January 16, 2016
"The End of the Death Penalty Isn't Near"
The title of this post is the title of this recent column by Noah Feldman for Bloomberg View, which is actually mostly focused on various votes by various Justices in this past week's ruling in Hurst v. Florida. Here are excerpts:
The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again. The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter. The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific. The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.
This arrangement violated a principle that Scalia and Thomas adopted in 2000 as part of their goal to strike down federal sentencing guidelines. According to that principle, any fact that’s necessary to increase a defendant’s punishment must be submitted to the jury for proof beyond a reasonable doubt. The Florida structure didn’t satisfy that requirement, the court held. So Scalia and Thomas had no choice but to join the opinion....
In case you’re wondering if Scalia and Thomas are somehow softening, proof to the contrary may be gleaned from the fact that last week, the court refused to stay the execution of a Florida death row inmate. Ordinarily, if the court knew that a forthcoming opinion would save a defendant’s life, it would issue a stay — a decision that requires five justices.
The court didn’t give a reason for refusing the stay. But the defendant, Oscar Ray Bolin Jr., had waived the jury’s part of the process at his 2001 trial and chosen to go straight to the judge for sentencing. Thus, the court could’ve concluded that he wouldn’t have benefited from the constitutional rule requiring submission of facts to the jury. You’re entitled to waive your constitutional rights, and five of the justices must’ve thought that Bolin would’ve done so even if he’d known he had the right to demand a jury finding.
And what about Breyer? He still hasn’t given up on the constitutionality of the sentencing guidelines. He concurred separately in the Florida case to explain that he still doesn’t think that facts enhancing punishment must be submitted to a jury. He gave a different reason for striking down the sentence, namely that the death penalty in particular must be decided by a jury, not a judge.
The upshot is that the Florida case wasn’t about the death penalty for Scalia and Thomas — it was about the old fight over the sentencing guidelines, which Breyer hasn’t forgotten either.
Prior related postson Hurst:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure impact of Hurst
January 15, 2016
Supreme Court grants cert on high-profile political corruption case and to explore malicious prosecution suits
As reported in this extended post by Lyle Denniston at SCOTUSblog, the Supreme Court granted certiorari review on eight new cases this afternoon. None of the cases involve sentencing issues, but there are two cases with criminal justice elements. Here are excerpts of Lyle's account of these grants and their place within the Court's overall docket:
Taking no action on the Obama administration’s plea for approval of its new immigration policy, the Supreme Court on Friday agreed to review the claim by former Virginia Governor Robert F. McDonnell that he is innocent of corruption or fraud because he did not take any official action to benefit a friend and benefactor. The Court also added seven other cases to its docket for decisions this Term.
The new orders filled some remaining slots for argument, presumably in March or April, but there were not enough to complete the full calendar. That means some cases could be granted next week and still be decided before the current Term ends in late June, especially if the briefing schedule were expedited....
The case involving the former governor of Virginia (McDonnell v. United States) was a high-profile prosecution that had appeared to remove him from any future chance of becoming a national leader in the Republican Party. Both he and his wife were convicted of corruption charges based on prosecutors’ claims that the governor used the powers of his office to help a Richmond businessman approach state agencies for help in promoting a health supplement his company was producing. The governor was sentenced to two years in prison, and Maureen McDonnell was sentenced to a year and a day in prison. She currently has an appeal pending in a lower court.
His appeal raised two issues, but the Court agreed to rule only on his claim that prosecutors used too expansive an interpretation of the “official acts” provision used in corruption cases under three federal bribery or fraud laws. The Court chose not to hear McDonnell’s claim that the trial judge did not do enough to bar jurors who might have been influenced by the heavy publicity that surrounded his case, before and during trial. McDonnell has been allowed by the Court to remain out of prison until his appeal of his conviction is decided by the Justices....
Manuel v. Joliet, Ill.: Does an individual who claims to have been a victim of police fabrication of evidence have a right to sue for discriminatory prosecution under the Fourth Amendment — an issue left open previously by the Court.
Intriguing new poll on 2016 Californian perspectives on the death penalty
This local article, headlined "Poll: California death penalty is toss-up for voters," reports on a notable new poll of a notable group of state voters on an issue that often garners national attention. Here are the basics:
Opposition to capital punishment continues to rise in California, a new Field Poll released Friday shows, with state voters now equally divided between scrapping the death penalty altogether and speeding up the path to executing inmates on the nation's largest death row.
The poll found that 47 percent of voters favor replacing the death penalty with life in prison without the possibility of parole in California, up from 40 percent in 2014. But at the same time, the poll shows that 48 percent of registered voters would support proposals to accelerate the state's notoriously slow system of resolving death penalty appeals to pick up the pace of executions.
California voters are likely to be confronted with those two issues on the November ballot. Death penalty opponents are preparing a measure that would abolish California executions, while advocates of capital punishment are proposing a conflicting measure to reform and speed up the death penalty system....
Voters in 2012 rejected the last effort to abolish California's death penalty by a 52 to 48 percent margin. If voters were to approve both measures in November, the one with the most votes would settle the death penalty question in California for now, according to both campaigns.
"I think the public really wants some action," said San Bernardino County District Attorney Michael Ramos, among the leaders of the measure to speed up the process. "We are either going to fix the death penalty or it's going away in California."
Support for such a measure, which includes shortening the timetable for the California Supreme Court to resolve death penalty appeals, has dropped since 2014, according to the Field Poll. At that time, 52 percent of state voters backed efforts to accelerate death penalty cases, four percent above the most recent poll.
California has not executed an inmate in nearly ten years as a result of legal challenges to the state's lethal injection method, leaving 750 inmates on death row whose state and federal appeals now take decades to resolve. National polls have also shown dropping support for the death penalty, which remains on the books in 30 other states.
January 14, 2016
"More Prison, Less Probation for Federal Offenders"
The title of this post is the title of this short Pew Charitable Trusts "Fact Sheet" publication which includes a graph highlighting how many more federal offenders are sentenced to prison and how many fewer get just probation in recent years. Here is the heart of the text of the document (with my emphasis added):
Over the past three decades, imprisonment has become the dominant sanction in the federal criminal justice system. Nine in 10 federal offenders received prison sentences in 2014, up from less than half in 1980, as the use of probation declined steadily. (See Figure 1.) Federal courts sentenced 2,300 fewer offenders to probation in 2014 than in 1980, even though their caseload nearly tripled during that span.
Changes in the kinds of offenses and offenders prosecuted in federal court may have contributed to the shift toward prison and away from probation. But sentencing policies established during the 1980s and 1990s also played an important role by mandating prison time for many offenses for which probation had routinely been ordered in the past.
Congress increased imprisonment and decreased the use of probation in several ways. During the 1980s and 1990s, for example, lawmakers enacted dozens of laws prohibiting probation and requiring prison terms for many common federal crimes, including drug trafficking and illegal firearms possession.
In 1984, Congress created the U.S. Sentencing Commission, an independent agency within the judicial branch, and charged it with establishing guidelines that federal judges were required to follow during sentencing. The guidelines, which were intended to promote consistency in federal criminal penalties and took effect in November 1987, mandated imprisonment for a variety of offenses — including fraud, embezzlement, and tax evasion — for which probation was a routine sanction in the past.
Is there any chance any domestic criminal justice issue gets any attention during tonight's GOP debate?
The first big Prez debate of this big Prez election year takes place in South Carolina, and I am already assuming that any number of notable and important domestic criminal justice issues will be largely forgotten as GOP candidates spar again over the now-standard debate topics of immigration, ISIS and terrorism, and economic development. Still, as this new Marshall Project piece highlights, the location of the GOP debate tonight was the site of a high-profile mass shooting, and that reality might perhaps enhance the (slim) odds we get a question or two about the death penalty or gun violence or the racial dynamics of crime, policing and punishment. The MP piece is titled "Republican Candidates on Criminal Justice: A Primer," and here is how it sets up a review of what the GOP candidates in the prime-time debate have said so far on the campaign trail about these issues:
Race. Guns. The Death Penalty.
If these issues resounded anywhere in the past year, it was in Charleston, S.C., where Dylann Roof shot and killed nine parishioners in a Bible study class in one of the oldest black churches in the South. The June massacre, apparently propelled by the gunman’s white supremacist views and coming amid a spate of killings of blacks by the police around the country, underscored a plaintive question being asked more and more: Do black lives matter?
Thursday night, Republicans seeking the party’s nomination for president gather in Charleston for their sixth televised debate, less than three weeks before their first big contest, the Iowa caucuses. In the weeks after the killings at Emanuel A.M.E. Church, the South Carolina Legislature finally confronted the racially divisive symbol of secession, the Confederate battle flag, and ordered it removed from the state house grounds. But questions of race, guns and the death penalty have only intensified nationally since then. Here’s how the candidates (listed in alphabetical order) stand on some of those issues, as reviewed by The Marshall Project.
Florida Supreme Court wasting no time trying to figure impact of Hurst
This new article by Chris Geidner for BuzzFeed News reports that the top court in the Sunshine State is asking lawyers to sort out ASAP the dark death penalty clouds that the Supreme Court created with its ruling earlier this week in Hurst finding unconstitutional the process Florida uses for imposing death sentences. The article is headlined "Florida Supreme Court Orders State To Address Death Sentencing Ruling’s Effect By Friday," and here are excerpts:
The Florida Supreme Court on Wednesday ordered state officials there to address questions by Friday about the effect of the U.S. Supreme Court’s decision striking down the state’s death sentencing law on a man due to be executed in less than a month. The brief order from the Florida high court came in the case of Cary Michael Lambrix, who currently is scheduled to be executed on Feb. 11. On Jan. 11, his lawyers had filed a petition for relief based on a similar argument to that made by Timothy Hurst at the U.S. Supreme Court.
After the U.S. Supreme Court ruled on Jan. 12 in Hurst’s case that Florida’s death sentencing law was unconstitutional under the Sixth Amendment because it violated the right to a jury by making the imposition of a death sentence the responsibility of a judge and not a jury, the Florida Supreme Court amended its order in Lambrix’s case. Lambrix was convicted and sentenced to death in 1984 for the murders of Clarence Moore and Aleisha Bryant....
Specifically, the state is ordered to address whether the U.S. Supreme Court’s decision should apply retroactively to past death sentences in Florida, how Hurst applies given the specific facts of Lambrix’s sentencing, and whether any error in Lambrix’s case should be viewed as harmless.
January 13, 2016
"'Not Ordinarily Relevant': Bringing Family Responsibilities to the Federal Sentencing Table"
The title of this post is the title of this notable Note, which I just happened across, authored by Emily Anderson and recently published in the Boston College Law Review. Here is the abstract:
Incarceration results in negative social, psychological, and economic impacts on an inmate’s family and dependents. These impacts last well beyond the period of incarceration and can cause lifelong challenges. Federal statutes require courts to consider mitigating factors while calculating a sentence, including a defendant’s characteristics. Family ties and responsibilities are considered an aspect of a defendant’s characteristics. Yet the Federal Sentencing Guidelines significantly limit the extent to which courts can use family ties and responsibilities to reduce or alter a defendant’s sentence.
This Note first argues that the Guidelines should be amended to indicate that courts can consider family ties and responsibilities when determining a sentence. This Note then argues that Rule 32 of the Federal Rules of Criminal Procedure should be amended to require that a family impact assessment be incorporated into each presentence investigation report to provide courts with information about a defendant’s family ties and responsibilities.
In wake of Obergefell, Alaska legislator introduces bill to ban marriage between inmates
In this post right after the Supreme Court's landmark marriage ruling in Obergefell v. Hodges, I asked in my post title "Might prisons struggle with new SCOTUS jurisprudence on fundamental right to marry?". To date, I have not yet seen many stories suggesting post-Obergefell prison problems. But this local Alaska story, headlined "Bill would ban prison marriages, but not for the reason you think," suggests the Last Frontier could be one of the first states to change its prison marriage laws since the ruling. Here are the basics:
In his younger years, Anchorage Republican Rep. Bob Lynn served as a police officer in Tucson, Arizona. Last year, when the U.S. Supreme Court legalized same-sex marriage nationwide, that decision and Lynn’s firsthand experience merged in his mind.
On Friday, Lynn introduced House Bill 218, which would prohibit marriages at the state’s prisons. Lynn said the bill is a matter of fairness. If a same-sex couple falls in love within a prison’s walls, he doesn’t want them to have the ability to get married and share a cell with their spouse. “We’ve got a lot of prisoners who have a spouse outside the prison,” he said. “That’s not fair to them where somebody in the jail can have their spouse in there.”
Lynn said the bill would apply to same-sex and heterosexual couples alike; a person would not be able to get married to an inmate on prison grounds....
To accommodate a married same-sex couple who commit a crime together, Lynn’s bill includes a provision that would prohibit the Department of Corrections from putting the couple into the same facility. It also toughens the ban on conjugal visits — currently a regulation of the department — by putting it into law. That makes the ban tougher to overturn.
I suppose I can (sort of) see the logic of wanting to preclude two convicted spouses from being able to live together while serving their prison terms, but I have a hard time fully understanding why that concern would or should justify a blanket prohibition on allowing prisoners to marry the person of their choice if that other person also happens to be in custody. And because the Supreme Court has long suggested that only "legitimate security concerns" can justify "placing reasonable restrictions upon an inmate's right to marry," I could readily see a successful constitutional challenge to this blanket prisoner marriage ban if it were ever to become the law in Alaska.
Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
The question in the title of this post is prompted by this new Atlantic piece headlined "A New Hurdle in the Push for Criminal-Justice Reform: A disagreement between a House Republican and the Obama administration creates a challenge." Here is how the article starts:
The stars seem to have aligned. An unlikely coalition of liberals and conservatives has coalesced around criminal-justice reform, as the public appears to be paying more attention to fatal police shootings and mass incarceration. President Obama has worked to gin up momentum for reform, and is expected to press for action during his final State of the Union address Tuesday evening.
Even with that common ground, however, tensions are bubbling up. A debate over the burden of proof for criminal convictions now threatens to throw a wrench into the effort to overhaul the nation’s criminal-justice system. That debate was on full display Tuesday during a conversation between House Judiciary Committee Chairman Bob Goodlatte and The Atlantic’s Washington Editor-at-Large Steve Clemons at an Atlantic Exchange event. The Republican chairman suggested that the House of Representatives won’t approve a criminal-justice deal without changes to the way the U.S. criminal code determines criminal intent, despite the fact that the White House opposes the changes.
“A deal that does not address this issue is not going anywhere in the House of Representatives,” Goodlatte said when asked if he would oppose a deal that did not include such a provision. “It has to be overcome. This is a critical element to doing justice in this country.”
The disagreement points to the possibility that negotiations will break down. It highlights the challenges, and potential pitfalls, of assembling a left-right coalition, and raises the question of how much various interests at play will be willing to compromise. The dispute also threatens to stall sentencing reform, an issue that the president has elevated as a top priority in his second-term.
At stake is a question of fairness. Goodlatte, along with conservative and libertarian organizations, support legal changes that they say would protect citizens from being unfairly charged with crimes they unknowingly committed. The White House, along with liberal organizations, believe that altering the burden of proof could make it more difficult to prosecute criminal activity. Critics also fear the proposal could let big business off the hook for illicit activities that lawyers could claim a company didn’t know were illegal.
That conflict could derail sentencing reform. Goodlatte indicated Tuesday that he would not support an effort to deal with criminal-intent and sentencing reform separately as a way of bolstering the odds of passing legislation to cut down on mandatory minimums for certain offenses.
As the question in the title of this post suggests, I think Rep. Goodlate is 100% right that a provision clarifying that nobody should face serious federal criminal charges without federal prosecutors having to prove the accused had a significantly culpable mens rea is "a critical element to doing justice in this country." Indeed, one of the reasons I stopped considering myself a "liberal" as that term is now understood is because of these kinds of issues where so-called "liberals" seem eager to deny a premise I consider fundamental in a liberal society, namely that one should not be treated like and branded a serious criminal by the government unless and until that government can prove an individual has acted and thought like a serious criminal.
Notably, I know that at least one serious criminal justice reform group, the National Association of Criminal Defense Lawyers is supportive of mens rea reform. Consequently, I suspect and fear the "liberal organizations" against this kind of reform are the same type that were cheerleading the laws contributing to mass incarceration passed during the Clinton era when Democrats were eagerly trying to earn political points by being even tougher on crime than their political adversaries. Blah.
Some recent and older related posts:
- Can and will Prez Obama effectively help get a federal sentencing reform bill to his desk?
- "The Pressing Need for Mens Rea Reform"
- So thankful for federal sentencing reform moving ahead in Congress... but...
- "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
January 13, 2016 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5)
January 12, 2016
Unless Prez Obama goes off script, do not expect much SOTU talk about criminal justice reform
The White House has now released here the "Remarks of President Barack Obama – As Prepared for Delivery State of the Union Address." And, despite much early buzz that criminal justice reform was going to get some serious attention, it seems that the only part of the speech that even gets close to mentioning this topic comes at the very outset:
Tonight marks the eighth year I’ve come here to report on the State of the Union. And for this final one, I’m going to try to make it shorter. I know some of you are antsy to get back to Iowa.
I also understand that because it’s an election season, expectations for what we’ll achieve this year are low. Still, Mr. Speaker, I appreciate the constructive approach you and the other leaders took at the end of last year to pass a budget and make tax cuts permanent for working families. So I hope we can work together this year on bipartisan priorities like criminal justice reform, and helping people who are battling prescription drug abuse. We just might surprise the cynics again.
Given Prez Obama's so far uninspired record in this space, I suppose I should not be too surprised or disappointed that all the criminal justice buzz leading up to this speech was just more smoke and mirrors. And, if Prez Obama ends up walking the walk on what some have called "mass clemency," I will not be troubled that he did not talk the talk about criminal justice issues in this final SOTU. Still, I am now far less excited to hear him deliver the speech.
"Wanted man sends police department selfie to replace mug shot"
The title of this post is the headline of this local article sent my way by a helpful reader. And though one mght think the article comes from The Onion, it seems from these details that this vanity tale is not a tall one:
A wanted man in Ohio was not happy with his mug shot and decided to do something about it. Donald A "Chip" Pugh, 45, of Lima, Ohio has a warrant out for his arrest after failing to appear in court for a DUI, and is also a person of interest in several other cases including an arson and vandalism, according to the Lima Police Department Facebook page.
Despite the charges, Pugh felt the need to send a selfie of himself to the police department to replace the mug shot posted, saying: "Here is a better photo that one is terrible." The photo shows Pugh wearing a suit and sunglasses in a car with a sunroof.
In response, the department posted on it's Facebook page: "We thank him for being helpful, but now we would appreciate it if he would come speak to us at the LPD about his charges."
A few (too) quick thoughts on the post-Hurst hydra
As reported in this post, the Supreme Court via Hurst finally clarified today what most sensible folks long argued, namely that Florida's death penalty procedures have Sixth Amendment problems in light of the Supreme Court's 2002 ruling striking down Arizona's similar judge-dependent system in Ring v. Arizona. Kent Schneidegger in this post at Crime & Consequences highlights why this was not really a surprise and why what's next is the interesting issue now to follow:
Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.
The Florida Legislature foolishly stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring. I tried to tell them that was insane. They didn't listen. Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.
How many of the existing judgments can be salvaged? The Supreme Court said it left harmless error analysis to the state courts. In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance. Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.
The first thing the Florida Legislature needs to do is fix its system. And do it right this time.
Before turning to what Hurst may mean for the roughly 400 persons now on death row in Florida, I must first note that the two Floridians currently running to be US Prez should both be held responsible for the capital mess Florida now finds itself in. Jeb Bush was Gov of Florida when Ring was decided, and Marco Rubio was in the state legislature (and was not long thereafter to become Speaker of the Florida House). I hope that anyone troubled by the mess that Hurst creates for Florida's criminal justice system will direct some of their frustration to (and ask some hard questions of) this Sunshine State pair.
As for the mess that Hurst will create, I am coining the term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will grow and grow again in Florida's courts (both state and federal). Whether the Sixth Amendment can be deemed harmless in some cases on direct appeal and whether/how Hurst will be applied retroactively in collateral cases — e.g., is Hurst a new rule or just an application of Ring? — is sure to engender some interesting mythology-like discussions in state and federal courts in the months ahead.
Also, not to be overlooked as we take stock of the post-Hurst world, is whether any other states' capital systems might be subject to another round of procedural attack now. Alabama comes to mind because some of its nearly 200 death sentences were imposed via jury override by sentencing judges, though I am not sure if any of these are formally based on the judicial fact-finding found unconstitutional in Ring and Hurst. Similarly, it seems likely that creative capital defense lawyers will find creative ways to attack other death sentences in other jurisdictions based on something in Hurst.
Prior related post:
SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
The big news from SCOTUS this morning was a big (and notably short) ruling declaring unconstitutionally Florida's death penalty procedure via Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2015) (available here). Here is how the opinion of Justice Sotomayor for the Court gets started and ends:
A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst’s judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determinewhether sufficient aggravating circumstances existed tojustify imposing the death penalty. The judge so found and sentenced Hurst to death.
We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough....
The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s fact-finding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.
Six Justices joined in Justice Sotomayor's opinion, and SCOTUS-watchers ought to have little trouble figuring out which justice concurred only in the result and which Justice dissented.
"Could One of These Cases Spell the End of the Death Penalty?"
The question in the title of this post is the headline of this new Marshall Project piece. Here is how it starts, with links from the original:
Last June, Supreme Court Justice Stephen Breyer suggested that the death penalty might be close to its ultimate demise. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote in a dissent toGlossip v. Gross, to which Justice Ruth Bader Ginsburg added her name, “I would ask for a full briefing on a more basic question: whether the death penalty violates the Constitution.”
Attorneys for death-row inmates, generally a tight-knit group, immediately started talking about what to do next. While some urged caution — arguing that if the court upholds capital punishment it could set their cause back indefinitely — others sensed a rare opportunity. The most outspoken advocates for a more aggressive strategy have been the 8th Amendment Project, a group of lawyers who oppose the death penalty and are tracking cases that might allow the court to strike it down for good.
On Friday, the high court will discuss whether to hear a challenge to the death sentence of a Pennsylvania woman named Shonda Walter. Her case is one of several posed as direct responses to Breyer’s invitation to attack the death penalty head-on.
There is no way to know whether the justices will take any of these cases; for the court to take a case, four justices must agree, and aside from Breyer and Ginsburg, no other justices have indicated their views on whether to take such a challenge. If they do take a case, there is also no way of knowing which one they will position as the next potential landmark, the next Brownor Miranda or Roe. But each of those historic cases was preceded by numerous appeals of the sort that are now reaching the court. Death penalty abolitionists are braiding the details of these cases to the legal arguments they believe have the best shot at swaying the court.
January 11, 2016
Plain and Prejudice and Zombie Guideline Errors
The title of this post is the cheeky title I suggested for this SCOTUSblog argument preview I wrote up concerning Molina-Martinez v. United States, a case to be argued before the Justices tomorrow morning. Perhaps unsurprisingly, the sensible SCOTUSblog folks went with a more descriptive title: "Argument preview: Justices take on 'plain error' review and guideline-range mistakes. But I could not resist using my silly title in this space because it has literary/theatrical flair and Molina-Martinez concerns whether appellate courts conducting Plain error review should presume Prejudice upon discovery of a guideline calculation mistake that was buried until appeal (a Zombie Guideline Error). Though I recommend heading over to SCOTUSblog for all the gory details on this case, here is how my SCOTUSblog argument preview starts and ends:
Before modern reforms, federal sentences were essentially unreviewable on appeal. This reality resulted largely from the absence of substantive federal directives for district judges in exercising their sentencing discretion. A defendant — or a prosecutor, for that matter — was hard pressed to complain on appeal that a sentence was premised on a legal error when no sentencing laws structured what sentences district judges were to impose within wide statutory sentencing ranges.
Through passage of the Sentencing Reform Act of 1984, Congress brought law to federal sentencing. The SRA created the U.S. Sentencing Commission to promulgate sentencing guidelines directing how federal judges impose sentences. The Guidelines Manual now runs more than 500 pages and requires district judges to parse intricate provisions to calculate an “offense level” and a “criminal history score” to determine a defendant’s recommended guidelines sentencing range. Federal sentencing is now so chock full of so much law, it is inevitable that federal judges sometimes make technical mistakes in calculating a defendant’s proper guideline range. On January 12, the Supreme Court in Molina-Martinez v. United States will hear argument concerning how the courts of appeals should approach “plain error” review of guideline calculation errors not noticed until appeal....
The Supreme Court has not always broken into traditional conservative and liberal blocks in recent and older cases addressing the intersection of guideline-calculation issues and the application of the federal rules of criminal procedures. However, in part because Molina-Martinez is not the most sympathetic of defendants, and because a number of current Justices may have deep reservations about adopting any doctrine that might be seen to water down the traditionally tough standards of plain-error review, it seems likely Molina-Martinez’s counsel will have an uphill battle convincing the Court to adopt the prejudice presumption he is seeking.
"Guilt, Innocence, and Due Process of Plea Bargaining"
The title of this post is the title of this recent paper authored by Donald Dripps that I just noticed on SSRN. Here is the abstract:
Threatened decades of imprisonment can exert more behavioral pressure than coercive police interrogation. Normative distinctions between confessions and guilty pleas offered in the Supreme Court's jurisprudence, and the academic literature, are unsound. Ergo catastrophic trial penalties should be subject to the narrowest version of the due process doctrine barring involuntary confessions: When the gap between the trial and guilty plea sentences might induce an innocent person to plead guilty, the plea is unreliable and a violation of due process. The appropriate remedy is for the defense to enter the plea subject to a trial offer, i.e., a request to the court to set the case for trial on lesser charges than those in the prosecution's trial threat; or subject to special procedures to reduce the risk of erroneous conviction at trial, such as barring proof of the defendant's prior convictions. The Supreme Court's plea bargaining cases are not inconsistent with such a procedure, while current practice is inconsistent with the Supreme Court's coerced confessions jurisprudence.
"A Most Violent Year: What left and right got wrong about crime in 2015"
The title of this post is the headline of this notable new commentary by Thomas Abt via The Marshall Project. Here are excerpts:
Was 2015 the year of the Ferguson Effect? Conservatives scream yes, progressives shout back no. Let’s step away from the din to examine whether all this yelling is getting us anywhere, and whether we’ve missed some useful explanations and effective policies that have been under our noses this whole time.
Last May, Heather Mac Donald of the conservative Manhattan Institute penned a controversial piece arguing that recent upticks in violence might signal a new national crime wave.... Mac Donald was wrong on several counts. First, she initially linked gun violence and homicide to crime overall, without offering evidence for doing so. Second, any criminologist will tell you that policing is only one factor of many in determining rates of violence. And third, the best and most thorough examination of “broken windows” policing recently revealed that when narrowly focused on solving problems in partnership with the community, broken windows is successful — when it isn’t, then not so much.
Progressives did not take these charges lying down. Many pushed back, asserting there was simply no evidence of a spike in violent crime. One widely cited report by the progressive Brennan Center for Justice admitted that homicide in 25 of the nation’s largest cities jumped 14.6% in 2015, but argued that the current rate is near historic lows, that rates vary widely and that any increases are localized and not part of a national trend. Moreover, they asserted that any increase was due to “root causes,” i.e. poverty, unemployment, and other structural factors, not policing.
The Brennan Center was also mistaken in a number of ways. First, while it is true that violence remains historically low (and that crime overall continues to fall), a 14.6% national spike in murder would be the largest single-year increase since at least 1960. Furthermore, while local rates of violence often fluctuate, national rates are more stable, and the Brennan Center’s own data shows that murder is up in 18 of 25 of the nation’s largest cities. As for “root causes,” there is little evidence of a direct connection between violence and structural factors like poverty and unemployment. And none of those factors changed significantly last year, so they can hardly explain the surge of violence.
To summarize, the increase in homicides appears real, but there is no broader national crime wave. It is unclear what is driving the problem, but my own hunch — and it is still just a hunch at this point — involves a criminological phenomenon called legal cynicism. Multiple studies have demonstrated that, controlling for other factors, when communities view the police and criminal justice system as illegitimate, they become more violent. When people believe the system is unwilling or unable to help them, they are more likely to take the law into their own hands, creating the cycles of violent retribution...
Cynicism about the law might also explain why the biggest homicide spikes in 2015 occurred in places like St. Louis, Baltimore, and Milwaukee, where there was unrest after controversial uses of police force, and why Boston, with its recent history of positive police and community collaboration, had the largest single decrease in homicide of any large city. In order to address cynicism in the streets, we have to address cynicism in our public conversation about guns, crime, and punishment. Violence can fracture a community, but so can violent, partisan, absolutist rhetoric on television, in print, and on social media.
Prior related post:
- Keeping in mind the research that may suggest crime increases resulting from a different kind of "Ferguson Effect"
Lots of notable Atlantic reads on range of criminal justice topics
The folks over at The Atlantic always have a lot of worthy criminal justice (and other) reads, and these recent pieces struck me as especially blogworthy:
"The Steep Costs of Keeping Juveniles in Adult Prisons:Despite federal statues prohibiting it, many states imprison those under 18 alongside adults, where they are much more likely to suffer sexual abuse and violence."
January 10, 2016
Noting criminal justice fallout when state judges and prosecutors behave badly
I have only paid a little attention to the wide-ranging scandal involving judges and prosecutors in Pennsylvania known as "Porngate," but this local article notes how this scnadal is having some criminal justice ramifications. The piece is headlined "Fallout from Porngate leads to cases being appealed, claiming racial, gender, and ethnic bias," and here are excerpts:
Since late last year, lawyers across the state have quietly seized upon the pornographic, sexist, and racially offensive emails exchanged by a small circle of judges, prosecutors, and law enforcement officials to ask courts to reevaluate decisions ranging from criminal convictions to civil judgments and even death sentences.
They argue that the insensitive correspondence -- many of which contain jokes about rape; photos mocking African Americans, Hispanics, and other minorities; and insulting comments about gays, the obese, and the disabled - expose hidden biases and an inappropriate chumminess between the judges and prosecutors who already wield great power over the state's system of justice.
"It is important that any case be judged by someone who is fair, impartial, and sensitive to the issues of abuse, racial discrimination, and to prolonged exposure to trauma," said Robert Dunham, of the Washington-based Death Penalty Information Center. "Given the insensitivity reflected in those emails, it's not surprising that lawyers would be raising challenges."...
Reviews by the Supreme Court, the Attorney General's Office, and the state Judicial Conduct Board have found no emails in which individual cases were discussed. Still, defense lawyers have challenged cases across the state:
In Philadelphia, lawyers for Griffin Campbell, the demolition contractor sentenced Friday to 15 to 30 years in prison for his role in the deadly 2013 Center City building collapse, have pointed to crude racial jokes contained in many of the emails of the prosecutor who oversaw the grand jury investigation. They argued the messages raise questions over whether his was a "racially selective prosecution."
In Harrisburg, three African American women from Philadelphia have asked the Supreme Court to reconsider a 1997 decision upholding their convictions on contempt of court, saying Eakin's emails now "raise substantial questions about the propriety of his participation in cases such as this one."
And in Cumberland County, death-row inmate Antyane Robinson is seeking a Supreme Court rehearing, saying the email traffic between Eakin, who wrote an opinion denying his earlier appeal, and the trial prosecutor in his case suggests an inappropriately friendly relationship and a potential bias toward the government case that earned Robinson a death sentence for the 1997 murder of a romantic rival. The emails, Robinson's Luzerne County lawyer Enid Harris wrote in a filing last month, "indicate an utter lack of judicial sensibility and impartiality necessary for Eakin to have provided a fair review."
Whether any of those arguments will succeed remains to be seen. Prosecutors in all three cases have dismissed the idea that any prejudice the emails may expose should warrant tossing out judgments settled years ago. The larger concern, legal experts say, is not that prosecutors or judges allowed their legal reasoning to be overtly guided by the sophomoric attitudes on display in their email in-boxes.
Rather, the more insidious threat, said Nicholas Cafardi, a Duquesne University law professor, is the doubt their correspondence may have planted in the minds of ordinary citizens with business before the court. Thirteen years ago, Cafardi led a panel of experts appointed by the state Supreme Court in an assessment of racial and gender bias in the state's court system and produced a stunning report cataloging dozens of examples of prejudice - both subtle and overt.
More than a decade since that exhaustive review, Porngate's revelations have sat uncomfortably with Cafardi. "The only credibility our judicial system has is its impartiality," he said. "Judges who make sexist or racist remarks or even enjoy being told racist or sexist jokes convey the impression that they're not impartial. It's not enough to say that they didn't mean ill. The damage to the system has already been done."
Expecting (too?) much crime and punishment talk at Prez Obama's last State of the Union
Long-time readers know that I am always hopeful that the annual State of the Union events will address criminal justice issues, and also that Prez Obama has been consistently disappointing in this respect with his prior SOTUs. But this year, for lots of reasons, I am expecting crime and punishment to play a big role in the final SOTU to be delivered by Prez Obama. One reason is because of a notable guest who will be there as reported in this BuzzFeed News piece headlined "Meet The Ex-Convict President Obama Will Host At The State Of The Union." Here is how the article gets started (with links from original):
On Tuesday, President Obama may include a renewed promise to change the way the criminal justice system deals with suspects, offenders, and convicts in his final State of the Union address. In the audience will be woman who has seen all sides of the justice system — and all after her 57th birthday. Sue Ellen Allen, who spent nearly seven years as an Arizona inmate in the state’s women’s prison near Goodyear will be among the president’s guests at the speech. Allen was raised middle class, lived wealthy, and lost it all on her way to being convicted in absentia of securities fraud while an international fugitive on the run with her husband who also served time for the crime.After she got out of prison, in 2009, Allen did everything she could to get back in and offer resources to women still behind bars that she believes will help them escape the recidivism cycle that traps many inmates in the justice system for years. Now she regularly returns to the prison that held her to run education and jobs programs for the women there. She says the experience of seeing another side of America was “a blessing” and that her new calling is part of making good on the lessons she learned behind bars. “I was well educated, I was privileged because I have white skin — I’m a white woman and that’s a privilege,” Allen told BuzzFeed News. “If you had told me what I was going to see and experience in prison, I would have said, ‘Not in my country. We don’t treat people that way.’ I was wrong.”
When Obama delivers the State of the Union speech, Allen will be there, seated in the House chamber in the Capitol. Presidents regularly use their guest list to highlight issues and policy goals, and Obama’s seventh address will be no different. (Obama is breaking the mold a little next week — one of his “guests” will be a seat intentionally left empty to highlight the Americans lost during his presidency to gun violence.)
But White House aides say the focus of the speech is different than other State of the Union speeches. Instead of the standard list of policy ideas and applause lines, senior administration officials say this State of the Union will be about the broad changes Obama promised in his first campaign and how they play into his presidential legacy.
Criminal justice is set to be a huge part of that legacy, and get a prominent place in the speech. The Obama administration has linked up with conservatives and liberals to push changes to the justice system aimed at reducing the number of people put in prison, the length of time nonviolent offenders spend there, and reducing the costs associated with a system that houses more inmates than any other country on earth. The Obama administration has attempted to address longstanding goals of criminal justice advocates at the highest levels — the administration has supported dramatic changes in the war on drugs and called for an end to many mandatory minimum prison sentences — and the lowest. Obama has taken interest in prison life, becoming the first president to visit a federal prison last July. He’s called for new anti-recidivism programs and more efforts to offer education and other assistance to people behind bars. Changing the way prisons work, the president has said, can reduce the number of people who go in, out and back into the system.
In addition to expecting Prez Obama to talk about criminal reform during his SOTU speech, perhaps we could hear mention of crime and punishment in the GOP response. At the very least, folks at FreedomWorks are suggested it should via this recent commentary headlined "Republicans Should Promote Justice Reform in State of the Union Response."