April 18, 2015
Oklahoma now able to use nitrogen gas as execution method if needed
As reported in this CNN piece, headlined "Oklahoma approves nitrogen gas as backup execution method," the Sooner State is now officially able to use a novel execution method sooner or later. Here are the details:
Oklahoma Gov. Mary Fallin signed a bill on Friday that would allow the state to perform executions with nitrogen gas if lethal injection is ruled unconstitutional or becomes unavailable. Nitrogen causes a quick loss of consciousness and then death from lack of oxygen, Fallin's office said in a press release.
CNN affiliate KFOR says it's never been used in an execution in the United States. "The person will become unconscious within eight to 10 seconds and death a few minutes later. In other words, a humane, quick and painless death," said Rep. Mike Christian, one of the bill's authors, according to KFOR....
Oklahoma's executions have been put on hold while the U.S. Supreme Court reviews its use of lethal injections. Last year, the state came under scrutiny when it took 43 minutes to kill convicted killer Clayton Lockett.
Fallin reaffirmed her support for the death penalty. "Oklahoma executes murderers whose crimes are especially heinous," Fallin said. "I support that policy, and I believe capital punishment must be performed effectively and without cruelty. The bill I signed today gives the state of Oklahoma another death penalty option that meets that standard." The governor's office said the first alternative for execution is lethal injection, followed by nitrogen gas, the electric chair and the firing squad.
A few recent and older related posts:
- Is nitrogen gas the best modern execution alternative to lethal injection?
- Serious talk about a serious alternative (nitrogen) to lethal injection in Oklahoma
- As SCOTUS considers Oklahoma lethal injections, Oklahoma considers a gas chamber
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
- A worldly perspective on different execution methods
- Should problems with lethal injection prompt return of other execution methods?
- Effective discussion of nitrogen gas as execution method alternative
"Why We Let Prison Rape Go On"
The title of this post is the headline of this notable new commentary in today's New York Times authored by Chandra Bozelko. Here are excerpts:
It’s been called “America’s most ‘open’ secret”: According to the Bureau of Justice Statistics, around 80,000 women and men a year are sexually abused in American correctional facilities. That number is almost certainly subject to underreporting, through shame or a victim’s fear of retaliation. Overall, only 35 percent of rapes and sexual assaults were reported to the police in 2010, and the rate of reporting in prisons is undoubtedly lower still.
To tackle the problem, Congress passed the Prison Rape Elimination Act, signed into law by President George W. Bush in 2003. The way to eliminate sexual assault, lawmakers determined, was to make Department of Justice funding for correctional facilities conditional on states’ adoption of zero-tolerance policies toward sexual abuse of inmates....
But only two states — New Hampshire and New Jersey — have fully complied with the act. Forty-seven states and territories have promised that they will do so. Using Justice Department data, the American Civil Liberties Union estimated that from 2003 to 2012, when the law’s standards were finalized, nearly two million inmates were sexually assaulted.
Six Republican governors have neglected or refused to comply, complaining of cost and other factors. Rick Perry, then the governor of Texas, wrote to the Justice Department last year stating that 40 percent of the correctional officers in male facilities in Texas were women, so that “cross-gender viewing” (like witnessing inmates in the shower, which contravenes the legal guidelines) could not be avoided. The mandated measures, he said, would levy “an unacceptable cost” on Texas, which has one of the highest rates of prison sexual assault....
Ultimately, prisons protect rape culture to protect themselves. According to the Bureau of Justice Statistics, about half of prison sexual assault complaints in 2011 were filed against staff. (These reports weren’t all claims of forcible rape; it is considered statutory sexual assault for a guard to have sexual contact with an inmate.)
I was an inmate for six years in Connecticut after being convicted of identity fraud, among other charges. From what I saw, the same small group of guards preyed on inmates again and again, yet never faced discipline. They were protected by prison guard unions, one of the strongest forces in American labor....
The Justice Department estimates that the total bill to society for prison rape and sexual abuse is as high as $51.9 billion per year, including the costs of victims’ compensation and increased recidivism. If states refuse to implement the law when the fiscal benefit is so obvious, something larger is at stake.
According to Allen Beck, senior statistical adviser at the Bureau of Justice Statistics, “institutional culture and facility leadership may be key factors in determining the level of victimization.” Rape persists, in other words, because it’s the cultural wallpaper of American correctional facilities. We preserve the abuse because we’re down with perps getting punished in the worst ways.
Compliance does not even cost that much. The Justice Department estimates that full nationwide compliance would cost $468.5 million per year, through 2026. Even that much is less than 1 percent of states’ spending on corrections. Putting aside the cruelty and pain inflicted, prison rape costs far more than the implementation of the law designed to stop it.
April 17, 2015
Parent of Boston bombers' young victims: "To end the anguish, drop the death penalty"
The title of this post is drawn from the headline of this remarkable new Boston Globe commentary authored by Bill and Denise Richard, parents of 8-year-old Martin who was one of three people killed in the April 2013 explosions at the marathon's finish line. The full piece is a must read, and I will quote it all here to help ensure these victims' voices get heard in full:
The past two years have been the most trying of our lives. Our family has grieved, buried our young son, battled injuries, and endured numerous surgeries — all while trying to rebuild lives that will never be the same. We sat in the courtroom, day after day, bearing witness to overwhelming evidence that included graphic video and photographs, replicated bombs, and even the clothes our son wore his last day alive. We are eternally grateful for the courage and life-saving measures of first responders, Boston Police, the Boston Fire Department, and good Samaritans on April 15, 2013. We also thank the FBI and other law enforcement agencies, the Department of Justice, and the Massachusetts US Attorney’s Office for leaving no stone unturned during the investigation and trial.
But now that the tireless and committed prosecution team has ensured that justice will be served, we urge the Department of Justice to bring the case to a close. We are in favor of and would support the Department of Justice in taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal.
We understand all too well the heinousness and brutality of the crimes committed. We were there. We lived it. The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul. We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.
For us, the story of Marathon Monday 2013 should not be defined by the actions or beliefs of the defendant, but by the resiliency of the human spirit and the rallying cries of this great city. We can never replace what was taken from us, but we can continue to get up every morning and fight another day. As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.
This is a deeply personal issue and we can speak only for ourselves. However, it is clear that peace of mind was taken not just from us, but from all Americans. We honor those who were lost and wish continued strength for all those who were injured. We believe that now is the time to turn the page, end the anguish, and look toward a better future — for us, for Boston, and for the country.
US Sentencing Commission releases data report on illegal reentry offenses
Late yesterday, the US Sentencing Commission released this 30-page report, titled "Illegal Reentry Offenses," which provides a details statistical accounting of the composition and sentencing of a huge chuck of cases in the federal criminal justice system. Here is how this report gets started:
This report analyzes data collected by the United States Sentencing Commission concerning cases in which offenders are sentenced under USSG §2L1.2 — commonly called “illegal reentry” cases. Such cases are a significant portion of all federal cases in which offenders are sentenced under the United States Sentencing Guidelines. In fiscal year 2013, for instance, illegal reentry cases constituted 26 percent of all such cases. As part of its ongoing review of the guidelines, including the immigration guidelines, the Commission examined illegal reentry cases from fiscal year 2013, including offenders’ criminal histories, number of prior deportations, and personal characteristics.
Part I of this report summarizes the relevant statutory and guideline provisions. Part II provides general information about illegal reentry cases based on the Commission’s annual datafiles. Part III presents the findings of the Commission’s in-depth analysis of a representative sample of illegal reentry cases. Part IV presents key findings.
Among the key findings from analysis of fiscal year 2013 data: (1) the average sentence for illegal reentry offenders was 18 months; (2) all but two of the 18,498 illegal reentry offenders — including the 40 percent with the most serious criminal histories triggering a statutory maximum penalty of 20 years under 8 U.S.C. § 1326(b)(2) — were sentenced at or below the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1) for offenders with less serious criminal histories (i.e., those without “aggravated felony” convictions); (3) the rate of within-guideline range sentences was significantly lower among offenders who received 16-level enhancements pursuant to §2L1.2(b)(1)(A) for predicate convictions (31.3%), as compared to the within-range rate for those who received no enhancements under §2L1.2(b) (92.7%); (4) significant differences in the rates of application of the various enhancements in §2L1.2(b) appeared among the districts where most illegal reentry offenders were prosecuted; (5) the average illegal reentry offender was deported 3.2 times before his instant illegal reentry prosecution, and over one-third (38.1%) were previously deported after a prior illegal entry or illegal reentry conviction; (6) 61.9 percent of offenders were convicted of at least one criminal offense after illegally reentering the United States; (7) 4.7 percent of illegal reentry offenders had no prior convictions and not more than one prior deportation before their instant illegal reentry prosecutions; and (8) most illegal reentry offenders were apprehended by immigration officials at or near the border.
In 2013, there were approximately 11 million non-citizens illegally present in the United States, and the federal government conducted 368,644 deportations. The information contained in this report does not address the larger group of non-citizens illegally present in the United States and, instead, solely concerns the 18,498 illegal reentry offenders sentenced under §2L1.2 of the United States Sentencing Guidelines in fiscal year 2013. Therefore, the information should not be interpreted as representative of the characteristics of illegal immigrants generally.
April 16, 2015
Latest Pew survey data on death penalty opinions
This new Pew Research Center report carries the headline "Less Support for Death Penalty, Especially Among Democrats: Supporters, Opponents See Risk of Executing the Innocent." Here are some specifics from the report:
A majority of Americans favor the death penalty for those convicted of murder, but support for the death penalty is as low as it has been in the past 40 years. A new Pew Research Center survey finds 56% favor the death penalty for people convicted of murder, while 38% are opposed.
The share supporting the death penalty has declined six percentage points, from 62%, since 2011. Throughout much of the 1980s and 90s, support for the death penalty often surpassed 70%. In a 1996 survey, 78% favored the death penalty, while just 18% were opposed.
Much of the decline in support over the past two decades has come among Democrats. Currently, just 40% of Democrats favor the death penalty, while 56% are opposed. In 1996, Democrats favored capital punishment by a wide margin (71% to 25%). There has been much less change in opinions among Republicans: 77% favor the death penalty, down from 87% in 1996. The share of independents who favor the death penalty has fallen 22 points over this period, from 79% to 57%.
The latest national survey by the Pew Research Center, conducted Mar. 25-29 among 1,500 adults, finds widespread doubts about how the death penalty is applied and whether it deters serious crime. Yet a majority (63%) says that when someone commits a crime like murder, the death penalty is morally justified; just 31% say it is morally wrong, even in cases of murder.
At the same time, 71% of Americans say there is some risk that an innocent person will be put to death. Only about a quarter (26%) say there are adequate safeguards in place to make sure that does not happen. About six-in-ten (61%) say the death penalty does not deter people from committing serious crimes; 35% say it does deter serious crime.
And about half (52%) say that minorities are more likely than whites to be sentenced to death for similar crimes; fewer (41%) think that whites and minorities are equally likely to be sentenced for similar .
The survey also finds that Americans are relatively unaware about whether the number of death penalty executions taking place in the U.S. has changed in recent years....
The share of women who favor the death penalty has fallen 10 points since 2011, while men’s views have shown virtually no change. Men are now 15 points more likely than women to favor the death penalty (64% vs. 49%). Four years ago, the gender difference was much more modest (65% of men favored the death penalty, as did 59% of women)....
Support for the death penalty has edged down among whites, blacks and Hispanics since 2011, but wide racial differences persist. About six-in-ten whites (63%) favor the death penalty, compared with 34% of blacks and 45% of Hispanics.
Age differences in views of the death penalty continue to be modest. About half (51%) of those under 30 favor the death penalty, as do 57% of those 30 to 49, 61% of those 50 to 64 and 54% of those 65 and older.
Among religious groups, sizable majorities of white evangelical Protestants (71%), white mainline Protestants (66%) and white Catholics (63%) favor the death penalty. But those who are religiously unaffiliated are divided (48% favor, 45% oppose). In 2011, the religiously unaffiliated supported the death penalty by a wide margin (57% to 36%).
As with overall views of the death penalty, there are demographic and partisan differences in attitudes about capital punishment. The sharpest disagreements are in views of whether minorities are more likely than whites to face the death penalty.
Fully 77% of blacks say minorities are more likely than whites to receive the death penalty for similar crimes. Whites are evenly divided: 46% say minorities are disproportionately sentenced to death, while an identical percentage sees no racial disparities. More than twice as many Democrats (70%) as Republicans (31%) say minorities are more likely than whites to receive the death penalty for similar crimes.
There also are educational differences in these opinions: 60% of college graduates say minorities are more apt to receive the death penalty than are whites, as do 55% of those with some college experience. But among those with no more than a high school education, 44% say minorities are disproportionately sentenced to death; 48% say whites and minorities are equally likely to receive the death penalty for similar crimes.
Distinct comments on marijuana policy from Prez Obama and one wanna-be successor
Two notable new stories about notable new marijuana comments made by notable chief executives caught my eye this morning. Here are the headlines, links and the basics:
- From The Daily Caller here, "Obama Reiterates Enthusiastic Support Of Medical Marijuana":
In a CNN special to be aired on Sunday, not only will President Barack Obama state his full support of medical marijuana, he’ll also advocate for alternative models of drug abuse treatment which don’t involve incarceration. The television special, called “Weed 3,” features CNN’s chief medical correspondent Sanjay Gupta, a neurosurgeon who came to support medical marijuana after reviewing the evidence. This time around, he’ll be delving into the politics of medical marijuana research and interviewing President Barack Obama, according to an email obtained by The Daily Caller News Foundation.
- From Hot Air here, "Chris Christie: As president, I’ll enforce federal drug laws in states where selling marijuana is legal":
Even within the GOP, which remains skeptical of liberalization on drugs, a majority thinks the feds should defer to the states. You can indeed be anti-marijuana and pro-federalism. Screw that, says Christie. When it comes to deciding whether marijuana’s too dangerous for the citizens of a state to sell, he’ll happily trump your state legislature and local PD. And to think, they call him a big-government Republican.
It is both notable and telling, of course, that a President often accused of trampling state and individual rights is here saying he respects on-going state reforms, while a state Governor representing from a party that claims it favors a smaller federal Government is asserting he wants to make sure states do not even try to forge a different part with respect to the war on drugs. And this is why I find marijuana law, policy and reform so politically interesting: it help reveal, in a way few other issues do, just which particular policies and which particular principles are ultimately most important to which particular politicians.
Cross-posted at Marijuana Law, Policy & Reform
Effective review of on-going reviews of sex offender residency restrictions
This new reporting by Steven Yoder via The Crime Report provides an effective update on what is going on lately with state-level sex offender residency restrictions and other sex offender laws and policies. The extended piece has this extended headline: "You Can’t Live Here: Do residency bans and other tough measures on sex offenders work? The evidence suggests they are counterproductive — and some states are already shifting policies." Here are excerpts:
Last month, the California Supreme Court ruled such blanket residency bans [on sex offenders] unconstitutional. It based the decision in part on evidence that residency laws drive up homelessness among offenders and make it harder for state authorities to monitor and rehabilitate them. It’s the latest sign that science has begun to trump passion on what is one of the most sensitive areas of criminal justice.
During the 1990s, at least 30 states enacted residency restrictions on convicted sex offenders who were released into their communities, as part of what appeared to be an increasingly harsh crackdown across the nation. Congress passed six new federal laws that ratcheted up penalties on those convicted of sex crimes. In some towns, the crackdown has extended to ordinances prohibiting those with a sex offense on their record from putting up Halloween decorations....
Today more than 20 states have sex offender policy boards, says Chris Lobanov-Rostovsky program manager for Colorado’s Sex Offender Management Board. That number is down slightly since 2010 — that year, 24 states had boards, according to a 2010 report by the Center for Sex Offender Management, funded by the Department of Justice.
A few of these groups last just a year or two and tackle discrete issues like how to certify sex offender treatment providers. Others take on broader offender management policies, weighing in on the likely impact of proposed bills.
Colorado’s board has run for more than 20 years, and Lobanov-Rostovsky gets about half a dozen calls a year from other states asking for advice on setting up their own boards. He travels to about one state a year to offer hands-on help, though he’s not aware of any states that have set up new boards in the last two years.
Boards normally pull in the groups that matter on the issue, typically including representatives of state law enforcement and other agencies, prosecutors, defense attorneys, judges or their representatives, sex offender treatment professionals, and victim advocates. Some boards have full or part-time salaried staff, as in Colorado’s case. Not surprisingly, boards with staff are more productive than those without, Lobanov-Rostovsky says.
Notable defendant gets 10 years after 10th DWI in Texas as part of plea deal
This story from the Dallas Morning News tells the remarkable story of a remarkable defendant with a remarkable inability to stop drinking and driving. The piece is headlined "Author Jim Dent gets 10-year prison sentence after 10th DWI," and here are the basics:
Best-selling author Jim Dent was sentenced Wednesday to 10 years in state prison as part of a plea deal with Collin County prosecutors. The author of such books as The Junction Boys and Manziel Mania had pleaded guilty in November 2013 to two driving while intoxicated charges – his ninth and 10th such convictions that spanned more than three decades and four states.
But Dent fled to Mexico rather than attend his sentencing hearing at the McKinney courthouse in February 2014. He said he spent a year south of the border before hitting rock bottom and deciding to return to the states. He was arrested crossing the border into San Diego in late January and transported to Collin County in February to face the charges.
Dent worked as a sports writer covering the Dallas Cowboys for more than a decade for the Fort Worth Star-Telegram and the Dallas Times Herald. In 1991, he quit the newspaper business and became a nationally syndicated radio talk show host. He also started writing books. His status in sports circles and his bigger than life personality paved the way for his access to big names and exclusive events.
Because of the plea agreement, Thursday’s previously scheduled sentencing hearing was canceled as was the testimony from several witnesses. Instead, Dent appeared on video from the Collin County jail before District Judge James Fry for his sentencing. The video jail appearances are routine in cases that have been previously settled and save the county the costs of transporting inmates from the jail to the courthouse....
As part of the plea deal, Dent was sentenced to the previously agreed upon eight years in prison on the DWI charge from October 2012 in Allen. In that instance, Dent’s ex-girlfriend called police because Dent was trying to force her out of her car. He then rammed her car into her neighbor’s garage door with his F150 pickup. He was also sentenced to the maximum penalty of 10 years for the DWI charge from May 2013. In that case, a passer-by reported Dent driving recklessly in Allen before stopping at a Walgreens. Police were waiting for Dent when he came out of the store carrying a case of beer and a bottle of wine.
Because he skipped out on his sentencing hearing, Dent was also charged with two counts of bail jumping and failure to appear. He pleaded guilty Wednesday to both third-degree felony charges and was sentenced to the maximum 10 years in prison. All four prison sentences will be served at the same time. Dent will also get credit for time served.
As part of the plea agreement, prosecutors were able to declare Dent’s vehicle as a deadly weapon in both DWI charges. That finding means Dent will be required to serve at least half of his prison sentence before he is eligible for parole. Dent still has a DWI charge pending in Williamson County after he failed to appear for sentencing. In that case, Dent crashed into a tollbooth along State Highway 45 in Austin. He also has an active warrant in Garland County, Ark., for failing to comply with court orders after his DWI conviction there in 2007.
Dent’s drunken driving convictions date back to 1983 and include convictions in Arkansas, Oklahoma and Nevada as well as the Texas counties of Denton, Dallas, Brazos, Williamson and Collin. His court records over the years include multiple references for failing to appear in court, violating provisions for community supervision and continuing to drink alcohol. He drove while his driver’s license was suspended. And on several occasions, the only thing that kept him from driving drunk was the court-ordered ignition interlock device that prevented his vehicle from starting when it detected alcohol on his breath. Bonds were revoked, he got re-arrested and he posted new bonds....
In a jail interview last week, Dent said he was an alcoholic. He also declared he’d had his last drink before crossing the border. This will be his third entry in the state prison system. Dent was previously sentenced to eight years in prison after violating probation on a felony DWI charge out of Brazos County. He served nearly 22 months before being paroled. He was re-incarcerated for another three months after violating the terms of his parole.
Dent’s 10 convictions stood out largely because they came during his successful book career. But he’s far from alone. More than 1.1 million people were arrested across the country on charges of driving while intoxicated in 2013, according to the latest FBI crime statistics.
For an even fuller account of this defendant's life and times, the Dallas Morning News recently published this profile headlined "Jim Dent: The man, his books and the bottle."
April 15, 2015
"Database Infamia: Exit from the Sex Offender Registries"
The title of this post is the title of this notable new article by Wayne Logan available via SSRN. Here is the abstract:
Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means. Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships.
This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.
April 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
New York State court concludes multiple mandatory minimum fines constitutionally excessive
Thanks to this post by Eugene Volokh, I discovered an interesting New York trial court Excessive Fine ruling in Pujols v. City of New York, No. 103637/12 (N.Y. Sup. Ct. April 2, 2015) (available here). Here is the heart of the ruling concerning an attack on a $11,175 fine for illegally posting 149 flyers advertising babysitting services:
It is undisputed that petitioner violated the relevant Administrative Code provision and substantial evidence supports ECB's determination that petitioner is liable for violating § 10-119 of the New York City Administrative Code, which generally prohibits the posting or other placement of handbills, posters, notices, signs and other written materials on certain public property. Nonetheless, this Court finds that under the specific circumstances presented herein, the imposition of the mandatory minimum of $75.00 per violation for a total penalty of $11,175.00, amounts to an unconstitutionally excessive fine, and cannot be viewed as solely remedial.
Moreover, this Court, in considering the seriousness of the offense, the severity of the harm caused to petitioner, and the City's objective to deter posting of materials on public property, we find that the fine imposed is "grossly disproportional" to the gravity of petitioner's offense.
Canadian Supreme Court declares gun mandatory minimums unconstitutional
A helpful reader alerted me to a notable sentencing ruling from our northern neighbor reported in this press account headlined "Supreme Court quashes mandatory minimum sentences for gun crimes: Court upholds Ontario ruling that struck down mandatory minimum sentences of 3 and 5 years." Here are the basics:
The Supreme Court of Canada dealt the Harper government's tough-on-crime agenda a serious blow Tuesday by striking down a law requiring mandatory minimum sentences for crimes involving prohibited guns. The 6-3 ruling, penned by Chief Justice Beverley McLachlin, said the statute was unconstitutional as it upheld a 2013 Ontario Court of Appeal ruling that labelled the law cruel and unusual.
The ruling said the mandatory minimum sentence could ensnare people with "little or no moral fault" and who pose "little or no danger to the public." It cited as an example a person who inherits a firearm and does not immediately get a license for the weapon. "As the Court of Appeal concluded, there exists a 'cavernous disconnect' between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment," McLachlin wrote for the majority.
Justice Minister Peter MacKay said in a statement that the government will review the decision to determine "next steps towards protecting Canadians from gun crime and ensuring that our laws remain responsive."...
Liberal Leader Justin Trudeau said there is a place for mandatory minimums in certain situations, noting that past Liberal governments have introduced them for "extreme crimes."
"But I think the over-use of them that the Supreme Court has highlighted, by this Conservative government, isn't necessarily doing a service to Canadians, both by not necessarily keeping us that much safer and also wasting large amount of taxpayers dollars on unnecessary court challenges," he told reporters in Oakville.
Keeping Canadians safe is cited by the government as the reason for its tough sentencing laws. McLachlin took aim at that justification in her ruling. "The government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes," she wrote. "Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes."
The court was deciding two appeals involving mandatory minimum sentences for gun crimes brought by the Ontario and federal attorneys general. The top court upheld the appeal court's quashing of both the three-year mandatory minimum for a first offence of possessing a loaded prohibited gun, as well as the five-year minimum for a second offence.
The Ontario and federal governments argued that the minimums do not breach the charter protection against cruel and unusual punishment. The new sentencing rules were enacted in 2008 as part of a sweeping omnibus bill introduced by the federal Conservatives.
The full ruling from the Supreme Court of Canada is available at this link.
April 15, 2015 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (3) | TrackBack
"Trending Now: The Use of Social Media Websites in Public Shaming Punishments"
The title of this post is the title of this intriguing new piece authored by Lauren Michelle Goldman now available via SSRN. Here is the abstract:
This Note proposes that a social media shaming sanction might be an effective addition to the menu of public shaming punishments the judiciary already offers. Section II of this Note lays the foundation of shaming punishments in America, giving an overview of their history and development. Section III discusses the Ninth Circuit’s recent decision in Gementera, in which the court upheld a modern-day public shaming punishment, as well as other select cases that have upheld public shaming punishments that involve print media.
Section IV outlines the current scholarly debate surrounding the use of public shaming punishments. Section V gives an overview of the presence of social media and Internet usage in today’s society, discusses a new trend among parents in which parents have begun to utilize social media to punish their children, and evaluates public shaming punishments via social media websites from the vantage point of various criminal law theories. Finally, Section VI advocates for the inclusion of online social media public shaming punishments into the judiciary’s already expansive list of sentencing options, but with some limitations and guidelines.
Former NFL star Aaron Hernandez convicted of first-degree murder and to get mandatory LWOP
An this CNN piece reports, "former New England Patriots' star Aaron Hernandez nodded no as jurors in his Massachusetts trial found him guilty Wednesday of first degree murder, which carries a penalty of life imprisonment without the possibility of parole." Here is more:
Hernandez was also found guilty of unlawful possession of a firearm and unlawful possession of ammunition. He will be sentenced Wednesday morning....
Hernandez was on trial for the shooting death of Odin Lloyd, whose body was found in a Massachusetts industrial park in June 2013. Lloyd's family appeared anxious in the Fall River, Massachusetts, courtroom prior to the verdict, as did the mother of Hernandez....
The sensational trial started in late January, just days before the Patriots' Super Bowl victory over the Seattle Seahawks. Prosecutors took months to present more than 130 witnesses to build their case. The defense wrapped up its witnesses in less than a day.
Prosecutors say Lloyd was seen June 17, 2013, around 2:30 a.m. with Hernandez and Hernandez's friends, Carlos Ortiz and Ernest Wallace, in a rented silver Nissan Altima. Later that day, a jogger found his body riddled with gunshots. Wallace and Ortiz, who were also charged with murder, have pleaded not guilty, and will be tried separately.
Hernandez's attorney, Sultan, told jurors that Hernandez "witnessed" Lloyd's killing, "committed by somebody he knew," and that the former NFL player "really didn't know what to do, so he put one foot in front of another" and moved on with his life. Two other men who were drug dealers allegedly killed Lloyd, Sultan told the jury.
Because this murder conviction carried a mandatory life without parole sentence under Masschusetts law, the sentencing process is something of a formality and thus can (and will) take place on the same day as the verdict was reached.
April 14, 2015
Interesting recent Buckeye death penalty headlines (despite extended extended moratorium)
After Ohio Governor (and future GOP Prez candidate?) John Kasich and other executive officials put off all Ohio executions for the entire 2015 calendar year, I figured Ohio would not be make all that much death penalty news until at least 2016. But, as these recent local headlines help highlight, an executive branch moratorium on executions does not stop others from taking about the death penalty in the Buckeye state:
From the AP here, "Bill would be among several to revise death penalty law"
From the Cincinnati Enquirer here, "Toddler's mother one of few women to face death penalty"
From Cleveland.com here, "Ohio Supreme Court sets [October 2017] execution date for man on death row nearly three decades"
From the Columbus Dispatch here, "Exonerated men speak out against death penalty, urge change"
"Criminal Justice Reform: The Present Moment"
The title of this post is the title of this notable new article by Lynn Adelman now available via SSRN. (Notably, Judge Adelman was among a small handful of judges who got a shout-out in Judge Rakoff's provocative recent speech at Harvard Law School about the need for the judiciary to speak out about modern mass incarceration.) Here is the article's abstract:
As part of a symposium on the collateral consequences of criminal convictions sponsored by the Wisconsin Law Review, this paper, entitled “Criminal Justice Reform: The Present Moment,” discusses whether we have reached a point where we have a realistic opportunity to implement major reforms in our criminal justice system.
While recognizing both that the prospects for reform are greater than they have been, largely because of the increased awareness of the harm caused by mass incarceration, and that some progress has been made as, for example, the Supreme Court’s decision in Brown v. Plata upholding a lower court decision requiring California to reduce its prison population by approximately 40,000, the paper points out that any reforms would come on the heels of an approximately 35 year period of unremitting punitive legislation. As a result, it will be very difficult to put a serious dent in the mountain of harsh consequences, both direct and collateral, that is part of our present criminal justice system.
Tough (and record-long) sentences for cheating Atlanta school administrators
As reported in this lengthy USA Today article, "3 in Atlanta cheating scandal to serve 7 years prison," today was final sentencing day in a high-profile and seemingly unique state white-collar criminal case from Georgia. Here are the details (with my emphasis added):
In a testy courtroom Tuesday, a judge presided over the sentencing of 10 former Atlanta public school educators convicted of participating in a widespread conspiracy to cheat on state tests, telling three defendants that they would serve seven years in prison.
Despite the contentions from Sharon Davis-Williams' and Tamara Cotman's lawyers that they had maintained their innocence and are first offenders, Judge Jerry Baxter of Fulton County Superior Court said that each is being sentenced to 20 years in prison, will serve 7 years of incarceration with the balance as probation and also must do 2,000 hours of community service and pay a $25,000 fine.
"She's convicted, and she's at the top of the food chain," Baxter said of Davis-Williams, who along with Cotman and Michael Pitts were regional directors in the city's school system during one of the country's largest cheating scandals. "Your client ran numerous fine educators out. She non-renewed them."
Pitts received the same sentence and also was sentenced to five years, to run concurrently, on a charge of influencing a witness. The sentences were higher than prosecutors' recommendations.
Although Baxter initially did not want to consider the top administrators as first offenders, he decided to allow that status for all 10. That will allow each to have their convictions erased upon completion of their sentences.
Two of those convicted, former testing coordinator Donald Bullock and former teacher Pamela Cleveland, decided to take a plea deal that prosecutors had offered. Cleveland became the only one of the former educators to elude jail time.
Any deals required an acceptance of responsibility from the former educators, District Attorney Paul Howard said. Bullock, who took the deal before Tuesday's hearing, was sentenced to five years probation, will serve six months in jail on weekends, give 1,500 hours of community service and pay a $5,000 fine.
Cleveland, who apologized in court, was sentenced to five years probation including one year 7 p.m.-to-7-a.m. home confinement, 1,000 hours of community service and a $1,000 fine. Prosecutors took into consideration her elderly parents, so she will be able to serve her home confinement at their house or any hospital where either might be a patient.
Bullock also will apologize and both waived their right to appeal. All were sentenced Tuesday after the judge in the case gave them extra time to negotiate deals with prosecutors.
The former educators' community service will be served at Atlanta's jail teaching inmates, some of whom are the victims of the problems in Atlanta's school system, Baxter said. "I think there were hundreds, thousands of children who were harmed," the judge said. "That's what gets lost in all of this."
Some of the defendants' lawyers pushed back at the expectation of a deal being reached, causing Baxter to cut them off and say he was ready to deliver his sentences immediately. He had delayed sentencing after learning that Howard had been talking to defense attorneys and thought the case could be resolved with sentencing deals. "I just wanted them to get a taste of it," Baxter said of the sentences he had in mind after he quickly delivered Davis-Williams' and Cotman's punishment. "Apparently, that didn't quite move them."
In an exchange with Pitts' lawyer, Baxter said he was worried that some of those convicted were more remorseful that they were caught than they were about cheating young students out of an education. "They should have rose up and said no," the judge said of pressure to alter standardized test scores. "They didn't, and here we are."
The former educators were convicted April 1 on a racketeering charge. Some faced additional charges. They had been accused of falsifying test results to collect bonuses or keep their jobs in Atlanta Public Schools. In all, 35 educators were indicted in 2013 on charges including racketeering, making false statements and theft. Many pleaded guilty and some testified at the trial.
A state investigation found that as far back as 2005, educators fed answers to students or erased and changed answers on tests after they were turned in. Evidence of cheating was found in 44 schools with nearly 180 educators involved, and teachers who tried to report it were threatened with retaliation.
This is fascinating stuff both with respect to sentencing procedure and sentencing outcomes, especially because it seems that the failure to show remorse and waive rights to appeal explains the length of the various sentences as much, if not more, than the actual criminal conduct. Wowsa (and perhaps the basis for some interesting future appeal issues).
As the title to this post indicates, I would guess these sentences are harshest ever given to cheating school administrators. That said, it does seem the behavior here was maybe the worst, long-running examples of school cheating ever prosecuted criminally.
Senator Grassley again expresses interest in talking about federal criminal justice reform
Senator Charles Grassley is right now arguably the most significant and most important player in all on-going debates over federal sentencing and criminal justice reform. As Chair of the Senate Judiciary Committee, Senator Grassley can (and seems eager to) block the advancement of any and every federal criminal justice reform bill that he does not personally favor.
Consequently, even if the vast majority of Senators strongly support significant reforms to federal mandatory minimum sentencing provisions or to federal marijuana provisions, Senator Grassley can ensure— at least until 2017, and perhaps after that if the GOP retains control of the Senate — that federal reform bills do not even get a committee hearing, let alone a committee vote. Indeed, even if the vast majority of 300 million Americans, and even if the vast majority of the 718,215 Iowans who voted for Senator Grassley in 2010, would strongly favor a reform bill, the bill is likely DOA if Senator Grassley himself is not keen on the bill's particulars. Frustratingly, that is how our democracy now functions.
Bill Otis, whom I believe has Senator Grassley's ear and with whom he shares many sentencing views, predicted after the 2014 election that Senator Grassley's position as Judiciary Chair all but ensured that there would be almost no chance of significant federal sentencing reform until at least 2017. But this new piece in Roll Call, headlined "Grassley Resistant to Criminal Justice Overhaul, but Says He’s Willing to Talk," provides at least of glimmer of hope that this old Senate dog might be open to some new sentencing tricks. Here is an excerpt:
Grassley has made no bones about his passionate opposition to reducing mandatory minimum prison sentences, as proposed by Republican Sen. Mike Lee of Utah and Senate Minority Whip Richard J. Durbin of Illinois in the so-called Smarter Sentencing Act (S 1410). On the floor, Grassley has called rolling back such fixed sentences “dangerous,” “ill-conceived” and “indefensible.” Last year, he tried to gut a version of the bipartisan bill, which the Obama administration backs, with an amendment in committee.
Even so, Grassley told CQ Roll Call that he’s ready to start looking for common ground with the bill’s supporters. What’s been missing, he adds, is an invitation — from Obama, from the senators sponsoring the bill, from their staffs — from anyone willing to start a conversation. “First of all, nobody’s asked me even though for three months, including my speech last week, I said I would be glad to meet people about what we could possibly do because I’m open to some reform,” Grassley says.
Juvenile justice is among his top legislative priorities, and he has said he plans to co-sponsor a bill with Rhode Island Democrat Sheldon Whitehouse to reauthorize the 1974 Juvenile Justice and Delinquency Prevention Act. That law has not been reauthorized since 2002.
Grassley says he thinks there could be some reductions in mandatory minimums, but at the same time he wants to see increases in minimum sentences in other areas, such as child pornography and white-collar crime. He has also cited the need to prevent abuses in the forfeiture of civil assets, and to ensure that offenders receive fair representation. “It may just be time” to start criminal justice talks, Grassley says.
Long story short: anyone and everyone seriously interested in the passage of federal criminal justice reform anytime soon would be wise to invest considerable time and energy figuring out exactly what Senator Grassley is now willing to talk about. Notably, as stressed in this prior post, Senator Grassley recently penned a strong commentary extolling the importance of transparency and accountability in the federal criminal justice system, and I urge advocates to highlight for Senator Grassley and others how statutory mandatory minimums and other laws that empower and enhance federal prosecutorial overreaches significantly undermine these important goals.
A few prior related recent posts:
- In praise of Senator Charles Grassley's advocacy for criminal justice transparency and accountability (and his one blind spot)
- Sparring over sentencing reform lingo involving the media and Senator Grassley
- NY Times editorial laments "The Roadblock to Sentencing Reform" ... while creating another
- Senators respond to NY Times criticisms of their sentencing work
- Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?
- A positive perspective on possible prison reform emerging from Congress
- Is major federal sentencing reform possible now that Republicans have full control of Congress?
- Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform
April 14, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
'Cause all of me, loves all of you ... who are harmed by mass incarceration's imperfections
The title of this post is my weak effort to merge John Legend's most popular song lyrics with his notable new campaign. This AP story provides the details:
John Legend has launched a campaign to end mass incarceration. The Grammy-winning singer announced the multiyear initiative, FREE AMERICA, on Monday. He will visit and perform at a correctional facility on Thursday in Austin, Texas, where he also will be part of a press conference with state legislators to discuss Texas' criminal justice system.
"We have a serious problem with incarceration in this country," Legend said in an interview. "It's destroying families, it's destroying communities and we're the most incarcerated country in the world, and when you look deeper and look at the reasons we got to this place, we as a society made some choices politically and legislatively, culturally to deal with poverty, deal with mental illness in a certain way and that way usually involves using incarceration."
Legend, 36, will also visit a California state prison and co-host a criminal justice event with Politico in Washington, D.C., later this month. The campaign will include help from other artists — to be announced — and organizations committed to ending mass incarceration.
"I'm just trying to create some more awareness to this issue and trying to make some real change legislatively," he said. "And we're not the only ones. There are senators that are looking at this, like Rand Paul and Cory Booker, there are other nonprofits that are looking at this, and I just wanted to add my voice to that."
Legend's speech at the Academy Awards this year struck a chord when he spoke about mass incarceration. He won the Oscar for best original song with rapper Common for "Glory" from the film "Selma."
The singer said an early victory for his campaign was the approval of Proposition 47 in California in November, which calls for treating shoplifting, forgery, fraud, petty theft and possession of small amounts of drugs — including cocaine, heroin and methamphetamines — as misdemeanors instead of felonies. "Once you have that tag of a felony on your name, it's hard for you to do anything," Legend said. "Getting those reduced to misdemeanors really impacted a lot of lives and we hope to launch more initiatives like that around the country."
Perhaps "Weird Al" Yankovic or John Legend himself can pen a version of "All of Me" that could become the movement's theme song.
"Lex Mitior: Converse of Ex Post Facto and Window into Criminal Desert"
The title of this post is the title of this interesting and timely new piece on SSRN authored by Peter Westen. Here is the abstract:
In 2009 New Mexico prospectively repealed the death penalty. Three years later in 2012, New Mexico prosecuted a defendant for a capital murder that was committed before repeal, and it sought to subject him to the death penalty. If state prosecutors had prevailed with the jury, they would have secured the very kind of sentence — death — that state officials had been lauded in Europe for outlawing three years earlier.
A prosecution like New Mexico’s could never occur in Europe, and not merely because Europe has long outlawed the death penalty. It could never occur because, in contrast to the law of most American jurisdictions, European states embrace a doctrine known as “lex mitior” (“the milder law”). The latter doctrine is a counterpart to the ex post facto prohibition. Both doctrines both concern retroactivity in criminal law, but they are the converse of one another.
The ex post facto doctrine prohibits retroactivity by prohibiting the state from prosecuting persons under criminal statutes that either retroactively criminalize conduct that was hitherto lawful or retroactively increase penalties for conduct that, while unlawful all along, was hitherto punishable less severely. In contrast, lex mitior mandates retroactivity by mandating that criminal defendants receive the retroactive benefits of repealing statutes that either decriminalize conduct altogether or reduce punishments for it. After surveying laws in the United States regarding the retroactive effect of ameliorative repeals, the author addresses whether punishing offenders under harsher laws that obtained at the time of their conduct can serve consequentialist and/or retributive purposes of punishment. He concludes that, although doing can be morally justified under limited circumstances, typically it is not — a conclusion that bears upon lex mitior’s proper scope, whether it consists of a binding norm (as it is among European nations), a nonconstitutional norm (as it presently is within the United States), or, when legislative intent is uncertain, a function of the rule of lenity.
April 13, 2015
Judge Jed Rakoff gives provocative speech on mass incarceration and the responsibility of lawyers and judges
A helpful reader alerted me to a notable speech (made available in full here by Bloomberg BNA) delivered by US District Judge Jed Rakoff as part of a Harvard Law School conference about lawyers' roles and responsibilities. Titled "Mass Incarceration and the 'Fourth Principle'," the full speech is a must read in full for all sentencing fans. Here are excerpts providing a taste of why:
I want to build my little talk around ... the responsibility of lawyers to help create a safe, fair, and just society even when legal issues, in the narrow sense, are not directly at stake. I want to discuss that responsibility — which I will refer to here simply as the “Fourth Principle”— as it applies to lawyers and as it applies to judges...
Of course, even lawyers devoted to the Fourth Principle may have different views as to what societal issues are of such central concern that lawyers should feel a professional responsibility to speak out about them. Nevertheless, I want to suggest one such issue, and I submit that it is one that is so deeply connected to the administration of law that [lawyers] would have no difficulty seeing it as an appropriate subject for bar association resolutions and the like: and that is the issue of mass incarceration in our country today.
But I should mention at the outset that the relative failure of organized bar associations and lawyers in general to speak out on this issue pales in comparison to the silence of the judges, who, I submit, have a special duty to be heard on this issue. Indeed, the commentary to Canon Four of the Code of Conduct for United States judges expressly encourages federal judges to speak out on issues relating to the administration of justice in general and criminal justice in particular. Yet, for too long, too many judges (including me) have been too quiet about an evil of which we are ourselves a part: the mass incarceration of people in the United States today.
The basic facts are not in dispute. More than 2.2 million people are currently incarcerated in U.S. jails and prisons, a 500 percent increase over the past 40 years. Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population. The per capita incarceration rate in the U.S. is one-and-a-half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada. Another 4.8 million Americans are subject to the state supervision imposed by probation or parole....
And whom are we locking up? Mostly young men of color. Over 840,000, or nearly 40 percent, of the 2.2 million U.S. prisoners are young African-American males. Put another way, one in nine African-American males between the ages of 20 and 34 is currently in prison, and, if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes. Another 440,000, or 20 percent, of the 2.2 million U.S. prisoners are Hispanic males.
This mass incarceration — which also includes about 800,000 white and Asian males, as well as over 100,000 women (the great majority of whom committed non-violent offenses) — is the product of statutes that were enacted, beginning in the 1970s, with the twin purposes of lowering crime rates in general and deterring the drug trade in particular. These laws imposed mandatory minimum terms of imprisonment on many first offenders. They propounded sentencing guidelines that initially mandated, and still recommend, substantial prison terms for many other offenders. And they required life-time imprisonment for many recidivists. These laws also substantially deprived judges of sentencing discretion and effectively guaranteed imprisonment for many offenders who would have previously received probation or deferred prosecution, or who would have been sent to drug treatment or mental health programs rather than prison.
The unavoidable question is whether these laws have succeeded in reducing crime. Certainly crime rates have come down substantially from the very high rates of the 1970s and 1980s that gave rise to these laws. Overall, crime rates have been cut nearly in half since they reached their peak in 1991, and they are now at levels not seen in many decades. A simple but powerful argument can be made that, by locking up for extended periods the people who are most likely to commit crimes, we have both incapacitated those who would otherwise be recidivists and deterred still others from committing crimes in the first place.
But is this true? The honest answer is that we don’t know. And it is this uncertainty that makes changing the status quo so difficult: for, the argument goes, why tamper with what seems to be working unless we know that it isn’t working?
There are some who claim that they do know the answer to whether our increased incarceration is the primary cause of the our decline in crime. These are the sociologists, the economists, the statisticians, and others who assert that they have “scientifically” determined the answer. But their answers are all over the place....
Put another way, the supposition on which our mass incarceration is premised — namely, that it materially reduces crime — is, at best, a hunch. Yet the price we pay for acting on this hunch is enormous. This is true in the literal sense: it costs more than $80 billion a year to run our jails and prisons. It is also true in the social sense: by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of unemployable ex-cons, many of who have learned in prison how better to commit future crimes. And it is even true in the symbolic sense: by locking up, sooner or later, one out of every three African-American males, we send a message that our society has no better cure for racial disparities than brute force....
But why, given the great decline in crime in the last quarter century, have most of the draconian laws that created these harsh norms not been repealed, or at least moderated? Some observers, like Michelle Alexander in her influential book The New Jim Crow, assert that it is a case of thinly-disguised racism. Others, mostly of an economic-determinist persuasion, claim that it is the result of the rise of a powerful private prison industry that has an economic stake in continuing mass incarceration. Still others blame everything from a continuing reaction to the “excesses” of the ‘60s to the never-ending nature of the “war on drugs.”
While there may be something to each of these theories, a simpler explanation is that most Americans, having noticed that the crime-ridden environment of the 1970s and 1980s was only replaced by the much safer environment of today after tough sentencing laws went into force, are reluctant to tamper with the laws they believe made them safer. They are not impressed with academic studies that question this belief, suspecting that the authors have their own axes to grind; and they are repelled by those who question their good faith, since they perceive nothing “racist” in wanting a crime-free environment. Ironically, the one thing that might convince them that mass incarceration is not the solution to their safety would be if crime rates continued to decrease when incarceration rates were reduced. But although this has in fact happened in a few places (most notably, New York City), in most communities people are not willing to take the chance of such an “experiment.”
This, then, is a classic case of members of the public relying on what they believe is “common sense” and being resentful of those who question their motives and dispute their intelligence. What is called for in such circumstances is leadership: the capacity of those whom the public does respect to point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the key to controlling crime, and why, in any case, the long-term price of mass incarceration is too high to pay, not just in economic terms, but also in terms of societal values. Until quite recently, that leadership appeared to be missing in both the legislative and executive branches, since being labeled “soft on crime” was politically dangerous. Recently, however, there has been some small signs of progress. For example, in 2013, Attorney General Holder finally did away with the decades-old requirement that federal prosecutors must charge offenders with those offenses carrying the highest prison terms. And in the last Congress, a bill to eliminate mandatory minimum sentences for non-violent drug offenders was endorsed not only by the Department of Justice, but also by such prominent right-wing Republican Senators as Ted Cruz and Rand Paul. On the other hand, prosecutors still have discretion to charge offenders with the most serious offenses available, and they usually do. And the aforementioned bill to modify the applicability of mandatory minimum sentences never reached a vote.
As for the organized bar, the American Bar Association, to its great credit, has increasingly spoken out about the dangers of mass incarceration and, most recently, has created a Task Force on Overcriminalization to suggest alternatives . But no other bar association, so far as I am aware, has openly denounced mass incarceration, called for outright repeal of mandatory minimum laws, supported across-the-board reductions of statutory and guideline imprisonment levels, or otherwise taken the kind of forceful positions that would cause the public to sit up and notice.
And where in all this stands the judiciary? In some ways, this should be our issue, not just because sentencing has historically been the prerogative of judges, but also because it is we who are forced to impose these sentences that many of us feel are unjust and counter-productive. It is probably too much to ask state judges in the 37 states where judges are elected to adopt a stance that could be characterized as “soft on crime.” But what about the federal judiciary, protected by lifetime tenure from political retaliation and, according to most polls, generally well-regarded by the public as a whole?
On one issue — opposition to mandatory minimum laws — the federal judiciary has been consistent in its opposition and clear in its message. As stated in a September 2013 letter to Congress submitted by the Judicial Conference of the United States (the governing board of federal judges), “For 60 years, the Judicial Conference has consistently and vigorously opposed mandatory minimums and has supported measures for their repeal or to ameliorate their effects.” But nowhere in the nine single-spaced pages that follow is any reference made to the evils of mass incarceration; and, indeed, most federal judges continue to be supportive of the federal sentencing guidelines....
Several brave federal district judges — such as Lynn Adelman of Wisconsin, Mark Bennett of Iowa, Paul Friedman of the District of Columbia, and Michael Ponsor of Massachusetts, as well as former federal judges Paul Cassell and Nancy Gertner — have for some time openly denounced the policy of mass incarceration. More recently, a federal appellate judge, Gerard Lynch of New York, expressed his agreement (albeit in an academic article) that “The United States has a vastly overinflated system of incarceration that is excessively punitive, disproportionate in its impact on the poor and minorities, exceedingly expensive, and largely irrelevant to reducing predatory crime.”
Perhaps the most encouraging judicial statement was made just a few weeks ago, on March 23, 2015, when Justice Anthony Kennedy — the acknowledged centrist of the Supreme Court — told a House subcommittee considering the Court’s annual budget that “This idea of total incarceration just isn’t working,” adding that it many instances it would be wiser to assign offenders to probation or other supervised release programs. To be sure, Justice Kennedy was quick to tie these views to cost reductions, avoidance of prison overcrowding, and reduced recidivism rates — all, as he said, “without reference to the human factor.” Nor did he say one word about the racially disparate impact of mass incarceration. Yet still, his willingness to confront publicly even some of the evils of mass incarceration should be an inspiration to all other judges so inclined.
In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality. More haltingly, we have also made some progress in our treatment of the poor and disadvantaged. But the big, glaring exception to both these improvements is how we treat those guilty of crimes. Basically, we treat them like dirt. And while this treatment is mandated by the legislature, it is we judges who mete it out. Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice? We may be the Third Branch, but we have yet to learn the Fourth Principle.
"Sister of slain MIT officer opposes death penalty for Tsarnaev"
The title of this post is the headline of this notable new Boston Globe article, which gets started this way:
The sister of murdered MIT Police Officer Sean A. Collier opposes the death penalty against one of the men responsible for his death, Boston Marathon bomber Dzhokhar Tsarnaev, because it would not bring “peace or justice” to her.
In a posting on Facebook and on her Twitter account, Jennifer L. Lemmerman wrote that she continues to mourn the loss of her younger brother, who was widely hailed after his murder as a person of integrity, compassion, and curiosity who was dear to the MIT community.
Lemmerman, a graduate of Boston College School of Social Work and an alderman in Melrose, wrote that she will never forgive Tsarnaev for ending her brother’s life. But, she also wrote, she does not believe in the death penalty even after what has happened to her and her family. “Whenever someone speaks out against the death penalty, they are challenged to imagine how they would feel if someone they love were killed. I’ve been given that horrible perspective and I can say that my position has only strengthened,’’ she wrote on her Facebook account.
“It has nothing to do with some pursuit of forgiveness. I can’t imagine I’ll ever forgive him for what he did to my brother, to my family, and I’ll have to live with that for the rest of my life, whether he is on this earth or not,’’ Lemmerman wrote of Tsarnaev.
She added, “But I also can’t imagine that killing in response to killing would ever bring me peace or justice. Just my perspective, but enough is enough. I choose to remember Sean for the light that he brought. No more darkness.’’
Blackwater guards who shot Iraqi civilians all given lengthy federal sentences
As reported in this new Washington Post piece, a "federal judge in Washington handed down prison terms of 30 years to life behind bars to four Blackwater Worldwide guards convicted in a deadly 2007 shooting that killed 14 unarmed Iraqis and injured others in a Baghdad traffic circle." Here are the basic details:
U.S. District Judge Royce C. Lamberth sentenced Nicholas A. Slatten of Sparta, Tenn., to life in prison. Slatten is the only of the four guards convicted of murder in the incident, in which American security contractors fired assault rifles and grenades into halted noonday traffic, a low point of the U.S. war in Iraq that sent relations between the two countries into a crisis.
Three other guards, Paul A. Slough of Keller, Tex.; Evan S. Liberty of Rochester, N.H.; and Dustin L. Heard of Knoxville, Tenn., were convicted of multiple counts of manslaughter and attempted manslaughter in the Sept. 16, 2007, incident at Baghdad’s Nisoor Square. All three were sentenced Monday to 30 years plus one day in prison.
Tennessee Supreme Court postpones all scheduled executions while considering execution protocol
As reported in this AP piece, the "Tennessee Supreme Court postponed execution dates for four inmates, effectively halting all executions while the courts decide whether current protocols for putting people to death are constitutional." Here is more:
Tennessee last executed a prisoner in 2009. Since then, legal challenges and problems obtaining lethal injection drugs have stalled new executions. In 2013 and 2014, the state tried to jump-start the process with a new one-drug lethal injection method and the reinstatement of the electric chair as a backup.
Beginning in December 2013, the court set new execution dates for 11 inmates. One inmate died in prison, and the execution dates for the others have been postponed as they approach because of legal challenges to the new methods. On Friday, the court postponed the last of the scheduled execution dates. It will set new dates after the legal questions are settled....
Death row inmates challenging Tennessee's lethal injection method recently submitted an affidavit from University of Utah College of Pharmacy professor James H. Ruble that questions whether even a willing compounding pharmacist could provide the pentobarbital that Tennessee and several other states need for executions. Ruble says in the affidavit that the main ingredient for pentobarbital is unavailable from the six primary commercial sources that compounding pharmacists buy their ingredients from.
Tennessee last year reinstated electrocution as an alternative if lethal injection drugs are unavailable or a court rules the procedure unconstitutional. But that change has brought yet another legal challenge.
Nearly 7 years after her crime, Jodi Arias finally officially gets LWOP sentence in Arizona
As reported in this Reuters article, an "Arizona judge sentenced former waitress Jodi Arias to life in prison with no possibility of parole on Monday for shooting and stabbing her ex-boyfriend to death in 2008." Here is more:
Maricopa County Superior Court Judge Sherry Stephens said Arias' crime, which attracted national attention, was "especially cruel ... (and) involved substantial planning and preparation."
Arias, 34, had escaped a possible death sentence last month after a lone juror at her sentencing retrial refused to back the death penalty throughout five days of deliberations.
She was found guilty of murder in 2013 after a trial packed with lurid details and graphic testimony. Prosecutors said she killed her former partner in a jealous rage, while Arias argued she acted in self-defense.
Shackled and clad in jail stripes, Arias told the court she had long wanted to be put to death for the crime. "But I had to fight for my life just like I did on June 4, 2008, because I realized how selfish it would be for me to escape accountability for this mess I created," Arias said.
She said she remembered the moment she plunged the knife into Travis Alexander's throat. "He was conscious. He was still trying to attack me. It was I who was trying to get away, not Travis, and I finally did," she said. "I never wanted it to be that way."
The 30-year-old victim was found in a shower at his Phoenix-area home. He had been shot in the face and stabbed more than 20 times, and his throat was slashed almost from ear to ear.
Eleven of the jurors from Arias' retrial were in court for the sentencing, wearing blue clothing and ribbons in memory of the victim. The holdout juror did not attend. After they failed last month to reach a unanimous verdict on whether she should be executed, Stephens had to choose between sentencing Arias to life in prison or to life with the possibility of parole after 25 years.
"The defendant did not render aid to the victim ... (and) destroyed evidence at the crime scene. The defendant went to great lengths to conceal her involvement," Stephens said. "The court finds the mitigation presented is not sufficiently substantial to call for leniency and that a natural life sentence is appropriate."
Samantha Alexander, a younger sister of the victim, told the court Arias had sought to smear Travis throughout and that she deserved to be put to death. "She continuously makes atrocious lies about my brother, dragging his name through the mud like she dragged his body through his own blood," she said.
Some prior posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Jodi Arias now pleading for a life sentence before sentencing jury
- Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
- Arizona poised to take second (costly) run at death sentence for Jodi Arias
- Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias
- Despite spending many millions, Arizona prosecutors again fail to convince a sentencing jury to send Jodi Arias to death row
Lengthy list of hard criminal justice questions for the 2016 Prez field
With Hillary Clinton and soon Marco Rubio throwing their hats into the proverbial ring, it is now no longer too early to start assembling some hard criminal justice reform question for persons pursuing the top position in the Executive Branch of the US Government. Helpfully, Radley Balko go this task off to a running start last week via this extended Washington Post piece headlined "Are you running for president? Please answer these questions about the criminal justice system." A few too many of Radley's questions are focused on policing issues for my taste, but here are a few sentencing fans may like:
— Several media reports, advocacy groups and judicial opinions (including a recent opinion by Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit) have described an epidemic of prosecutor misconduct across the country. Do you believe there is a widespread problem of prosecutor misconduct in America? Do you believe the federal government has a responsibility to address it?
— What do you believe is the primary function of prisons — to punish people for doing bad things, to isolate dangerous people from society, or to rehabilitate criminals so they can reenter society as productive citizens? What do you believe our prisons primarily do today?
— Should people convicted of nonviolent felonies be permitted to vote once they’ve served out their sentences?
— One sign of moral leadership is a willingness to do the right thing even if it is politically unpopular. According to U.S. Sentencing Surveys of federal judges, federal judges by a wide margin believes the federal sentencing guidelines for one crime is more disproportionate and unfair than any other. That crime is possession of child pornography. Would you support an effort to pass more reasonable sentences for this crime?....
— Do you believe that Colorado and Washington state are in violation of federal law by legalizing recreational marijuana? Would you attempt to enforce the federal marijuana laws in those states? What if other states follow suit? What if other states begin to legalize other illicit drugs?...
— The last three presidents have been historically stingy with the pardon and clemency power. The power today is mostly used to confer mercy and redemption on people who have already served their time. But it was originally intended as a last check to prevent any injustices that may have slipped through the system. What approach would you take to granting pardons and commutations? Do you think the last two administrations were too generous, too frugal, or just about right?...
— We haven’t had a justice on the Supreme Court with any real criminal defense experience for nearly a quarter century. We currently only have one with any day-to-day criminal law experience at all. Given that the Supreme Court routinely issues rulings with profound implications on the powers of police and prosecutors and the civil rights of suspects, some commentators are troubled by the lack of criminal law experience on the court, and in particular the lack of any experience from the perspective of criminal suspects. Do you agree? Could you see yourself nominating a justice with significant criminal defense experience?
— Do you believe an innocent person has been executed since the United State reinstated the death penalty in 1976? If so, do you believe this is an indictment of the death penalty, or that the benefits of capital punishment outweigh this risk?
I would be very excited (and somewhat surprised) if even a few of these questions were to receive serious attention by folks seeking the presidency in the months ahead. And if I were to pick a single (simple?) question to push for an answer on, it might be just "What do you believe is the primary function of prisons?".
I would be eager to hear from readers which of these question they would most like to see answers by the likes of Senators Clinton, Cruz, Paul and Rubio (and others). I also would be eager to see other like questions suggested in the comments. (If I were adding one, I might add something about the application of the Eighth Amendment to adult prison sentences or significantly increasing federal sentences based of acquitted conduct.)
April 12, 2015
"Defending the Jury: Crime, Community, and the Constitution"
The title of this post is the title of this notable new book authored by Professor Laura Appleman. Here is a brief description of the book via the publisher's website:
This book sets forth a new approach to twenty-first-century criminal justice and punishment, one that fully involves the community, providing a better way to make our criminal process more transparent and inclusive. Using the prism of the Sixth Amendment community jury trial, this book offers fresh and much-needed ways to incorporate the citizenry into the procedures of criminal justice, thereby resulting in greater investment and satisfaction in the system. It exposes the various challenges the American criminal justice system faces because of its ongoing failure to integrate the community's voice. Ultimately, the people's right to participate in the criminal justice system through the criminal jury — a right that is all too often overlooked — is essential to truly legitimizing the criminal process and ensuring its democratic nature.
Slate provides a helpful discussion of the book in this piece titled "No Deal: Should prosecutors be forced to have their plea bargains approved by juries?". Here is how the Slate piece starts:
One of the most reliably shocking facts about the American justice system is that 97 percent of criminal convictions are the result of plea bargain negotiations — and that jury trials, which many people think of as our society’s primary vehicle for determining a defendant’s guilt or innocence, have become vanishingly rare.
Why are plea deals so common? Because a guilty verdict at trial tends to result in a much longer prison sentence than what a defendant can get if he or she agrees to a plea agreement. For many people, this means admitting guilt on some but not all of the charges brought against them and waiving their right to a jury trial in exchange for a shorter sentence. In many cases, this is an irresistible option, especially because, as the late Harvard Law School professor William Stuntz explained in his landmark book, The Collapse of American Criminal Justice, the sheer number of laws on the books makes it possible for prosecutors to charge people with so many crimes that the risk of going to trial and being convicted of all of them — as opposed to copping to just one or two — carries an unfathomable penalty.
There’s no question that the plea bargaining process allows our criminal justice system to function more efficiently than it would otherwise. But critics see it as a coercive end run around the rights of the accused — especially the poor, who can’t afford lawyers and must rely on overworked public defenders to represent them — as well as a tool for overzealous prosecutors who prioritize winning over seeing justice done. One of these critics is Laura Appleman, a professor at the Willamette University College of Law, and in her new book, Defending the Jury: Crime, Community, and the Constitution, she proposes an intriguing and original solution to the plea bargaining problem: Instead of letting prosecutors and defense attorneys hammer out plea deals behind closed doors and then get them rubber-stamped by judges, we should introduce regular people into the process — by convening a “plea jury.”
Interesting update on continued GOP blockade of AG-nominee Lynch
Given how much many members of GOP claim to oppose what Eric Holder has done as Attorney General, it remains notable and somewhat comical that the GOP-controlled Senate continues to be in no rush to get him out of the job. This lengthy article, headlined "Loretta Lynch AG nomination drags on, leaving her supporters to question why," tells the latest chapter of this story. It starts this way:
President Obama’s nomination of Loretta Lynch to become the country’s first African-American woman attorney general is a historic pick. Her confirmation, however, is now taking on new historical relevance as her wait for a confirmation vote by the full Senate drags into its sixth month.
The period between the Senate Judiciary Committee’s vote to confirm and the full Senate vote — which in Lynch’s case has not been scheduled — has lasted longer for her than for any attorney general nominee in recent history. By the time the Senate returns from Easter recess on Monday, it’ll have been longer than the eight previous nominees for the job — combined.
Lynch, currently the U.S. attorney for the Eastern District of New York, cleared the committee February 26 by a vote of 12-8, with Republican Sens. Orrin Hatch of Utah, Lindsey Graham of South Carolina and Jeff Flake of Arizona joining Democrats in sending the nomination to the full Senate.
Obama nominated Lynch to replace Attorney General Eric Holder on November 8, after Holder had announced plans to leave the post weeks earlier.
"Ending the Death Lottery"
The title of this post is the headline of this notable new article by William Berry III now available via SSRN. Here is the abstract:
When the Supreme Court reinstated the death penalty in 1976, it did so under the assumption that certain safeguards would remedy the arbitrariness of capital sentencing. Comparative proportionality review, in which the state supreme court would review jury sentences to ensure a modicum of consistency, was a central part of many states’ attempts to comply with the Eighth Amendment. In Ohio, however, this safeguard is illusory; the state supreme court has never reversed a capital case on proportionality grounds, despite reviewing almost three hundred cases.
This Article explores this unfortunate phenomenon. Using a quantitative methodology, this Article assesses the degree to which Ohio capital cases sentenced after the adoption of life-without-parole (between 1996-2011) are comparatively proportionate.
After finding that over forty percent of Ohio’s capital cases during that period were comparatively excessive, the Article argues that Ohio’s current use of the death penalty contravenes the Eighth Amendment and is therefore unconstitutional. The Article then proposes two alternative remedies to solve this problem: (1) institute meaningful proportionality review with the aid of social science or (2) abolish the death penalty. Finally, the Article considers the consequences of this study for the almost two-thirds of death penalty states that use comparative proportionality review.
Part II of the paper briefly traces the requirements of the Eighth Amendment and the origins of proportionality review. Part III describes Ohio’s use of proportionality review and explains why it is largely a matter of form over substance. Part IV presents the empirical study of Ohio’s capital cases from 1996-2011 and highlights its central conclusions. Part V argues that these results show that Ohio’s capital system violates the Eighth Amendment. Next, Part VI proposes ways to remedy the constitutional shortcoming. Finally, Part VII explores the applicability of the study to the large majority of death penalty jurisdictions that currently use proportionality review.
Considering one defendant getting a second look due to Miller retroactivity
One big reason I believe the Supreme Court's Eighth Amendment ruling in Miller v. Alabama ought to be fully retroactive is because doing so will not be any kind of windfall for juve murderers given a mandatory LWOP. Rather, as this new New York Times article highlights, all that Miller retroactivity entails is that an offender get a new sentencing hearing in which a judge will consider whether an LWOP sentence was truly justified in light of the nature and circumstances of the offense and the full history and characteristics of the defendant. The article, headlined "A Murderer at 14, Then a Lifer, Now a Man Pondering a Future," merits a full read, and here is a teaser from the start of the piece:
Adolfo Davis admits he was a swaggering thug by the age of 14 as he roamed and dealt drugs with a South Side gang.
He also describes a childhood of emotional and physical deprivation: a mother fixated on crack, an absent father, a grandmother’s overflowing and chaotic apartment.
From the age of 6 or 7, he often had to buy his own food or go hungry, so he collected cans, pumped gas for tips and shoplifted. At 10, he went to juvenile hall for wresting $3 worth of food stamps and 75 cents from a girl. At 12, he fell in with the Gangster Disciples. “I loved them, they protected me, they were my family,” Mr. Davis said in a recent interview.
At 14, in 1990, he was out with two gang members when they robbed a rival drug house and shot the occupants, leaving two dead. Now 38, he has spent the last 24 years in prison on a mandatory sentence of life without parole.
But his future will be reconsidered in a new sentencing hearing here on Monday. It is one of the first such proceedings in Illinois to result from the Supreme Court’s landmark ruling in Miller v. Alabama that juvenile murderers should not be subject to mandatory life without parole....
The 2012 decision did not say whether the new rules should apply retroactively, to cases long closed. Since then, state and lower federal courts have disagreed, creating drastic differences for prisoners depending on where they live.
Ten states, including Illinois, are applying the standard to pre2012 cases and have started the process of resentencing. Four states — Louisiana, Michigan, Minnesota and Pennsylvania, with about 1,130 prisoners who could be affected — have declined to make the ruling retroactive. The Supreme Court is expected to clarify the issue next fall, when it hears the appeal of a convict in Louisiana....
Here and around the country, victim rights groups have strongly opposed the reopening of past sentences. “The families of the victims will suffer the most,” said Jennifer Bishop-Jenkins, a cofounder and board member of the National Organization of Victims of Juvenile Murderers.
She became a champion of victim rights 25 years ago when her pregnant sister and her sister’s husband were murdered in Winnetka, Ill., by a 16-year-old who received a mandatory life sentence. “When I started thinking of the possibility that we’d have to go back to court, I couldn’t sleep for four months,” she said. “Our mother was devastated.”
A new sentencing hearing in that case is scheduled for this month. While Ms. Bishop-Jenkins feels confident that the killer, because of the particulars of his acts, will have the life sentence renewed, she noted that the transcript of his original sentencing hearing was missing and that key witnesses were dead or gone.
Recreating a fair sentencing process is often impossible in old cases, she said, and there are ample existing ways to pursue what seem to be unwarranted life sentences, such as executive clemency or other petitions.
Mr. Davis’s supporters said they had not been able to find any relatives of the two murder victims in his case; none have come forward to comment on his resentencing....
Before the hearing on Monday, Mr. Davis’s lawyers — Patricia Soung of the Loyola Law School in Los Angeles and Rachel Steinback, a lawyer with the civil rights law firm Loevy & Loevy in Chicago — prepared a sentencing memo calling for his release because of his remorse, his growth and his mentoring of others while in prison.
The Cook County prosecutors have not prepared a written statement, but they are expected to argue for a new life sentence. Opposing the 2012 clemency bid, the prosecutors said young Adolfo had been “an active and willing participant in the murders” and “was not simply a naïve child being led astray by older friends.”...
The two sides will present their cases orally before Judge Angela Petrone of the Cook County Circuit Court. During or after the hearing, the judge could order anything from a new life term to an immediate release for time served.
April 12, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack