of redemption, and by basing this judgment on stale criminal history, the bulk of which was non-violent and committed when Howard was a juvenile, the district court failed in its effort to comply with the aims of sentencing prescribed by § 3553(a)(2)....
The district court plainly sought to intone all of the principles underlying § 3553(a)(2) when it announced its sentence. It stated the need for individual and general deterrence, incapacitation, and just punishment. There is no doubt that the sentence sent a “message” of deterrence to the people of Wilson and the Eastern District of North Carolina. The district court made those intentions clear. But we simply fail to see, on the whole record, how the life-plus-60-months sentence reasonably reflects the seriousness of the offense or just punishment. Manifestly, it is a sentence “greater than necessary,” 18 U.S.C. § 3553(a), to achieve the purposes of § 3553(a)(2).
Nevada completes detailed accounting of costs of death penalty cases
As reported in this local article, headlined "High cost of death penalty could affect its future in Nevada," the Silver State's audits have recently completed a detailed report on how much taxpayer gold is typically spent in capital cases. Here are the details:
Nevada’s criminal justice system spends nearly twice as much handling death penalty cases compared with murder cases where capital punishment isn’t sought, according to a report released Tuesday by state auditors.
The state-mandated study, which surveyed data from 27 state and local agencies, gives ammunition to death penalty opponents who have failed to defeat public support for capital punishment using moral objections. It is, by far, Nevada’s most comprehensive study on the controversial practice and will serve as a law makers' guide for years to come....
Auditors assembled the 105-page report by sampling data from 28 cases, calculating costs associated with legal counsel — both defense and prosecution — as well as for money spent on court proceedings and incarceration.
Here are three highlights from the document's release:
From a suspect’s arrest through his or her final days behind bars, officials spend at least $1.3 million on murder cases where convicts are sentenced to death but not executed — that’s $532,000 more compared with murder cases where capital punishment wasn't sought. Litigation costs, including the trial and appeal phase, averaged about three times more for death penalty versus non-death penalty cases. And expenses are similar for all death penalty cases, regardless of whether a sentence is given or not.
Among all prison inmates convicted of murder, costs are highest for people on death row. There were 83 people sentenced to death in Nevada as of late last year. Prosecutors could have potentially saved an estimated $44 million by never pursuing corporal punishment in those cases....
Nevada's per capita death penalty rate ranks fourth in the country and tops Texas and California, according to the nonprofit Death Penalty Information Center. But the state's death chamber is seldom used, and only a dozen people have been executed since the U.S. Supreme Court reinstated the capital punishment in 1976. Of those, only one died against his will. The last execution in Nevada happened more than eight years ago.
It’s likely the study underestimated the cost of death penalty cases because of underreporting from government agencies....
The study’s findings fall in line with previous research examining the financial burden of capital murder cases — a study released this year by the Kansas Judicial Council found that defending a death penalty case costs as much as four times more than other murder cases.
Critics of the practice hope Nevada’s study will bolster efforts to erode support for capital punishment. “A lot of people who favor the death penalty think it’s cheaper,” said Las Vegas criminal defense attorney Lisa Rasmussen, who also watched Tuesday's meeting from Las Vegas. “Once people understand and they’re informed, maybe things will change.”
The full 100+ page Nevada legislative audit document released this week, which carries the exciting title "Fiscal Costs of the Death Penalty," can be accessed at this link.
December 3, 2014
New report from Center for American Progress examines barriers for those with criminal records
The Center for American Progress this week released this notable new report titled "One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records." Here is an excerpts from the report's introduction:
Between 70 million and 100 million Americans — or as many as one in three — have a criminal record. Many have only minor offenses, such as misdemeanors and nonserious infractions; others have only arrests without conviction. Nonetheless, because of the rise of technology and the ease of accessing data via the Internet — in conjunction with federal and state policy decisions—having even a minor criminal history now carries lifelong barriers that can block successful re-entry and participation in society. This has broad implications — not only for the millions of individuals who are prevented from moving on with their lives and becoming productive citizens but also for their families, communities, and the national economy.
Today, a criminal record serves as both a direct cause and consequence of poverty. It is a cause because having a criminal record can present obstacles to employment, housing, public assistance, education, family reunification, and more; convictions can result in monetary debts as well. It is a consequence due to the growing criminalization of poverty and homelessness. One recent study finds that our nation’s poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the subsequent criminal records that haunt people for years after they have paid their debt to society....
Moreover, the challenges associated with having a criminal record come at great cost to the U.S. economy. Estimates put the cost of employment losses among people with criminal records at as much as $65 billion per year in terms of gross domestic product....
The lifelong consequences of having a criminal record — and the stigma that accompanies one — stand in stark contrast to research on “redemption” that documents that once an individual with a prior nonviolent conviction has stayed crime free for three to four years, that person’s risk of recidivism is no different from the risk of arrest for the general population.
Put differently, people are treated as criminals long after they pose any significant risk of committing further crimes — making it difficult for many to move on with their lives and achieve basic economic security, let alone have a shot at upward mobility. The United States must therefore craft policies to ensure that Americans with criminal records have a fair shot at making a decent living, providing for their families, and joining the middle class. This will benefit not only the tens of millions of individuals who face closed doors due to a criminal record but also their families, their communities, and the economy as a whole....
This report offers a road map for the administration and federal agencies, Congress, states and localities, employers, and colleges and universities to ensure that a criminal record no longer presents an intractable barrier to economic security and mobility.
Bipartisan momentum for criminal justice reform is growing, due in part to the enormous costs of mass incarceration, as well as an increased focus on evidencebased approaches to public safety. Policymakers and opinion leaders of all political stripes are calling for sentencing and prison reform, as well as policies that give people a second chance. Now is the time to find common ground and enact meaningful solutions to ensure that a criminal record does not consign an individual to a life of poverty.
Some notable new postings at the Collateral Consequences Resource Center
Busy with end-of-semester activities at the end of a busy semester, I have not been able to keep up lately with my usual review of significant postings from the various websites and blogs linked in my sidebars. But I have still made sure to keep up a "new kid" on the cyber-block, the Collateral Consequences Resource Center, because it covers a bunch of issues not too often discussed in other like fora. And these recent postings seemed especially worth highlighting:
Fifth Circuit issues stay keepingTexas from executing mentally ill condemned murderer
As reported in this CNN piece, the Fifth Circuit today "stayed the execution of Texas death row inmate Scott Panetti, who was scheduled to be put to death at 6 p.m. Wednesday." Here is more:
Panetti's case has sparked debate for years over whether the state can execute someone who is severely mentally ill. During his trial for the 1992 slayings of his mother- and father-in-law, Panetti represented himself — dressed in a purple cowboy outfit — and called Jesus, John F. Kennedy and the Pope to the stand. The now-56-year-old was convicted of shooting them to death at close range, in front of his wife and daughter.
Panetti has suffered from schizophrenia for 30 years, his lawyers say, and he was hospitalized for mental illness numerous times before the murders. Though Panetti received initial evaluations of his mental health, his state of mind has deteriorated, his lawyer Kathryn Kase said. She noted in a letter to Texas Gov. Rick Perry that Panetti hasn't received a mental evaluation in seven years. Kase asked that Perry grant a 30-day stay to the scheduled execution so that that an evaluation can be done to determine if he understands his punishment....
"If he's executed there should be a sense of outrage," said Ron Honberg, legal director for the National Alliance on Mental Illness. "There's no question he's mentally ill. If this happens, the message would be — 'we just don't care.'
"To execute him flies in the face of even supporters of the death penalty who say that it should be carried out with inmates who are the worst of the worst," Honberg continued. "It would be much more compassionate and practical to spend money treating inmates with mental illness rather than execute this man."
The Texas Board of Pardons and Parole voted 7-0 to deny clemency in Panetti's case. There is still an appeal before the U.S. Supreme Court, in addition to the appeal the U.S. Fifth Circuit Court of Appeals granted Wednesday.
Praise for Texas justice embracing "Right on Crime" from across the pond
This new BBC article, headlined "Why Texas is closing prisons in favour of rehab," provides a notable example of the rest of the world taking note (and praising) the "right on crime" movement. The piece is authored by a Danny Kruger, a former speechwriter for UK's prime minister David Cameron, and here are excerpts:
Coming from London to spend a couple of days in Texas last month, I was struck most of all by how generous and straightforward everyone was. Talking to all sorts of different people about crime and punishment, the same impression came across: We expect people to do the right thing and support them when they do. When they don't we punish them, but then we welcome them back and expect good behaviour again. It's not naive, it's just clear.
For years that straightforward moral outlook translated into a tough criminal justice system. As in the rest of the US, the economic dislocations of the 1970s, compounded by the crack epidemic in the 1980s, led to a series of laws and penal policies which saw the prison population skyrocket. Texas, for instance, has half the population of the UK but twice its number of prisoners.
Then something happened in 2007, when Texas Republican Congressman Jerry Madden was appointed chairman of the House Corrections Committee with the now famous words by his party leader: "Don't build new prisons. They cost too much." The impulse to what has become the Right on Crime initiative was fiscal conservatism — the strong sense that the taxpayer was paying way too much money to fight a losing war against drugs, mental ill-health and petty criminality.
What Madden found was that too many low-level offenders were spending too long in prison, and not reforming. On the contrary, they were getting worse inside and not getting the help they needed on release. The only response until then, from Democrat as well as Republican legislators, was to build more prisons. Indeed, Mr Madden's analysis suggested that a further 17,000 prisoners were coming down the pipe towards them, requiring an extra $500m (£320m) for new prisons.
But he and his party didn't want to spend more money building new prisons. So they thought of something else — rehab. Consistent with the straightforward Texan manner, the Congressional Republicans did not attempt to tackle what in Britain are known as "the causes of crime" — the socio-economic factors that make people more disposed to offend. Instead, they focused on the individual criminal, and his or her personal choices. Here, they believe, moral clarity and generosity are what's needed.
Though fiscal conservatism may have got the ball rolling, what I saw in Texas — spending time in court and speaking to offenders, prison guards, non-profit staff and volunteers — goes way beyond the desire to save money. The Prison Entrepreneurship Programme, for instance, matches prisoners with businesspeople and settles them in a residential community on release. Its guiding values are Christian and its staff's motives seem to be love and hope for their "brothers", who in turn support the next batch of prisoners leaving jail.
The statutory system is not unloving either. Judge Robert Francis's drugs court in Dallas is a well-funded welfare programme all of its own — though it is unlike any welfare programme most of the 250 ex-offenders who attend it have ever seen. Clean and tidy, it is staffed by around 30 professionals who are intensely committed to seeing their clients stay clean and out of jail, even if that means sending them back to prison for short periods, as Judge Francis regularly does when required....
Immediate, comprehensible and proportionate sanctions are given for bad behaviour, plus accountability to a kind leader and supportive community. This is the magic sauce of Right on Crime.
Far from having to build new jails for the 17,000 expected new inmates, Jerry Madden and his colleagues have succeeded in closing three prisons. I visited one by the Trinity River in Dallas, now ready for sale and redevelopment. They spent less than half the $500 million earmarked for prison building on rehab initiatives and crime is falling faster than elsewhere.
This, then, ticks all the boxes - it cuts crime, saves money and demonstrates love and compassion towards some of the most excluded members of society. It is, in a sense, what conservatives in America and Britain dream of — a realistic vision of a smaller state, where individuals are accountable for their actions and communities take responsibility for themselves and their neighbours. It is a more positive version of the anti-politics — anti-Washington, anti-Westminster — tide that seems to be sweeping the West.
December 3, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack
After numerous local, state and federal reforms, crime hits new record lows in biggest US city
This new New York Times article reports on more good news about crime rates from the Big Apple. Here are the encouraging details:
Mayor Bill de Blasio said on Tuesday that a city his opponents once said would grow more dangerous under his watch had, in fact, become even safer.
Robberies, considered the most telling indicator of street crime, are down 14 percent across New York City from last year. Grand larcenies — including the thefts of Apple devices that officials said drove an overall crime increase two years ago — are also down, by roughly 3 percent. And after a record-low 335 homicides in 2013, the city has seen 290 killings in the first 11 months of this year, a number unheard-of two decades ago.
“When I came into this job, people always talked about last year — last year was an amazing year in this city in terms of bringing down crime,” Mr. de Blasio said. “We saw what was possible. The city’s crime rate continues to go down.”
Even shootings, which had increased by more than 10 percent earlier this year, have receded amid a push by the Police Department to stamp out troublesome pockets of gun violence. There were just over 1,000 shootings in the first 11 months of this year, about a 4 percent increase over last year....
For Mr. de Blasio and his police commissioner, William J. Bratton, the numbers provided a kind of cushion for the criminal justice and policing reforms that both men are putting into place.
Officers will this week begin a pilot program of wearing body cameras in three police commands, Mr. Bratton said on Tuesday, and a wholesale retraining of the department’s patrol force is also starting. A new marijuana policy aimed at reducing low-level arrests, which was announced in November, has already resulted in a 61.2 percent decline in arrests in its first two full weeks....
The decline in the city’s crime rate, while deeper in many categories than other cities, mirrors a nationwide downward trend from heights of violent crime in the 1990s. How much any one mayor or one police commissioner has control over crime has remained a subject of debate. Indeed, Mr. de Blasio pointed to 20 years of “momentum” that he inherited, referring to an “arc of continuous progress across different mayors, different commissioners.” He expressed pride in the performance of the Police Department over the first 11 months of this year, and declined to describe the continued decline as vindication of his reform-minded policies. Others were more ready to do so.
“Bravo!” wrote Joseph J. Lhota on Twitter, who as the Republican candidate for mayor last year ran ads predicting a return to the crime-plagued streets of the early 1990s if Mr. de Blasio were elected.
With a month still to go before the end of the year, the favorable crime numbers appeared to render a verdict on at least one question: Would a vast decline in the number of recorded stop-and-frisk encounters create an opening for violence to return? So far, Mr. de Blasio and Mr. Bratton said, the answer has been no Mr. Bratton said that by the end of the year there would be fewer than 50,000 such stops, down from a high of over 685,000 in 2011. That sharp decline, like crime over all, began well before Mr. de Blasio took office and has continued.
As the title of this post highlights, this great news on crime rates is also great news for those eager to encourage continued reform of state and federal criminal justice policies and practices. In addition to recent stop-and-frisk and marijuana policing reforms, New York five years ago reformed its draconian Rockefeller drug laws and the state's prison population has also been reduced significantly in recent years. And, of course, if many recent federal sentencing reforms were to have any significant impact on crime rates, we reasonably should expect New York City to be a window on this national story.
Critically, I am not trying to assert or even suggest that recent crime reductions are the result of all the criminal justice reforms of recent years. But I do mean to highlight and stress that it seems freedom has been significantly increased in the Big Apple without any apparent harm to public safety (and despite lots of folks claiming that criminal justice reforms would surely result in more crime). To paraphrase Old Blue Eyes, not only should everyone start spreading this news, but we should conclude that if we can make criminal justice reform work there, we can make it work just about everywhere.
December 2, 2014
"United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements"
The title of this post is the title of this new article authored by Kevin Bennardo and published in the online complement to the Washington and Lee Law Review. (The Erwin case referenced in the title is a recent Third Circuit ruling discussed in this blog post titled "Significant Third Circuit ruling on the consequences of a defendant's appeal despite an appeal waiver.") Here is the abstract of this new article:
Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.
SCOTUS hears argument on application of mandatory minimum sentencing provision in Whitfield
The Supreme Court has another notable criminal justice case on tap for oral argument this morning, and this effective SCOTUSblog preview, titled "Parsing “accompany” in the federal bank robbery statute," provides all the details and context. Here is how the preview starts and ends:
One part of the federal bank robbery statute, 18 U.S.C. § 2113(e), provides that a bank robber who “forces another person to accompany him” will receive a minimum sentence of ten years in prison, with a life sentence as a maximum. [Tuesday December 2] the Court will hear oral arguments on how broadly this provision should apply — and in particular, whether it should apply to a North Carolina man who, while attempting to elude capture after a failed bank robbery, required the elderly woman in whose home he was hiding to move with him from one part of her home to another. [This] hearing could also tell us whether the Justices regard this case as a run-of-the-mill statutory interpretation case or instead — like last month’s Yates v. United States and last Term’s Bond v. United States — as the latest in a series of criminal cases in which overzealous federal prosecutors have overstepped their authority....
At last month’s argument in Yates, Justice Samuel Alito — who is normally the government’s most reliable ally in criminal cases — suggested to the lawyer arguing on behalf of the United States that, although the federal government had a variety of good arguments, it was nonetheless asking the Justices to endorse too expansive an interpretation of a federal law targeting the destruction of evidence. Whitfield and his lawyers no doubt hope that the Justices will be equally dubious of the government’s interpretation in this case. On the other hand, although Whitfield ultimately proved to be a bumbling bank robber, his conduct was unquestionably far more grave than John Yates’s destruction of some undersized fish: even if he only intended to hide from police after the failed bank robbery and never meant to harm [his elderly victim], she did die. And that may be enough to make several of the Justices less skeptical, and significantly more serious, at Tuesday’s oral argument.
"Actually, Blacks Do Care About Black Crime"
The title of this post is the headline of this notable new Slate commentary by Jamelle Bouie. Here are excerpts:
In cities across the country, crowds are protesting police violence against unarmed black men. Demonstrators want justice, not just for Michael Brown, but for Eric Garner, John Crawford, and Tamir Rice, the 12-year-old boy killed by Cleveland police last month. To that end, they’ve stopped parades and blocked highways in an effort to show the value of a black life.
But to some critics, this outrage is misplaced. “Somebody has to tell me, something somebody needs to tell me why Michael Brown has been chosen as the face of black oppression,” said MSNBC’s Joe Scarborough on Monday morning, during his daily show. His co-panelist, Donny Deutsch, agreed. “It’s not a black-white situation. It’s a thug-police officer situation,” he said. “Where are the angry crowds demanding justice for blacks such as these, who were wiped out in St. Louis by other blacks in recent memory?” wonders Deroy Murdock in a column for National Review. “One can hear birds chirp while listening for public outcry over the deaths of black citizens killed by black perpetrators. Somehow, these black lives don’t seem to matter,” writes Murdock, who doesn’t note that — in those cases — perpetrators are usually caught and convicted. And then there’s former New York City mayor Rudy Giuliani, who—after President Obama spoke on Ferguson — told CNN that “[Obama] also should have spent 15 minutes on training the [black] community to stop killing each other.”
This basic question — “Where is all the outrage over black-on-black crime?” — is raised whenever black Americans protest a police shooting, or any other violence against unarmed black men. “Nationally, nearly half of all murder victims are black,” wrote conservative commentator Juan Williams after Trayvon Martin was killed in 2012, “And the overwhelming majority of those black people are killed by other black people. Where is the march for them?”...
[L]et’s look directly at the question raised by Murdock, Giuliani, and Williams — “Do black people care about crime in their neighborhoods?” They treat it as a rhetorical concern — a prelude to broad statements about black American concerns. But we should treat it as an empirical question — an issue we can resolve with some time and research.
This isn’t as easy as it sounds. While blacks are more likely to face criminal victimization than other groups, that doesn’t tell us how black Americans feel about crime and where it ranks as a problem for their communities. For that, we have to look to public opinion surveys and other research. And while it’s hard to draw a conclusive answer, all the available evidence points to one answer: Yes, black people are concerned with crime in their neighborhoods....
[W]hile black neighborhoods are far less dangerous than they were a generational ago, black people are still concerned with victimization. Take this 2014 report from the Sentencing Project on perceptions of crime and support for punitive policies. Using data from the University of Albany’s Sourcebook of Criminal Justice Statistics, the Sentencing Project found that — as a group — racial minorities are more likely than whites to report an “area within a mile of their home where they would be afraid to walk alone at night” (41 percent to 30 percent) and more likely to say there are certain neighborhoods they avoid, which they otherwise might want to go to (54 percent to 46 percent). And among black Americans in particular — circa 2003 — “43 percent said they were ‘very satisfied’ about their physical safety in contrast to 59 percent of Hispanics, and 63 percent of whites.”
More recent data shows a similar picture. In 2012, Gallup found that, compared to the general public, blacks were more worried about “being attacked” while driving their car, more worried about being the victim of a hate crime, and — most salient for our discussion — more worried about “being murdered.” Likewise, according to a 2013 survey for NPR, the Robert Wood Johnson Foundation, and the Harvard School of Public Health, 26 percent of black Americans rank crime as the most important issue facing the area they live. That’s higher than the ranking for the economy (16 percent), housing (4 percent), the environment (7 percent), social issues (4 percent), and infrastructure (7 percent). And in a recently published survey for Ebony magazine and the W.K. Kellogg Foundation, 13 percent rank violent crime as a top issue — which sits in the middle of the rankings — and 48 percent say that the black community is losing ground on the issue.
Finally, Atlantic Media’s “State of the City” poll — published this past summer—shows an “urban minority” class that’s worried about crime, and skeptical toward law enforcement, but eager for a greater police presence if it means less crime. Just 22 percent of respondents say they feel “very safe” walking in their neighborhoods after dark, and only 35 percent say they have “a lot” of confidence in their local police. That said, 60 percent say hiring more police would have a “major impact” on improving safety in their neighborhoods. And while “urban minority” includes a range of different groups, there’s a good chance this is representative of black opinion in some areas of high crime and victimization, given the large black presence in many American cities.
It’s important to note that this concern with crime doesn’t translate to support for punitive policies. Despite high victimization rates, black Americans are consistently opposed to harsh punishments and greater incarceration. Instead, they support more education and job training.
Beyond the data, there’s the anecdotal evidence. And in short, it’s easy to find examples of marches and demonstrations against crime. In the last four years, blacks have held community protests against violence in Chicago; New York; Newark, New Jersey; Pittsburgh; Saginaw, Michigan; and Gary, Indiana. Indeed, there’s a whole catalog of movies, albums, and sermons from a generation of directors, musicians, and religious leaders, each urging peace and order. You may not have noticed black protests against crime and violence, but that doesn’t mean they haven’t happened. Black Americans — like everyone else — are concerned with what happens in their communities, and at a certain point, pundits who insist otherwise are either lying or willfully ignorant....
To that point, it’s worth noting the extent to which “what about black-on-black crime” is an evasion, an attempt to avoid the fundamental difference between being killed by a citizen and being killed by an agent of law.
December 1, 2014
Justices struggling in Elonis argument with free speech and Facebook threats
There are now lots of old and new media sources reporting on today's Supreme Court oral argument in Elonis v. United States, the case considering the reach and application of a federal law prohibiting making threats via the Internet. The folks at SCOTUSblog have two terrific review posts here and here, and How Appealing collects lots and lots of links to other coverage here and here.
All these media reports suggest that the Justices were struggling in various ways to figure out how best to balance free speech concerns and legitimate interests in punishing "true threats" made on-line. And folks can read up on these struggles in full via the transcript in Elonis v. United States which is available at this link.
Making the case (again) for fixing the federal clemency process
Over the holiday weekend, Professors Rachel Barkow and Mark Osler renewed their call for reform of the federal clemency process through this Washington Post opinion piece. Here are excerpts from the start and end of the piece:
In the run-up to Thanksgiving, it was a sure thing that a turkey would get an efficient reprieve from President Obama. But that’s only because the turkey did not have to go through the normal pardon process. If it had, it would likely have waited more than four years and have had several layers of government bureaucrats nit-picking its case. The federal clemency process — for humans, at least — is broken, and Obama should act now to fix it for the benefit of his and future administrations.
Since the 1980s, presidents have utterly failed to use their constitutional pardon power as a systemic check on federal laws and prosecutors that go too far. As a series of ProPublica reports published in The Post revealed in 2011, recent presidents grant pardons and commutations rarely and arbitrarily, largely giving relief only when it is requested by members of Congress or other influential people. Obama has been among the worst of the lot....
What is broken is no mystery. The key gatekeepers for this process are in the Justice Department — the same agency that prosecutes federal crimes. Unsurprisingly, the department has been reluctant to second-guess its own decisions and rarely recommends that the White House approve a clemency petition. Moreover, each petition must pass through as many as seven levels of review prior to approval, and many of those doing the reviewing (such as the deputy attorney general and the White House counsel) have plates already full with other duties....
It’s easy to envision a better method. As in countless other areas of law, from communications and securities regulation to establishing sentencing guidelines, a dedicated agency comprising experts could address the problem efficiently and effectively. The president should appoint a bipartisan commission of Democrats and Republicans with expertise in criminal law to consider all applications and track data on recidivism and other outcomes. The agency can work with the president’s reentry council to coordinate prisoners’ transitions back to civil society. And because the commission would be politically balanced, the president would not need to worry about being exposed to Willie Horton-style attacks, should a convict commit some new crime after being freed; these will be cases that people of all political stripes agreed deserved relief. President Gerald Ford used this device in 1974 when he created a temporary board to quickly process about 21,000 Vietnam-era draft evasion and deserter cases. One reason we know the Ford plan was a political success is because so few people remember it.
With a small but dedicated staff, such an agency would shrink the relevant levels of review to just three. There is a simple reason that states almost uniformly use such boards rather than the federal approach of sending the review through layers of prosecutors: It works.
Such a common-sense reform would provide the president with a lasting legacy that his successors would surely appreciate: a pardon process that works not just for turkeys on Thanksgiving but for everyone, all year long.
Just a few of many recent and older posts concerning federal clemency practices:
- Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people
- ProPublica urges next AG to "Fix Presidential Pardons"
- "Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal" (article by Professors Barkow and Osler)
- "How to Awaken the Pardon Power"
- Updated numbers on President Obama's disgraceful clemency record
- "Clemency Reform: We're Still Waiting"
- New York Times editorial assails Prez Obama's considerable clemency failings
"What Death Penalty Opponents Don’t Get"
Opponents of the death penalty have had many occasions to celebrate in the new millennium. Four states have abolished the practice in the past five years, while others have legally or effectively set moratoriums on executions. Support for capital punishment in the United States is at its lowest point in four decades, and seems likely to fall further as the number of exonerations and gruesomely botched executions continues to grow.
But at what cost have these concessions been won? The NAACP Legal Defense and Educational Fund's latest “Death Row U.S.A.” report found 3,049 individuals awaiting execution in the United States. According to the Sentencing Project, at last count nearly 50,000 people were serving sentences of life without the possibility of parole — a number that has more than tripled since the early 1990s. Over 159,000 were serving life sentences — many of them ... with minimums so long that they might as well be doing life without parole, too.
In many states, the expansion — and the very existence — of life without parole sentences can be directly linked to the struggle to end capital punishment. Death penalty opponents often accept — and even zealously promote — life without parole as a preferable option, in the process becoming champions of a punishment that is nearly unknown in the rest of the developing world...
Complicating matters is the fact that life without parole rarely takes its place as simply a one-for-one alternative to the death penalty. In New York State, for example, life without parole did not exist before the state’s brief reinstitution of capital punishment from 1995 to 2004. During this period, there were never more than half a dozen men on New York’s death row, and no executions took place. Yet today, nearly 250 people are doing life without parole in New York, and more than 1 in 6 of the state’s prisoners is serving a life sentence.
Connecticut, in abolishing its death penalty in 2012, legislated a punishment even more harsh than simple life without parole. Thereafter, a new law decreed, those convicted of “murder with special circumstances” would be condemned to live out their life without parole sentences in solitary confinement. The measure was reportedly backed as a way to win enough support for the repeal bill.
Though the requirement that life/LWOP sentences be served in solitary confinement is codified into law only in Connecticut, it exists in practice throughout the nation. An unknown number of lifers have, like [New York lifer] William Blake, been placed in permanent or indefinite solitary confinement by prison officials, without benefit of any kind of due process. So have most of the individuals on the nation’s death rows, including the supposedly fortunate ones who live in states that have instituted moratoriums, and are therefore unlikely to ever face execution.
Research has confirmed that even brief periods in solitary alter brain chemistry and produce psychiatric symptoms ranging from extreme depression to active psychosis. Some prisoners who have spent longer amounts of time in isolation describe it as a condition that slowly degrades both their humanity and sanity, turning them into blind animals given to interminable pacing, smearing their cells with feces, or engaging in self-mutilation....
William Blake has said that while he cannot bring himself to take his own life, he would have welcomed the death penalty 27 years ago had he known what a lifetime in solitary confinement would be like. Perhaps the time will come when people like Blake — and the American public — are not forced to choose among such monstrous alternatives. In the meantime, it will be a shame if people who oppose state-sponsored death continue to advocate for state-sanctioned torture.
Long-time readers know that I largely share the perspective of these commentators. I find compelling the assertion that some (many?) LWOP sentences can often involve a fate worse than death, and I find moving the concern that too much of modern opposition to "state-sponsored death" in the United States tends to advocate, both formally and functionally, for a kind of "state-sanctioned torture."
Justices issue cert statements expressing concerns about procedural issues in criminal appeals
Today's order list from the Supreme Court, in addition to including a few notable denials of cert in criminal cases as noted by Lyle Denniston in this new SCOTUSblog post, concluded with two notable statements by a few Justices explaining why they voted to deny certiorari review in a couple of criminal cases even though they were troubled by procedural issues arising in efforts by defendants to raise various appellate issues.
This statement in Joseph v. United States should be of special interest to federal practitioners. In it, Justices Kennedy and Sotomayor indicated they voted to grant certiorari, while Justice Kagan (joined by Justices Ginsburg and Breyer) explained how the Eleventh Circuit's application of rules about raising new claims in reply brief suggested that "criminal defendants with unpreserved new claims may be treated differently within the Eleventh Circuit, just as they are as between the Eleventh Circuit and every other court of appeals." Justice Kagan then, not too subtly, suggested that she was holding on granting cert in order to give the Eleventh Circuit a chance in the first instance to " clean up intra-circuit divisions" before SCOTUS took up the matter.
This statement in Redd v. Chappell should be of special interest to capital punishment followers, especially in California. In it, Justice Sotomayor (joined by Justice Breyer) laments that nearly two decades "after petitioner was first sentenced to death, and more than four years after his conviction and sentence were affirmed on direct appeal, petitioner has not received counsel to represent him in his state habeas corpus proceedings — counsel to which he is entitled as a matter of state law." Justice Sotomayor explains she is did not vote to grant cert in part because "the State represents that state habeas counsel will be appointed for petitioner in due course.” When counsel is appointed is obviously real important to this petitioner; even more important to lots of others is whether this statement is something of a signal concerning the on-going federal court litigation in Jones v. Chappell over the constitutional problems posed by seemingly arbitrary delays in appellate review for condemned California killer.
November 30, 2014
Previewing SCOTUS argument in Facebook threat case, Elonis v. United States
To kick off December, the Supreme Court will hear oral argument in Elonis v. United States to consider application of the federal law prohibiting making threats using the Internet. Lyle Denniston has this lengthy preview post at SCOTUSblog titled "Social media as a crime scene," and here are excerpts:
There is a way for the Court to decide the case of Elonis v. United States without sorting out just how far First Amendment protection extends to private expression on the Internet. In agreeing to hear the case, the Court added a question about the meaning of the federal law at issue. If it narrows the reach of that law, it may not need to say anything directly about the First Amendment, although it probably would reduce the law’s scope if it felt that was necessary to avoid having to rule on the constitutional question.
In this case, a thirty-one-year-old man, Anthony Douglas Elonis, who lives in the small Pennsylvania community of Lower Saucon Township, was convicted for postings on Facebook four years ago that prosecutors treated as actual threats of violence. The jury agreed, leading to a guilty verdict and a forty-four-month prison sentence. His messaging came after his wife had left him and he was fired from his job at an amusement park because of one of his postings....
His conviction came under a federal law that makes it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.”
The Supreme Court, in fact, has already made at least partly clear — in decisions that go back to 1969 — that the First Amendment does not permit the government to punish for all threats made in communications in the media or in the public square. It has confined prosecution to “true threats,” and has stressed that the law against threatening someone does not apply at all to “political hyperbole” or to “vehement, caustic, or unpleasantly sharp attacks” that cannot be interpreted as “true threats.”
And, in a decision in 2003, the Court attempted to say just what a “true threat” is, legally speaking. It did so in interpreting another federal law that made it a crime to burn a cross with the intent of intimidating someone. That law said any cross-burning, by the act itself, would be proof of an intent to intimidate. A plurality of the Court said that the act alone was not sufficient. “‘True threats,'” that opinion said, “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”
In [Elonis], the Supreme Court has the task of clarifying what a person “means to communicate” when speaking in terms of violence on the Internet, and also what constitutes “an intent” to commit the crime of making an illegal threat.
Basically, this case presents the Court with two choices — first, to look at the issue of intent from a subjective perspective, focusing on the speaker, or to look at it from an objective view, focusing on both the speaker and on a hypothetical “reasonable person” exposed to the message.
Anthony Elonis and his supporters argue that his postings on Facebook were not “true threats” because he actually had no “subjective intent to threaten another person.” If that is the test, a jury would have to make its own assessment of what an Internet user like Elonis did have in mind, examining the specific words used and their context.
The federal government and its supporters, however, argue that Elonis’s statements were judged — and should have been judged — by two measures: first, did he make his statements intentionally (without regard to what he was thinking), and, second, would “a reasonable person” read the words used and their context as conveying to the target of the message that they would be injured or killed?...
The effect of the decision that does emerge almost certainly would be felt in the very public space of such Internet sites as Facebook. For that reason, Elonis is running interference for the Internet as a whole, and especially for those sites where expression is robust, indeed. Much of the discussion in the case, in fact, is on the potential impact on the very provocative postings of rap music, and its fairly common idiom of violence.
Growing awareness of the limited efficacy of local sex offender residency restrictions
This new Wall Street Journal article highlights the new awareness of enduring problems with sex offender residency restrictions. The lengthy piece is headlined "Cities and Towns Scaling Back Limits on Sex Offenders: Officials Say Buffer Zones Don’t Prevent Repeat Offenses and Make Predators Harder to Track," and here are excerpts:
When Palm Beach County, Fla., was sued earlier this year over its housing restrictions for registered sex offenders, its attorneys took an unusual approach: They suggested the county relax its law.
The county’s commissioners — prompted largely by the lawsuit brought by a sex offender who claimed the limits rendered him homeless — voted in July to let such offenders legally live closer to schools, day-care centers and other places with concentrations of children. “We realized the law was costing the taxpayers money [for services for the homeless] and was causing more problems than it was solving,” said county attorney Denise Nieman.
In the mid-1990s, states and cities began barring sex offenders from living within certain distances of schools, playgrounds and parks. The rationale: to prevent the horrible crimes sometimes committed by offenders after their release. In October, for instance, officials charged sex offender Darren Deon Vann with murdering two women in Indiana. Mr. Vann, who is suspected of killing several others, pleaded not guilty.
Now, a growing number of communities are rejecting or scaling back such limits — out of concern that they don’t prevent repeat offenses, and, in some instances, may make sex offenders harder to track....
A 2013 Justice Department study that examined Michigan’s and Missouri’s statewide restrictions showed they “had little effect on recidivism.” Other studies have found the vast majority of sex-offense cases involving children are committed not by strangers but by family members or others with established connections to the victims, such as coaches or teachers.
About 30 states and thousands of cities and towns have laws restricting where sex offenders can live, while others are adding them. In March, a 1,000-foot buffer from parks took effect in San Antonio. In July, Milwaukee passed a law banning sex offenders from living within 2,000 feet of a variety of places where children gather....
Critics, however, say such moves do little more than score lawmakers political points and give an area’s residents a false sense of security. Some argue they can make communities less safe, by making it hard for offenders to find stable housing.
David Prater, district attorney of the county that encompasses Oklahoma City, said he and other state prosecutors have tried to get the state to relax its 2,000-foot buffer, to no avail. “No politician wants to be labeled the guy who lessens restrictions on sex offenders,” he said....
Some smaller towns are chucking restrictions, partly in the name of public safety. De Pere, Wis., a town of 23,000 south of Green Bay, tossed out its 500-foot buffer last year after reviewing data on its effectiveness, said several council members. The issue was reopened by some townspeople several months ago ,when a convicted sex offender moved across the street from a school for children with special needs. But the council didn’t budge. “You track where they live, you check in on them, but you let them live at home, where they’re comfortable and stable,” said Scott Crevier, a DePere city councilman. “I feel we’re actually safer than a lot of other towns in the state that have them.”
Noting some reasons the number of US executions in 2014 are so low
This new Christian Science Monitor article details some reasons why the US is on pace to have fewer than three dozen executions this year for the first time in decades. The piece carries this lengthy headline and subheading: "Death penalty in 2014: why US has seen fewest executions in 20 years: The downward trend in executions has several explanations, but experts say it’s probably not because of death penalty debates about innocence and guilt. Rather, they say, it’s the details of how the state goes about ending a condemned life." Here are excerpts:
In late November, a federal judge emptied Wyoming’s death row of its last remaining occupant, Dale Wayne Eaton. His lawyers don’t dispute that Mr. Eaton in 1988 raped and killed 18-year-old Lisa Marie Kimmell after kidnapping her and holding her hostage in his compound. The problem, the court found, was that his defense team failed to present him as a three-dimensional human being at his sentencing, including pointing out the severe beatings he received as a child and how he was evaluated to have low intelligence.
The ruling seemed of the moment in a country that has seen sentiments about the death penalty continue to shift in 2014. So far this year, America has seen the fewest executions — 32 — in 20 years....
A series of botched and disturbing executions in Oklahoma, Ohio, and Arizona has also contributed to the shifting debate, argues Rick Garnett, a law professor at the University of Notre Dame in Indiana. Death penalty states are being forced to come up with new lethal injection drug formulas as traditional suppliers of the drugs stop distributing them to states.
The downward trend in executions has several explanations, but experts say it’s probably not because of debates about innocence and guilt. Rather, they say, it’s the details of how the state goes about ending a condemned life, including the issues surrounding the lethal injection drugs.
"The Retroactivity of Substantive Rules to Cases on Collateral Review and the AEDPA, with a Special Focus on Miller v. Alabama"
The title of this post is the title of this notable new paper on SSRN authored by Jason Zarrow and William Milliken. Here is the abstract:
Teague v. Lane established a general bar on the retroactive application of criminal rules in habeas proceedings. Substantive rules, however, are not subject to that bar. In this Article, we consider whether a habeas petitioner may retroactively invoke a substantive rule notwithstanding 28 U.S.C. § 2254(d)(1), a provision of the Anti-Terrorism and Effective Death Penalty Act that precludes federal courts from granting habeas relief to state prisoners unless the state-court adjudication was contrary to “clearly established Federal law.”
We answer this question through the lens of the Supreme Court’s decision in Miller v. Alabama, holding that sentencing schemes mandating life-without-parole sentences for juveniles are unconstitutional. By tracing the Court’s jurisprudence on substantive rules to its historical roots, we conclude that Miller, while not substantive in toto, contains a substantive component, and that § 2254(d)(1) does not bar habeas petitioners from relying on substantive rules announced after their convictions become final.