June 10, 2016
Two SCOTUS reslists concerning Johnson's application to the career-offender guideline worth keeping an eye on
This week's entry in the always amusing and informative Relist Watch SCOTUSblog posting by John Elwood has flagged two cases of note for sentencing fans, especially for those especially interested in the continued fall-out from the Supreme Court's big Johnson vagueness ruling last year. I will reprint, with all the humor and links, Elwood's coverage of these cases:
Our next new relist is Jones v. United States, 15-8629. No, not that one. Not that one either. Or that. Now you’re trying my patience. Can we just agree it’s a pretty common case caption? And indeed, this case has been up to the Court once before. The petitioner in Jones was sentenced to about twenty-one years’ imprisonment under the residual clause of the U.S. Sentencing Guidelines’ career-offender provision. During its last trip to One First Street, the Court granted cert., vacated the judgment, and remanded (“GVR”) in light of Johnson v. United States, which declared an identically worded residual clause in the Armed Career Criminal Act (“ACCA”) unconstitutionally vague and therefore void. On remand, the Third Circuit determined that Johnson was inapplicable because Jones’s career-offender designation relied not on the residual clause, but on its “Application Note,” which specifically lists robbery as a predicate offense. During Jones’s stay in the Third Circuit, the Court held in Welch v. United States that Johnson announced a new substantive constitutional rule that applies retroactively to ACCA cases on collateral review. Jones poses three questions: (1) whether Johnson applies retroactively to collateral cases challenging the residual clause of the Guidelines’ career-offender provision; (2) whether Johnson applies to and invalidates the Guidelines’ residual clause; and (3) whether Jones’s robbery conviction qualifies as a “crime of violence” under the residual clause based on the clause’s Application Note, “even though [the Note] does not interpret and conflicts with the text of the guideline.”
Jones, unsurprisingly, is not one of a kind: It has a doppelganger, Beckles v. United States, 15-8544, which is nearly identical right down to the GVR and raises the same three questions (except that Beckles’s third question presented involves possession of a sawed-off shotgun). Both the Jones and Beckles petitions assert urgency because of the Antiterrorism and Effective Death Penalty Act’s one-year bar: “Prompt resolution of these issues is required because the one-year statute of limitations governing collateral Johnson claims will expire on June 26, 2016,” the petitioners say, adding that “a per curiam opinion on these issues without full briefing or oral argument may be appropriate.” The government opposes cert. because, among other things, the Sentencing Commission has adopted a Guidelines amendment, likely taking effect on August 1, 2016, that deletes the residual clause from the guideline in light of the Court’s concerns in Johnson: “The question of Johnson’s application to the current career offender guideline is therefore likely to be of no continuing importance.” Both cases got something of a late boost when the Fourth Circuit deepened the split on Wednesday....
Issue: (1) Whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively on collateral review to challenges of sentences imposed under the residual clause in United States Sentencing Guidelines career offender provision, U.S.S.G. § 4B1.2(a)(2); (2) whether Johnson's constitutional holding applies to U.S.S.G. § 4B1.2(a)(2)'s identical residual clause thus rendering that provision void; and (3) whether Petitioner's Pennsylvania conviction for robbery by force however slight is a “crime of violence” because it is listed in the commentary to U.S.S.G. § 4B1.2, even though it does not interpret and conflicts with the text of the guideline, after Johnson.
(relisted after the June 2 Conference)
Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.
(relisted after the June 2 Conference)
"The Color of Justice: Racial and Ethnic Disparity in State Prisons"
The title of this post is the title of this notable data-heavy new report from The Sentencing Project. Here is part of the reports "Overview" section:
Growing awareness of America’s failed experiment with mass incarceration has prompted changes at the state and federal level that aim to reduce the scale of imprisonment. Lawmakers and practitioners are proposing “smart on crime” approaches to public safety that favor alternatives to incarceration and reduce odds of recidivism. As a result of strategic reforms across the criminal justice spectrum, combined with steadily declining crime rates since the mid-1990s, prison populations have begun to stabilize and even decline slightly after decades of unprecedented growth. In states such as New Jersey, New York, Rhode Island, and California, prison depopulation has been substantial, declining by 20-30%. Still, America maintains its distinction as the world leader in its use of incarceration, including more than 1.3 million people held in state prisons around the country.
At the same time of productive bipartisan discussions about improving criminal justice policies and reducing prison populations, the U.S. continues to grapple with troubling racial tensions. The focus of most recent concern lies in regular reports of police brutality against people of color, some of which have resulted in deaths of black men by law enforcement officers after little or no apparent provocation.
Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of racial and ethnic disparities in the prison system, and focused attention on reduction of disparities. Since the majority of people in prison are sentenced at the state level rather than the federal level, it is critical to understand the variation in racial and ethnic composition across states, and the policies and the day-to-day practices that contribute to this variance. Incarceration creates a host of collateral consequences that include restricted employment prospects, housing instability, family disruption, stigma, and disenfranchisement. These consequences set individuals back by imposing new punishments after prison. Collateral consequences are felt disproportionately by people of color, and because of concentrations of poverty and imprisonment in certain jurisdictions, it is now the case that entire communities experience these negative effects. Evidence suggests that some individuals are incarcerated not solely because of their crime, but because of racially disparate policies, beliefs, and practices, rendering these collateral consequences all the more troubling. An unwarranted level of incarceration that worsens racial disparities is problematic not only for the impacted group, but for society as whole, weakening the justice system’s potential and undermining perceptions of justice.
This report documents the rates of incarceration for whites, African Americans, and Hispanics, providing racial and ethnic composition as well as rates of disparity for each state.
Split Seventh Circuit panel debates import and impact of jury finding of drug quantity rejected by the judge at sentencing
A helpful reader altered me to an interesting Seventh Circuit ruling today in US v. Saunders, No. 13-3910 (7th Cir. June 10, 2016) (available here). These passages from the partial dissent authored by Judge Manion provides a reasonable look into why this split panel's sentencing work is blog-worthy:
The jury in this case found beyond a reasonable doubt that the drug amount was between 100 grams and 1 kilogram. This necessarily implies that the jury found the offense did not involve 3.69 kilograms, but at sentencing, the district court found a 3.69-kilogram amount. These findings are irreconcilable. By its finding, the district court overrode the jury’s decision. The Sixth Amendment does not allow this. I dissent from this aspect of the court’s decision, but join in all other aspects....
A straightforward reading of the jury-verdict form does not allow this court to find an “effective acquittal.” The jury does not — in a single sentence, passing judgment on one count — actually convict and effectively acquit. Here, the jury convicted Saunders and Bounds of a capped drug quantity, and its verdict should stand....
In its ruling today, the court affirms the district court’s application of Watts to this case. It should not. Watts stands for the simple principle that a sentencing court may consider conduct underlying an acquitted charge if that underlying conduct is proven by a preponderance of the evidence. Watts, 519 U.S. at 157. Watts is therefore factually and legally distinguishable from this case. Instead of an acquittal, this case features an affirmative jury finding of fact. An acquittal is a legal conclusion, “not a finding of any fact,” and it “can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt.” See id. at 155 (internal quotation marks omitted)....
As the Supreme Court observed [in Watts], “That [acquittal] verdict does not preclude a finding by a preponderance of the evidence that the defendant did, in fact, use or carry such a weapon, much less that he simply possessed the weapon in connection with a drug offense.” Id. at 157 (emphasis in original). In contrast, the two results in this case cannot square: the defendants cannot have (1) possessed less than 1 kilogram and (2) also possessed 3.69 kilograms. By flatly contradicting the jury’s express factual finding, the sentencing judge in this case violated the Sixth Amendment rights of Saunders and Bounds. And if the jury system is to mean anything, this outcome is a problem.
Should I really be too troubled by a Texas life sentence (with parole eligibility in 30 years) for nine-time drunk driver?
The question in the title of this post is prompted by this New York Times piece headlined "He Had 8 Convictions for Driving Drunk. On His 9th, He Got Life." Here are the details:
The first eight convictions for driving while intoxicated didn’t stop Donald Middleton of Houston from sliding behind the wheel and getting his ninth conviction. This time, the judge had had enough.
When Mr. Middleton, 56, faced Judge Kathleen Hamilton of the 359th District Court in Texas on Tuesday, she sentenced him to life in prison. He won’t be eligible for parole for 30 years.
Such a harsh sentence is uncommon for drunken-driving convictions, which often lead to temporary license suspensions and prison stays that allow repeat offenders to return to the road. In Mr. Middleton’s case, he still had a valid driver’s license, despite the eight convictions. Mr. Middleton’s case raises the question: How many times does someone have to be caught driving drunk before he or she can no longer legally drive?
He was arrested in May 2015 after he turned into the wrong lane and collided head-on with a vehicle driven by a 16-year-old who was on the way home from work at a grocery store. Mr. Middleton ran into a nearby convenience store and repeatedly asked a clerk to hide him, prosecutors said. He had a blood-alcohol level of 0.184, more than twice the legal limit, 0.08, according to Justin Fowles, a Montgomery County assistant district attorney. Mr. Middleton pleaded guilty to driving while intoxicated last May and has been in jail since.
The teenager, Joshua Hayden, was not injured, but his father, Rowdy Hayden, said in a telephone interview that he appreciated the judge’s harsh sentence. “It angers me, as a father, that this individual skirted the justice system eight times and was still out here endangering our citizens on the roadway by drinking and driving,” said Mr. Hayden, who is a police constable in Montgomery County. “His proven track record showed he was going to continue to drink and drive. And who knows, the next time he may have killed someone.”
Mr. Middleton had four previous stints in prison for driving while intoxicated. His eighth conviction, in 2008, involved rear-ending a car with several people inside; they sustained minor injuries. Mr. Middleton fell out of the car and was unable to stand, Mr. Fowles said.
The conviction from that episode led to a 13-year prison sentence, of which he served four years. After the most recent conviction, he was classified as a habitual offender, which enabled the longer sentence. “He had proven to us that he can’t be trusted with his own freedom, that he’s a danger to our community and that the best thing for everyone else’s safety on the roadways is for him to never be able to drive again,” Mr. Fowles said in a telephone interview.
Rules for stopping habitual drunken drivers vary wildly by state, but repeat offenders tend to get multiple extra chances. The National Highway Traffic Safety Administration estimates that one in three people arrested on drunken-driving charges are repeat offenders. In Minnesota, a 61-year-old man was released from prison last year after a five-year stay for his 27th conviction related to drunken driving. In Pennsylvania, one man was arrested five times in less than a year, but never lost his driver’s license or served more than 10 days in jail....
J. T. Griffin, the chief government affairs officer for Mothers Against Drunk Driving, said the organization had focused on promoting ignition interlock devices, which require anyone convicted of drunken driving to pass a breathalyzer test before starting a car. Twenty-seven states have laws requiring them, including New York, he said. Suspending licenses can be ineffective when many people continue to drive without a valid license, he said.
“We believe in going after D.U.I. the first time, not waiting for the second or third or fourth offense,” Mr. Griffin said. “The first time is unacceptable. And nine times is just ridiculous.”
June 9, 2016
"The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
The title of this post is the subheadline of this notable new Slate commentary authored by Mark Joseph Stern run under the main headline "Justice for None." The piece highlights that we are already now at the stage of seeing some backlash to the backlash over the lenient sentence given to Brock Turner. Here are excerpts:
Brock Turner is an odious criminal who committed a heinous act and deserves to go to prison for much longer than his six-month sentence requires. His trial confirmed that both racism and sexism continue to plague America’s criminal justice system, especially where rape is involved. Yet in their rush to condemn Turner’s sentence, far too many liberals have abandoned what were, not so long ago, fundamental principles of progressivism. This willingness to toss due process out the window in sexual assault cases is, unfortunately, indicative of a broader inconsistency that plagues the American left....
[T]he movement to remove Persky from the bench will not, and cannot, be limited to this one case. It would set a clear precedent that liberals should feel empowered to knock judges off the bench when they really disapprove of their rulings. That is an extraordinarily dangerous mindset — one conservatives have exploited for decades. In 1986, Republicans spearheaded a successful campaign to oust three justices from the California Supreme Court over their judicial opposition to capital punishment. The overtly partisan effort politicized the court and temporarily shattered the state judiciary’s independence. More recently, anti-gay activists ousted three judges from the Iowa Supreme Court over their votes affirming same-sex couples’ right to wed.
American liberals have long looked upon these efforts as antithetical to the judiciary’s responsibility to remain above politics and faithfulness to the law. Is that belief suspended when the judge issued a sexist ruling rather than a progressive one? Even worse, Persky has received anonymous threats from social justice advocates outraged by his ruling. These hecklers may believe their cause to be noble, but they are taking a page straight from Donald Trump’s playbook — not a good look for activists hoping to combat everything Trump stands for.
Then there is the widely lauded victim impact statement Turner’s victim read during the sentencing hearing. I am glad she wrote this extraordinarily powerful letter and glad so many millions have read and been moved by it. But it had absolutely no place in the courtroom. Victim impact statements were once a liberal bête noire, and rightly so, because they seriously undermine the defendant’s due process rights. In a criminal sentencing hearing, the judge (or jury) should consider only the facts of the case at hand in determining the defendant’s culpability. Victim impact statements introduce a massive amount of emotion into the proceedings, allowing the judge or jury to be swayed by emotional response rather than logical reflection. That, in turn, shifts the focus away from the defendant and toward the victim while injecting arbitrariness into the sentencing process. The defendant’s punishment may well hinge on how emotionally compelling the victim can make his or her statement....
Liberals’ blasé attitude toward judicial impeachment and victim impact statements in the Turner case, then, must be viewed as part of a larger trend: the willingness among a certain faction of the American left to jettison progressive principles in a good-hearted but profoundly misguided effort to stop sexual violence. That is a noble cause, but it cannot justify unraveling the most cherished safeguards of our criminal justice system. What Brock Turner did was sickening; what he received as punishment is far less than what he deserved. But eroding due process and threatening judicial independence is not the way to bring his victim justice.
Prior related posts:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
Seventh Circuit affirms above-guideline child porn sentence given to former Subway pitchman Jared Fogle
A panel of the Seventh Circuit made quick work of the appeal brought by former Subway pitchman Jared Fogle. Readers may recall Fogle received a federal sentence after pleading guilty to various child porn offense of 15 years and eight months, and on appeal Fogle asserted his sentence was unreasonable based on various alleged procedural and substantive errors. Oral argument on Fogle's appeal too place just a few weeks ago, and today this panel opinion affirmed the sentence given to Fogle and winds up this way:
Fogle attacks the district court’s overall reasoning in imposing his sentence. He characterizes the district court’s discussion as “puzzling” and claims that the various factors that the court relied upon cannot reasonably support an enhanced sentence. For instance, he alleges that an enhanced sentence is not warranted because he only engaged in “[o]ne single act” of distribution. He tries to downplay this conduct by claiming that it was a mere “technical” violation of the statute because he only showed the video to “one individual with whom [he] was then involved with romantically and it occurred in the confines of a locked hotel room.”
Fogle’s arguments regarding substantive error are unpersuasive in light of the deference “we must give … to the district court’s determination that the § 3553(a) factors, taken as a whole, justified the extent of the variance” from the guidelines range. Scott, 555 F.3d at 610. The district court provided a thorough explanation for its imposition of an above-guidelines sentence, which is all that was required. And contrary to Fogle’s allegation of double-counting, the district court properly invoked the § 3553(a) factors and explained why the aggravated nature and circumstances of Fogle’s offenses warranted a higher sentence for both counts. Specifically, the district court noted that Fogle knew that his employee was secretly videotaping minors yet never reported this to law enforcement, as well as the fact that Fogle repeatedly acted on his attraction to minors rather than limiting himself to fantasies. The court also discussed how Fogle’s lack of a difficult upbringing failed to mitigate the circumstances of his conviction, and how his celebrity status could be viewed as both a mitigating and aggravating factor.
In light of the district court’s sound exercise of discretion under the disturbing facts of this case, we uphold the aboveguidelines sentence as substantively reasonable.
Prior related posts:
- Subway pitchman and his "Jared Foundation" subject to serious child porn investigation
- What sort of child porn federal plea deal might be in works for Subway pitchman Jared Fogle?
- Even with plea deal, Subway pitchman Jared likely facing at least a decade in federal prison for sex offenses
- Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?
- Federal child porn downloaders complaining to judges about Jared Fogle's (too sweet?) plea deal
- Federal prosecutors seeking plea-deal max sentence of 12.5 years for Jared Fogle
- Jared Fogle given (above-guideline and above-prosecutor-recommend) sentence of 188 months in federal prison for sex offenses
- Does anyone think former Subway pitchman Jared Fogle has any real chance to have his long federal sentence reversed as unreasonable?
US Sentencing Commission provides notice of proposed 2017 priorities and requests comment
The US Sentencing Commission has now posted here a "notice to identify tentative priorities for the amendment cycle ending May 1, 2017." The notice lists a dozen tentative priorities, and here are what I consider highlight from the list:
(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c), and to develop appropriate guideline amendments in response to any related legislation.
(2) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.
(3) Continuation of its study of approaches to encourage use of alternatives to incarceration, including possible consideration of amending the Sentencing Table in Chapter 5, Part A to consolidate and/or expand Zones A, B, and C, and any other relevant provisions in the Guidelines Manual.
(4) Continuation of its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” “aggravated felony,” “violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal), possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate.
(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study....
(8) Study of the operation of Chapter Four, Part A of the Guidelines Manual, including (A) the feasibility and appropriateness of using the amount of time served by an offender, as opposed to the sentence imposed, for purposes of calculating criminal history under Chapter Four; and (B) the treatment of revocation sentences under §4A1.2(k)....
(12) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including possible consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.
The Commission hereby gives notice that it is seeking comment on these tentative priorities and on any other issues that interested persons believe the Commission should address during the amendment cycle ending May 1, 2017. To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority. [Public comment should be received by the Commission on or before July 25, 2016.]
SCOTUS overturns Pennsylvania death sentence because involved DA who became state justice did not recuse
A death row defendant in the Keystone State got a key win on a judicial bias claim from SCOTUS this morning in Williams v. Pennsylvania, No. 15-5040 (S. Ct. June 9, 2016) (available here). Justice Kennedy authored the opinion for the Court, while Chief Justice Roberts dissented in an opinion Justice Alito joined and Justice Thomas authored his own dissenting opinion. Here is how the Court's opinion gets started:
In this case, the Supreme Court of Pennsylvania vacated the decision of a postconviction court, which had granted relief to a prisoner convicted of first-degree murder and sentenced to death. One of the justices on the State Supreme Court had been the district attorney who gave his official approval to seek the death penalty in the prisoner’s case. The justice in question denied the prisoner’s motion for recusal and participated in the decision to deny relief. The question presented is whether the justice’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment.
This Court’s precedents set forth an objective standard that requires recusal when the likelihood of bias on the part of the judge “‘is too high to be constitutionally tolerable.’” Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Applying this standard, the Court concludes that due process compelled the justice’s recusal.
Win for defendant (and a loss for Puerto Rico, I suppose) in SCOTUS Double Jeopardy case
An interesting array of opinions resulted today from the Supreme Court in an interesting case coming from Puerto Rico addressing Double Jeopardy protections. Justice Kagan wrote the Court's opinion in Puerto Rico v. Sanchez Valle, No. 15-108 (S. Ct. June 9, 2016) (available here); Justices Ginsburg and Thomas both authored concurring opinions, and Justice Breyer (joined by Justice Sotomayor) authored the chief dissent. Here is how the opinion for the Court gets started:
The Double Jeopardy Clause of the Fifth Amendment prohibits more than one prosecution for the “same offence.” But under what is known as the dual-sovereignty doctrine, a single act gives rise to distinct offenses—and thus may subject a person to successive prosecutions — if it violates the laws of separate sovereigns. To determine whether two prosecuting authorities are different sovereigns for double jeopardy purposes, this Court asks a narrow, historically focused question. The inquiry does not turn, as the term “sovereignty” sometimes suggests, on the degree to which the second entity is autonomous from the first or sets its own political course. Rather, the issue is only whether the prosecutorial powers of the two jurisdictions have independent origins — or, said conversely, whether those powers derive from the same “ultimate source.” United States v. Wheeler, 435 U.S. 313, 320 (1978).
In this case, we must decide if, under that test, Puerto Rico and the United States may successively prosecute a single defendant for the same criminal conduct. We hold they may not, because the oldest roots of Puerto Rico’s power to prosecute lie in federal soil.
Justice Breyer's dissent starts by explaing that his "reasons for disagreeing with the majority are in part conceptual and in part historical."
Unpacking the (never-simplistic and never-certain) stories of state crimes and incarceration levels
This new Atlantic story, headlined "Crime Is Down, Sort Of: New stats on U.S. imprisonment rates suggest a complicated future for criminal-justice reform," provides a usefully nuanced account of this new Brennen Center report titled simply "Update: Changes in State Imprisonment Rates." Here first is what the Brennan Center sets up its report:
Today, there are 2.3 million people in the nation’s prisons and jails — a 500 percent increase over the last forty years. With almost one in 100 American adults behind bars, our incarceration rate is the world’s highest. This fact sheet provides an update to findings on state imprisonment trends originally outlined in The Reverse Mass Incarceration Act. It analyzes data from all 50 states on imprisonment and crime from 2006 (as bipartisan criminal justice reforms generally began around 2007) through 2014 (the most recent year of data).
Two overarching findings:
1. Many argue that increased incarceration is necessary to reduce crime. Yet the data shows the opposite. Over the last ten years, 27 states have decreased both crime and imprisonment. Not only is this trend possible, it’s played out in the majority of states. Nationally, imprisonment and crime have fallen together, 7 percent and 23 percent respectively since 2006. Crime continued its downward trend while incarceration also decreased.
2. In recent years, states in the South have seen some of the largest decreases in imprisonment. Yet, they also remain the largest incarcerators in the country. Mississippi reduced imprisonment by 10 percent but still has the nation’s 5th highest incarceration rate. Texas has reduced imprisonment by 15 percent yet still has the 7th highest imprisonment rate in the country.
And here is a snippet from the Atlantic's discussion of the report:
Many Americans might make a basic mathematical error in looking at the country’s criminal-justice system: They assume more people in jail or prison always equals less crime, and more crime necessarily calls for putting more people behind bars. Both conclusions are wrong. A new report from the Brennan Center for Justice provides some illuminating data on this point.
The report’s most fascinating finding is that imprisonment and overall crime rates were down 7 percent and 23 percent, respectively, from 2006 to 2014. “States will continue to decrease imprisonment slowly; we might perhaps see crime leveling out,” Chettiar said. “Criminologists say we have reached an all-time low in crime. I expect we’ll continue to see low crime and lowered imprisonment rates.”...
In the analysis, high achievers included Rhode Island, New Jersey, Hawaii, Nebraska, Connecticut, California, Colorado, and South Carolina. All saw double-digit drops in their rates of imprisonment per 100,000 residents. That does not necessarily indicate a dramatic drop in the actual number of people behind bars—an overall decrease in the rate at which a state imprisons people can result from many factors, including the release of current inmates, diversion efforts to keep those arrested out of jail, and the reclassification of low-level crimes that may let some offenders bypass custody....
In terms of overall crime, Vermont, Minnesota, Pennsylvania, North Carolina, Illinois, Maryland, and Louisiana reduced their rates most. Each saw a decrease of 30 percent or more in their crime rates per 100,000 residents. States such as New Hampshire, North Dakota, and South Dakota each saw big increases in their in crime rates, all 30 percent or higher.
As policymakers are paying increased attention to the shortcomings of the criminal-justice system and more citizens seem to accept the need for policy changes, these facts suggest reform will look very different in different states—and above all, it will be complicated.
NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
The Room for Debate section of the New York Times has this new set of notable commentaries discussing whether the judicial recall effort in the controversial Standford sexual assault sentencing case is a good idea. Here is the section's set up:
A California judge sentenced Brock Allen Turner to only six months in jail for raping an unconscious woman after a Stanford University fraternity party, despite her angry, eloquent, courtroom denunciation of the way she and other rape survivors are treated. In response, a petition was started to hold a recall election to throw him off the bench.
But should judges be subject to recall because of an unpopular sentence or would that impede their independence?
Here are the contributions, with links via the commentary titles:
"Judicial Recall Will Inevitably Lead to Harsher Sentences" by Paul Butler
"Recall Is Warranted for an Indecent Sentence" by William G. Otis
"If You Want Independent Judges, Don’t Elect Them" by Tracey L. Meares
"Judicial Recall Can Be Appropriate" by Kevin Cole
June 8, 2016
"Salience and the Severity Versus the Certainty of Punishment"
The title of this post is the title of this notable new essay authored by Murat Mungan now available via SSRN. Here is the abstract:
The certainty aversion presumption (CAP) in the economics of law enforcement literature asserts that criminals are more responsive to increases in the certainty rather than the severity of punishment. In simple economic models, this presumption implies that criminals must be risk-seeking. Some scholars claim that this and similar anomalous implications are caused by the exclusion of various behavioral considerations in theoretical analyses.
This article investigates whether a model in which criminals over-weigh probabilities attached to more salient outcomes (as in Bordalo et al. (2012) and (2013)) performs better than the simple expected utility theory model in explaining CAP-consistent-behavior. The analysis reveals that the answer is negative unless the probability of punishment is unreasonably high. This finding suggests that we should exercise caution in incorporating salience -- a la Bordalo et al.-- in simple law enforcement models.
Sixth Circuit on the drug war, immigrant crime, ineffective assistance, jury nullification, Alexander Hamilton and a circuit split all in seven pages
Long-time readers likely realize I do not cover federal circuit court rulings in this space nearly as much as I did in the early days after Blakely and Booker, largely because many of the federal sentencing issues that now occupy circuit have become of late much more settled (or, at times, just much more borring). But a great little new Sixth Circuit panel ruling today in Lee v. US, No. 14-5369 (6th Cir. June 8, 2016) (available here), reminded me of why I still make a regular habit of, and can sometime be greatly rewarded by, taking the time to see what the circuit courts are saying in criminal appeals. As the title of this post highlights, there is a lot of "there there" in the short panel opinion in Lee, and I hope these snippets (with some cites omitted) will encourage everyone to check out the full opinion:
The case against him was very strong. A government witness was prepared to testify that he had purchased ecstasy from Lee on a number of occasions, dozens of pills were discovered during a lawful search of Lee’s home, and Lee himself admitted not only that he had possessed ecstasy, but also that he had distributed the drug to his friends. In light of this, Lee’s trial attorney advised him to plead guilty in exchange for a lighter sentence.
Here’s the wrinkle: even though he has lived in the United States for decades, Lee, unlike his parents, never became an American citizen, and though he did eventually plead guilty, he did so only after his lawyer assured him that he would not be subject to deportation — “removal,” in the argot of contemporary immigration law. This advice was wrong: possession of ecstasy with intent to distribute is an “aggravated felony,” rendering Lee deportable. Lee understandably does not want to be deported, and he filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, contending that he received ineffective assistance of counsel....
[T]he district court’s conclusion that the evidence of guilt was “overwhelming” is not clearly erroneous, and deportation would have followed just as readily from a jury conviction as from a guilty plea. Thus, aside from the off chance of jury nullification or the like, Lee stood to gain nothing from going to trial but more prison time. On the other hand, for those such as Lee who have made this country their home for decades, deportation is a very severe consequence, “the equivalent of banishment or exile,” as the Supreme Court memorably put it. As a factual matter, we do not doubt Lee’s contention that many defendants in his position, had they received accurate advice from counsel, would have decided to risk a longer prison sentence in order to take their chances at trial, slim though they were.
But would such a decision be “rational”? Several courts, including this circuit, have said “no”: being denied the chance to throw “a Hail Mary” at trial does not by itself amount to prejudice.... Others have reached the opposite conclusion.... We have no ability, of course, as a panel, to change camps. A nd in that sense, this is a straightforward case. In Pilla we held that no rational defendant charged with a deportable offense and facing “overwhelming evidence” of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence. Lee finds himself in precisely this position, and he must therefore lose. But given the growing circuit split (which, as best we can tell, has gone unacknowledged), we think it worthwhile to explain why we are convinced that our approach is the right one and to set out the role that we believe deportation consequences should play in evaluating prejudice under Strickland.
We begin, however, by giving the other side its due. As the Seventh Circuit noted in DeBartolo, strong evidence of guilt does not strip a defendant of his right to a jury trial, nor does it guarantee a guilty verdict. The second point is especially true for defendants such as Lee, since it is well documented that many jurors are willing to acquit those charged with a first-time, non-violent drug offense, despite evidence of guilt. See id. (quoting Lawrence D. Bobo & Victor Thompson, Racialized Mass Incarceration: Poverty, Prejudice, and Punishment, in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds., 2010)).
This possibility, at least according to many of this nation’s founders, is not a defect, but a feature of the jury system. See, e.g., 2 John Adams, The Works of John Adams 254–55 (1850) (“It is not only [the juror’s] right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (Diary Entry, February 12, 1771)). Indeed, the unreviewable power of juries to acquit, despite strong evidence of guilt, was perhaps the central reason why the right to a jury trial in criminal cases was enshrined in the Constitution. See Rachel E. Barkow, Criminal Trials, in The Heritage Guide to the Constitution 340, 340–41 (David F. Forte & Matthew Spalding, eds. 2nd ed. 2014). For the framers and ratifiers, the memory of how King George III had prevented colonial juries from nullifying unpopular English laws by “expand[ing] the jurisdiction of nonjury courts” was still fresh. Id. at 340. And one of the grievances listed in the Declaration of Independence was that the King had “depriv[ed] us in many cases, of the benefits of Trial by Jury.” Declaration of Independence para. 20 (U.S. 1776). It is thus not surprising that nearly all commentators active during the time of the founding favored the inclusion in the new Constitution of the right to a jury trial. See, e.g., The Federalist No. 83, at 432–33 (Alexander Hamilton) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001) (“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.”).
Florida Supreme Court grapples with post-Hurst hydra and state's new capital punishment procedures
As reported in this local article, headlined "Justices Try To Sort Out Death Penalty Law," the top judges in the Sunshine State yesterday heard oral argument in a case that requires them to find some clarity in the dark uncertainty concerning the constitutional requirements for death sentencing in the wake of the Supreme Court's Hurst ruling. Here are the details:
The Florida Supreme Court on Tuesday heard arguments in a case focused on whether the state’s new death penalty law is constitutional, and, if so, whether it applies to cases already in the pipeline when the law passed in March.
Tuesday’s hearing was the latest in the court’s months-long scrutiny prompted by a U.S. Supreme Court decision in January that struck down Florida’s death-penalty sentencing process because it unconstitutionally gave too much power to judges, instead of juries.
But the arguments Tuesday in the case of Larry Darnell Perry, who was convicted in the 2013 murder of his infant son, did little to clear up the murky situation surrounding the January ruling, in a case known as Hurst v. Florida, or the new law, hurriedly crafted by lawmakers and signed by Gov. Rick Scott in response to the decision.
“Clearly at this stage in our jurisprudence, we want to make sure that the statute is construed in a constitutional manner so that we don’t have another 15 years of death penalty — if the state wants the death penalty, which apparently it does — in flux,” Justice Barbara Pariente said.
Under Florida’s old law, jurors by a simple majority could recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed. That system was an unconstitutional violation of the Sixth Amendment right to trial by jury, the U.S. Supreme Court decided in an 8-1 ruling.
Florida’s new law requires juries to unanimously determine “the existence of at least one aggravating factor” before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed.
Of nearly three dozen states that have the death penalty, Florida is one of just three — including Alabama and Delaware — that do not require unanimous recommendations for a sentence of death. The lack of a unanimous recommendation — a flashpoint for lawmakers, prosecutors and defense lawyers during debate on the new law — was the focus of much of Tuesday’s hearing in the Perry case.
Because Florida’s Constitution requires that jury verdicts be unanimous for convictions, defense lawyers have argued that the death penalty should require a unanimous jury recommendation. Prosecutors, including Attorney General Pam Bondi’s office, disagree.
Chief Justice Jorge Labarga honed in on the issue Tuesday morning. “As you know, 32 states in our country have the death penalty. There are three states who are outliers in this country, Alabama, Delaware and Florida that only require something less than unanimous. … What is the history of Florida in requiring a unanimous verdict?” Labarga asked Martin McClain, a lawyer who has represented more than 250 defendants condemned to death and who made arguments Tuesday as a “friend of the court.” “It’s always been that way in Florida. Since before it was a state, Florida required unanimity in criminal cases for convictions,” McClain replied.
Since the Jan. 12 Hurst ruling, Florida’s high court indefinitely put on hold two executions and heard arguments in more than a dozen death penalty cases, repeatedly asking lawyers on both sides about the impact of the U.S. Supreme Court decision. The Florida court has yet to rule on whether the Hurst decision should be applied retroactively to all, or even some, of Florida’s 390 Death Row inmates.
Perry’s case, meanwhile, hinges on whether the new law should apply to defendants whose prosecutions were underway when the new law went into effect. While Perry’s lawyer, J. Edwin Mills, argued that the new law should not apply in his client’s case, other defense lawyers are split on the issue. Mills contends his client should receive a life sentence.
Adding more pressure to the justices — who spend much of their time considering appeals in capital cases — lower courts have delayed hearings or decisions in death penalty cases while waiting for Florida Supreme Court to rule, both on the impact of the Hurst decision and on the Perry case. “Until we get moving forward again, and get a determination from this court as to what Hurst actually means, everything is just sort of up in the air, which is not a good solution for anybody,” Assistant Attorney General Carol Dittmar told the justices Tuesday.
"My brain made me do it: will neuroscience change the way we punish criminals?"
The title of this post comes from the headline of this recent interesting press piece from Australia that a helful reader sent my way. The piece does a nice job talking through in simple term the possible relationship between theories of punishment and modern neuroscience. Here are excerpts:
Australian law may be on the cusp of a brain-based revolution that will reshape the way we deal with criminals. Some researchers, such as neuroscientist David Eagleman, have argued that neuroscience should radically change our practices of punishment. According to Eagleman, the courts should give up on the notion of punishment altogether and instead focus on managing criminals and containing their behaviour in order to keep the rest of us safe.
Is this a good idea? And is this how Australian judges are responding to our increasing knowledge of the neurobiological bases of behaviour?...
[S]ome academics, such as American psychologists Joshua Greene and Jonathan Cohen, have argued that consequentialist considerations will be all that is left after neuroscience revolutionises criminal law. Punishment as retribution will be consigned to history.
According to Greene and Cohen, retributivism relies on the notion that people have free will. They say the advance of neuroscience will cure us of that notion by opening the black box of the mind and revealing the mechanistic processes that cause all human behaviour. Once these causes are revealed, we will give up the idea that people are responsible for their bad actions.
We will start to think that a criminal’s frontal lobe impairment caused him to lash out, for instance, and focus on how we can prevent this happening again, rather than thinking they chose to punch their victim and thus they deserve punishment. According to Greene and Cohen, this will make crime reduction the only goal. If they are right, punishment practices will move in the direction advocated by Eagleman.
Greene and Cohen made their argument about the demise of retributivism ten years ago. In light of their predictive claims, it is interesting to examine how the legal system is actually responding to the increasing use of neuroscientific evidence. We can get an idea of what is happening in Australia from cases in the Australian Neurolaw Database, which was launched in December 2015. The database is a joint project between Macquarie University and the University of Sydney, and includes both Australian civil and criminal cases that employed evidence derived from neuroscience.
Interestingly, the sentencing cases in the database do not suggest retributive justice is being abandoned when the court is confronted with evidence of impairment to an offender’s brain. Where used in sentencing, neuroscience evidence is often put forward in relation to assessment of the moral culpability of the offender. It is thus used to help determine how much punishment an offender deserves.
This is very different to suggesting moral culpability ceases to be a relevant consideration in the determination of punishment, or that courts should pay no regard to questions of desert. It presupposes that questions about appropriate punishment are important ones to answer correctly.
One example of the way Australian courts regard evidence derived from neuroscience is in the sentencing of Jordan Furlan in 2014. In sentencing 49-year-old Furlan for a violent incident involving a 76-year-old victim, Justice Croucher considered the impact of evidence of a brain injury some years prior to the offence, on Furlan’s moral culpability. Justifying a sentence of three years and six months, the judge said the offender’s “moral culpability was reduced, but only to a moderate degree because his judgment was impaired as a result of his acquired brain injury". The judge went on to say that just punishment was an important factor (among others) in crafting the sentence....
We cannot be sure how neuroscience will affect the law in future. Indeed, there may even be a backlash against this form of evidence. What can be said is that ... Australian judges still consider moral culpability, even in the face of neuroscientific evidence of impaired mechanisms. They do not move to purely consequentialist considerations. This means retributivism is still alive and well, and just punishment still matters to Australian courts. So, at least for now, the impact of neuroscience is not revolutionary.
June 7, 2016
Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
The discussion of last week's lenient sentencing of a former Stanford University student convicted of multiple counts of sexual assault (basics here) has continued to generate notable mainstream and new media stories. Here is a round up of reads some of the latest reads that I found interesting:
Via BuzzFeed here, "Stanford Community Asked Judge To Give More Severe Sentence For Sex Assault"
Via the Los Angeles Times here, "Stanford rape sentence unusually light, legal experts say"
From the New York Times here, "The Judge in the Stanford Rape Case Is Being Threatened. Who Is He?"
From Bill Otis at Crime & Consequences here, "Collective Guilt a/k/a White Males Stink"
From Paul Cassell at The Volokh Conspiracy here, "What sentence should the former Stanford swimmer have gotten?"
From Scott Greenfiled at Simple Justice here, "Brock Turner’s Too Good Friend"
From Shuan King at the New York Daily News here, "Brock Turner and Cory Batey, two college athletes who raped unconscious women, show how race and privilege affect sentences"
I also thought worth reprinting was this comment from "Joe R" deep into the comment thread of my last post about this controversial case:
Dude will be on the sex offender registry for life with a violent felony. His life is essentially over. As countless sex offenders have demonstrated with their actions by committing suicide, life in America on the registry is a fate often worse than death.
Rest assured all of you expressing outrage, this kid's life is over, and he has little to no prospect of an enjoyable fulfilling life. He is being severely punished, and hasn't gotten away with anything.
"The Eighth Amendment's Lost Jurors: Death Qualification and Evolving Standards of Decency"
The title of this post is the title of this notable new article authored by Aliza Plener Cover now available via SSRN. Here is the abstract:
The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty. While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts. This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.
This paper presents the first quantitative study of Witherspoon strikes in real capital cases, measuring the strike rate in eleven Louisiana trials resulting in death verdicts from 2009 to 2013. Of the 1,445 potential jurors questioned, 325 individuals (22.5%) were excluded from service on the basis of their opposition to the death penalty. These exclusions had a considerable impact on the racial composition of the jury pool: In the trials for which individualized data on race was available, one-third of black venire members were struck under Witherspoon, and nearly 60% of those struck on this basis were black. These findings underscore the profound impact of death qualification upon the composition of capital juries and the outcomes of capital trials. Particularly in the wake of Justice Breyer’s recent call for reconsideration of the death penalty’s constitutionality, there is an urgent need for (a) systematized, ongoing data collection on Witherspoon strikes, and (b) formal consideration of the effect of death qualification in future Eighth Amendment analysis.
Minnesota survey suggests marijuana reform can help with opioid issues ... and other recent highlights from Marijuana Law, Policy & Reform
Anyone interested and concerned about the so-called "war on drugs" or the relationship between criminal justice reform and public health has to be concerned these days with the national opioid problems. And one of many reasons I am a supporter of state experiements with various forms of marijuana reform is my hope that such reforms might be one of many ways to try to address opioid problems. Consequently, I was very intrigued to see the details of a lengthy report on a survey done by the Minnesota Department of Health (here in full) showing that a number of health care practitioners reported that some medical patients were able to decrease their use of prescription opioids. I report on this report in the first of the links below providing recent highlights from my Marijuana Law, Policy & Reform blog:
New York Times editorial calls for "federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights"
This new New York Times editorial, headlined "To Stop Bad Prosecutors, Call the Feds," call for improving state criminal justice systems by having more federal oversight of those system. Here is the full editorial, concerning which I am eager to hear reactions:
Prosecutors are the most powerful players in the American criminal justice system. Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences. So why is it so hard to keep them from breaking the law or violating the Constitution?
The short answer is that they are almost never held accountable for misconduct, even when it results in wrongful convictions. It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights. There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct.
Among the most serious prosecutorial violations is the withholding of evidence that could help a defendant prove his or her innocence or get a reduced sentence — a practice so widespread that one federal judge called it an “epidemic.” Under the 1963 landmark Supreme Court case Brady v. Maryland, prosecutors are required to turn over any exculpatory evidence to a defendant that could materially affect a verdict or sentence. Yet in many district attorneys’ offices, the Brady rule is considered nothing more than a suggestion, with prosecutors routinely holding back such evidence to win their cases.
Nowhere is this situation worse than in Louisiana, where prosecutors seem to believe they are unconstrained by the Constitution. This month, the Supreme Court will consider the latest challenge to prosecutorial misconduct in Louisiana in the case of David Brown, who was one of five men charged in the 1999 murder of a prison guard. Mr. Brown said he did not commit the murder, but he was convicted and sentenced to death anyway. Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men — and only those men — in the murder. This is about as blatant a Brady violation as can be found, and the judge who presided over Mr. Brown’s trial agreed, throwing out his death penalty and ordering a new sentencing. But the Louisiana Supreme Court reversed that decision, ruling that the new evidence would not have made a difference in the jury’s sentence.
David Brown’s case is a good example of how every part of the justice system bears some responsibility for not fighting prosecutorial misconduct. State courts often fail to hold prosecutors accountable, even when their wrongdoing is clear. Professional ethics boards rarely discipline them. And individual prosecutors are protected from civil lawsuits, while criminal punishment is virtually unheard of. Money damages levied against a prosecutor’s office could deter some misconduct, but the Supreme Court has made it extremely difficult for wrongfully convicted citizens to win such claims.
This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives. The Justice Department is already authorized to do this by a 1994 federal law prohibiting any “pattern or practice of conduct by law enforcement officers” that deprives a person of legal or constitutional rights.
The department has used this power to monitor police departments in Los Angeles, New Orleans, Detroit and Seattle, among other municipalities with a history of brutality, wrongful arrests, shootings of unarmed civilians and other illegal or unconstitutional practices. For the most part, the results have been positive. Since prosecutors are also “law enforcement officers,” there is no reason they and their offices should be immune from federal oversight.
Of course, many district attorneys’ offices will balk at being put under a federal microscope. But nothing else has worked to prevent misconduct by prosecutors, and the Justice Department is uniquely equipped to ferret out the worst actors and expose their repeated disregard for the law and the Constitution.
Because I do not closely follow local police practices or federal oversight of local police departments, I am not in a position to question (or concur with) the editorial's assertion that "for the most part, the results have been positive" from DOJ's monitoring of some big-city police departments. But even if DOJ has been generally successful at supervising problematic police practices, I am not certain that this means that it could or would be successful at supervising problematic prosecutorial practices. At the same time, there is good reason to be concerned that, at least in some local jurisdictions, it does seem that "nothing else has worked to prevent misconduct by prosecutors."
Personally, I would generally favor a "sunlight is the best disenfectant" approach to dealing with forms of significant lawyer misconduct: how about the feds calling for states to maintain public on-line registries of all public lawyers (both prosecutors and defense attorneys) who clearly have been found guilty of unconstitutional/unethical behavior. I suspect all criminal lawyers now know just how troublesome it can be to have an "on-line record," and so maybe the threat of such a record of misconduct will help deter such behavior in the first instance.
Is SCOTUS essentially telling Alabama its capital punishment process in unconstitutional through Hurst GVRs?
The question in the title of this post is prompted by this notable new local article headlined "For third time in 5 weeks, Supreme Court tells Alabama to reconsider death row case." Here are excerpts:
For the third time in five weeks, the U.S. Supreme Court has told an Alabama appeals court to reconsider an Alabama death row inmate's appeal in light of the Supreme Court's ruling earlier this year striking down Florida's capital punishment scheme.
Two Alabama attorneys said Monday that the moves by the high court indicate justices may be looking at striking down Alabama's death sentencing scheme as unconstitutional. "Personally, I think its crystal clear the Supreme Court has real concerns about the constitutionality of our current death penalty and is clearly putting us on notice of that fact," said Birmingham attorney John Lentine.
Bryan Stevenson, executive director and founder of the Equal Justice Initiative in Montgomery, also stated in an email to AL.com on Monday that "we believe it's now very clear that the U.S. Supreme Court recognizes that Alabama's death penalty scheme is called into question following the Court's ruling in Hurst v. Florida earlier this year. There have been serious flaws in Alabama's process of imposing the death penalty for several years and state courts are going to have to now confront these problems."
The U.S. Supreme Court on Monday remanded the case of Alabama Death Row inmate Ronnie Kirksey back to the Alabama Court of Criminal Appeals for reconsideration of his appeal in light of the Hurst v. Florida decision in January. The U.S. Supreme Court last month had also ordered the Alabama Court of Criminal Appeals to reconsider its decision in the appeals of Corey Wimbley and Bart Johnson in light of the Florida case....
At issue with Alabama's death penalty scheme is that Alabama permits judges to override a jury's recommendation for a life sentence and impose death. Alabama was one of only three states that allowed such an override. The others were Florida and Delaware. Legislators in Florida's legislature re-wrote its capital punishment sentencing law this spring.
Jefferson County Circuit Judge Tracie Todd in March ruled in four of her capital murder cases that Alabama's capital punishment sentencing scheme is unconstitutional based on the Hurst case. The Alabama Attorney General's Office has appealed Todd's ruling. The decision was spurred by the U.S. Supreme Court's ruling in January that Florida's sentencing scheme allowing judges to override juries in death penalty cases is unconstitutional. Alabama has a similar sentencing scheme.
A number of attorneys around the state have challenged on behalf of their clients the constitutionality of Alabama's capital murder sentencing scheme based on the Florida ruling. All but Todd, however, denied those requests. District attorneys and Alabama Attorney General Luther Strange have said Alabama's law is not the same as Florida's.
First, Alabama's sentencing scheme was ruled constitutional in 1995 by the U.S. Supreme Court, state prosecutors say. They also have pointed out that the high court held in the Florida case that a jury must find the aggravating factor in order to make someone eligible for the death penalty. Alabama's system already requires the jury to do just that, according to an Alabama Attorney General's statement.
A few prior related posts:
- Post-Hurst hydra heads emerging in Alabama
- Post-Hurst hydra take big bite into some capital cases in Alabama
GOP Rep Labrador predicts "we’re going to see some of the greatest reforms in a generation" emerging from Congress
Someone should be collecting all the big talk we have heard from elected officials and pundits about the ground-breaking criminal justice reforms that are purportedly soon to happen in Congress (and, so far, just never quite seem to happen). As noted in this prior post, at least one notable commentatory was saying in summer 2013 that "momentum for sentencing reform could be unstoppable." Three years later, as reported in this local article discussing comments at a sentencing reform symposium, one notable member of Congress is still talking about momentum continuing to build:
Idaho GOP Rep. Raul Labrador says momentum is building in Congress for major criminal justice reforms aimed at reversing decades of focus on long prison terms that hit even nonviolent and first-time offenders. “I believe that we’re going to see some of the greatest reforms in a generation,” Labrador told a criminal justice reform conference at Concordia University School of Law in Boise on Monday. “Momentum is building for reform. This Congress alone, I’ve already met with President Obama twice. … This is actually one area that I think I can work with the president.”
Labrador, a Republican and tea party favorite, last year co-sponsored major, bipartisan reform legislation, but it didn’t advance. This year, a less ambitious bill is pending in both houses that includes some of the same provisions, including giving judges more discretion on whether to impose mandatory minimum sentences. “We only have 5 percent of the world’s population in the United States, and the U.S. is home to 25 percent of the world’s prison population,” Labrador said. “We should not be proud of that.”
That bill and several others have cleared the House Judiciary Committee, Labrador said, “and House Speaker Paul Ryan has expressed his support for the movement and has promised me to bring a reform package to the floor for a vote this year.”
It hasn’t happened yet, and Labrador acknowledged that hopes are fading as more of the year passes by. “It’s a little bit watered down,” he said. “They had to look at the political reality, what can pass in the Senate and the House.”
Still, he pledged to continue to push the issue, one that Labrador, an immigration and criminal defense attorney, said he started work on as soon as he arrived in Congress.
Here are some more quotes of note that emerged from this Concordia University School of Law sentencing conference:
“Eighty percent of federal drug prisoners have no history of violence, and more than 25 percent have no criminal history at all,” said Alex Kreit, professor at the Thomas Jefferson School of Law in San Diego and an expert and textbook author on controlled substances and marijuana regulation. “This, in a nutshell, is what is driving interest in federal drug sentencing reform.” Half of the federal prison population consists of drug offenders, Kreit said, though they comprise only a quarter of those admitted each year. “Part of that is the lengthy drug sentences that we have.”
Though some reforms have happened, notably congressional action in 2010 to reduce the disparity between crack cocaine and powdered cocaine sentences, federal drug sentencing laws remain largely unchanged. “I think there are a lot of people coalescing around the idea that what we have been doing hasn’t worked in the way we wanted it to work, said Wendy Olson, U.S. Attorney for Idaho. “I think all of us in criminal justice have an obligation to look at that.”
U.S. District Judge B. Lynn Winmill said his 28 years on the bench have shown him that the war on drugs has been “an abysmal failure – we certainly have not reduced drug consumption. Whatever has happened, it has not been worth the price that we have paid.”
He said its casualties have largely been low-level drug offenders who were associated with large quantities of drugs – couriers, truck drivers, addicts hired to unload trucks. “Kingpins are almost immune, in the same way that generals and commanders in chief are typically immune during wars,” Winmill said, “and if they are brought down, what happens is that they’re immediately replaced.”
Plus, though African-Americans and Hispanics use drugs at about the same rate as the general population, Winmill said, “The incarceration rate for African-Americans and Hispanics is off the charts. Now, is that implicit bias? Is it overt bias? Is it a result of a policy from Congress that reflects bias? I don’t know. But I think it certainly is something we need to think long and hard about.”
June 6, 2016
Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it. This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:
A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.
The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.
The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.
The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.
She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....
If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.
In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent. He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics. “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote. “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”
The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation. In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”
The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.
Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one. The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.
Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:
As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too. (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing). What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.
I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient. If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea.
June 6, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)
US Sentencing Commission posts big new report authored by its Tribal Issues Advisory Group
I received via email today a US Sentencing Commission notice about these notable new tribal sentencing activities:
Today, the Commission’s Tribal Issues Advisory Group (TIAG) released its final report addressing federal sentencing issues related to American Indian defendants and victims and to offenses committed in Indian Country.
The Commission has scheduled a public hearing for July 21, 2016 to receive testimony from members of the TIAG on this report. The TIAG will present its findings and subsequent recommendations for amending the federal sentencing guidelines.
The full TIAG report runs more than 100 pages, but it starts with this helpful, brief and interesting executive summary:
The Tribal Issues Advisory Group (“the TIAG”) makes several recommendations to the United States Sentencing Commission (“the Commission”) for revisions and additions to the Sentencing Guidelines (“the Guidelines”), for tribal consultation, and for other changes. The TIAG suggests that the following revisions be made to the Guidelines:
(1) Adding an application note and commentary to USSG §4A1.3 to guide when tribal court convictions may be considered for a possible upward departure in the defendant’s criminal history category;
(2) Including in USSG §1B1.1 a definition of “court protection order;”
(3) Amending USSG §5H1.1 regarding the “age” policy statement; and
(4) Adding a departure concerning juvenile and youthful offenders as USSG §5K2.25.
The TIAG recommends that the Commission adopt certain policy changes including:
(1) Establishing a standing advisory group on tribal issues to assist the Commission on changes to the Guidelines impacting American Indian defendants, to advise on and assist in tribal consultation, and to form the basis for a new TIAG when appropriate;
(2) Creating a process for the collection of better data on federal court sentencing to allow for study of the protection order provisions of the Guidelines and analysis of sentencing disparity concerns as detailed herein; and
(3) Considering the recommendations of other working groups regarding juvenile offenders, including possibly collapsing sentencing zones A, B, and C into a single zone.
The TIAG also recommends that the Commission support changes in federal law and practice including:
(1) Congressional action that incentivizes states and requires appropriate federal agencies to collect data on state court sentencing of defendants generally and Native American defendants in particular so that better data exists to analyze whether and where there truly are sentencing disparities;
(2) Increased use of pretrial diversion agreements by United States Attorneys’ offices;
(3) Increased use by law enforcement in Indian country of misdemeanor statements of charges and Central Violations Bureau misdemeanor citations to non-Indians in Indian country;
(4) Better training of federal employees who work in Indian country about Native American history and culture; and
(5) Revisions to the Juvenile Delinquency Act, 18 U.S.C. § 5032, to require federal consultation with tribes in certain juvenile case prosecutions.
This Report provides the basis for and an explanation of these and other recommendations.
SCOTUS talks through PLRA's exhaustion requirement
The only criminal justice opinion handed down by the Supreme Court this morning concerned the application of the Prison Litigation Reform Act in Ross v. Blake, No. No. 15–339 (S. Ct. June 6, 2016) (available here). Justice Kagan wrote the opinion for the unanimous Court in Ross, which gets started this way:
The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust “such administrative remedies as are available” before bringing suit to challenge prison conditions. 42 U. S. C. §1997e(a). The court below adopted an unwritten “special circumstances” exception to that provision, permitting some prisoners to pursue litigation even when they have failed to exhaust available administrative remedies. Today, we reject that freewheeling approach to exhaustion as inconsistent with the PLRA. But we also underscore that statute’s built-in exception to the exhaustion requirement: A prisoner need not exhaust remedies if they are not “available.” The briefs and other submissions filed in this case suggest the possibility that the aggrieved inmate lacked an available administrative remedy. That issue remains open for consideration on remand, in light of the principles stated below.
Because this is obviously a "modest" opinion (as was the other civil ruling SCOTUS released today), I suspect the SCOTUS press will be buzzing mostly about Texas capital case grants noted in this prior post.
SCOTUS grants cert two notable Texas capital cases
Those eager to see SCOTUS continue to question the operation of the death penalty in the US have some news to celebrate from the court via this new order list: the Justices this morning granted certain two capital cases from Texas, Moore v. Texas and Buck v. Stephens. Over at SCOTUSblog, Amy Howe has already provided this quick response to a question as to whether these Cases are notable:
They are both reasonably interesting. Moore v. Texas includes both a question about the standard for determining whether an inmate is intellectually disabled and the question whether executing an inmate after a long stay on death row violates the Eighth Amendment's prohibition on cruel and unusual punishment.
The Buck case is about an expert witness for the defense (!) testifying that Buck was likely to be more dangerous and thus more a candidate for death sentence because he is black.
In other words, high-salience issues concerning race, mental disabilities and delays before execution are all before the Court in these cases. Among other likely echo effects from these grants, I suspect this means there will be lots and lots of (mostly abolitionist) commentary about these cases in the weeks and months to come, and also that hearings for the next SCOTUS nominee (whenever they might occur) will include some significant focus on the constitutionality of capital punishment.
UPDATE: This revised version of the SCOTUS order list indicates that in Moore the Justices will only be considering the way Texas handles application of its Atkins intellectual disability limit on who can be eligible for the death penalty. Still, as this SCOTUSblog post by Lyle Denniston details, these two cases will still provide plenty of grist for the capital case controversy mill.
June 5, 2016
"Deadly Statistics: Quantifying an 'Unacceptable Risk' in Capital Punishment"
The title of this post is the title of this notable new article by David Kaye now available via SSRN. Here is the abstract:
In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment ban on cruel and unusual punishment precludes capital punishment for intellectually disabled offenders. Death-penalty states responded with laws defining intellectual disability in various ways. In Hall v. Florida, the Court narrowly struck down the use of a measured IQ of 70 to mark the upper limit of intellectual disability because it created “an unacceptable risk that persons with intellectual disability will be executed.” But the Court was unclear if not inconsistent in its description of an upper limit that would be acceptable. Four dissenting Justices accused the majority not only of misconstruing the Eighth Amendment, but also of misunderstanding elementary statistics and psychometrics.
This article uses more complete statistical reasoning to explicate the Court’s concept of unacceptable risk. It describes better ways to control the risk of error than the Court’s confidence intervals, and it argues that, to the extent that the Eighth Amendment allows any quantitative cut score in determining an offender’s intellectual disability, these more technically appropriate methods are constitutionally permissible.
Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant's challenge to the use of a risk assessment tool in the state's sentencing process. The article's full headline notes the essentials: "Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments." And here is more from the body of the article:
Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin. The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing. The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.
Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.
Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders. They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.
Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs. The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?” Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.
Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision. “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.
Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools. Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.
Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women. COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.
The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”
June 5, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)
Might SCOTUS soon (finally!) take up the constitutionality of solitary confinement?
Way back in March 2009, I asked via this post "Why isn't there more constitutional litigation over the 'hellhole' that is extended solitary confinement?". And last year, as noted this post, Justice Anthony Kennedy essentially asked the same question via a remarkable (off-point) concurrence in the SCOTUS ruling in Davis v. Ayala. Consequently, I was intrigued to see this new Mother Jones article headlined "The Supreme Court Might Finally Take On Solitary Confinement: The court could announce Monday whether it will consider the long-term solitary confinement of a death row inmate." Here is how the piece gets started:
Bobby Moore has been on death row in Texas for more than 35 years, for a murder he committed in 1980 at the age of 20. He's come close to dying twice; once, he was hours away from execution before a court intervened. For the past 15 years, he's been in solitary confinement nearly 23 hours a day, unable to interact with other inmates, in a type of cell described in legal filings as "virtual incubators of psychoses."
The Supreme Court is now considering Moore's claim that his solitary incarceration and the long delay between his conviction and execution are violations of the Eighth Amendment's ban on cruel and unusual punishment. Moore's petition has been pending for nearly a month, but a decision on whether the Supreme Court will hear it could come on Monday. If the court takes up the case, its ruling could have profound implications for the nation's nearly 3,000 death row inmates, who are often confined to solitary cells and await execution for an average of more than 15 years. If Moore wins, not only could he get off death row, but many inmates in his position could follow.
The high court has repeatedly refused to hear cases challenging an excessive delay of an execution as unconstitutional, and it's never directly confronted solitary confinement on death row. But there are signs that the justices are seriously considering Moore's case. The court grants only about 70 petitions a year, out of 9,000 filings, so most cases are dismissed quickly. But it has relisted Moore's case for its weekly review conference three times, an unusual move.
Some of the court's liberal justices have spoken out about long solitary stays on death row for a long time. Justice John Paul Stevens, who retired in 2010, was a notable advocate for the position that extended incarceration for capital offenders was a clear constitutional violation, one he first embraced more than 20 years ago. Stevens gained an ally in Justice Stephen Breyer, who wrote in 1999, "It is difficult to deny the suffering inherent in a prolonged wait for execution." Breyer cited these long waits in a lengthy dissent last year, in which he declared his view that capital punishment in any form is unconstitutional — a dissent joined by Justice Ruth Bader Ginsburg. Last month, he objected to the court's refusal to take up a California death row case raising the issue, arguing that "unconscionably long delays...undermine the death penalty’s penological purpose."
The conservative justices, though, have been less sympathetic — that is, until 2014, when almost out of the blue, Anthony Kennedy, a Ronald Reagan appointee and the court's frequent swing vote, expressed concern about solitary confinement during oral arguments in a case. He has since shown more signs that he could eventually be a decisive vote in forcing the court to confront the issue at last.
For various reasons, I would like to see the Supreme Court take up the constitutionality of extended solitary confinement in a non-capital case. But, obviously, that has not happened yet so I suppose my perspective now is that taking up the issue in a capital case is good enough for SCOTUS work.
Some of many prior related posts:
- Why isn't there more constitutional litigation over the "hellhole" that is extended solitary confinement?
- Justices Kennedy and Breyer urge Congress to reform "broken" federal criminal justice system
- "Justice Kennedy practically invites a challenge to solitary confinement"
- Justice Anthony Kennedy condemns extreme US punishments as "ongoing injustice of great proportions"
- "Why we must rethink solitary confinement"
- Is a capital case the right kind of vehicle for SCOTUS to consider solitary confinement?