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February 1, 2014

Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act

Over at Crime & Consequences, Bill Otis complains in posts here and here about the lack of media coverage of the expressed opposition by the National Association of Assistant United States Attorneys (NAAUSA) to statutory sentencing reforms endorsed by Attorney General Eric Holder.  Specifically, in this post, Bill states that AG Holder's decision to express support for the Smarter Sentencing Act (SSA)  is "contrary to the views, not of dozens, but of hundreds of career lawyers," which "subvert[s] the experience and judgment of the Department's career lawyers" and is thus "a very big story."  In Bill's words, when "hundreds of [DOJ lawyers] take the risks of speaking out against the Attorney General on a matter this important, that is a news story."

I agree that this is a "very big story," especially for those interested in federal sentencing reforms and the use of mandatory minimums in the prosecution of the federal drug war.  Consequently, I am eager to give this story all the attention it merits and to do so in thorough and fair ways to help ensure all federal prosecutors' views on the Smarter Sentencing Act are widely known and widely understood.

Helpfully, a few hours of research on the NAAUSA website provided me with a much fuller understanding of NAAUSA's expressed opposition to the SSA.  This Sept/Oct 2013 NAAUSA newsletter has a lengthy piece headlined "Members Asked to Weigh In on the Debate on Mandatory Minimums," which includes a report of a on-going survey of federal prosecutors in the works concerning their views on MMs.  In turn, this two-page NAAUSA position paper on mandatory minimums thereafter states that a "recent NAAUSA survey documented strong opposition to any weakening of mandatory minimums." And this eleven-page NAAUSA document provides lengthy statements from prosecutors in response to the survey.

In an effort to provide very thorough and fair coverage of prosecutors' views here, I am eager to see (and to post here and publish in the Federal Sentencing Reporter) the survey instrument sent to NAAUSA members and the full results.  The statements from prosecutors reprinted in this document does reveal strong opposition to eliminating federal mandatory minimum provisions.  However, many comments express the strongest concerns about the possibility of eliminating all federal mandatory minimums, whereas the Smarter Sentencing Act endorsed by AG Holder only calls for reducing the length of mandatory minimums only for drug offenses.  

Especially because the SSA is going to be up for further debate in Congress following its passage through the Senate Judiciary Committee, and especially because the views of career DOJ lawyers are very important in this debate, I am genuinely eager to provide here as much coverage of prosecutorial perspectives as possible.  And I would be eager for readers to use to comments to help me fully and fairly cover this "very big story" and ask the right sets of questions of relevant stakeholders as I do.

A few recent related posts:

UPDATED MEDIA COVERAGE: A few helpful commentors have provided links to some additional "new media" coverage of the SSA and prosecutorial perspectives on its proposed reforms.

At TalkLeft in this post titled "Amended Weakened Version of Sentencing Reform Bill Passes Judiciary Comm.," Jeralyn provides a very helpful and effective review of the process through which the SSA was amended and was voted through the Senate Judiciary Committee. I found especially interesting this account of the various amendments offered to the SSA:

In all, Sen. Charles Grassley of Iowa introduced 6 Amendments weakening the bill and adding new mandatory minimums and increased penalties for other offenses. He got 3 of them passed.  The bill, with Grassley's amendments, now includes a new mandatory minimum for sex offenses and makes some sex offenses death penalty eligible.  It increases penalties for domestic violence offenses.  It adds new mandatory minimum sentences for some terror and arms-related crimes.

Grassley didn't get everything he wanted.  His failed amendments included one which would have abolished the Sentencing Commission and another that would have allowed prisoner transfers to foreign countries over the objection of the defendant.

Consistent with the themes of this post, I wonder if career DOJ prosecutors favor abolishing the Sentencing Commission.  To my knowledge, the Bll Otis is the only person who has publicly called for abolishing the US Sentencing Commission, though perhaps again there may be reason to believe Senator Grassley's efforts to this end are channelling the interests of hundreds of prosecutors.  

And at Simple Justice in this post titled "The Great Prosecutor Revolt of 2014 (Update)," Scott notes that Bill Otis is concerned that the "mainstream media isn’t 'covering' the career prosecutor revolt and he indicates that he will be "doing everything [he] can to get [the] story out."

February 1, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (27) | TrackBack

"Why Retributivism Needs Consequentialism: The Rightful Place of Revenge in the Criminal Justice System"

The title of this post is the title of this intriguing new paper now available via SSRN and authored by Ken Levy. Here is the abstract:

Consider the reaction of Trayvon Martin’s family to the jury verdict. They were devastated that George Zimmerman, the defendant, was found not guilty of manslaughter or murder. Whatever the merits of this outcome, what does the Martin family’s emotional reaction mean? What does it say about criminal punishment – especially the reasons why we punish? Why did the Martin family want to see George Zimmerman go to jail? And why were – and are – they so upset that he didn’t?

This Article will argue for three points. First, what fuels this kind of outrage is vengeance: the desire to see defendants like George Zimmerman be forced to “pay” for the harms that they needlessly and culpably inflict on others. While this point may seem obvious, it isn’t. Most people repudiate revenge and therefore the notion that it plays any role in the criminal justice system.

Second, this attitude toward revenge is misguided and needs to change. We need to recognize that vengeance not only does but should play a significant role in motivating criminal punishment. Our vengeful reactions to harmful crimes are not ugly or shameful; on the contrary, they manifest a deep valuation of victims and a bitter denunciation of individuals who actively renounce this valuation through their criminal behavior.

Third, these two points have significant implications for the two main theories of criminal punishment: “retributivism,” which says that criminals should be punished in order to give them their “just deserts,” and “consequentialism,” which says that criminals should be punished in order to bring about such good consequences as deterrence, incapacitation, and rehabilitation. Traditionally, these two theories have been at war with one another. But I will show how recognizing revenge as a motivation and justification for punishment can help to end this war and bring these two theories together.

February 1, 2014 in Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Two notable new Sentencing Project reports on sentencing reform and prison closings

This past week, The Sentencing Project released two notable short reports on state sentencing reforms and prison closings.  Both reports are linked from this webpage, where the reports are noted and summarized in this way: 

The Sentencing Project released two reports that highlight states downsizing prison systems and adopting sentencing policy reforms. Our research documents a three-year trend of prison closings that produced a reduction of 35,000 beds, including six states reducing capacity by 11,000 beds in 2013.

On the Chopping Block 2013 documents state prison closures and attributes the trend to several factors:

  • A declining prison population in many states
  • State fiscal constraints
  • Sentencing and parole reforms in the areas of drug policy, diversion programs, and reductions in parole revocations to prison

The State of Sentencing 2013 documents reforms in 31 states in both the adult and juvenile justice systems, including:

  • Expanding alternatives to incarceration for drug offenses
  • Policies to reduce returns to prison for supervision violators
  • Comprehensive juvenile justice measures that emphasize prevention and diversion

February 1, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

"Botched executions undermine death penalty"

The title of this post is the headline of this recent op-ed in the Providence Journal authored by Austin Sarat.  Here are excerpts:

This month’s execution of Dennis McGuire made headlines, and rightly so. The start of his execution was followed by a sudden snort and more than 10 minutes of irregular breathing and gasping.  It took Ohio almost 25 minutes to end McGuire’s life.  Newspapers labeled McGuire’s a “slow execution” and a “horrific death.”  His lawyer said, “The people of the state of Ohio should be appalled at what was done here today in their names.”  McGuire, a brutal killer, seemed to become, at least momentarily, an object of pity.

His execution occurred at a time when abolitionists have increasingly turned their attention away from the fate of the people like McGuire, whose guilt in the 1989 murder of pregnant 22-year-old Joy Stewart seems beyond doubt, to focus on those mistakenly and unjustly condemned to die.  Doing so, they have had considerable success in changing attitudes toward America’s death penalty.

In this climate, should we care about what happened to Dennis McQuire? ... Why not treat McGuire’s execution as a freak accident, rather than a symptom of a deeper problem in the death penalty system?

Since the beginning of the republic, we have committed ourselves to punishing without cruelty, to restraining the hand of vengeance no matter how horrible the crimes that give rise to punishment.  On all sides of the death-penalty debate people agree that no method of execution should be used if it involves, as the Supreme Court’s 1947 Francis v. Resweber decision put it, “torture or lingering death” or “something more than the mere extinguishment of life.”

From hanging to electrocution, from electrocution to lethal gas, from electricity and gas to lethal injection, over the course of last century America moved from one technology to another in the hope of vindicating the promise of the Francis decision.... Yet McGuire’s joined a long line of botched executions that have marked America’s use of the death penalty from its beginnings and continued unabated over the last century and more.

Of approximately 9,000 capital sentences carried out in the United States from 1890 to 2010, we know of 276 of them (just under 3 percent) that were botched — 104 of them occurring after 1980.  We might assume that botched executions were more frequent when death came at the end of a rope or in an electric chair or gas chamber, but the percentage of botched executions is higher today, in the era of lethal injection (more than 7 percent), than it was when hanging, electrocution or gas were the predominant modes of putting people to death.

Botched lethal injection procedures are less obviously gruesome than a decapitation during a hanging or someone catching on fire in the electric chair, but they are no less troubling....

It is unacceptable for 3 percent of America’s executions to impose “something more than the mere extinguishment of life.” We should learn from our own history that there is no technological guarantee that we can kill humanely.

February 1, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (15) | TrackBack

January 31, 2014

Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?

The very serious question and inquiry in the title of this post is prompted by this notable recent post by Bill Otis that I just saw over at Crime & Consequences.  Bill's post is titled "Hundreds of Career Prosecutors Revolt Against Holder," and here is how the post gets started and its main points:

I spent 25 years [at DOJ], split between Main Justice in Washington and the US Attorney's Office.  Today something happened that, in my experience, is unprecedented.  Hundreds of career lawyers broke into open revolt against the Attorney General on a matter of prepossessing importance to federal sentencing.   If something like that had happened in the Bush Administration, I guarantee you it would be a Page One story. Whether it gets any coverage at all in the present Administration remains to be seen.

The Attorney General announced last week that he would support the Durbin-Lee bill pending in the Senate. That legislation would drastically cut back on mandatory minimum sentences for drug pushers -- not just for pot, but for all drug offenses, including major and repeat trafficking in heroin, meth, PCP and other extremely dangerous, and often lethal, drugs....

When the Attorney General decided to join the effort to kneecap mandatory minimums, career attorneys could remain silent no longer... [and] a letter [was sent by] the National Association of Assistant United States Attorneys [to] Mr. Holder three days ago....

[T]he fact that hundreds of career prosecutors -- not political appointees, but the men and women in US Attorney's Offices across the country hired on merit -- have revolted against the Attorney General is a development whose importance is difficult to overstate.

Career prosecutors, I can tell you from experience, are uncomfortable taking any role in what could be portrayed as a political issue. They are Republicans, Democrats and Independents, and generally have all the differences of opinion one would expect from a group so large and diverse. They view divorcing themselves from politics as essential. That they have spoken up here, and done so publicly, is a testament to how dreadfully damaging they know the Durbin-Lee bill would be.

I concur completely with Bill's claim in this post that it would be huge "Page One" news if, in fact, there were hundreds of federal prosecutors who "broke into open revolt against the Attorney General."  But I must question whether the mere fact that a letter signed by Robert Gay Guthrie, the President of the National Association of Assistant United States Attorneys, and sent to Attorney General Holder concerning these matters really is evidence of an "open revolt" by hundreds of federal prosecutors.

I believe the letter referenced by Bill Otis above is available at this link via the website of the National Association of Assistant United States Attorneys.  The only "open" name on the letter that I see is Robert Gay Guthrie.  The letter does use the term "we" consistently, so I surmise this letter represents the views of more than just Mr. Guthrie.  But, unless and until I see the names of other Assistant United States Attorneys who openly signed onto this letter (or unless we hear other public reports of public complaints coming from AUSAs), I have a hard time seeing this two-page letter as proof of an on-going open revolt.  Indeed, the tone and text of the letter does not even strike me as a "revolt" as much as an expression of a viewpoint.

In addition, I cannot help but notice that a lot of the concepts (and even some phrases) in the NAAUSA letter sound like comments often made by Bill Otis here and in other writings he has done in support of the existing system of federal mandatory minimums.  I have heard rumors that Bill serves as a lobbyist for the National Association of Assistant United States Attorneys, and thus I must wonder aloud whether the only person really in "open revolt" right now against AG Holder is Bill Otis.  That said, if Bill helped ghost-write this letter for the National Association of Assistant United States Attorneys and Robert Gay Guthrie, even Bill's own efforts to revolt is not really all that "open."

I raise these matters not because I am troubled that Bill Otis and Robert Gay Guthrie and other past and present federal prosecutors might weigh in on this important on-going federal sentencing reform debate.  But I am truly puzzled by Bill's assertion that there is now an "open revolt against the Attorney General" involving hundreds of federal prosecutors and by his surprise that a simple two-page letter from NAAUSA has not become a "Page One story."

I hope that Bill will use the comments here to explain just why he sees this letter as evidence of an "open revolt" and perhaps he can also name some of the "hundreds" of federal prosecutors who he may know to be a formal part of this "open revolt."  I also hope, if in fact there is now an on-going "open revolt against the Attorney General on a matter of prepossessing importance to federal sentencing" as Bill Otis asserts, that some current federal prosecutors (1) will openly state here or elsewhere that they signed off on this letter and did so as part of an effort to revolt against AG Holder, and (2) will openly discuss any other activities planned as part of this revolt.

I know Bill Otis feels very strongly that the current federal mandatory minimum sentencing provisions should not be reformed.  But, until reading Bill's post, I was not aware that "hundreds" of current federal prosecutors shared his perspective.  And, of course, yesterday 13 of 18 Senators on the Senate Judiciary Committee voted in favor of drug sentencing reform, and I now wonder if they were fully aware of what Bill calls an "open revolt against the Attorney General."  Finally, my own assessment of the prospects of the Smarter Sentencing Act becoming enacted law is sure to be impacted by the nature and dynamics of any on-going  "open revolt against the Attorney General" by hundreds of federal prosecutors.

A few recent related posts:

January 31, 2014 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (45) | TrackBack

Professor/practitioner perspective on DAG Cole's puzzling clemency conversation

Nearly everyone I know invested in the modern debate over federal clemency policies and practice have been intrigued and puzzled by the clemency comments made by Deputy Attorney General James Cole yesterday at the New York State Bar Association Annual Meeting (basis here and here). Helpfully, Professor Mark Osler agreed to write up his thoughts for posting here in order to provide a thoughtful perspective on that DAG Cole's comments might mean and portend:

Since starting a federal commutations clinic a few years ago, I’ve become fascinated by the clemency process. For those of us who care deeply about the constitutional pardon power, the speech by Deputy Attorney General Jim Cole in New York was a bombshell. In short, Cole announced that President Obama’s grant of eight commutations in December was just a “first step,” and that “there was more to be done.”  This isn’t subtle signaling; it is a bold and admirable announcement that the administration plans to use the pardon power systemically to address over-incarceration in narcotics cases. This is great news for those serving such sentences, sure, but it also is a remarkable moment for the pardon power itself, which has not played such an important and principled role in the justice system for decades.

There are some open questions, though. Cole said the December commutations were a “first step,” and outlined generally what the second step will be — an apparent move to funnel many more cases through the existing process. Cole described three parts of this process. First, the Bureau of Prisons will advise inmates of their right to petition for clemency and then direct inmates who respond to bar associations that are willing to help prepare petitions. Second, bar associations will then coordinate the preparation of these petitions. Third, a member of Cole’s staff will coordinate all of this.

If it works, this will result in a flood of petitions being sent to the federal pardon attorney, a DOJ functionary. Therein lies the rub. The pardon attorney, and the rest of the process between the pardon attorney and the President, has hardly been a model of efficiency. In December, those eight commutations and thirteen pardons that were granted were dwarfed by what currently clogs the pipeline — over 3,500 petitions for clemency are currently unresolved. Presumably, these new petitions will take their place at the bottom of that large pile.

At best, this will all work out somehow — there might be a plan to improve the process that we don’t know about. At worst, Cole is waving more traffic onto a jammed freeway, without first clearing the wrecks and opening the exit ramps.

Generating more clemency petitions is a good thing, but it needs to be accompanied by an administration plan to process and grant more petitions. Gerald Ford did this efficiently by creating a Presidential Clemency Board, which evaluated thousands of clemency petitions from Vietnam-era draft evaders and Army deserters. Ford’s Board did this in exactly one year, at low cost. That model should be used here. If the freeway isn’t moving, adding more cars won’t help much.

January 31, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

The federal PACER and electronic filing services are down again!?!?!

I just received this note from an experienced federal practitioner:

Doug, you may want to post a PSA. The national server for the federal courts is down. I just confirmed with the clerk at the Fourth Circuit. So no or limited access to PACER and ECF nationwide (had attorneys in Texas and Washington confirm that it wasn’t just Ohio).  If someone needs to file, they should call the clerk’s office immediately to get an email address to submit. Apparently another DOS attack like last Friday.  I wonder if related to yesterday’s vote on the Smarter Sentencing Act and DOJ’s new clemency outreach?

January 31, 2014 | Permalink | Comments (2) | TrackBack

Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?

I am quite pleased and excited to see that yesterday the Smarter Sentencing Act (SSA)received significant Republican support within in the Senate Judiciary Committee, with Senators Senators Mike Lee (R-Utah), Jeff Flake (R-Arizona), and Ted Cruz (R-Texas) voting in support of significant reforms to modern drug sentencing rules. Given that there are three other Tea Party Caucus Senators (Jerry Moran (R-Kansas), Rand Paul (R-Kentucky), and Tim Scott (R-South Carolina), I am relatively hopeful that establishment Republicans may not be able to prevent the SSA's passage in the full Senate.

Unfortunately for supporters of drug sentencing reform, establishment Republicans are in control in the House of Representatives, and I assume House Speaker John Beohner and/or other House leaders could quash the SSA if an whenever they might want. But what I do not know, either practically or politically, is whether establishment Republicans in the House want to kill the SSA and/or whether Tea Party players in the House are as eager to see this bill become law as some in the Senate were.

Adding to the practical and political intrigue is the intriguing fact that, as explained in this article, there are now some new mandatory minimums travelling with the SSA thanks to an amendment by the establishment Republicans on the Senate side:

The Senate Judiciary Committee approved the Smarter Sentencing Act of 2013 by a wide margin Thursday, taking a major step toward reducing mandatory drug-related sentences. Amendments attached to the bill, however, would also establish new mandatory sentences for sex crimes, domestic violence and terrorism.

The bill is sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Sen. Mike Lee, R-Utah, and has significant bipartisan support. Its primary aim is to allow greater sentencing flexibility and would reduce various drug-related mandatory minimums from five, 10 and 20 years to two, five and 10 years. It would also allow prisoners with crack cocaine convictions to have their punishments revisited in light of the 2010 law that lessened penalties for the drug.

In a frustrating blow to some reformers, committee members adopted three amendments from Sen. Chuck Grassley, R-Iowa, that would add the new minimum sentences. Committee members voted 15-3 to establish a mandatory minimum sentence of five years for federal sexual abuse crimes and 15-3 to created a 10-year mandatory minimum sentence for interstate domestic violence resulting in death of the victim.

Though I have a general disaffinity for any new mandatory minimums, I am ultimately pleased by additions to the SSA that Senator Grassley added if they will aid passage of the bill. The drug mandatory reductions in the amended SSA would impact tens of thousands of federal cases every year, whereas the new mandatory minimums would likely impact only a few dozen.  I am hopeful that the added minimums might make it that much easier for establishment Republicans to vote for the SSA and for House leaders to bring the bill up for a vote.  (My gut instinct is that perhaps as many as 300 members of the full House would vote for the amended version of the SSA if it gets to a floor vote, but I remain worried it might never do so because of the establishment Republican forces eager to keep this part of the federal government big.) 

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

January 31, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism"

The title of this post is the title of this intriguing new article recently posted on SSRN and authored by Robert Smith, Justin Levinson and Zoe Robinson. Here is the abstract:

Commentators idealize a racially fair criminal justice system as one without racial animus. But unjustified racial disparities would persist even if racial animus disappeared overnight. In this Article, we introduce the concept of implicit white favoritism into criminal law and procedure scholarship, and explain why preferential treatment of white Americans helps drive the stark disparities that define America’s criminal justice system.

Scholarly efforts thus far have shone considerable light on how unconscious negative stereotyping of black Americans as hostile, violent, and prone to criminality occurs at critical points in the criminal justice process. We rotate the flashlight to reveal implicit favoritism, a rich and diverse set of automatic associations of positive stereotypes and attitudes with white Americans. White favoritism can operate in a range of powerful ways that can be distinguished from traditional race-focused examples: in the way, for example, white drivers are pulled over less often than unseen drivers or crimes against white victims are seen as more aggravating. Our account of implicit white favoritism both enriches existing accounts of how implicit racial bias corrupts the criminal justice system and provides explanations for disparities that implicit negative stereotyping explanations miss altogether.

January 31, 2014 in Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

"Football, Pain and Marijuana"

The title of this post is the headline of this notable new New York Times editorial.  Here are excerpts:

In the lead-up to the Super Bowl, in which it so happens both teams hail from states that recently legalized marijuana for recreational purposes, pressure is mounting on the [NFL] to reconsider its ban. A group called the Marijuana Policy Project has even bought space on five billboards in New Jersey, where the game will take place on Sunday, asking why the league disallows a substance that, the group says, is less harmful than alcohol.

It’s a fair question. Marijuana isn’t a performance-enhancing drug, for starters, and more than 20 states have legalized it for medical purposes. The league would merely be catching up to contemporary practice by creating a medical exception.

At a news conference on Jan. 7, the league commissioner, Roger Goodell, did not rule out a change in policy. “I don’t know what’s going to develop as far as the next opportunity for medicine to evolve and to help either deal with pain or help deal with injuries,” he said, “but we will continue to support the evolution of medicine.” On Jan. 23, he said the league would “follow medicine and if they determine this could be a proper usage in any context, we will consider that.” There is, in fact, a body of evidence indicating a “proper usage”: one of particular relevance to a hard-hitting, injury-riddled sport.

“Cannabinoids,” the Institute of Medicine reported in 1999, “can have a substantial analgesic effect.” N.F.L. medical experts obviously aren’t convinced, but N.F.L. players seem to be. HBO’s “Real Sports With Bryant Gumbel” estimated in January that 50 to 60 percent of players smoked marijuana, many to manage pain.

Players, of course, have access to other painkillers, including prescription drugs. Yet as former Surgeon General Joycelyn Elders has argued, “marijuana is less toxic than many of the drugs that physicians prescribe every day.” As public opinion and state laws move away from strict prohibition, it’s reasonable for the N.F.L. to do the same and let its players deal with their injuries as they — and their private doctors — see fit.

Some recent related posts via Marijuana Law, Policy and Reform:

January 31, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

January 30, 2014

Deputy AG Cole's remarkable remarks to the NYSBA

Via an early New York Times article, I have already reported here on some of the clemency comments delivered today byDeputy Attorney General James Cole at the New York State Bar Association Annual Meeting.  But i have now had a chance to review the whole text of the speech delivered by Deputy AG Cole, which can be accessed here, and anyone interested in federal sentencing policy and reform should read the whole text.  Here are just a few sections that really caught my attention as a sentencing geek:

I want to talk with you today about the crisis we have in our criminal justice system. A crisis that is fundamental and has the potential to continue to swallow important efforts in the fight against crime. This crisis is the crushing prison population....

Over half of the federal prison population is there for drug offenses.  Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a long time.  But others are lower level drug offenders, many with their own drug abuse issues, who fall into the all too common vicious cycle of drug abuse, crime, incarceration, release — and then the cycle repeats.

In addition, there is a basic truth that dollars are finite. Every dollar we spend at the Department of Justice on prisons — and last year we spent about $6.5 billion on prisons - is a dollar we cannot spend supporting our prosecutors and law enforcement agents in their fight against violent crime, drug cartels, public corruption, financial fraud, human trafficking, and child exploitation, just to mention a few.  In other words, if we don’t find a solution to the federal prison population problem, public safety is going to suffer.

Recognizing this dynamic, the Justice Department has been working hard to come up with solutions to stem the tide....

All of these Departmental efforts recognize the need for a broader, smarter approach to criminal justice.  We believe these efforts enhance our ability to protect our communities and maximize public safety.  These efforts not only ensure that we continue to be “smart on crime” from a limited resource perspective, but they also help to ensure that federal laws are enforced fairly.

And embedded in this issue of fairness is the consideration of sentence reductions for those who, at an earlier time, encountered severe and inflexible sentencing laws.

This brings me to another issue I want to address with you today and ask for your help. The issue is executive clemency, particularly commutation of sentence.  Commutation of sentence is an extraordinary remedy that is rarely used.  But it may be available in certain circumstances, including when an individual has a clean record in prison, does not present a threat to public safety, and has been sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.

As I said earlier, our prisons include many low-level drug offenders.  Now, let there be no mistake, even the low-level drug offenders cause harm to people through their criminal actions and many need to be incarcerated. I don’t want to minimize the impact of their behavior.  Our prosecutors worked diligently, along with law enforcement agents, to collect evidence and charge these defendants, and then fairly and effectively obtained their convictions. T hey were properly held accountable for their criminal conduct. However, some of them, because of the operation of sentencing laws on the books at the time, received life sentences, or the equivalent of a life sentence, for limited conduct. For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair.  These older, stringent punishments, that are out of line with sentences imposed under today's laws, erode people’ s confidence in our criminal justice system....

[A]side from legislation, the President also has the ability to take executive action to positively impact the criminal justice system. A little over a month ago, the President commuted the sentences of 8 men and women who were sentenced under severe — and out of date — mandatory minimum sentencing laws....

But the President’s grant of commutations for these 8 individuals is only a first step. There is more to be done, because there are others like the eight who were granted clemency. There are more low-level, non-violent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today. This is not fair, and it harms our criminal justice system.

To help correct this, we need to identify these individuals and get well-prepared petitions into the Department of Justice. It is the Department’s goal to find additional candidates, who are similarly situated to the eight granted clemency last year, and recommend them to the President for clemency consideration.

This is where you can help. We are looking to the New York State Bar Association and other bar associations to assist potential candidates for executive clemency. We envision that attorneys will assist potential candidates in assembling effective and appropriate commutation petitions — ones which provide a focused presentation of the information the Department and the President need to consider — in order to meaningfully consider clemency for similarly situated petitioners. You each can play a critical role in this process by providing a qualified petitioner — one who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law — with the opportunity to get a fresh start.  We anticipate that the petitioners potentially eligible for consideration would include: non-violent, low-level drug offenders who were not leaders of — nor had any significant ties to — large-scale organizations, gangs, or cartels. We would also look for petitions from first-time offenders or offenders without an extensive criminal history.

January 30, 2014 in Clemency and Pardons, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Unsurprisingly, AG Holder authorizes pursuit of death penalty against Boston bomber

I just received via e-mail this notice from DOJ, titled "Statement by Attorney General Eric Holder Regarding the Case of Dzhokhar Tsarnaev."  Here is the full text of the linked material:

Attorney General Eric Holder today released the following statement regarding the case of Dzhokhar Tsarnaev:

“After consideration of the relevant facts, the applicable regulations and the submissions made by the defendant’s counsel, I have determined that the United States will seek the death penalty in this matter. The nature of the conduct at issue and the resultant harm compel this decision.”

Some prior related posts:

January 30, 2014 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote

I just received a notable news release from Families Against Mandatory Minimums concerning a notable vote today by the US Senate Judiciary Committee.  Here are the basic via the FAMM report:

Today, the U.S. Senate Judiciary Committee passed the first major reconsideration of federal mandatory minimum drug sentencing laws since the Nixon Administration. The Committee voted, 13-5, in support of S. 1410, the Smarter Sentencing Act, a bipartisan bill sponsored by Senators Mike Lee (R-UT) and Richard Durbin (D-IL).

The Smarter Sentencing Act:

  • Reduces mandatory minimum sentences for federal drug offenders by half
  • Narrowly increases the scope of an existing “safety valve” exception to federal drug offenses
  • Allows 8,800 federal prisoners imprisoned for crack cocaine crimes to return to court to seek fairer punishments in line with the Fair Sentencing Act of 2010, a unanimously-passed measure to reduce the racially discriminatory disparity between crack and powder cocaine offenses
  • Requires the U.S. Department of Justice and other federal agencies to compile, and make publicly available on their websites, lists of all federal laws and regulations carrying criminal penalties. This part of the bill addresses growing bipartisan concerns about the issue of “over-criminalization” – that there are too many federal crimes and that people can and do unknowingly and unintentionally break laws and regulations and serve jail or prison time for violations that could be better addressed with fines.
  • Adds new mandatory minimum sentences for sexual abuse, domestic violence, and terrorism offenses

This new piece up at Huffington Post, headlined "Biggest Overhaul in Federal Drug Sentencing in Decades Clears Major Hurdle, Despite Opposition From Heartless Prosecutors," provides more information about who is for and who is against this important legislative development:

Today the U.S. Senate Judiciary Committee passed bipartisan sentencing reform legislation that reduces the federal prison population, decreases racial disparities, saves taxpayer money, and reunites nonviolent drug law offenders with their families sooner. The reforms are supported by a strange bedfellows group of senators, including Senators Mike Lee (R-Utah), Rand Paul (R-Kentucky), Jeff Flake (R-Arizona), Ted Cruz (R-TX), Patrick Leahy (D-VT), Dick Durbin (D-IL), Carl Levin (D-MI) and Sheldon Whitehouse (D-RI). The legislation is opposed by some U.S. prosecutors who continue to defend a harsh, racially unjust system that has led to a greater percentage of black men being locked up in the U.S. than in South Africa at the height of Apartheid.

The bill, the Smarter Sentencing Act, is the biggest overhaul in federal drug sentencing in decades. It would reduce federal mandatory minimum sentences for drug offenses and expand the ability of judges to use their own discretion when sentencing defendants, so that judges can consider the unique facts of each case and each individual before them. It would also make the reform to the crack/powder cocaine sentencing disparity that Congress passed in 2010 retroactive, so that thousands of people sentenced under the old draconian and racially unjust disparity can leave prison early.

Even though U.S. Attorney General Eric Holder urged the committee to reform mandatory minimum sentencing yesterday, the National Association of Assistant U.S. Attorneys took the somewhat rare step of opposing the Attorney General by releasing a letter in opposition to reform. "We do not join with those who regard our federal system of justice as 'broken' or in need of major reconstruction," the organization said. "Instead, we consider the current federal mandatory minimum sentence framework as well-constructed and well worth preserving."

January 30, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (28) | TrackBack

"White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?

WeldonThe title of this post is drawn the headline of this notable new New York Times article, which includes these excerpts:

The Obama administration, in its effort to curtail severe penalties in low-level drug cases, is taking the unprecedented step of encouraging defense lawyers to suggest inmates whom the president might let out of prison early.

Speaking at a New York State Bar Association event Thursday, Deputy Attorney General James M. Cole said the Justice Department wanted to send more names to White House for clemency consideration.  “This is where you can help,” he said, in remarks the Justice Department circulated in advance.  Prison officials will also spread the word among inmates that low-level, nonviolent drug offenders might be eligible to apply for clemency.  

The clemency drive is part of the administration’s effort to undo sentencing discrepancies that began during the crack epidemic decades ago. Offenses involving crack, which was disproportionately used in black communities, carried more severe penalties than crimes involving powder cocaine, which was usually favored by affluent white users....

“There are more low-level, nonviolent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today,” Mr. Cole said. “This is not fair, and it harms our criminal justice system.”

Like lots of lousy crime and punishment reporting, this piece fails to highlight the important realities that (1) any and every federal defendant is "eligible to apply for clemency," but that the Obama Administration (like prior administrations) is historically disinclined to bother to consider seriously any of these applications, and (2) according to this official accounting, there are currently over 3,500 pending pardon and commutation applications at the White House right now.

I am pleaed that a DOJ official is now talking about defense lawyers suggesting inmates whom the president might let out of prison early, but I sense that defense lawyers are doing this a-plenty.  In addition, the US Sentencing Commission surely has a list of all the persons who would benefit from the FSA if it were made fully retroactive.   The White House already has plenty of information (and so many ways to readily find additional information) concerning who could and should sensibly be considered for clemency relief.  The problem is not information, but the courage to walk the walk (rather than just talk the talk) about correcting excessively harsh prison sentencing politicies and practices that are "not fair ... [and] harm our criminal justice system.”

As the rest of the title of this post is meant to highlight, good candidates for clemency are not only crack dealers.  Especially in light of recent reform of state marijuana laws, I think one can validly argue that there are constitutional problems with the sentences being served by federal marijuana offenders like Weldon Angelos and Chris Williams, both of who are current serving lengthy prison terms for doing essentially what is now being done by dozens of licensed marijuana  marijuana dealers every hour of every day in Denver.  Constitutional arguments aside, I think both should quickly go to the very top of the White House clemency list ASAP, especially if Prez Obama really believes what he says about marijuana being really no more harmful than alcohol.

January 30, 2014 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Diverse perspectives on victims having diverse perspectives on sentencing

Regular readers know I am a fan and supporter of giving crime victims the opportunity and right to have their voices heard throughout the sentencing process.  Some of the reasons why are effectively articulated in a recent post by Paul Cassell at The Volokh Conspiracy, "Why crime victims need their own voice in the criminal justice process." Here is an excerpt from the post responding to a common concern expressed by defense attorneys (and noting one of my own recent posts):

I have also heard defense attorneys argue against victim participation by claiming that this is ganging up on the defendant — double counting the prosecution’s view by adding in the victim’s view.  Here again, that’s not quite right.  While victims often are aligned with prosecutors, other times they may align with defense attorneys.  Victims’ interests are not necessarily the same as prosecutors’ interests.  Indeed, restitution may be an area where victims and defendants could make common cause.  While prosecutors focus on long prison terms, victims are often worried about receiving compensation for their injuries.  Victims might prefer, for example, a sentence under which the defendant is placed on work release and can make payments towards restitution instead of one that simply locks him up and throws away the key.  Doug Berman has made exactly this same point about U.S. v. Paroline & Amy, explaining in a recent post that shifting our focus away from purely punitive criminal justice responses is why he is cheering for Amy to win a complete victory before the Supreme Court.   My former law clerk and now federal defender, Benji McMurray, has expanded on this point at length in “The Mitigating Power of a Victim Focus at Sentencing,” 19 FED. SENT’ING RPTR. 125 (2006).

A notable example of the potential mitigating impact of victim input about sentencing is emerging in a Colorado capital case, about which Andrew Cohen has written in this notable new Atlantic piece headlined "When Victims Speak Up in Court — in Defense of the Criminals; A death penalty case in Colorado has generated an unusual fight between a district attorney and two parents who oppose capital punishment against the man who murdered their son." Here is how the article starts:

One of the most profound changes in criminal justice over the past 40 years has been the rise of the victims' lobby. Essentially shut out of the core of the process until the 1970s, the victims' rights movement today can cite legislation from sea to sea, chapter and verse under both federal and state laws, that broadens the rights of victims to participate in the trials of those accused of harming them or their families. The Department of Justice's 2012 "Attorney General Guidelines for Victim and Witness Assistance," for example, totals 66 pages and barely scratches the surface of what similar state guidelines reveal.

The immutable trio that once existed in criminal cases — judge, prosecutor, and defendant — now almost always resembles a quartet.  Victims have a voice — and they use it. All 50 states now allow some form of "victim impact statement" at sentencing.  Because such statements are often so compelling to jurors, defense attorneys frequently seek ways to blunt their impact.  But these efforts almost always fail.  Even judges who are sympathetic to the constitutional rights of defendants, who fret about the prejudicial impact of victim testimony, say they are bound by legislative declarations broadening the scope of victim participation in criminal cases.

But a pending Colorado case raises a profound question that few judges (or prosecutors or jurors) ever have to confront: What happens when the victims of violent crime seek to speak out on behalf of the defendant and not the state?  What happens when the family member of a murder victim seeks leave to beg jurors at sentencing to spare the life of the man who killed their son?  What responsibility does the prosecutor have in that case? What obligations do the courts have?  Do victims' rights sound only when they favor the government and the harshest sentence, or do they sound as well when they cry out for mercy?

So far, the prosecutor in the case, Arapahoe County District Attorney George Brauchler, has answered those questions clearly: He wants to block one couple's efforts to speak out against the death penalty for the man who murdered their child.  Brauchler has filed a motion in a pending case seeking to bar Bob and Lola Autobee from participating in the sentencing phase of the trial of Edward Montour, their son's killer.  The law only guarantees the rights of victims to "discuss the harm that resulted from the crime," Brauchler argues.  But I haven't been able to find a single victims' right advocate who believes that's true.

Of course, it is not always (and perhaps not even often) that a victim's voice will be for realtive leniency, as this local news segment from Massachusetts highlights.  This piece is headlined "Victims' Families Want Tougher Sentencing For Juvenile Offenders," and it sets up recorded interviews this way:

The judicial system is designed to disregard emotion. Only the letter of the law matters. But a ruling handed down last week by the state Supreme Judicial Court stirred up a lot of emotion. Following the lead of the US Supreme Court, the SJC ruled mandatory life sentences for juvenile murderers are unconstitutional. The decision set the minimum time served at 15 years, and now the families of some murder victims are making an impassioned plea to keep those killers locked up longer.

January 30, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

January 29, 2014

Though Prez Obama ignores sentencing reform in State of the Union, AG Holder talks it up to Senate Judiciary Committee

I was disappointed, but not at all surprised, that during last night's State of the Union address, President Obama showed his distinct unwillingness to be a real leader in the arena of federal sentencing reform.  I had heard rumors that some mention of sentencing reform was possible in SOTU, but I surmise that Prez Obama cares too little about this issue to give it even a brief mention in an hour-long speech about his vision and priorities for the nation.  (In sharp contrast, as highlighted here, President George W. Bush made some quite progressive criminal justice reform comments in both his 2004 and 2005 State of the Union address.)

But while Prez Obama apparently is disinterested in these matters (or thinks they make for bad politics), his Attorney General seems to remain committed to move forward with needed federal sentencing reforms.  Specifically, consider these closing paragraphs in this prepared statement delivered today by AG Eric Holder to the US Senate Committee on the Judiciary:

[O]ur commitment to integrity and equal justice in every case, in every circumstance, and in every community ... is also reflected in the new “Smart on Crime” initiative I announced this past August — to strengthen our federal criminal justice system; to increase our emphasis on proven diversion, rehabilitation, and reentry programs; and to reduce unnecessary collateral consequences for those seeking to rejoin their communities. As part of the “Smart on Crime” approach, I mandated a significant change to the Justice Department’s charging policies to ensure that people accused of certain low-level federal drug crimes will face sentences appropriate to their individual conduct — and that stringent mandatory minimum sentences will be reserved for the most serious criminals.  Alongside other important reforms, this change will make our criminal justice system not only fairer, but also more efficient.  And it will complement proposals like the bipartisan Smarter Sentencing Act — introduced by Senators Dick Durbin and Mike Lee — which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes.

I look forward to working with Chairman Leahy, distinguished members of this Committee, and other leaders who have shown a commitment to common-sense sentencing reform – like Senator Rand Paul — to help advance this and other legislation.  I thank you all, once again, for your continued support of the Department of Justice.  And I would be happy to answer any questions you may have.

A few recent related posts:

January 29, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack

SCOTUS grants stay of Missouri execution because . . . ? UPDATE: Execution completed after many hours of legal wrangling

As detailed in this AP report, headlined "Supreme Court grants stay of execution for killer Herbert Smulls," it seems concerns about lethal injection drugs and plans in Missouri has gotten the attention of at least one Justice. Here are the details:

The U.S. Supreme Court has granted a stay of execution for Missouri death row inmate Herbert Smulls. Justice Samuel Alito signed the order, sent out late Tuesday night.

Smulls’ attorney, Cheryl Pilate, says the stay is temporary while the high court reviews the case, but she is hopeful it will become permanent. The execution team will reconvene at noon today, expecting the stay to have been lifted, said Mike O’Connell, spokesman for the Department of Public Safety.

Pilate had made last-minute pleas to spare Smulls, focusing on the state’s refusal to disclose from which compounding pharmacy it had obtained the lethal-injection drug, pentobarbital. Missouri has argued that the pharmacy is part of the execution team so its name can’t be released.

Smulls was convicted of killing a St. Louis County jeweler and badly injuring his wife during a 1991 robbery. Smulls had been scheduled to die at 12:01 a.m. today, at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre.“We’re happy to get the stay and we’re glad the court is reviewing it,” Pilate said.

A message late Tuesday seeking comment from Eric Slusher, a spokesman for Missouri Attorney General Chris Koster, was not immediately returned. Gov. Jay Nixon denied clemency on Tuesday afternoon for Smulls. “These crimes were brutal, and the jury that convicted Smulls determined that he deserved the most severe punishment under Missouri law,” he said in an email.

On Monday, a federal judge denied a stay of execution that Smulls’ lawyers had asked for 60 days to prove that Missouri’s injection would violate his Eighth Amendment protections against cruel and unusual punishment, by putting him at risk of an excruciating death.

Smulls, 56, of St. Louis, was sentenced to death for the 1991 murder of Chesterfield jeweler Stephen Honickman. He would be the third inmate to be executed in Missouri in three months using pentobarbital produced for the Department of Corrections by a compounding pharmacy in Oklahoma.

I cannot help but speculate that Ohio's recent lethal injection controversy somehow played a role in the granting of this stay. But this AP report suggests that Missouri was not planning to adopt Ohio's new execution method, but rather its already established method of using compounded pentobarbital. Therefore, I am a bit puzzled as to just why Justice Alito would intervene on this issue, especially after the Eighth Circuit had last week rejected en banc this condemned murderer's complaints abut the execution process.

Among my concerns about this stay is the message it seems to send to anyone scheduled to be executed by any method in any state. If Ohio's troubles using a different execution method prompts SCOTUS to stop or delay Missouri's distinct execution plans, then I think any and every lawyer for a capital defendant arguably has an obligation to re-raise (and re-raise and re-raise) in state and federal courts any and all possible claims about one state's execution methods after each and every execution anywhere else in the US.

UPDATE:  I have now heard from a knowledgeable source that Smulls also had a Batson claim before the Supreme Court and that it may be Batson issues, not any Eighth Amendment claim, that is serving as the basis for the stay.

ANOTHER UPDATE:  This AP report notes the stays were all finally lifed and that Smulls was executed late Wednesday night:

Late Wednesday night, Smulls was put to death with a lethal dose of pentobarbital, Missouri's third execution since November and the third since switching to the new drug that's made by a compounding pharmacy the state refuses to name.

Smulls, 56, did not have any final words. The process was brief, Smulls mouthed a few words to his two witnesses, who were not identified, then breathed heavily twice and shut his eyes for good. He was pronounced dead at 10:20 p.m.

Florence Honickman spoke to the media after the execution, flanked by her adult son and daughter. She questioned why it took 22 years of appeals before Smulls was put to death. "Make no mistake, the long, winding and painful road leading up to this day has been a travesty of justice," she said.

His attorneys spent the days leading up to the execution filing appeals that questioned the secretive nature of how Missouri obtains the lethal drug, saying that if the drug was inadequate, the inmate could suffer during the execution process. The U.S. Supreme Court granted a temporary stay late Tuesday before clearing numerous appeals Wednesday -- including the final one that was filed less than 30 minutes before Smulls was pronounced dead, though the denial came about 30 minutes after his death....

Like Joseph Paul Franklin in November and Allen Nicklasson in December, Smulls showed no outward signs of distress in an execution process that took about nine minutes. Missouri had used a three-drug protocol for executions since 1989, but makers stopped selling those drugs for executions. Missouri ultimately switched late last year to a form of pentobarbital made by a compounding pharmacy. The state claims that since the compounding pharmacy is part of the execution team, it is not required to disclose its name....

Smulls' legal case was protracted over several appeals and over several years, finally ending in 2009 with the death sentence. His accomplice, Norman Brown, was sentenced to life in prison without parole. "It was a horrific crime," [[St. Louis County prosecutor Bob] McCulloch said. "With all the other arguments that the opponents of the death penalty are making, it's simply to try to divert the attention from what this guy did, and why he deserves to be executed."

Compounding pharmacies custom-mix drugs for individual clients and are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states. Smulls' attorney, Cheryl Pilate, contended the state's secrecy regarding where the pentobarbital is made makes it impossible to know whether the drug could cause pain and suffering during the execution process.

Pilate also said she and her defense team used information obtained through open records requests and publicly available documents to determine that the compounding pharmacy is The Apothecary Shoppe, based in Tulsa, Okla. In a statement, The Apothecary Shoppe would neither confirm nor deny that it makes the Missouri drug.

Pilate said the possibility that something could go wrong persists, citing recent trouble with execution drugs in Ohio and Oklahoma. She also said that previous testimony from a prison official indicates Missouri stores the drug at room temperatures, which experts believe could taint the drug, Pilate said, and potentially cause it to lose effectiveness.

Some Missouri lawmakers have expressed reservations about the state's execution procedure. On Tuesday, Missouri Senate Democratic Leader Jolie Justus introduced legislation that would create an 11-member commission responsible for setting the state's execution procedure. She said ongoing lawsuits and secrecy about the state's current lethal injection method should drive a change in protocol.

January 29, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Notable New York story about "gentleman heroin dealer" getting out from under LWOP sentence

A helpful reader alerted me to this fascinating little New York Times story of one federal defendant (of too many) sentenced to LWOP for a first-offende drug crime who later became one federal prisoner (of too few) who got a lower prison term at a resentencing after spending nearly a quarter-century in federal prison.  The story demands a full read, but here is a snippet:

Time for a question to Myles Coker about the origins of a life that he had kept secret from the people closest to him.  How had he gotten started in the heroin trade?  Mr. Coker did not blink.  “It was back in the ’80s,” he said, when he worked for an illegal gambling business.

His son Clifton pulled his chair closer.  “I’ve never heard this part of the story,” he said. Neither had others at lunch at the National Arts Club on Friday.  Among them were Mr. Coker’s lawyer, Harlan Protass, who got him out of prison at age 63, well ahead of the life term he was supposed to serve, and Roland Riopelle, the former federal prosecutor who had put Mr. Coker behind bars.

A star wide receiver in college who is still in excellent shape, Mr. Coker did not use drugs himself.  He ran an entirely legitimate limousine business that had among its clients “The Cosby Show.” The parents of children he coached in Little League held parties to thank him for his devotion.  His wife was a teacher, principal and textbook author; their two sons, Clifton and Kelvin, went through private elementary schools in Manhattan, Poly Prep high school in Brooklyn and top colleges, and have enjoyed professional success.

Unknown to all, Mr. Coker was a gentleman heroin dealer.  His work for an illegal gambling operation — he took bets on sporting events over phones in safe houses in the Bronx — brought him to the home of Anthony Damiani, an overseer of the operation, who lived in Morris Park. “Not at the beginning, but after a few years, all this cash was coming in,” Mr. Coker said. “Once they got into heroin, I was seeing the currency machine for counting cash. They had me carrying it in sacks.”

He was invited to set up distribution in Harlem, and after a few years, took up the offer. “Greed just took me,” Mr. Coker said.  He eventually ran about five or six spots, a business that he said brought him about $25,000 in cash profits per month.... Records kept by one particularly diligent member of the organization showed that Mr. Coker had been supplied with 691,430 glassine bags in 26 months.  In time, 50 people, including Mr. Coker, were arrested. He was sentenced, under federal laws that are no longer in effect, to life without parole.

“He was just gone; we didn’t know where he was,” said Clifton Coker, who was then 10. By phone, the boys’ father told them he was away training a boxer. The boys’ mother, Deborah Coker, consulted a psychologist, who said the children should be told by their father of his whereabouts, but he did not disclose the details of his offense or that the federal authorities had written, “It does not appear that he will be discharged from said custodial sentence prior to his demise.”

Not until Kelvin Coker was at Amherst College and able to work the Internet did the brothers realize that their father was not supposed to ever come back....  The sons went on a campaign to find a way out of prison for their father, and hired Mr. Protass.  With hearty letters from prison guards who praised him for his sterling record as a peacekeeper, and with legal filings by Mr. Protass that Judge Loretta A. Preska of United States District Court said were “some of the best papers I’ve seen,” Mr. Coker was resentenced in August to time served — just under 23 years....

When Mr. Riopelle heard that Mr. Coker had been released, he invited him to lunch. “I want to see people like him succeed,” Mr. Riopelle said.

January 29, 2014 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (14) | TrackBack

What are the virtues and vices of criminal justice localism ... especially with respect to pot prohibition?

The question in the title of this post is an effort to encourage input on the broader questions raised by a mini-debate that Rob Mikos and I are now having over at Marijuana Law, Policy and Reform.  I started the discussion with a post suggesting advocates of marijuana reform should be pleased localities in Colorado and Washington and elsewhere can preserve pot prohibition in their community, and Rob explained why he disagreed in a subsequent post.  Here are links to these posts:

Informed sentencing fans and advocates know, of course, that these local control and related localism issues are not unique to modern marijuana reform movements. Concerns about how local officials apply or resist state-wide laws are often raised in the context of (1) the death penalty, where we often see wide variations in when and how local DAs pursue capital charges, and (2) sex offender regulations, where we often see local laws limiting where registered sex offenders can live or can go.

As a general fan of criminal justice federalism and localized democracy, I often see the virtues of letting localities have some significant control over how controversial and contestable state-wide criminal justice policies get applied in individual communities. That said, I also can see the vices of letting each and every county or neighborhood adopt and enforce its own particularized criminal code. Ergo, I am interested in reader insights of the question of criminal justice localism, perhaps with special focus on marijuana reform but also with respect to other prominent modern sentencing issues as well.

January 29, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

January 28, 2014

Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain

This new AP story, headlined "Arias defense costs Ariz. taxpayers $2 million and counting," reinforces my sense that state taxpayers will often be the folks most harmed by some prosecutorial decisions to aggressively pursue the death penalty.  Here are the basics:

Jodi Arias' legal bills have topped $2 million, a tab being footed by Arizona taxpayers that will only continue to climb with a new penalty phase set for March, officials said Monday.

Arias, 33, was convicted of murder in May, but the jury couldn't reach a verdict on her sentence. Prosecutors are now pursuing a second penalty phase with a new jury in an effort to get the death penalty.  Trial is set for March 17.  The former waitress and aspiring photographer has been held in jail in Maricopa County awaiting her fate while her legal bills continue to mount.

As of Monday, the county had paid $2,150,536.42 for her court-appointed attorneys, expert witnesses and other costs associated with her case, Maricopa County spokeswoman Cari Gerchick told The Associated Press.

Maricopa County Attorney Bill Montgomery has refused to provide a tally of how much it has cost to prosecute the case, citing a court order that attorneys not discuss Arias-related matters.

Arias admitted she killed her boyfriend, Travis Alexander, in 2008 at his suburban Phoenix home but claimed it was self-defense. He suffered nearly 30 knife wounds, had his throat slit and was shot in the forehead in what prosecutors argued was premeditated murder carried out in a jealous rage when Alexander wanted to end their affair.

The case captured headlines worldwide and became a cable television staple with its tales of sex, lies and a brutal killing while every minute of the trial was broadcast live. This time around, the judge will be limiting media coverage in hopes of avoiding the same publicity. There will be no live video coverage of the second penalty phase, and electronic devices will be banned, meaning reporters won't be able to provide real-time updates via Twitter as occurred during her first trial.

Under Arizona law, while her murder conviction stands, prosecutors have the option of putting on a second penalty phase with a new jury.  If the second panel fails to reach a unanimous decision, the death penalty will automatically be removed from consideration, and the judge will sentence Arias to spend her entire life behind bars or be eligible for release after 25 years.

 I have to guess that the second penalty phase now in the works and just the direct appeals if Arias gets sentenced to death will end up costing Arizona taxpayers another million or more in defense costs. And then there will surely be a number of costly habeas appeals, too, if Arias is on death row. Considering also the state court and state prosecutorial expenses, I do not think it inflated to assert that Arizona taxpayers are likely to end up spending at least $5,000,000 just to have Jodi Arias set and kept on death row.

As the title of this post highlights, this multi-million dollar expense seems like a great waste of state resources because the effort to send Arias to Arizona's death row has raised the profile of her case and helps ensure Arias is now forever a hero to the anti-death-penalty community. In addition, Arizona already has over 125 murderers on its death row but only gets around to executing a few each year, and thus Arias is likely to die of natural causes before being executed by the state even if sent to death row. Had Arizona prosecutors been able to cut a deal with Arias to take the death penalty off the table, at least after the first jury could not decide on a sentence, taxpayers would have saved a lot of money and Arias would likely now just be facing the pain of LWOP rather than the fame that comes with being a high-profile capital defendant.

I make these points not to defend Arias but rather to highlight the significant budgetary costs of seeking the death penalty in hard cases. I also could not help but research where all this Arizona taxpayer money now wasted on a fight over murderous Arias might have been better used. This lengthy Arizona budget document seems to reveal that the Arizona Crime Victims Programs -- which is under the authority  of the Arizona Criminal Justice Commission and "provides support to all agencies that assist and compensate the victims of crime" -- has an annual budget of around $5,000,000. I am inclined to think that most folks, even those who support the death penalty in many cases, probably would share my view that it would have been a better use of state tax resources to double the funds for crime victims programming rather that keep seeking a death verdict that likely will never get carried out.

Related posts:

January 28, 2014 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

A useful reminder that many states still have lots of execution methods on the books

This lengthy AP article, headlined "Stated Consider Reviving Old-Fashioned Executions," provides an effective review not only of recent problems with lethal injection as an execution method, but also of the options that lots of states still have available.  Here are excerpts:

With lethal-injection drugs in short supply and new questions looming about their effectiveness, lawmakers in some death penalty states are considering bringing back relics of a more gruesome past: firing squads, electrocutions and gas chambers.

Most states abandoned those execution methods more than a generation ago in a bid to make capital punishment more palatable to the public and to a judicial system worried about inflicting cruel and unusual punishments that violate the Constitution.  But to some elected officials, the drug shortages and recent legal challenges are beginning to make lethal injection seem too vulnerable to complications....

States began moving to lethal injection in the 1980s in the belief that powerful sedatives and heart-stopping drugs would replace the violent spectacles with a more clinical affair while limiting, if not eliminating, an inmate's pain.

The total number of U.S. executions has declined in recent years — from a peak of 98 in 1999 to 39 last year. Some states have turned away from the death penalty entirely. Many have cases tied up in court. And those that carry on with executions find them increasingly difficult to conduct because of the scarcity of drugs and doubts about how well they work. In recent years, European drug makers have stopped selling the lethal chemicals to prisons because they do not want their products used to kill.

At least two recent executions are also raising concerns about the drugs' effectiveness. Last week, Ohio inmate Dennis McGuire took 26 minutes to die by injection, gasping repeatedly as he lay on a gurney with his mouth opening and closing. And on Jan. 9, Oklahoma inmate Michael Lee Wilson's final words were, "I feel my whole body burning."...

Some states already provide alternatives to lethal injection. Condemned prisoners may choose the electric chair in eight states: Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia. An inmate named Robert Gleason Jr. was the most recent to die by electrocution, in Virginia in January 2013.

Arizona, Missouri and Wyoming allow for gas-chamber executions. Missouri no longer has a gas chamber, but Attorney General Chris Koster, a Democrat, and Missouri state Sen. Kurt Schaefer, a Republican, last year suggested possibility rebuilding one. So far, there is no bill to do so.

Delaware, New Hampshire and Washington state still allow inmates to choose hanging. The last hanging in the U.S. was Billy Bailey in Delaware in 1996. Two prisoners in Washington state have chosen to be hanged since the 1990s - Westley Allan Dodd in 1993 and Charles Rodman Campbell in 1994.

Firing squads typically consisting of five sharpshooters with rifles, one of which is loaded with a blank so the shooters do not know for sure who fired the fatal bullet.  They have been used mostly for military executions. Since the end of the Civil War, there have been three civilian firing squad executions in the U.S., all in Utah.  Gary Gilmore uttered his famous final words, "Let's do it" on Jan. 18, 1977, before his execution, which ended what amounted to a 17-year national moratorium on the death penalty. Convicted killers John Albert Taylor in 1996 and Ronnie Lee Gardner in 2010 were also put to death by firing squad.

Utah is phasing out its use, but the firing squad remains an option there for inmates sentenced prior to May 3, 2004. Oklahoma maintains the firing squad as an option, but only if lethal injection and electrocution are deemed unconstitutional.

In Wyoming, Republican state Sen. Bruce Burns said death by firing squad would be far less expensive than building a gas chamber. Wyoming has only one inmate on death row, 68-year-old convicted killer Dale Wayne Eaton. The state has not executed anyone in 22 years.

Jackson Miller, a Republican in the Virginia House of Delegates, is sponsoring a bill that would allow for electrocution if lethal injection drugs are not available.  Miller said he would prefer that the state have easy access to the drugs needed for lethal injections. "But I also believe that the process of the justice system needs to be fulfilled."

January 28, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?

22_Sister-Megan-Rice-300x231The question in the title of this post is based on this notable Reuters story, headlined "Activists face sentencing for Tennessee nuclear facility break-in." Here are the interesting details, with emphasis added concerning the recommendations of the federal sentencing guidelines:

An elderly nun and two other peace activists are set to be sentenced on Tuesday on their federal convictions for damage they caused breaking into a Tennessee defense facility where enriched uranium for nuclear bombs is stored.

Sister Megan Rice, Michael Walli, and Greg Boertje-Obed admitted cutting fences and making their way across the Y-12 National Security Complex in Oak Ridge, Tennessee, in July 2012, embarrassing U.S. officials and prompting security changes.

The three were convicted by a federal jury last May of damaging a national defense premises under the sabotage act, which carries a prison sentence of up to 20 years, and of causing more than $1,000 of damage to U.S. government property.

Federal sentencing guidelines call for Rice, 83, to receive up to a little more than seven years in prison; Walli, 65, more than nine years; and Boertje-Obed, 58, more than eight years.  The defendants have been in custody since their conviction. Prosecutors have asked that the defendants receive sentences in line with federal guidelines. The defendants have asked for lesser sentences.

Bill Quigley, one of the attorneys of the defendants, said that all three are in good health, but that Rice, who turns 84 January 31, is "freezing cold in jail."

"They're all in great spirits and they're very much at peace about being sentenced," Quigley said.  "We're hoping for significantly less time.  People are even praying and hoping they'll be released."

Defense attorneys argued in court documents that the three were "completely nonviolent" when they were arrested.  "They used the occasion to present symbolically their passion for nuclear disarmament," defense lawyers wrote. The three activists have received more than 2,000 cards and letters of support from around the world.

Prosecutors contended the break-in at Y-12, the primary U.S. site for processing and storage of enriched uranium, disrupted operations, endangered U.S. national security, and caused physical damage that cost more than $8,500 to repair.  "The United States believes that the defendants should be held accountable for their deliberate choices and accept the appropriate consequences for their actions," prosecutors said in court documents.

The activists admitted cutting several fences, walking through the complex for hours, spray-painting slogans and hammering on the walls of the facility.  When a guard confronted them, they offered him food and began singing.

I wonder how most Americans would react (especially the folks at FoxNews) if Sister Megan Rice had been caught and convicted of breaking into an uranium-enrichment facility somewhere near Tehran, and Iranian prosecutors were advocating that, at age 84, Sister Rice should be held accountable by having to spend another six years in an Iranian prison.  Of course, that is not what Sister Megan Rice did: she broke into a uranium-enrichment facility in Tennessee, and it is American prosecutors who are advocating that she should be held accountable by having to spend another six years in an American prison.  That obviously makes all the difference in the (western) world.

This recent article from Mother Jones, headlined "Nun Faces up to 30 Years for Breaking Into Weapons Complex, Embarrassing the Feds," provides a lot more background on this case.  It concludes with this explanation of the religious background for the criminal actions by these activists:

The three imprisoned activists are members of the Plowshares Movement, a Christian peace initiative founded in 1980 when the brothers Daniel and Philip Berrigan and six others trespassed onto the General Electric nuclear missile facility in King of Prussia, Pennsylvania, and hammered on the nose cones of missiles.  The movement takes inspiration from Isaiah 2:4: "And they will hammer their swords into plowshares" — the part of the plow that tills the soil. Plowshares actions typically involve the pouring of blood and the symbolic gesture of hammering weapons — in this case, the walls of the Y-12 uranium warehouse.

"They feel that nuclear weapons are the single greatest threat to God's creation that exists in the world today," [fellow activist Ralph] Hutchison says.  "They think that there is a faith imperative.  Nuclear weapons represent the ultimate anti-God.  Anything that God is for — compassion, hope, promise of a future, health, security — they think are completely contradictory to the idea of nuclear weapons."

UPDATE: This Knoxville News Sentinel article reports on the now-interrupted sentencing today:

With snow coming down and federal officials closing the courthouse early, Judge Amul Thapar, prosecutors and attorneys agreed Tuesday to delay the sentencing of three protesters who broke into the Y-12 nuclear weapons plant. They determined there wasn’t enough time to complete the sentencing before the doors closed at 2:30 p.m. on the Howard H. Baker Jr. U.S. Courthouse.

The sentencing has been rescheduled to 9 a.m. on Feb. 18. Sister Megan Rice, an 83-year-old Catholic nun, Rice, who’ll turn 84 in two days, Michael R. Walli, 64, both from Washington, D.C., and Greg Boertje-Obed, 58, from Duluth, Minn., were convicted in May on federal charges of attempting to injure the national defense and depredation of government property.

Earlier Tuesday, the judge ordered the three to pay $52,953 in restitution, waiving interest and allowing payments to be made quarterly. The costs include repairs to fences, spray washing and cleaning the exterior of the plant’s storehouse for bomb-making uranium and additional security expenses.

January 28, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22) | TrackBack

January 27, 2014

After split state Supreme Court decision, Florida becomes next state to watch closely concerning pot reform politics

As reported in this lengthy and effective Miami Herald article, which is headlined "Medical marijuana headed to Florida ballot after Supreme Court’s 4-3 decision," the Sunshine State is now the place to watch for both supporters and opponents of modern marijuana reform movements. Here are the basics:

Florida voters will decide whether to legalize marijuana for medical use, after the state Supreme Court ruled Monday that a proposed constitutional amendment won’t mislead people when they go to the polls in the Nov. 4 elections.

“Voters are given fair notice as to the chief purpose and scope of the proposed amendment, which is to allow a restricted use of marijuana for certain ‘debilitating’ medical conditions,” the court said in a 4-3 ruling that split liberals and conservatives. “We therefore reject the opponents’ assertion that the amendment ‘would allow far wider marijuana use than the ballot title and summary reveal.’”

By going to such great and explicit lengths in knocking down a core objection to the amendment, the justices dealt a serious blow to the talking points of opponents who called the measure a type of backdoor legalization that allows for “unfettered” marijuana use for minor ailments.

Leading the opposition: Attorney General Pam Bondi, state House Speaker Will Weatherford, state Senate President Don Gaetz and many conservative-leaning lobby groups based in the state Capitol. Gov. Rick Scott also opposes the medical marijuana amendment.

Democratic governor candidates Charlie Crist and Nan Rich support the amendment, as does Libertarian candidate Adrian Wyllie. The amendment draws strong bipartisan support from voters right now, according to polls, so the effect it will have on the governor’s race is debatable.

A host of polls show Florida's measure would pass right now, with one survey showing support as high as 82 percent. The most recent Public Policy Polling survey gauged voter support at 65 percent. If the amendment passes — for which it needs 60 percent of the vote — Florida would become the 21st state plus the District of Columbia to decriminalize marijuana for medical use. Marijuana remains illegal at the federal level.

The citizens’ group pushing the amendment, People United for Medical Marijuana, pointed out that the Florida Legislature, led by Republicans, has repeatedly blocked medical-marijuana efforts from even getting a hearing in the state Capitol until recently.

Opponents say medical marijuana is a first step toward legalizing marijuana in general and they opposed Florida’s measure because they said it would trick voters into legalizing pot under the guise of helping sick people. One of the most conservative members of the court, Chief Justice Ricky Polston, echoed the arguments of opponents — sure to be amplified on the campaign trail — in saying the proposal is designed to “hide the ball” from voters....

With the amendment on the ballot in the gubernatorial election year, consultants and voting experts say it's an open question about whether it will help Democrats or hurt Republicans.

Prior state constitutional amendments had no discernable impact on other statewide races. A successful 2010 anti-gerrymandering amendment pushed by liberal groups in Florida did nothing to stop conservatives from racking up historic wins that year. And a successful 2008 amendment banning gay marriage that conservatives drafted did nothing to stop President Obama and Democrats from making big gains....

Despite clearing the tall hurdles of collecting signatures and arguing the case before the Supreme Court, People United and its backers know they're in for a difficult fight. Morgan said he believes the pharmaceutical and the corrections industries might try to defeat the amendment. The Florida Sheriffs Association and the Florida Association of Chiefs of Police, which tried to stop the amendment in court, plans to step up its criticisms through the year.

“This medical marijuana initiative is a fraud that’s being perpetuated against the compassionate people of the state of Florida — it is not about helping people,”' said Polk County Sheriff Grady Judd, president of the Florida Sheriff's Association. “It’s about legalizing marijuana for recreational use.” He said anecdotal evidence from states that have passed similar provisions shows “people have been able to receive recommendations for medical marijuana for menstrual cramps, back pain, and test anxiety.”

The amendment names nine specific medical conditions: cancer, glaucoma, human immunodeficiency virus infection (HIV), acquired immunodeficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease and multiple sclerosis. But physicians could recommend marijuana for other ailments if, after conducting an examination, they determine cannabis would help patients more than it would hurt them.

To opponents, that last clause allowing for medical marijuana in unspecified cases was a major loophole that could allow the “unfettered” prescribing of the drug. In at least two states — Washington and Colorado — the legalization of medical marijuana was a precursor to outright marijuana decriminalization. In both cases, voters decided the laws. Unlike Florida, those states don’t require super-majority votes of the citizenry to pass laws.

Recent state and national polls have shown that support for medical marijuana has increased, as well as support for complete legalization of cannabis. If the amendment passes, qualifying patients and doctors would receive instant protection from prosecution or punishment in most cases. But the Department of Health has six to nine months to make rules governing finer points of the program. The amendment does not give people permission to grow marijuana.

As support increased and People United showed signs of success, state lawmakers began giving more consideration to proposal for limited of medical cannabis, after years of quashing discussion of the issue. That limited proposal is aimed at a niche strain of marijuana called “Charlotte’s Web” that contains a low level of high-inducing THC and a stronger level of a substance called CBD, which parents and physicians say helps prevent severe epileptic attacks, especially in children.

But that legislative proposal, which is being resisted by some Republican leaders, is far more limited in scope than the proposed constitutional amendment. After repeatedly sponsoring medical-marijuana proposals in the Legislature, state Rep. Katie Edwards, D-Plantation, recently joined with Republican Rep. Matt Gaetz — the Senate president’s son — to push the Charlotte’s Web proposal.

The full Supreme Court of Florida ruling on the ballot initiative than was handed down today runs 84 pages and can be accessed at this link.

January 27, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

A useful reminder of the challenge of assessing crime rates, lies, damn lies and statistics

With apologies to Mark Twain for tweaking his famed comment about lies, damned lies, and statistics, the title of this post stems from this interesting recent story about the challenges of crime rate measurement and statistics.  The story is from the Denver Post and it is headlined "Denver's top law enforcement officers disagree: Is crime up or down?". Here is how the piece starts:

Denver's top two law enforcement officials disagree on the answer to what ought to be a simple question: Is violent crime up or down?

Police Chief Robert White and District Attorney Mitch Morrissey aren't quibbling over minor details; they have a nearly 18 percentage-point difference in opinion about the way crime is trending.  Experts say their disagreement underscores the complexities of measuring and interpreting crime trends in a major city.

White has repeatedly said violent crime fell 8.6 percent last year. Morrissey wonders how that can be true when felony cases submitted to his office rose 9 percent during the same time.  "One of the things you can glean from it is that the crime rate is going up. It has to be.  (The police) are presenting more cases to us," Morrissey told The Denver Post. "The trend is that our caseloads are getting bigger and bigger.  How is that possible with the crime rate going down?  I don't know."

White stood by the 8.6 percent decline he has boasted about at public gatherings and in police stations, saying it was the result of better police work, even with fewer officers on the street.  "How about the fact that maybe the police department is doing a better job of arresting the right people?" White said.  "His cases are going up because the police are out there working their butt off and doing a better job.  That's not rocket science."

But there is some science to crime statistics, said Callie Rennison, an associate professor in the University of Colorado Denver's School of Public Affairs. "It's a hard, hard thing to measure, which of course makes it hard to say, 'Well is it really going up or really going down?' " she said.  "Anyone who tells you, 'Here's my stat, it's a perfect one,' immediately don't trust them. No stat is perfect, but some are less perfect than others."

January 27, 2014 in Data on sentencing, National and State Crime Data, Who Sentences? | Permalink | Comments (2) | TrackBack

"Officials investigate whether executed killer faked suffocation"

The title of this post is the headline of this notable new Columbus Dispatch article, which includes these interesting details and developments:

One of Dennis McGuire’s state public defender attorneys was temporarily suspended last week while officials investigated whether he told the condemned man to fake symptoms of suffocation during the early stage of his execution.  Attorney Rob Lowe was scheduled to return to work today after the inquiry found “no wrongdoing,” Ohio Public Defender Tim Young said in a memo sent last Thursday to his staff and obtained by The Dispatch. McGuire was represented by Lowe, from Young’s office, plus two federal public defenders.

Young took the initial allegation so seriously that he called back his attorneys who were scheduled to attend the Jan. 16 execution at the Southern Ohio Correctional Facility near Lucasville. Young’s initial memo, sent about six hours after McGuire’s execution, said he had been contacted by Gov. John Kasich’s legal counsel with information that “a correctional officer overheard Mr. McGuire tell family members that an OPD attorney had encouraged him to feign suffocation when the lethal injection drugs were first administered.”

Incident reports obtained by The Dispatch from the Department of Rehabilitation and Correction show two officers said they overheard McGuire talking with his ex-wife, Darlene Thomas, the day prior to the execution describing what he had been instructed to do by his attorney when he began feeling the effects of the chemicals. “When I begin to gasp for air I will have my thumb in the air per my attorney...If it wasn’t for my daughter I would really put on a show.”

A third, more detailed report came from the unidentified execution team leader recounting a conversation he had with McGuire the night before his execution. McGuire said Lowe told him that if things went wrong during the execution, he “would be the sole reason that executions no longer happen in Ohio and all his buddies on death row would be saved.”

McGuire angrily rejected Lowe’s request to be allowed to witness the execution, the report said. “He (Lowe) wants me to put on this big show in front of my kids all right when I’m dying. I ain’t gonna do this. It’s about me and my kids, not him and him and his cause.” McGuire declined to let Lowe witness, but did as he was requested, giving a “thumbs up” briefly as he looked toward his family members before turning his head away and apparently losing consciousness.

Minutes later, he repeatedly gasped for air, snorted, choked and clenched his fists before succumbing to a lethal two-drug combination that had not previously been used in a U.S. execution. McGuire’s struggles did not begin immediately, but several minutes after the chemicals began flowing into his veins.

Amber and Dennis McGuire, the executed man’s children, who witnessed the execution, filed a lawsuit last week in U.S. District Court claiming their father’s constitutional rights were violated because the two-drug lethal injection triggered a reaction that amounted to “cruel and unusual punishment.” The lawsuit also goes after Hospira Inc., the Chicago drug manufacturer.

In a Dispatch interview today, Young confirmed the details of what happened, but vehemently denied that Lowe or anyone on his staff urged McGuire to fake suffocation. “Absolutely not,” he said. “We would never in any way try to corrupt this process or ask our client to feign any symptoms.”

An internal investigation led by Elizabeth Miller, deputy director in Young’s office, involved interviews with 11 people and reviews of emails and phone messages. “We concluded that there wasn’t any substantial proof or evidence” that McGuire was coached to feign symptoms, Young said. Young said that in McGuire’s execution, as with all death penalty cases, public defenders discuss the process step-by-step with the inmate. “We want to make sure we tell them exactly what is going to occur.

“We did ask Mr. McGuire to signal us so we would know when he lost consciousness,” Young said.

Some recent related posts on Ohio's recent controversial execution:

January 27, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (9) | TrackBack

SCOTUS unanimously rules in Burrage that causation requirement precludes drug defendant facing mandatory minimum for abuser's death

In its one criminal justice ruling this morning, the Supreme Court today via a unanimous vote in Burrage v. United States, No. 12-7515 (S. Ct. Jan. 27, 2014) (available here), rejected an effort by federal prosecutors to expand the reach and application of a mandatory minimum sentencing provision for a drug defendant. Here is the closing paragraph of the opinion of the Court authored by Justice Scalia:

We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U. S. C. §841(b)(1)(C) unless such use is a but-forcause of the death or injury. The Eighth Circuit affirmed Burrage’s conviction based on a markedly different under­standing of the statute, see 687 F. 3d, at 1020–1024, and the Government concedes that there is no “evidence that Banka would have lived but for his heroin use,” Brief for United States 33. Burrage’s conviction with respect to count 2 of the superseding indictment is therefore re­versed, and the case is remanded for further proceedings consistent with this opinion.

January 27, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

January 26, 2014

GOP leaders now getting what Mitt missed: drug war reform may make good politics (as well as being principled) for small-government conservatives

Jindal and perryTwo years ago, just when Mitt Romney was finally sewing up the Republican nomination and could pivot his campaign toward wooing general election voters, I wrote this post suggesting it might be shrewd for Romney to consider trying to appeal to independents, young voters and minorities by talking up sentencing and drug war reforms. I followed up these ideas via this April 2012 Daily Beast commentary suggesting Romney should consider embracing "what Right On Crime calls the 'conservative case' for criminal-justice reform, and in doing so appeal to groups of independent and minority voters (especially young ones) while demonstrating a true commitment to some core conservative values about the evils of big government."

Two years later, it is (too) easy for me to assert that Mitt Romney might be preparing his own State of the Union address now had he taken my advice on this front.  Nevertheless, I am hardly the only one who came to see that Mitt missed the boat with younger and minority voters.  Romney himself commented that his campaign "fell short ... in being able to speak openly and effectively to minority populations," and this post-election post-mortem done by RNC Chair Reince Priebus highlighted that "young voters are increasingly rolling their eyes at what the [GOP] represents, and many minorities wrongly think that Republicans do not like them or want them in the country."

These 2012 issues all came to mind again when I read this interesting new post by Alex Kriet over at Marijuana Law, Policy and Reform.  The post is titled "More politicians backing marijuana reform," and it notes that "the past few days have seen a number of prominent Republican politicians express support for easing marijuana laws." Alex provides excerpts from recent comments by Governors Christie, Jindal and Perry and noted that they are "three Republicans rumored to be considering 2016 presidential bids [who are all] expressing support for easing drug laws."

Of course, even among leading conservative voices, these three prominent GOP Governors are coming a bit late to the sentencing and drug war reform table.  The Right on Crime movement has now been going strong for more than three years, with conservative stalwarts like Jeb Bush, Newt Gingrich, and Grover Norquist signing on to this statement of principles that "we must also be tough on criminal justice spending ... [to reconsider our] reliance on prisons ... [which can] have the unintended consequence of hardening nonviolent, low-risk offenders — making them a greater risk to the public than when they entered."  And, two of the most prominent elected Tea Partiers, Senators Mike Lee and Rand Paul, have been co-sponsors and prominent supports of bill to reform some of the harshest and most rigid aspects of the federal sentencing system. 

Regular readers know I have long asserted that anyone truly and deeply committed to oft-stressed conservative principles of constitutionally limited government, transparency, individual liberty, personal responsibility, and free enterprise should be troubled by the size and power of modern American criminal justice systems, especially at the federal level. But Alex's astute observation that many GOP leaders considered viable national candidates for 2016 are now talking up sentencing and drug war reforms suggests that Republican leaders are now getting what Mitt missed — GOP talk of serious criminal justice reform (especially at the federal level) may now be very smart politics as well as being in keeping with prominent conservative principles.

Some recent and older related posts:

January 26, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack

Texas jury suggests it's much better for NFL players to kill pals than sell them pot and coke

I was pleased and intrigued by all the diverse comments that were part of reader reactions to my rant here last week about Justin Beiber and what I consider the harmful and dangerous leniency too often shown to serious DUI offenders. To summarize the gist of my prior rant(s), I am troubled many serious DUI offenses are punished so relatively leniently, and I fear that rich and famous DUI offenders get even extra leniency because they generally can afford the best lawyers and are generally viewed more sympathetically than most other defendants because of their fame.   It was very helpful to see different folks express different reactions to these sentiments.

Intriguingly, the day after the Bieber arrest news broke, a Texas jury handed down its punishment for another rich and famous person involved in a serious DUI offense.  Via this AP story, here are the details:

Former Dallas Cowboys player Josh Brent avoided prison Friday and instead was sentenced to 180 days in jail and 10 years of probation for a drunken car crash that killed his friend and teammate, Jerry Brown.

Brent was convicted Wednesday of intoxication manslaughter for the December 2012 crash on a suburban Dallas highway that killed Brown, who was a passenger in Brent's car.  Brent could have been sentenced to up to 20 years in prison.  He was also fined $10,000....

One of his attorneys, Kevin Brooks, described the former defensive tackle as "somber."... Brooks said, "It's kind of what we've been fighting for from Day 1. I'm happy for Josh.  Josh is still sad and grieving and that's something he's going to carry with him the rest of his life."

Brown's mother, Stacey Jackson, wasn't in the courtroom when the verdict was read.  She publicly forgave Brent, and said during Thursday's sentencing proceedings: "He's still responsible, but you can't go on in life holding a grudge. We all make mistakes."

Jackson was the last witness the jury heard, and lead prosecutor Heath Harris said her testimony probably helped Brent get probation.  "The victim's family will always have a bearing on the punishment phase," Harris said.  "Should it make a difference?  What if she had been wanting the maximum? Would they have given the maximum?  That's why we let the jury decide."

Prosecutors were pushing for prison time for Brent, whose trial came weeks after a teenage boy in neighboring Tarrant County received no prison time for an intoxication manslaughter conviction in a drunken crash that killed four people.  In that case, a defense expert argued that the teen deserved leniency because his parents had coddled him into a sense of irresponsibility -- a condition the expert termed "affluenza."

The group Mothers Against Drunk Driving, whose headquarters isn't far from the spot where Brent crashed, said in a statement that it was "shocked and appalled" by the athlete's sentence.  "This punishment sends the message that it's OK to drink and drive -- but it's absolutely not," MADD said....

Blood tests pegged Brent's blood alcohol content at 0.18 percent, which is more than twice the state's legal limit to drive of 0.08 percent.  Prosecutors told jurors that the burly, 320-pound lineman had as many as 17 drinks on the night of the crash....

Judge Robert Burns scolded Brent after reading the verdict, saying his actions "bring shame to the city of Dallas."  The judge also mentioned Brent's 2009 drunken-driving conviction in Illinois, which the prosecution revisited in making its case for prison time.

"The judge obviously has a right to express his opinion," said George Milner, one of Brent's attorneys. "I guess the difference is there's no one in that courtroom that knows Josh the way Kevin and I do. And so I see a different person."

Regular readers will not be at all surprised that I think a sentence of probation for 10 years and a $10K fine is far too lenient punishment for Brent's repeat and now deadly penchant for drinking and driving.  (My understanding from this local report is that the Texas jury imposed only the probation term and fine, but that the trial judge added the 180 days in local jail.)  And those who hope Brent will finally shape up after killing his friend might be interested in this NFL report from last year noting he failed two drug tests while on bail awaiting his trial.

Among other interesting aspects of this story is the obvious role that Brent's victims and Texas' system of jury sentencing played in the lenient sentence.  As the above stories suggests, the Texas jury was likely significantly moved by statements from the victim's mother seeming to urge giving Brent a big sentencing break, whereas the local judge was apparently still eager to throw the book at Brent.  I highlight these realities because far too many persons often believe or claim in far too many settings that giving voice to victims' interests and/or allowing jury sentencing will result in (too) harsh sentencing outcomes. In this notable case, giving voice to victims' interests and allowing jury sentencing result in a (too) lenient sentencing outcome.

Finally, as the title of this post indicates, what probably troubles me most about this outcome is what it says about the values and commitments of our modern criminal justice systems in the wake of last high-profile sentencing of an NFL player.  As detailed in this AP article from two months ago, former NFL receiver Sam Hurd was sentenced to 15 years in federal prison for being involved in "a lot of agreements to buy and sell marijuana and cocaine."  (Notably, the federal sentencing guidelines actually recommended that Hurd get a 30 year sentence, but the federal judge varied down to 15 years.)  

In other words, for his first offense trying to make money by selling his pals pot and coke, Sam Hurd got a federal prison sentence 30 times longer than the jail term to be served Josh Brent for killing his pal during his second (known) offense of drinking and driving.  Like the folks at MADD, I worry that these disparate punishment realities "send the message that it's OK to drink and drive" and kill your pal, just make extra sure you do not try to seel them some pot and coke or you might get in really big trouble.  (And do not get me started on the additional messaging from another famous NFL player, Plaxico Burress, having to cut a plea deal to get a state prison sentence only four times longer than what Brent will serve simply for carrying a gun the wrong way and shooting himself!)

Some related posts on drunk driving leniency and NFL player sentencings:

January 26, 2014 in Celebrity sentencings, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (11) | TrackBack

"Sex offender fights registry by registering his registerers"

The title of this post is the headline of this interesting Washington Post article discussing an efforts of, and challenges facing, one registered sex offender seeking to showcase the realities of being a registered person.  Here are excerpts:

If nothing else, Dennis Sobin is not your typical ex-con.

At first glance, he looks like the model returning citizen: After serving more than a decade in prison, Sobin, 70, returned to the District, started a gallery for prison art and ran for mayor. His nonprofit organizations have received grants from George Soros’s Open Society Institute and the National Endowment for the Arts and, in 2010, he appeared on the cover of the Washington City Paper .

But Sobin is also sex offender. A former pornographer who’s appeared on “The Sally Jesse Raphael Show” and “Geraldo,” Sobin was convicted of sexual performance using a minor in 1992 in Florida. So, every 90 days, Sobin must report to D.C.’s Court Services and Offender Supervision Agency (CSOSA), and his photo appears on D.C.’s public registry.

Sobin thinks it’s unfair. So, for his latest act, Sobin has decided to protest his treatment by creating his own online data base and registering the people who monitor him at the sex offender registry. Now, in an unusual case that will be heard on Tuesday, a D.C. Superior Court judge will decide whether a court employee can file a civil protection order to prevent Sobin from posting her photo on his anti-registry registry, www.idiotsregistry.info, and distributing her photograph on fliers.

“Here at www.IdiotsRegistry.info you will find the names of politicians and public figures who have encouraged the creation of, or have refused to denounce, government registration websites that target citizens for harassment,” Sobin’s site reads. “In the tradition of Nazi registration of Jews and Gypsies and the Salem lists of alleged witches, modern government registries are unfair and un-American.”

Stephanie Gray, who works for CSOSA, is asking the court to force Sobin to remove her picture from the site. Sobin, who was under Gray’s supervision until she got another position at the agency, did not mince words when criticizing Gray. “Face of Evil: ‘Registry Specialist’ Stephanie Gray shoots icy stare,” Sobin posted under a photo of Gray. “Gray requested and received a transfer due to the guilt she felt in her loathsome job.”

Sobin said his action was inspired by Supreme Court rulings which hold that sex offender registries are not punitive and do not constitute double jeopardy. “If it’s not punishment to be on a list, we thought we’d put the people who do the registering on a list,” he said.

Gray took another view. “He writes derogatory information about me,” Gray wrote in her request for a protection order. “I have been move[d] from the Sex Offender Registry and he continues to trash the bldg. where I am with pictures he has taken of me without me knowing.”

Should Sobin prevail,“It would send a message to all sex offenders in the District of Columbia,” according to a petition filed by Gray’s attorneys which accused Sobin of stalking. “Convicted criminals required to report to CSOSA could harass them with impunity under the guise of protected political speech.” Gray, through her attorneys, declined comment, as did CSOSA.

Sobin has found an ally: the American Civil Liberties Union, which filed an amicus brief on his behalf. “We think there are some significant First Amendment issues,” said Art Spitzer, legal director of ACLU’s D.C. office, who pointed out that Gray is not alleging physical harm. “Domestic violence laws are supposed to protect people from crimes, but not hurt feelings. . . . People are allowed to embarrass each other and make each other feel bad when making a political point.”...

Should Sobin win, Gray’s civil protection request will be denied, but D.C.’s sex offender registry will not be affected. But, Sobin said, he’ll have struck a blow for free speech and shown the flawed logic behind the registry — even if there’s collateral damage.

“Ms. Gray happens to be a very sensitive, compassionate individual who is on the registration list,” Sobin said. “It’s a war. . . . They’re involved in this registration thing and unless they move themselves out, we’re going to oppose them.”

January 26, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Will Prez Obama mention sentencing reform in the State of the Union address?

Presidents traditionally use the annual State of the Union address to outline a planned legislative agenda and to articulate a perspective on national priorities. Consequently, in light of all the recent talk from Attorney General Holder and members of Congress about the need for federal sentencing reform, I will be extremely interested to see what Prez Obama might say (or not say) about sentencing reform when speaking to Congress this Tuesday.

This notable new commentary by Juliet Sorensen at The Atlantic, which is headlined "Why Obama Should Back Drug-Sentencing Reform in the State of the Union," highlights that I am not the only one now thinking about POTUS, SOTU and sentencing.  Here are excerpts:

In the last week of 1963, my father, Ted Sorensen, met with President Lyndon Johnson late into the night at his Texas ranch to decide what provisions of President John F. Kennedy’s unfinished agenda to include in the upcoming State of the Union address.  Last on the list was a provision for expanded federal jurisdiction over illegal drugs, which provided not only for federal criminal-law enforcement but also for expanded rehabilitation and treatment programs.

As my father recounted in his memoir, Johnson angrily brushed aside the suggestion. “Drugs? I don’t want to have anything to do with them. Just lock them up and throw away the key!”  The meeting ended, and my father deleted that portion of the speech, which famously announced the War on Poverty — but kept the drug provision in Johnson’s legislative program. This led to controlled-substance and drug-addiction reform that passed with bipartisan support in Congress. Despite Johnson’s dismissal of my father’s proposal of treatment and rehabilitation, he extolled those ideas when he signed the Narcotic Addict Rehabilitation Act into law in November 1966, describing it as a “pioneering measure” that recognizes that “treating addicts as criminals neither curtails addiction nor prevents crime.”

President Obama now has a golden opportunity in his own State of the Union to confront the U.S. government’s continued struggle to effectively legislate drugs.  In a January 8 statement, Obama endorsed the very same priorities articulated in LBJ’s War on Poverty and catalogued exactly 50 years ago in Johnson’s own State of the Union address.  This indicates that he will also focus on income inequality — 21st century lingo for entrenched poverty — in his speech on January 28.  While a renewed commitment to tackling persistent poverty is laudable, Obama should also seize the moment to further another, related legislative aim of the Kennedy and Johnson Administrations: reduced sentencing for drug-law violators who are nonviolent offenders....

Members of the bench and bar have come to recognize that mandatory minimums don’t always keep society safe or effectively punish every defendant.  A bill in the Senate, co-sponsored by Senators Dick Durbin, a Democrat, and Mike Lee, a Republican, would capitalize on shifting opinions in Congress and the general public.  The Smarter Sentencing Act (SSA) would reduce the mandatory-minimum penalties for many drug offenses and give federal judges more leeway to sentence nonviolent offenders with limited criminal histories below the high mandatory-minimum sentences.  It would also reduce disparities between crack- and powder-cocaine offenders by making the Fair Sentencing Act of 2010, which reduced the gap between the amount of crack and powder cocaine needed to trigger certain penalties, retroactive.  Support for the SSA from law enforcement, victims’ organizations, prosecutors, and judges has poured in, including a letter signed by more than 100 former judges and prosecutors, including me....

The Obama Administration has indicated it supports mandatory-minimum-sentencing reform.  Tellingly, the president last month commuted the sentences of eight nonviolent drug offenders who would most likely have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules, and charging policies.  Attorney General Eric Holder stated last August that legislation such as the SSA will “ultimately save our country billions of dollars while keeping us safe.”  In an interview published in this week’s issue of The New Yorker, Obama acknowledged the disparate impact of drug laws on minorities, noting that “African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support” — in their families, in their schools, and in their communities — to avoid lengthy prison sentences for marijuana crimes, even as he acknowledged the “profound” social costs of drug trafficking.

A declaration of support for the SSA in his State of the Union Address — broadcast live and heard not only by Congress but approximately 50 million people around the world — would go far to create momentum and support for the bill and its goal of curbing unnecessarily harsh sentencing. In so doing, the president would put America back on the road paved by Kennedy and Johnson. My father, and the presidents he served, would be pleased.

January 26, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack