February 2, 2014
"Sentencing and Prior Convictions: The Past, the Future, and the End of the Prior Conviction Exception to Apprendi"
The title of this post is the title of this interesting and potent new paper now available via SSRN and authored by the always interesting and potent Nancy King. Here is the abstract:
This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned.
The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use of risk prediction in sentencing; surveys state-by-state eighteenth century authority that belies the claim that denying element status to prior convictions that raise the range of punishment is a longstanding tradition; evaluates the weaknesses of the case law underlying the Court's decision in Almendarez-Torres; argues that defendants need not be prejudiced when prior convictions are treated as elements; and observes that the original reason that a very small number of states in the nineteenth century stopped requiring prior convictions to be treated as elements — namely, that an offender’s criminal history was often unknown unless or until a warden recognized him — no longer exists.
An earlier version of the article was delivered as the Barrock Lecture on Criminal Law at the Marquette University Law School.
February 2, 2014 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack
Super Sunday of highlights from Marijuana Law, Policy and Reform
As some readers may already know, my Marijuana Law, Policy and Reform blog is really super interesting now that great set of guest-bloggers adding their insights and perspectives. And, as anyone who has been keeping up with the broader news the last, discussion of marijuana issues has been super dynamic with the biggest annual US sporting event involving two teams from states at the forefront of marijuana reform. So, I figured I could gear up for the big game not only with a new post at MLP&R that provides lots of Super Sunday stories about marijuana and the Super Bowl, but also with another of my usual reviews of some of recent posts from MLP&R, many of which have a football theme and many of which should also be of interest to sentencing fans:
"Citing Catholic faith, family of victim seeks to keep condemned Cleveland killer from lethal injection"
The title of this post is the headline of this interesting recent Cleveland Plain Dealer article highlighting a notable set of voices expressing a faith-based disinterest in completing the next scheduled execution in Ohio. Here are the details:
This story is substantively interesting because it involves family members of a murder victim making a forceful faith-based pitch for clemency. But it is also practically so interesting because it could give Ohio Governor John Kasich a very reasonable basis to grant the condemned murderer here a commutation to LWOP and thereby prevent the next six week being filled with huge legal fights over Ohio's two-drug execution protocol. Of course, those legal fights are inevitable whenever Ohio gets close to another execution, but the Gov and other Ohio officials might find it quite beneficial to have a few more months to gear up for these fights without a March execution date looming.
Irene Allain and her family want to prevent condemned killer Gregory Lott's execution. And they're relying on their faith to do it. Allain is the daughter of John McGrath, the 82-year-old man Lott is convicted of killing a vicious attack in East Cleveland in July 1986. Nearly 28 years later, Lott is scheduled to die March 19 for the crime. And Allain and her family are pushing that the sentence be changed from death to life in prison.
"Although it has been difficult for me to come to terms with how my father died, I do not agree with executing Gregory Lott," Allain wrote in an affidavit that Lott's attorneys are using to seek clemency for him. "I am a devout Catholic, as is my family. I believe that life in prison is a just punishment for Gregory Lott. I believe his death sentence should be commuted to life imprisonment."
As the debate over the death penalty simmers in Ohio, most recently sparked by the drawn-out execution of Dennis McGuire earlier this month, McGrath's family members highlight the issue from a different perspective. And they aren't alone. A growing number of families of victims are urging courts to avoid using the death penalty as a punishment.
"There is an automatic assumption that victims' families want the death penalty, but that has been challenged in the past five to 10 years," said Scott Bass, the executive director of Murder Victims' Families for Reconciliation. "There is a rising number of victims' families who don't want the death penalty. For many, the death penalty adds 20 to 30 years to the trial. It prolongs the agony for families."
But not all families believe that. Take the relatives of Joy Stewart, the pregnant woman who was brutally attacked and killed by McGuire. Her family, in a statement to reporters at the execution, said they have forgiven McGuire, "but that does not negate the need for him to pay for his actions. It's time -- past time -- for him to pay for what he did to my sister."
In the case of Lott, it is clear that McGrath's family wants him to remain in prison. "I don't want to put my imprimatur on a man's execution,'' said Jack McGrath, a grandson. "Much of this is because of my Roman Catholic faith. When I first learned of this in 1986, I almost thought of taking matters into my own hands. But time has healed our wounds. I don't believe in the death penalty because of my faith."...
In a letter to prosecutors before his trial, Lott admitted to the slaying and pleaded for a deal that would spare him the death penalty. "I am ready and willing to go to court any day or time and take the 30 years," Lott wrote to prosecutors. "I beg that you would let me plead guilty to the murder. I am very sorry and remorseful for what happened to Mr. McGrath.''
But the deal never came. Months later, a three-judge panel convicted him and him sentenced to die. Lott's execution date has been pushed back twice after legal challenges, including one that accused Carmen Marino, then an assistant Cuyahoga County prosecutor, of failing to turn over evidence to defense attorneys. A federal judge in 2007 rejected Lott's appeal. Following other appeals, he was given a new execution date....
Jack McGrath, the grandson of the man Lott killed, said he has thought a good deal about revenge and spoke with a Catholic priest. "Twenty-eight years ago, I felt very much like that," he said. "But there comes a point when you say to yourself, 'Can this guy be forgiven?' What has happened has happened. It's not my place to judge."