July 25, 2015
"Federalism and Retroactivity in State Post-Conviction Proceedings"
The title of this post is the title of this notable article authored by Stephen R. McAllister appearing in the latest issue of The Green Bag. Here are excerpts from the introduction:
This article builds on an amicus brief I drafted for Kansas in Danforth v. Minnesota several years ago, and considers whether the federal retroactivity doctrines are binding on the states when it comes to the states’ own post-conviction proceedings. The article does not take issue with the well-settled propositions that Supreme Court decisions issued before state criminal cases become “final” are binding on the states and their courts, and that the federal courts will apply Teague retroactivity principles in federal habeas proceedings.
My conclusion is that there is no federal constitutional bar to the states developing their own retroactivity doctrines for state postconviction proceedings, whether those doctrines are broader or stricter than a federal habeas counterpart such as Teague. So long as state legislatures and state courts make that decision as a matter of state law, there is no federal constitutional principle at stake, and no federal interests are harmed. That said, Montgomery v. Louisiana does not seem a proper case in which to decide the issue.
Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
One aspect of the modern death penalty that always irks me is the all-too-common reality that some of the very worst-of-the-worst murderers often get the help of some of the very best-of-the-best defense lawyers (and almost always at taxpayer expense). As I write this post, there are literally tens of thousands of federal drug prisoners desparate to get the help of any lawyer to help them prepare a decent clemency petition. But, as this local article highlights, white supremacist mass murderer Dylann Roof now is going to be represented in federal court by one of the very best defense lawyer in nation:
Legendary death penalty lawyer David Bruck, who has more than 35 years of experience in South Carolina and around the nation representing people accused of heinous killings, has been appointed lead defense lawyer for alleged white supremacist killer Dylann Roof, according to federal court records....
Roof, 21, of the Columbia area, is charged with killing nine African-Americans in June during a prayer meeting at a historic downtown Charleston church, “Mother” Emanuel AME. Evidence against him includes a purported confession, an alleged online manifesto in which he announced his intention to start a race war by going to Charleston and Internet photos on his alleged website of him and his gun.
A federal grand jury in Columbia indicted Roof on Wednesday on 12 counts of committing a hate crime against black victims, 12 counts of obstructing the exercise of religion and nine counts of the use of a firearm to commit murder....
Bruck, 66, has the kind of experience Roof needs, lawyers familiar with death penalty cases said Thursday. “He’s the total package, versed in the law and quick on his feet at trial. He never screams or yells — he’s a methodical, intentional kind of guy,” recalled Columbia attorney Dick Harpootlian, who as 5th Circuit prosecutor won a death penalty case over Bruck in a 1990s trial, only to lose to Bruck in oral arguments before the U.S. Supreme Court in the same case.
Columbia defense attorney Jack Swerling, who has tried a dozen death penalty cases, said he has consulted Bruck on most of them. “He’s my go-to guy,” said Swerling, known as one of South Carolina’s best criminal defense lawyers. “He’s formidable, brilliant, and he is a passionate advocate against the death penalty. He truly believes it’s not appropriate in any case. That is his heart and soul.”
The Canadian-born Bruck, who graduated from the University of South Carolina law school and got his start defending S.C. death penalty cases in the early 1980s, helped win a life sentence in the nationally publicized 1995 case of child killer Susan Smith, now in state prison for drowning her children in a Union County lake. He recently helped defend Dzhokhar Tsarnaev, the Boston Marathon bomber who was sentenced to death in May....
But his record shows that few of his clients are acquitted by juries. Instead, Bruck concentrates on either getting life sentences during the punishment phase of a capital case, or getting a death penalty overturned on appeal. Over the years, Bruck has been involved in hundreds of death penalty cases across the country, either as a lawyer or adviser.
Since 2004, Bruck has been director of Washington & Lee University’s death penalty defense clinic, the Virginia Capital Case Clearinghouse. Before that, Bruck practiced criminal law in South Carolina for 28 years, specializing in death penalty cases....
Most of the crimes Roof has been charged with in both state and federal arenas are death penalty eligible. However, a formal decision to seek the death penalty has not been announced by either state or federal prosecutors. Death penalty cases are so complex that federal judges appoint defense lawyers knowledgeable in capital punishment law and trials well before a case has been formally declared a death penalty case.
“Judges don’t want to wait on the Justice Department,” said Columbia attorney Johnny Gasser who has prosecuted the only three federal death penalty cases in South Carolina’s modern era. “Judges want to go ahead ... to ensure that the accused is appointed the best legal representation possible.”
Of course, as critics of modern death penalty are right to highlight, not every capital defendant gets great (or even competent) defense representation. In fact, the sad reality in most state capital prosecutions is that poor representation has historically been much more common than top-flight lawyering. But, as we have now seen due to the mass murders committed by Dzhokhar Tsarnaev and Dylann Roof, when federal prosecutors get involved in a capital case, it is far more likely for some of the best lawyers in the country to be involved on the defense side. (This reality is one reason I quite seriously contend that capital punishment should be the (almost) exclusive province of federal prosecutors, and also a reason I half-jokingly suggest murderers should be sure to kill in a way that garners federal attention and triggers federal jurisdiction.)
July 24, 2015
"Convicted Republicans Plead for Mandatory Minimums Changes"
The title of this post is the hedline of this notable new Roll Call piece. Here are excerpts:
Kevin Ring, the lobbyist who was sentenced in 2011 to 20 months in federal prison for his role in a corruption scheme, was pitching to GOP aides gathered in the Rayburn House Office Building on an effort to overhaul mandatory minimum requirements. Ring, who has been working in downtown Washington, D.C., since his April prison release, wanted the staffers to understand that current guidelines more often send low-level dealers and addicts to prison, not drug kingpins....
Two other convicted Republicans who served time in federal custody joined Ring for the lunchtime forum aimed at building support for a proposal sponsored by Republican Jim Sensenbrenner of Wisconsin and Democrat Robert C. Scott of Virginia. Red states are leading the way, and now it is “time that the federal government catches up,” Sensenbrenner, a former House Judiciary Committee chairman, said during his brief talk to staffers as they munched on Chick-fil-A lunches.
Despite positive feedback from Speaker John A. Boehner, Sensenbrenner acknowledged it would be tough to prod his bill forward. House Judiciary Chairman Robert W. Goodlatte, R-Va., is not on board. Sensenbrenner also suggested he may have “worn out my welcome” in the Senate, during the recent debacle over reauthorizing the Patriot Act, though a separate effort is gaining momentum in that chamber on a bipartisan basis.
Some federal prosecutors have expressed opposition to executive branch efforts to eliminate mandatory minimum sentences for nonviolent drug offenders, arguing they are an essential tool to dismantling drug rings.
Former New York City Police Commissioner Bernard Kerik, disgraced in 2004 when he was forced to withdraw from his nomination to head the Department of Homeland Security under President George W. Bush, said it was “incumbent” that the next White House administration tackle mandatory minimums. Kerik pulled out of consideration after admitting he had not paid taxes for a domestic worker who may have been an illegal immigrant, and later pleaded guilty to eight felony charges, including tax fraud and lying under oath. He was sentenced to 48 months in federal prison.
Knitting, chess and checkers were offered as adult continuing education classes to inmates at the federal prison camp in Cumberland, Md., where Ring and Kerik served their sentences. “You can teach an inmate real estate or accounting, but that federal conviction will keep them from getting a license,” Kerik said.
“Idle hands are the devil’s playground,” echoed Pat Nolan, who served 15 years in the California State Assembly before he was nabbed accepting an illicit campaign contribution as part of an FBI sting. He pleaded guilty to one count of racketeering and served 29 months in federal custody.
Twenty-four hours earlier, in the same room, House Judiciary Democrats unveiled legislation that would end mandatory life imprisonment for incarcerated youth, as part of a package of bills focused on sentencing and incarceration. Ranking member John Conyers Jr., D-Mich., and Rep. Sheila Jackson Lee, D-Texas, also introduced a measure aimed at increasing police accountability in the wake of high-profile deadly encounters between officers and black citizens.
“It is clear that improved national standards are necessary to address the ever-growing catalogue of incidents such as the case of Sandra Bland in Waller County, Texas, where a routine traffic stop led to an arrest and a death in custody 72 hours later,” Conyers stated Wednesday. “It is critical that we adopt smarter approaches to dealing with those involved with the criminal justice system.”
Among Republicans, the blame was on the Justice Department. Nolan fired off at U.S. attorneys, saying their jobs are “entirely political” and driven by numbers. They have the tools to protect the public and keep the streets clean, he said, “but there’s no restraint.”
Many notable passages in recent sentencing reform speech by DAG Yates
Earlier this week in this post, I noted that US Deputy Attorney General Sally Yates has been saying a lot of interest and import in support of federal sentencing reform efforts. Of particular note, DAG Yates on Wednesday delivered these significant remarks at the Bipartisan Summit on Fair Justice. The full speech should be read by all those interested in federal sentencing reform debates, and these passages struck me as worth highlighting:
[I]t’s because I’m a prosecutor that I believe so strongly in criminal justice reform. I have seen firsthand the impact that our current system and particularly our federal drug sentencing laws, can have on communities, families, the public fisc and public confidence in our criminal justice system. And it’s because of that I believe that we can and we must do better....
I’ve been a prosecutor for 26 years. I believe in holding people accountable when they violate the law and I believe that some people are dangerous and need to go to prison, sometimes for a very long time. But our system of justice must be capable of distinguishing between the individual that threatens our safety and needs to be imprisoned, versus the individual for whom alternatives to incarceration better serve not only that individual, but also make our communities safer....
While the country’s population has grown by about a third since 1980, our federal prison population has grown by 800 percent, due in large part to the influx of drug defendants. And today, under the current sentencing regime, our mandatory minimum laws do not calibrate a defendant’s sentence to match the threat that he or she poses to our safety. At its core, one of the basic problems with our mandatory minimum system is that it’s based almost exclusively on one factor — drug quantity. And so we have a hard time distinguishing the cartel leader who needs to be in prison for a long time from the low level mope who doesn’t. As a result, we have some defendants serving far more time in prison than necessary to punish and deter and instead, in the words of former Attorney General Holder, sometimes we warehouse and forget. This comes with great costs. Costs to operate our prison system, costs to our families and communities and costs to the public’s confidence in their system of justice.
From a dollars and cents standpoint, prisons and detention now account for roughly one-third of the department’s budget. Every dollar that we spend incarcerating non-violent drug offenders is a dollar that we can’t spend investigating today’s emerging threats, from hackers to home-grown terrorists. These costs are swallowing up funds that would otherwise be available for state and local law enforcement, victims of crime and prevention and reentry programs....
Some states have been great innovators in criminal justice reform. I met just yesterday with the National District Attorneys Association and I learned of many programs, from drug courts to recidivism reduction programs going on across the country designed to shift from incarceration as the only answer to prevention as the first response. And many states, red states and blue states, like Texas, Ohio, North Carolina and my home state of Georgia, faced with exploding prison costs, have enacted bold criminal justice reform not only reducing the size of their prison populations, but also and this is the important part, reducing crime rates as well. In the 29 states that have enacted laws limiting mandatory minimum sentences, shifting funds from incarceration to prevention, virtually every state has experienced a reduction in violent crime as well.
Despite all of this, there are some who want to keep things as they are. One of the most common concerns that I hear expressed about eliminating or reducing mandatory minimums is that long sentences for low level defendants is the only way to secure cooperation against the worst criminals. Not only is this inconsistent with my personal experience as a prosecutor, it is inconsistent with the data we have gathered since the Department of Justice recalibrated our drug charging policy two years ago. As I expect you know, under former Attorney General Holder’s smart on crime policy, prosecutors were directed not to charge mandatory minimums for lower level, non-violent drug offenders and our use of mandatory minimums decreased by 20 percent. Although some feared that defendants would stop pleading guilty and stop cooperating, our experience has been just the opposite. In fact, defendants are pleading guilty at the same rates as they were before we instituted the new policy. So the fear that not charging mandatory minimums would prevent us from being able to work our way up the chain just hasn’t been borne out....
I am here in part because I believe that sentencing reform will make prosecutors and law enforcement officers more effective, not less. Our ability to do good in this world — to advocate for victims, to hold wrongdoers accountable, to seek justice in all its forms — depends on public confidence in the institutions we represent. It’s based on a hard-earned reputation for fairness, impartiality and proportionality that has forever been the bedrock of our criminal justice system.
As prosecutors, it is our obligation to speak out against injustices and to correct them when we can. That’s why the Department of Justice is so engaged on this issue and I why I look forward to working with members of both parties as we seek a more proportional system of justice. Our nation and its citizens deserve nothing less.
Related recent prior posts:
- New Deputy AG suggesting every too-long federal prison sentence hurts public safety
- DAG Yates: "our thinking has evolved on [drug sentencing], it’s time that our legislation evolved as well."
July 24, 2015 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)
Looking ahead to SCOTUS 2015 Term's sentencing cases on its criminal docket
Over at SCOTUSblog, Rory Little has this terrific new post highlighting that 11 of the 35 cases already on the Supreme Court's docket for its next Term involve criminal law cases. Here is an except from the start of this post, along with the description of a few of the coming SCOTUS cases that have at least one sentencing fan especially revved up:
Eleven of the cases in which review has already been granted for the next Term are criminal-law or related (under my generous standards). The Eighth Amendment portends to be a particular focus: four cases involve the death penalty, and a fifth involves juvenile life without parole. The other interesting note is that, so far, not a single case granted for next Term involves the Fourth Amendment. I can’t recall a prior Term where that was true at the end of the prior Term.
Finally, five of the eleven cases in which review has been granted are from state supreme courts, suggesting that at least some of the Justices realize that waiting for a criminal case to come to them via a later federal habeas petition can obscure the legal question presented, due to the highly deferential standards now embodied in the federal habeas statute, 28 U.S.C. § 2254 (the 1996 AEDPA amendments).
Here are brief descriptions of the criminal-law questions presented in the cases granted so far:
1. Hurst v. Florida: Whether Florida’s death sentencing scheme, which permits a judge to find aggravating factors to impose death (and which does not require a jury to determine mental disability or to be unanimous in their findings or sentence) violates the Sixth Amendment or the Eighth Amendment in light of Ring v. Arizona. (Florida Supreme Court)...
3. Montgomery v. Louisiana: Whether Miller v. Alabama, which prohibits mandatory life without parole for juveniles convicted of homicide, applies retroactively. (Louisiana Supreme Court)
4 & 5. Kansas v. Carr (along with another case with the same caption but a different case number) and Kansas v. Gleason: (1) Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court ruled; and (2) whether the trial court’s decision not to sever co-defendants for sentencing in a capital case violates an Eighth Amendment right to “individualized sentencing.” (Kansas Supreme Court)....
8. Lockhart v. United States: Whether 18 U.S.C. § 2252(b)(2), requires a mandatory minimum ten-year prison term for a defendant convicted of possessing child pornography if he “has a prior conviction … under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” is triggered by a prior conviction under a state law relating to “aggravated sexual abuse” or “sexual abuse,” even though the conviction did not “involv[e] a minor or ward.” (Second Circuit)
July 23, 2015
Federal prosecutors group propounds "The Dangerous Myths of Drug Sentencing 'Reform'"
The National Association of Assistant US Attorneys (NAAUSA) has recently prepared this white paper "to inform the public discourse about our current federal drug sentencing system and the most dangerous myths of drug sentencing 'reform'." Here is the paper's introduction to its list and discussion of seven most dangerous myths:
Congress is considering legislation that would dramatically change how we sentence drug traffickers in our federal courts. These legislative proposals, including one euphemistically named the “Smarter Sentencing Act” (SSA), would slash federal minimum sentences for trafficking in all dangerous drugs by at least half and would make thousands of federal prisoners convicted of serious drug trafficking crimes eligible for early release without regard to their criminal history, violent background, or ties to gangs, drug trafficking organizations, or even international drug trafficking cartels.
Proponents also gloss over the significant changes in federal sentencing guidelines that have already and will continue to result in the early release of thousands of convicted drug traffickers. These sentencing reductions and early prisoner releases have occurred and will continue to occur regardless of whether Congress enacts the SSA or other sentence reduction proposals. The impact of these early releases is certain to inflict greater strains upon law enforcement efforts to preserve safety and dismantle gangs and drug trafficking organizations. If the Smarter Sentencing Act or similar proposals are enacted, they will only aggravate and compound these harms. Congress will have made our country less safe and contributed toward the reversal of a 20-year period of reduced crime in our nation.
It is critical that Congress avoid this path and understand the mistruths propounded by advocates of sentencing “reform” through the following seven myths.
In some subsequent posts I hope to find time to discuss some of the NAAUSA's discussion of at least some of these "most dangerous myths."
Is it a big concern when a Prez candidate gets "big money" from private prison companies?
The question in the title of this post is prompted by this local story from Florida headlined, "Marco Rubio is Getting Big Money from For-profit Prison Companies." Here are excerpts:
According to Open Secrets, the second-largest for-profit prison operator in the country, GEO Group, is one of the top contributors to Marco Rubio's presidential campaign. Between 2013 and 2014, GEO Group gave Rubio $41,500, more than any other presidential candidate. The group is the ninth highest contributor to Rubio's campaign.
Is that a problem? Prison reform advocates think so, pointing to Rubio's actions as an elected official that have helped for-profit prisons — including a $110 million state contract that went to GEO back when he was Speaker of the Florida House.
"On a system that makes them wealthier the more people there are in jail, the only reason they would lobby these sort of things is because they expect their money to have a financial return," says Paul Kruger, executive director of Florida's chapter of Citizens United for Rehabilitation of Errants, a prison reform advocacy group....
The presidential contender's ties to the for-profit industry are not new. And prison reform activists have always been wary of the lucrative connection between for-profit prisons and politics. But Rubio's ties are gaining steam online thanks to a petition demanding that Rubio cut ties with GEO Group for good now that he's running for president.
"Your ties to the prison industry go back to your years in the Florida state legislature and they’re disturbingly close," the petition states. "A presidential candidate should not be associated with imprisoning people for profit. You must break ties with the for-profit prison industry."
The for-profit prison industry is big business, raking in almost $3 billion a year nationally. Boca Raton-based GEO Group operates prisons throughout the southeast and since 2009 have added 7,600 new prison beds and grown by 10 percent.
Advocates point out that that Rubio's ties go beyond just taking donations. Back in 2006, Rubio hired Donna Arduin as an economic consultant. She's a former trustee for GEO Group. In 2011, after being elected a Florida state senator, Rubio hired Cesar Conda as his chief of staff. Conda is the co-founder of Geo Group's main lobbying firm, Navigators Global. While working under Rubio, Conda was still earning $150,000 from Navigators Global from a stock buyout agreement. In 2014, Conda went to lead Rubio's PAC, Reclaim America. It was during Conda's management that GEO Group became one of Rubio's top-10 contributors. Now, Conda is working back at Navigators Global....
Kruger contends that the companies are fueling a prison-industrial complex as they funnel big bucks into politics. He believes that Rubio — or any elected official in politics — shouldn't accept money from for-profit prison groups. "They don't do it because the guy is handsome," Kruger says. "They want to decide who goes to jail and for how long."
"Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment"
The title of this post is the title of this notable new paper by John Pfaff now available via SSRN. Here is the abstract:
As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control.
In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try to alter them: not directly through its criminal code, but through the millions of dollars in grant money it provides. A strong predictor of state prison growth is state fiscal health: states with more money spend more on everything, including prisons. And federal grants bolster state fiscal capacity. So perhaps one way that the federal government could change state sentencing would be to help prop up corrections spending less.
My final conclusion, while quite tentative, is also somewhat surprising. Contrary to my expectations I held when I started work on this paper, it does not seem as if federal spending is bolstering state spending on incarceration to a significant degree. So cutting back on federal funding for criminal justice activities may not have much impact on state decisions about incarceration. Which, perhaps somewhat ironically, may suggest we want the federal government to spend more, not less, but to allocate the money in ways that encourage states to adopt reforms that push back against excessive incarceration.
July 22, 2015
Intriguing comments on prisons from GOP candidate Ben Carson
Because I cannot quite figure out which of the current 16 GOP Presidential candidates to take seriously, I am inclined to spotlight in this space any interesting comment made by any of the candidates concerning sentencing law or policy. Today, in this lengthy Washington Post article, I see Dr, Ben Carson recently had some interesting comments about modern prison practicalities and policies:
In addressing the young Republicans, Carson also said that he, like President Obama, had visited federal prisons. "I was flabbergasted by the accommodations -- the exercise equipment, the libraries and the computers," he said. He said he was told that "a lot of times when it's about time for one of the guys to be discharged, especially when its winter, they’ll do something so they can stay in there."
At the same time, Carson said that too many Americans are going to prison. "We're not doing things the right way," he said. "A lot of people that we incarcerate don’t need to be incarcerated."
After the event, he elaborated. "I think that we need to sometimes ask ourselves, 'Are we creating an environment that is conducive to comfort where a person would want to stay, versus an environment where we maybe provide them an opportunity for rehabilitation but is not a place that they would find particularly comfortable?'" he told reporters.
Do gubernatorial moratoria on executions impact securing of death sentences?
The question in the title of this post is raised by the start of the capital phase of the death penalty trial of Aurora theater shooter James Holmes and is discussed in this interesting Los Angeles Times article. The article is headlined "Death penalty is sought against James Holmes, but governor stands in the way," and here are excerpts:
When the jury found James E. Holmes guilty, Marcus Weaver cried. For his friend Rebecca Wingo, who died beside him in the Aurora, Colo., multiplex. For the dozens of victims in the 2012 rampage during a midnight showing of "The Dark Knight Rises." For the families of the dead and wounded. Then he cautioned that last week's verdict "is just a stepping stone" on the path to justice.
The next step, Weaver hoped, would be the death penalty. But even if the jury decides to sentence Holmes to death in the penalty phase of his trial, which begins Wednesday, there are some questions about whether the sentence will be imposed. In the time since the Aurora shooting case got underway, Gov. John Hickenlooper has made it his policy that no one in Colorado will be executed as long as he is in office....
Juries across the U.S. continue to hand down death sentences, and prosecutors continue to seek them. But the effective moratorium in Colorado — no capital punishment can be carried out unless the governor signs the death warrant — is part of a political retreat that is gaining momentum. The number of U.S. executions has dropped dramatically since 1999, along with the number of death sentences handed down by juries.
Governors in four states, including Hickenlooper, have declared that they will not sign death warrants during their terms, citing the uneven way the punishment is carried out. This year, for the first time since these policies were adopted in Oregon, Colorado, Washington and Pennsylvania, major capital trials are taking place in two of those states that are testing juries' willingness to carry out the ultimate punishment. "What's the role of these reprieves? I don't think there's an independent effect, but it's part of an overall drift away from the death penalty," said Michael Radelet, a University of Colorado sociology professor who has studied the punishment for 35 years.
Although a gubernatorial moratorium will undoubtedly spur debate about a critically important issue, death penalty critics worry that the policies ultimately could end up changing nothing. Once the governors leave office, their replacements could decide to go back to signing death warrants. Anyone whose execution was on hold could again be sent to the death chamber....
In Washington state, 15 months after Gov. Jay Inslee imposed a death penalty moratorium, a Seattle jury in May refused to sentence Joseph McEnroe to death for killing six of his then-girlfriend's relatives on Christmas Eve 2007. The victims spanned three generations of Michele Anderson's family, including a 5-year-old girl and her 3-year-old brother. Anderson, also charged in the killings, goes on trial in September.
The Holmes case is the first death penalty trial in Colorado since Hickenlooper announced in 2013 that he would grant an "indefinite reprieve" to Nathan Dunlap, who killed four people at a suburban Denver Chuck E. Cheese's pizza restaurant in 1993 and was sentenced to death three years later.
The reprieve was granted as Dunlap's execution date neared and will last as long as the Democrat remains in office. Hickenlooper, who campaigned in 2010 as a death penalty supporter, has since said he is against capital punishment.
The political pushback was swift. Moments after the governor announced Dunlap's reprieve from the rotunda of the Capitol in Denver, Arapahoe County Dist. Atty. George Brauchler denounced Hickenlooper from the Capitol steps. Brauchler called Dunlap's execution "a no-brainer," according to the Denver Post, and said the governor refused "to make any hard decision today.... This is inaction. This is shrugging. This is not justice."
Brauchler is the same district attorney who said he would seek the death penalty against Holmes. He also turned down Holmes' offer to plead guilty in exchange for life in prison without a chance of parole, and he is leading the prosecution case against the gunman.
Still, a sitting governor's ability to veto a death penalty appears to be absolute in Colorado. And though many argue that such moratoriums are political posturing with no lasting effect, others say such gubernatorial declarations are a force for change.
"I think it's impactful when the governor of your state says your state should never be involved in killing anyone," said Craig Silverman, a former Denver chief deputy district attorney. "However, in the Holmes case we have jurors who are all death qualified, meaning they have committed to following Colorado law, which includes capital punishment, but we have a governor who is not."
DAG Yates: "our thinking has evolved on [drug sentencing], it’s time that our legislation evolved as well."
I have noticed lots of good crime and punishment reporting at BuzzFeed lately, and this new lengthy piece discussing an interview with US Deputy Attorney General Sally Yates is the lastest must-read. It is headlined "Justice Department: You Don’t Need Mandatory Prison Sentences To Put The Right Drug Criminals In Jail," and here are excerpts:
UPDATE: The speech that DAG Yates delivered today on these topics is available at this link. I will likely highlight a few notable passages in a later post.
The central argument against the sweeping changes to the war on drugs proposed by the Obama administration and others goes like this: If you take away stringent mandatory minimum sentences for drug crimes, prosecutors can no longer use the fear of prison to flip drug criminals. If they can’t flip drug criminals, they can’t go after more powerful and dangerous drug criminals. And if they can’t go after those criminals, they can’t hope to make a dent in the illegal drug trade.
This was the governing principle of the prosecutors fighting the war on drugs for decades. Just a year or so ago, under the direction of former Attorney General Eric Holder, prosecutors changed the way they charged some drug criminals, avoiding charges carrying mandatory minimums when possible. Some prosecutors worried they’d lose their ability to net the biggest fish.
Sally Quinlan Yates, a career federal prosecutor now leading Obama administration efforts to reduce or eliminate mandatory minimum drug sentences on Capitol Hill, says the old system was all wrong, and she can prove it. “There were some out there who were saying, and I understand this, ‘We’ll never get another defendant to cooperate with us, they’re not going to plead guilty, they’re not going to cooperate with us. We’ve lost our leverage, we won’t be able to work our way up the ladder,’” Yates, the deputy attorney general, told BuzzFeed News. “But that’s turned out just not to be true. In fact, the rate of guilty pleas has stayed exactly the same as it was prior to our new mandatory minimum policy and in fact the rate of cooperation is the same or has gone up slightly.”
Yates has been saying for years that mandatory minimums — which don’t apply in the vast majority of cases federal prosecutors coerce cooperation from all the time — aren’t necessary to put high-level drug offenders behind bars. Now she’s overseeing the process by which prosecutors move away from mandatory minimums, and she’s one of the leading advocates in the administration push to eliminate mandatory minimums altogether in most cases.
It’s a fundamental change to the way prosecutors think about their work when it comes to drug cases. Getting convictions without relying on mandatory minimums is a key legacy of Holder’s term as Attorney General, and now it’s a central part of Yates’ argument to lawmakers that it’s time to change the nation’s sentencing laws.
As real momentum builds on Capitol Hill to rewrite sentencing laws with the goal of refocusing prosecution and lowering the prison population — an issue of prime importance President Obama in the final months of his presidency — Yates is among the top administration aides helping the process along on Capitol Hill. She meets regularly with the members of the Senate in both parties attempting to hash out a bipartisan criminal justice compromise they can pass before the end of the year.
As that effort continues, Yates will continue to be among the most prominent administration faces pushing the Obama team position. On Wednesday, she’ll speak at a bipartisan criminal justice policy summit that organizers hope will solidify momentum and help keep the ball rolling in Congress.
Yates has drawn the praise of advocacy groups who say she’s able to connect with Republicans in a way the Justice Department often wasn’t able to when Holder was in charge, due in part to GOP rhetoric that cast Holder as the biggest villain in the Obama administration. Criminal justice is a top policy goal for Holder’s successor, Loretta Lynch, and Yates also works closely with top department officials to help push unilateral changes to prosecution procedure set down by first by Holder and now by Lynch. She also spends a lot of time talking to working prosecutors, the group that has expressed the greatest skepticism toward the sweeping changes pushed by criminal justice advocates and the administration.
“People get used to doing things a certain way. You ask folks to do something differently, there’s naturally some discomfort with that among certain prosecutors, I think,” she said. “So change is hard.” Yates knows how to speak their language. On paper, she is basically the prototypical tough-as-nails federal prosecutor....
Changes implemented by Holder as part of his smart on crime iniative — which guided prosecutors away from throwing the book at low-level nonviolent drug offenses — led to a reduction in prosecutions. Yates is now in charge of implementing the new approach. She says most prosecutors welcome the changes, but Obama’s recent round of clemencies for nonviolent offenders sentenced under the old rules put into perspective how much of a culture change is still under way at the Justice Department.
“There are cases now that I see when I review clemency petitions and I see cases that were charged under different statutes, different laws at the time, and different policies [at the Justice Department] that certainly trouble me from a fairness perspective,” she said. “The prosecutors who were involved, they were following the department policies that were in place at the time. And so I’m not suggesting they were doing anything improper or unethical. But our thinking has evolved on this. And it’s time that our legislation evolved as well.”
Yates says prosecutors are open to changes, and she’s got the statistics to keep pushing those who are still skeptical. In the end she thinks the Justice Department will be continue to make the changes it can to the way the war on drugs is fought even if Congress can’t.
For Yates, the movement is a personal one. “At the risk of sounding really corny now, I’m a career prosecutor. I’ve been doing this for a very long time. And I believe in holding people responsible when they violate the law,” she said. “But our sole responsibility is to seek justice. And sometimes that means a very lengthy sentence, for people how are dangerous and from which society must be protected. But it always means seeking a proportional sentence. And that’s what this sentencing reform is really about.”
July 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Tough-on-crime crowd making the case for modern mass incarceration
The folks who blog at Crime & Consequences are among the most effective and eloquent advocates for the modern size, scope and operation of the American criminal justice system, and they have been especially active of late lamenting the ever-growing number of politicians calling the current system broken and urging reduced reliance on incarceration. Here are links to just some of the major posts in this vein from C&C in the last few weeks (some of which link to others criticizing sentencing reform efforts):
July 21, 2015
"Why all Americans should support Obama on prison reform"
The title of this post is the headline of this notable opinion piece by Michael Brendan Dougherty at The Week. Here are excerpts:
Obama's first words on prison reform last week were absolutely right: "We should not be tolerating overcrowding in prison. We should not be tolerating gang activity in prison. We should not be tolerating rape in prison — and we shouldn't be making jokes about it in our popular culture. That's no joke. These things are unacceptable."
Much of the commentariat blames our prison system's woes on the politics of "law and order" from the 1970s through the early part of the new millennium. But what Obama is asking for is "law and order" for our prisoners and prisons. He deserves bipartisan support in this.
On a philosophical level, people who think about prison conditions and sentencing issues tend to divide themselves between retributivists and rehabilitators. Backers of retributive justice believe sentences should be punishing. Rehabilitators believe the criminal justice system should aim to restore criminals to society. I agree with both of them, and think they should agree with each other. I doubt that a convict can be properly rehabilitated unless he is also punished. To punish someone for a crime is to take his moral agency seriously. Taking that agency seriously is a sign of respect not just for the victims of crime, but the perpetrators.
America's prisons cannot possibly qualify as either punitive or rehabilitative. Instead, they are vindictive, chaotic, and degrading. A prison sentence should be the punishment in and of itself. But today, prisoners are expected to cope with unimagined and uncountable horrors. They are incentivized to join gangs. They are encouraged to commit more violence in order to avoid violence. Rape is pervasive and the threat of rape encourages prisoners to submit themselves to other violent men. There is no instance in which being plunged into barely controlled danger, or being raped, can be a just punishment....
[O]ur prison system makes a mockery of the justice system. It says that our laws are a joke since we certainly don't intend to prevent them from being broken even in institutions so closely monitored by the state itself. It tells prisoners that they are human garbage, unworthy of even the most basic respect or safety. The pervasiveness of our jokes about prison rape suggest that we believe that there are some deserving victims of violent sexual assault. There are none....
President Obama has done well to help humanize prisoners. He has emphasized that some receive unduly long or harsh punishments just for being "teenagers doing stupid things" in the absence of real help from functioning families and social institutions. His statement of empathy, that he could have ended up in prison himself, will be used cynically by his haters. It may well reek of sentimentalism even to some of his supporters. But it is a more vivid way of repeating John Bradford's statement upon seeing a group of men led to execution: "There but for the grace of God, go I."
There are all sorts of social, scientific, and even fiscal reasons to justify prison reform and sentencing reform. But the key to gaining momentum in this effort is to remind the public that America's imprisoned are human beings. They may deserve punishment for their crimes, but they do not deserve to become victims of yet more crime.
Eighth Circuit rejects "safe sex" special condition of supervised release
Thanks to a number of kind readers, I received lots of notice of an Eighth Circuit opinion today that understandably has already received lots of attention. These excerpts from US v. Harris, No. 14-2269 (8th Cir. July 21, 2015) (available here), highlights why:
At sentencing, the district court determined that Harris was an armed career criminal under 18 U.S.C. § 924(e), and sentenced him to the statutory minimum of 180 months’ imprisonment. The court, on its own initiative, also imposed a novel special condition of supervised release that “there be no unprotected sex activities without probation office approval during the period of supervised release.” In a later written order and judgment, the court attempted to modify the special condition to say that Harris “shall use contraceptives before engaging in sexual activity that may otherwise cause pregnancy unless such use would violate his religious scruples or is expressly rejected by his sexual partner.” ...
The district court observed that Harris had fathered ten children out of wedlock with seven different women and declared that Harris’s conduct was “creating a very serious social problem” that was “more serious than a lot of the things that we do deal with on conditions ofsupervised release.” During the hearing, the court again raised a “social problem of apparently a great deal of unprotected sex.”...
[T]he special condition as pronounced is even broader than the novel restriction on fathering children that the court seemed to contemplate during the hearing. By restricting “unprotected sex activities,” without limitation, the condition purports to regulate conduct that could not result in pregnancy. The condition is not even reasonably related to the purposes that motivated the condition.
The special condition also is not reasonably related to the statutory factors set forth in § 3583(d). As in United States v. Smith, 972 F.2d 960 (8th Cir. 1992), where this court set aside a special condition attempting to regulate a defendant’s fathering of children while on supervised release, the condition here is not related to the nature and circumstances of Harris’s offense. The court did not find that Harris’s sexual activity was related to his unlawful possession of a firearm. Nor did the district court explain how restrictions on Harris’s sexual activity would deter Harris from future criminal conduct, protect the public from future crimes by Harris, or assist in Harris’s training, medical care, or correctional treatment. For similar reasons, the condition impermissibly involves a greater deprivation of liberty than is reasonably necessary to afford adequate deterrence, protect the public from future crimes, and provide the defendant with needed training, care, or treatment. As in Smith, the district court sought to address a perceived social problem that does not have the required nexus to factors that guide sentencing in a federal criminal case.
We conclude that the district court exceeded its authority under § 3583(d) when it imposed the special condition of supervised release at sentencing.
"Sentencing the Wolf of Wall Street: From Leniency to Uncertainty"
The title of this post is the title of this notable new paper now available via SSRN authored by Lucian Dervan. Here is the abstract:
This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today.
In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud. This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders. In concluding this initial examination, the Article discusses three observed trends. First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s. Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s. Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time.
In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion. In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly. In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association.
Intriguing federal civil rights case assailing New York sex offender family restrictions
A helpful reader altered me to this fascinating story, headlined "Bronx Dad's Case Tests Restrictions on Sex Offenders," concerning a fascinating federal court case being litigating in New York. Here are the basic details via the press account (with links):
With a name resembling a kindergartner's alphabet primer, the lawsuit ABC v. DEF takes on far more insidious themes -- namely the parental rights of a Bronx man who spent eight years in prison for raping his ex's teenage niece.
A federal judge issued an order in the case last week that could earn that man unspecified financial compensation from New York state. Three law professors interviewed by Courthouse News say they have never heard a sex offender case quite like it.
Though the case was unsealed last year, a pseudonym still shields the name of the 50-year-old plaintiff. The docket meanwhile evinces a powerful support network for his cause, including dozens of family members and friends who wrote to the court on his behalf. Doe's attorney, Debevoise & Plimpton partner Michael Mukasey, is a former U.S. attorney general.
It's been 10 years since a jury found that Doe committed second-degree rape and other offenses against his ex-wife's niece, who accused him of assaulting her when she lived with the family between the ages of 13 and 14. The jury acquitted Doe of the first-degree charges, and he is appealing the counts for which he was convicted, maintaining that he is innocent.
While still behind bars, Doe and his wife divorced, and he remarried another woman he had known for 25 years. They had a child, "M.S.," shortly before Doe successfully completed his sex-offender and substance-abuse rehabilitation programs in the fall of 2012. Since Doe requires permission to contact anyone under the age of 18, parole officers ordered him away from his new home -- and into a homeless shelter -- when his son turned 1 month old.
A Bronx Family Court already allowed the father of six to have unsupervised visits with his teenage daughter, and social workers saw no danger with his raising a newborn son.
Doe's accuser, now in her mid-20s, complained to a parole officer about his ability to rebuild his life. "Why should he live happy and comfortable when he took something from [me] that [I] can't get back?" she asked them, according to court papers.
After this conversation, a Manhattan bureau chief of New York State's parole division ordered Doe away from his new family in a one-paragraph directive stating that the "victim's perspective is always important." Bureau Chief Joseph Lima officer noted in his decision that Doe's crimes "occurred within the family constellation and in some instances while other family members were present in the residence."
Doe's attorney Mukasey noted in a legal brief that all four of their client's adult children wrote letters to the court on behalf of their father. "He has a close relationship with his five oldest children, who range in age from 14 to 27," the brief states. "Mr. Doe has never been accused of neglecting or abusing any of these children; to the contrary, they speak fondly of their relationship with him and his importance in their lives. Mr. Doe desperately wants to establish an equally loving bond with his one-year-old son, plaintiff M.S."...
Neither Mukasey nor his co-counsel would respond to press inquiries. Their amended complaint sought a court order reuniting the family, plus unspecified monetary damages for deprivation of Doe's rights to due process and intimate association. U.S. District Judge Paul Engelmeyer pushed the case forward to discovery Wednesday, in a 36-page opinion and order.
Since parole officers can impose "several dozens" of conditions on the lives of registered sex offenders, Engelmeyer said their expansive powers must face a check. "In addition to the power to decide whether Doe may have contact with any person under age 18, a parole officer has the authority to grant or deny permission for Doe to own a camera, computer, scanner, or cell phone; possess 'any children's products' or photos of minors; rent a post office box; obtain a driver's license; 'rent, operate or be a passenger in any vehicle'; travel outside of New York City; visit an arcade, bowling alley, beach, or swimming pool; or have visitors at his approved residence," the opinion notes.
Refusing to grant immunity, Engelmeyer wrote "there are sound reasons not to give parole officers discretion, unreviewable in a subsequent court action, over so many aspects of a parolee's life." His ruling allows Doe's claims against six DOCCS officials to advance to discovery. In a phone interview, Georgetown University Law professor Abbe Smith called the decision a "terrific development."
"If you commit a crime, and you're punished, you should be allowed to serve your debt to society and then move on," said Smith, who co-directs the university's Criminal Defense and Prisoner Advocacy Clinic. "[The Bronx father] has a newborn son. I can't imagine on what basis he could be deprived from having contact from his own child." Smith added that she never heard of a case like this before because, "typically, parole officers have immunity," and the ruling emphasizes that they cannot have "limitless discretion."
David Rudovsky, a Penn Law School professor and founding partner of the Philadelphia-based firm Kairys, Rudovsky, Messing & Feinberg, LLP, called the case "significant" because it expands upon a Second Circuit case striking down restrictive probation terms involving relationships with close family members. Unlike that case, however, the ruling in Doe's lawsuit "extended that doctrine to a damages claim against a parole officer," Rudovsky said in an email....
Florida State University professor Wayne Logan, an expert on sex-offender registries, said he had not heard of such a case either.... Smith, the Georgetown professor, said that she felt sympathy for the Doe's victim, but she said that criminal justice must "root for people to rebuild their lives."
"Marriage and making a family, becoming gainfully employed, those are all signs that a person has abandoned their lawless ways," she said.
July 20, 2015
Local coverage of compelling realities to be at heart of Aurora shooter penalty phase
Not suprisingly, the Denver Post now has especially fullsome coverage of the key issues to surround the upcoming penalty phase following the capital conviction of James Holmes last week. Here are two pieces (and their extended headlined) that caught my eye:
"Mental health will loom large in Aurora theater shooting death penalty debate: Quick verdict doesn't necessarily lead to a death sentence"
"Death penalty a complex issue for theater shooting victims' families: While some shooting survivors and relatives of victims support capital punishment for James Holmes, others are more ambivalent."
"Trustworthiness of Inmate’s Face May Sway Sentencing"
The title of this post is the headline of this helpful summary of an interesting new study from the journal Psychological Science. Here are highlights of the summary:
How trustworthy an inmate’s face appears to others seems to play a very large role in the severity of the sentence he receives, according to new research published in the journal Psychological Science.
The study shows that inmates whose faces were rated as low in trustworthiness by independent observers were more likely to have received the death sentence than inmates whose faces were seen as more trustworthy, even when the inmates were later cleared of the crime.
The findings reveal just how powerful appearances can be in guiding judgment and decision making, influencing outcomes in situations that are literally a matter of life and death.
“The American justice system is built on the idea that it is blind to all but the objective facts, as exemplified by the great lengths we go to make sure that jurors enter the courts unbiased and are protected from outside influences during their service. Of course, this ideal does not always match reality,” said Drs. John Paul Wilson and Nicholas Rule, psychological scientists at the University of Toronto and co-authors on the study. “Here, we’ve shown that facial biases unfortunately leak into what should be the most reflective and careful decision that juries and judges can make — whether to execute someone.”
Previous studies have confirmed a bias against faces perceived as untrustworthy, but much of the these have relied on study participants contemplating criminal verdicts hypothetically. For the new study, the researchers wanted to know whether this bias extended beyond the lab to a very real, and consequential, decision: whether to sentence someone to life in prison or to death.
The researchers used the photos of 371 male inmates on death row in Florida; 226 of the inmates were white, 145 were black, and all were convicted of first-degree murder. They converted the photos to gray to minimize any variations in the images and asked an online panel of 208 American adults to look at the photos and rate them on trustworthiness using a scale from one (not at all trustworthy) to eight (very trustworthy). The participants also evaluated photos of age- and race-matched inmates who had also been convicted of first-degree murder but received a sentence of life in prison instead of death. The raters did not know what sentence an inmate had received, or even that the photos were of inmates at all.
The findings showed that inmates who had received the death sentence tended to be perceived as less trustworthy than those sentenced to life in prison; in fact, the less trustworthy a face was deemed, the more likely it was that the inmate received the death sentence. This connection remained even after the researchers took various other factors into account, such as facial maturity, attractiveness, and the width-to-height ratio of the face.
Importantly, the inmates in the two groups had committed crimes that were technically equally severe, and neither sentence would have allowed for the inmates to return to society — as such, the motivation to protect society could not explain the harsher punishments consistently given to the less trustworthy-looking inmates. “Any effect of facial trustworthiness, then, seems like it would have to come from a premium in wanting to punish people who simply look less trustworthy,” the researchers said.
Even further, a follow-up study showed that the connection between perceived trustworthiness and sentencing emerged even when participants rated photos of inmates who had been sentenced but who were actually innocent and later exonerated. “This finding shows that these effects aren’t just due to more odious criminals advertising their malice through their faces but, rather, suggests that these really are biases that might mislead people independent of any potential kernels of truth,” said Wilson and Rule.
The published study is available here, and its actual title is "Facial Trustworthiness Predicts Extreme Criminal-Sentencing Outcomes."
July 19, 2015
Notable talk of bringing back the death penalty in two nearby US states
Two states that recently repealed their death penalty are now having folks discussing, as detailed in these two new media pieces, bringing back the ultimate punishment:
While the capital reform story in Nebraska has received broad coverage, I have not seen too much discussion on this topic from New Mexico. Here are excerpts from the capital story from the Land of Enchantment:
State leaders, including Governor Susana Martinez, discussed possible solutions to New Mexico's beleaguered justice system in the wake of an investigation about the state's 'boomerang thugs.'
KOB revealed how there are only 12 officers tasked with locating roughly 1,700 absconders and learned many criminals charged with child sex crimes have mastered the art of receiving sweetheart plea deals.
Commit a violent crime, there should be expectations -- courtrooms, fines and handcuffs. However, the system that's supposed to uphold those expectations, and keep the worst of the worst criminals locked up, has fallen apart. "So, the problem isn't throwing people in jail, or sending people to prison, it's who we send to prison," Rep. Moe Maestas, D-Albuquerque, said....
Maestas said the system is backwards when it comes to prosecuting drug crimes versus violent crimes. He said drug users are demonized, in need of help, as violent criminals go free. "To prosecute violent crimes, it is very labor intensive," Maestas said. "You have to build a relationship with the alleged victim, and that's just not being done."...
Corrections Department Secretary Gregg Marcantel is just as frustrated as the 12 people on his fugitive task force unit responsible for trying to round up the absconders. "It's a never-ending game, a revolving door," one of them said. That comes as Secretary Marcantel struggles to keep people working in the state's prisons. "I hate to admit this, but I compete with McDonald's in Santa Fe for my staff," he said. Marcantel said some prospective employees to corrections facilities in Santa Fe would prefer to flip burgers for the city's minimum wage of $10.84 rather than earn slightly more, $12.35, to be a corrections officer cadet.
KOB approached Governor Martinez, a longtime prosecutor, to hear her thoughts on a justice system that seems badly broken. Last year, she supported a pay raise for some corrections officers, which helped reduce job vacancies in one office from 50 percent to five percent. Her office said it improved the career ladder and offered promotion opportunities for probation and parole officers. Martinez also wants to beef up the fugitive task force unit to send a message to absconders....
She said lawmakers should step in for once to make laws and penalties tougher while allocating more resources to the Corrections Department on the whole. Martinez also said she wants lawmakers to reinstate the death penalty in New Mexico, which was abolished in 2009. She said, in her experience, criminal offenders feel more compelled to cooperate with investigators when confronted with it.