October 15, 2016
Federal inmate refuses Prez Obama's commutation
This USA Today article, headlined "Obama grants clemency to inmate — but inmate refuses," reports on a notable response by one federal inmate to receiving clemency. Here are the interesting details and some historical context:
When President Obama announced a program to grant executive clemency to drug offenders given long mandatory sentences, Arnold Ray Jones did what more than 29,000 federal inmates have done: He asked Obama for a presidential commutation. And then, after it arrived on Aug. 3, he refused to accept it.
Jones’ turnabout highlights the strings that come attached to an increasing number of Obama’s commutations: In this case, enrollment in a residential drug treatment program — which has been a condition of 92 of Obama commutation grants. Jones is the first to refuse that condition.
If Jones had agreed to complete the the program, he would be out in two years. He still has six years left on his original 2002 sentence for drug trafficking, but Jones may be counting on getting time off for good behavior, which would have him released in April 2019 — eight months longer than if he had accepted the commutation. Jones, 50, is in a low-security federal prison in Beaumont, Texas.
The unusual rejection came to light last week, when Obama commuted the sentences of 102 more federal inmates. With the 673 previous commutations granted, the total should have been 775 — but the White House accounting had only 774. At about the same time, the Department of Justice updated its online record of Obama's commutations and updated Jones' entry with the notation: "condition declined, commutation not effectuated."
The White House and the Justice Department declined to talk about the specifics of the case. But inmate records that Jones submitted as part of his court case show that he used crack cocaine weekly in the year before his arrest, and that drug treatment programs he's completed in the past have been unsuccessful. The Bureau of Prisons describes its Residential Drug Abuse Program as its most intensive treatment program, where offenders are separated from the general population for nine months while participating in four hours of community-based therapy programs each day.
Jones' mother said Thursday that she was excited about the news of Obama's commutation and wasn't aware that it was rejected. "I don’t know about him declining or anything. I'm looking for my son to come home," said Ruth Jones, of Lubbock, Texas.
Unlike pardons, which represent a full legal forgiveness for a crime, commutations can shorten a prison sentence while leaving other consequences intact. And as Obama has increased his use of commutations in his last year in office, he's also gotten more creative in adapting the power to fit the circumstances of each case. Unlike the more common "time served" commutations, which release a prisoner more or less immediately, many of his commutations since August have been "term" commutations, which have left prisoners with years left to serve on their sentences.
At the same time, Obama has also begun to attach drug treatment as a condition of many of those commutations, beginning with Jones' class of 214 inmates on Aug. 3 — the single largest grant of clemency in a single day in the history of the presidency.
That day, White House Counsel Neil Eggleston — who advises the president on commutation applications — explained the new drug treatment condition in a blog post on the White House web site. "For some, the president believes that the applicant’s successful re-entry will be aided with additional drug treatment, and the president has conditioned those commutations on an applicant’s seeking that treatment," Eggleston wrote. "Underlying all the president’s commutation decisions is the belief that these deserving individuals should be given the tools to succeed in their second chance."
Since Aug. 3, 22% of the commutations Obama has issued have required drug treatment.
Conditional pardons and commutations have been part of presidential clemency almost since the beginning. Presidents have used that power to induce prisoners to join the military, leave the United States or even — in the case of President Warren Harding's pardon of socialist Eugene Debs — that the clemency recipient travel to Washington to meet him. President Bill Clinton imposed conditions in 34 cases, usually insisting on drug testing....
But even with conditions, it's extremely rare for a recipient to reject clemency outright once it's granted. P.S. Ruckman Jr., a political scientist who has cataloged 30,642 presidential clemency actions dating back to President George Washington, has found just 16 clemency warrants returned to the president unaccepted.
Take President Herbert Hoover's 1930 commutation of Romeo Forlini, an Italian man serving a seven-year sentence after being caught by the Secret Service selling fraudulent Italian bonds. That commutation was granted "on condition that he be deported and never return to the United States." Forlini rejected that condition, and two weeks later Hoover granted him a full, unconditional pardon. "There's a guy who played his cards right," Ruckman said. (Alas, Forlini was arrested in New York in 1931 trying to pull off a similar scam on an undercover detective.)
"Cost-Benefit Analysis and Retroactivity: The brief for respondent in Beckles v. U.S."
The title of this is the title of this timely and astute New Jersey Law Journal commentary authored by (former federal prosecutor) Steven Sanders. I recommend the piece in full, and here are excerpts from its beginning and ending:
In late June, the Supreme Court granted certiorari in Beckles v. United States, 136 S. Ct. 2510 (2016). Beckles actually raises three questions, but only two of them are pertinent here: (1) is the "residual clause" of the U.S. Sentencing Guidelines' career offender provision void for vagueness under Johnson v. United States, 135 S.Ct. 2551 (2014); and (2) can a defendant whose Guidelines sentence became final before Johnson issued nonetheless invoke Johnson's new rule in a motion filed under 28 U.S.C. §2255. In its recently filed merits brief, the government argues that the answer to question (1) is "yes," but that Beckles and thousands like him have no legal remedy because the answer to question (2) is "no."
The government's non-retroactivity argument in Beckles represents a total reversal of the position it took before the en banc Eleventh Circuit only one month before Johnson issued. And that reversal seems to stem from the government's concern about the costs the justice system would incur from conducting resentencings for prisoners who very likely would receive lower sentences were they afforded a remedy. The government's belief that the costs of dispensing justice outweigh the benefits (i.e., less prison time for thousands of people the government acknowledges have been over-sentenced) is eye-opening, to say the least. That it has broadcast that belief in a Supreme Court brief is downright disturbing....
In sum, the government's retroactivity position in Beckles seems more like a belated attempt at damage control than a principled effort to apply the law consistently across a set of similarly situated defendants. The government would do well to heed Solicitor General Frederick Lehmann's powerful observation — now inscribed on the walls of the Department of Justice — that "[t]he United States wins its point whenever justice is done its citizens in the courts." See Brady v. Maryland, 373 U.S. 83, 87 & n.2 (1963).
A few of many related prior posts and related materials:
- SCOTUS grants cert on Johnson application to career offender guidelines
- Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts
- "What Lurks Below Beckles"
- Beckles v. United States -- Amici Curiae Brief of Scholars of Criminal Law, Federal Courts, and Sentencing in Support of Petitioner
- Topical archive of many related posts: Vagueness in Johnson and thereafter
October 15, 2016 in Advisory Sentencing Guidelines, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)
October 14, 2016
In twin post-Hurst rulings, the Florida Supreme Court concludes capital sentencing requires jury unanimity
I was not planning to blog anymore today as I continued participating in this terrific symposium. But big death penalty rulings by the Florida Supreme Court changed my plans. This local report, headlined "Florida Supreme Court rules death penalty juries must be unanimous," provides the basics:
"We conclude that the Sixth Amendment right to a trial by jury mandates that under Florida's capital sentencing scheme, the jury — not the judge — must be the finder of every fact, and thus every element, necessary for the imposition of the death penalty," the court wrote in a 5-2 ruling, with Justices Charles Canady and Ricky Polston dissenting.
Their ruling comes just months after the U.S. Supreme Court found Florida's death penalty law unconstitutional because juries played only an advisory role in recommending life or death. The court said in that case, known as Hurst vs. Florida, Florida's system was a violation of a defendant's right to a jury trial.
Florida lawmakers responded by rewriting the state law, requiring a 10-2 vote of a jury to send someone to death. The new law also requires juries to unanimously determine "the existence of at least one aggravating factor" before defendants can be eligible for death sentences.
In a separate ruling in the case of Perry vs. Florida, also issued Friday, the Florida Supreme Court found the new statute cannot apply to cases still pending in which prosecutors are seeking the death penalty. That leaves the state legislature with the task of having to again rewrite the statute to comply with the court's ruling. It is unclear how soon that might happen or whether prosecutors could then continue to seek the death penalty in pending cases....
The court's opinions did not address the issue of whether their findings would apply retroactively. Florida has 385 inmates on death row. It was not clear how many prisoners will be entitled to new sentencing hearings. The retroactivity issue will likely be decided by two other cases — Lambrix vs. Florida and Asay vs. Florida — still pending before the state Supreme Court.
Attorney General Pam Bondi's office has said that as many as 43 death row inmates could get life sentences without parole or new sentencing hearings as a result of the Hurst decision. Those 43 inmates are those who are entitled to automatic post-Hurst reviews of their cases under the state Constitution. Of those cases currently before the court, Bondi's office argued, death sentences should be carried out.
Howard Simon of the ACLU of Florida, which intervened in the case, said he was not surprised by the court's decision: "This is what we have been warning the Legislature about for years. The Legislature can complain all they want about the court's running the government, but when the Legislature ignores the warnings from the court, they should not be surprised by this ruling."
He said that it is not clear if every inmate on death row will be entitled to a new sentencing trial. "Now I think it's a moral issue,'' he said. "If someone was sentenced to death by less than an unanimous it is unconscionable to put them to death now without a unanimous verdict."
I fear I will not get a chance to read these opinions in full until well into the weekend, but here are links to the full opinions. I would be grateful to hear from readers about what they consider especially important aspects of these rulings:
Hurst vs. Florida, No. SC12-1974 (Fla. Oct. 14, 2016) (available here)
Perry vs. Florida, No. SC16-547 (Fla. Oct. 14, 2016) (available here)
"Rethinking Punishment: Sentencing in the Modern Age"
The title of this post is the title of this terrific Temple Law Review symposium taking place today at Temple Law School which I have the pleasure of attending and participating in. Here is the formal description of the event:
This Symposium will gather scholars, practitioners, and judges to offer a contemporary perspective on criminal punishment and highlight alternative punishment programs and reformation efforts. The Hon. L. Felipe Restrepo, Circuit Judge, Third Circuit Court of Appeals and the Hon. Timothy R. Rice, Magistrate Judge, Eastern District of Pennsylvania, will give a keynote address focusing on the Eastern District of Pennsylvania’s Reentry Court Program. In addition to the keynote address, the Symposium will consist of three panels – “Prosecuting in the New Age,” “Defending the Convicted: Effective Sentencing Advocacy,” and “The Sentenced: Stopping the Punishment Cycle.”
The full symposium schedule is here, and readers may not be too surprised to learn that I am slated to speak on Panel 2. I was not planning to blog while participating in this event, but the first two speakers on the Panel 1, "Prosecuting in the New Age," inspired me to get on-line. Specifically, the first two speakers were Judge Risa Ferman, a long-serving Montgomery County prosecutor who just recently became a trial court judge, and George Mosee, Jr., the First Assistant Philadelphia District Attorney. And here are two notable quote (of many) from these two notable speakers:
- "Prosecutors now are problem solvers working in a holistic way"
- "Prosecutors today start with prevention [and] incarceration serves as a last resort"
I found both these quotes coming from state/local prosecutors (and many other similar things they had to say) quite interesting and telling, and it highlights for me some of the many ways in which "the Modern Age" for criminal justice is so much different than it was just a decade ago and especially from two decades ago. It also reinforces my strong view that it is only a matter of time before we will be getting significant sentencing reform at the federal level in some form no matter who is formally in charge in the years ahead. Indeed, for my last post before I get ready to speak, I will close with the fitting words of my favorite Literature Nobel Prize winner:
Come writers and critics who prophesy with your penAnd keep your eyes wide the chance won't come againAnd don't speak too soon for the wheel's still in spinAnd there's no tellin' who that it's namin'For the loser now will be later to winFor the times they are a' changin'!
Come senators, congressmen please heed the callDon't stand in the doorway don't block up the hallFor he that gets hurt will be he who has stalledThere's a battle outside and it's ragin'It'll soon shake your windows and rattle your wallsFor the times they are a' changin'!
Remembering notable pre-modern moment of great concern over California capital case
This local article from California discussing a new play, headlined "'Chessman' explores crucial moment for Brown family, California death penalty," spotlights a California capital case more than a half-century ago that generated widespread attention. Here are excerpts from the article:
Buck Busfield is pondering the finer points of one of the most important phone calls in California political history. It was Feb. 18, 1960, the eve of the long-delayed execution of Caryl Chessman. A 21-year-old Jerry Brown, recently departed from the seminary and now a student at UC Berkeley, called his father, then-Gov. Pat Brown, asking him to grant a reprieve for the condemned inmate.
Across the world, millions awaited the fate of a man they had taken up as the poster boy for ending the death penalty. The freighted decision tore at Pat Brown, whose Catholic faith taught him that execution was immoral.
At the moment, however, Busfield is more concerned about the type of telephone Jerry would have used. During a recent rehearsal for “Chessman,” a new play about the case debuting this week at the B Street Theatre, director Busfield asked his stage manager whether they could hang a phone on the wall for the pivotal scene....
“Chessman” [is] a side project of political consultant Joe Rodota. The production attempts to capture the international, O.J. Simpson-like frenzy and divisiveness that surrounded Chessman for more than a decade, while also asking the audience to look beyond its cast of iconic California figures to a family split by a deeply personal, ethical dilemma.
It also strives to keep a neutral distance and a historical sheen on one of California’s most inflammatory political issues, just as voters are weighing two November ballot measures on capital punishment: one to abolish it and one to expedite the process. “This is not a documentary for or against the death penalty,” Rodota said....
Caryl Chessman was 27 and already a convicted felon when he was found guilty in 1948 of a series of robberies and rapes around Los Angeles. The “Red Light Bandit,” as the perpetrator was dubbed, had visited lovers’ lanes pretending to be a policeman and mugged couples in their cars.
On several occasions, Chessman took the young women back to his vehicle and sexually assaulted them. Under California’s since-discarded “Little Lindbergh Law,” named for the kidnapping and murder of aviator Charles Lindbergh’s infant son, Chessman was sentenced to death for kidnapping with bodily harm, though he had killed no one.
Chessman maintained his innocence and continued to fight his conviction. By 1954, he had been on death row for six years, longer than anyone in California history until that point. The unusual delay for his execution was gaining notice, and it would soon explode into sensation with the publication that year of his first memoir, written secretly and smuggled out of prison.
Translated into more than a dozen languages and adapted into a movie, “Cell 2455, Death Row: A Condemned Man’s Own Story” captured the public’s imagination with its searing and brutal dispatch from inside San Quentin State Prison....
The controversy also came at a relative highwater mark for opposition to the death penalty, when Americans were about evenly split on the issue. This allowed Pat Brown to openly grapple over Chessman’s fate without committing “automatic political suicide,” the biographer Rarick noted at a recent panel on the case.
Because Chessman had prior felonies, Pat Brown could not commute his sentence without the approval of the California Supreme Court, which voted 4-3 to uphold the conviction. Chessman was going to die.
But the night before the execution was scheduled to proceed, Jerry Brown called his father urging him to grant a 60-day reprieve and pursue a moratorium on the death penalty in the Legislature. As Pat recounted in “Public Justice, Private Mercy,” he believed there was not “one chance in a thousand” that lawmakers would act. “Then Jerry said, “But Dad, if you were a doctor and there was one chance in a thousand of saving a patient’s life, wouldn’t you take it?’
“I thought about that for a moment. You’re right, I finally said. I’ll do it.” For his decision, Pat Brown received a slew of negative responses – and a 16-page letter from a “surprised and grateful” Chessman.
With his usual aplomb about the social significance of his case – “the burning hope that my execution would lead to an objective reappraisal of the social validity or invalidity of capital punishment” – Chessman suggested that Brown put forth a proposal excluding him from the mercy granted to others, if it would persuade the Legislature to end the death penalty. “I do not overstate when I say I gladly would die ten thousand gas chamber deaths if that would bring these truths into hearts and minds of those who make our laws,” he wrote.
Lawmakers, however, had little interest in taking such a decisive step, particularly in an election year. Brown’s bill to abolish the death penalty was quickly swatted down in the Senate Judiciary Committee after a lengthy and highly publicized committee hearing.
Chessman was eventually gassed to death on May 2, 1960, his ninth scheduled execution date. The story appeared on the front page of newspapers from Italy to Brazil. Pat Brown ultimately believed he suffered greatly for his choice, blaming it in part for his loss to Ronald Reagan while running for a third term in 1966.
October 13, 2016
New empirical study suggests "recreational cannabis caused a significant reduction of rapes and thefts"
As regular readers surely surmise, I tend to support modern efforts to repeal in part or in whole blanket marijuana prohibitions largely because I am hopeful that modern marijuana reforms will produce more net societal benefits than harms. Consequently, I often am (too?) quick to take note of reports and studies extolling the benefits of marijuana reforms; but, I also try to make sure I am equally quick to take note of what might be formal or informal biases in any reports and studies extolling the benefits of marijuana reforms.
Against that backdrop, I would be grateful to hear from readers with some empirical chops to help me better assess whether I should be forcefully extolling (or forcefully questioning) this notable new empirical study authored by a group of economists (and available via SSRN) titled "Recreational Cannabis Reduces Rapes and Thefts: Evidence from a Quasi-Experiment." Here is the abstract that, based on the line I have highlighted, seems almost too good to be true for supporters of significant marijuana reform:
An argument against the legalization of the cannabis market is that such a policy would increase crime. Exploiting the recent staggered legalization enacted by the states of Washington (end of 2012) and Oregon (end of 2014) we show, combining difference-in-differences and spatial regression discontinuity designs, that recreational cannabis caused a significant reduction of rapes and thefts on the Washington side of the border in 2013-2014 relative to the Oregon side and relative to the pre-legalization years 2010-2012.
A few recent and past posts from Marijuana Law, Policy and Reform exploring links between marijuana reform and non-drug crime:
Fair Punishment Project releases second part of report on small number of US counties still actively utilizing the death penalty
In this post earlier this year, I noted the significant new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And in this post a couple of months ago, I highlighted the new big project and first part of a report from the the FPP providing an in-depth look at how the death penalty is operating in the handful of counties still actively using it. The second part of this report has now been released under the title "Too Broken to Fix, Part II: An In-depth Look at America’s Outlier Death Penalty Counties," and it is available at this link. Here is its introduction:
As we noted in Part I of this report, the death penalty in America is dying.
In 2015, juries only returned 49 death sentences — the fewest number since the death penalty was reinstated in 1976. Of the 31 states that legally retain the death penalty, only 14 — or less than half — imposed a single death sentence in 2015. When we look at the county level, the large-scale abandonment of the death penalty in the country becomes even more apparent. Of the 3,143 county or county equivalents in the United States, only 33 counties — or one percent — imposed a death sentence in 2015. Just 16 — or one half of one percent — imposed five or more death sentences between 2010 and 2015. Among these outliers, six are in Alabama (Jefferson and Mobile) and Florida (Duval, Hillsborough, Miami-Dade, and Pinellas)—the only two states that currently permit non-unanimous death verdicts. Of the remaining 10 counties, five are located the in highly-populated Southern California region (Kern, Los Angeles, Orange, Riverside, and San Bernardino). The others include Caddo Parish (LA), Clark (NV), Dallas (TX), Harris (TX), and Maricopa (AZ). As Justice Stephen Breyer noted in his 2015 dissent in Glossip v. Gross, “the number of active death penalty counties is small and getting smaller.”
In this two-part report, we have endeavored to figure out what makes these 16 counties different by examining how capital punishment operates on the ground in these outlier death-sentencing counties. In Part II, we highlight Dallas (TX), Jefferson (AL), San Bernardino (CA), Los Angeles (CA), Orange (CA), Miami-Dade (FL), Hillsborough (FL), and Pinellas (FL) counties.
Our review of these counties, like the places profiled in Part I, reveals that these counties frequently share at least three systemic deficiencies: a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion. These structural failings regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities.
This is what capital punishment in America looks like today. While the vast majority of counties have abandoned the practice altogether, what remains is the culmination of one systemic deficiency layered atop another. Those who receive death sentences do not represent the so-called “worst of the worst.” Rather, they live in counties with overzealous and often reckless prosecutors, are frequently deprived access to competent and effective representation, and are affected by systemic racial bias. These individuals are often young, and many have significant mental impairments. Some are likely innocent. This pattern offers further proof that, whatever the death penalty has been in the past, today it is both cruel and unusual, and therefore unconstitutional under the Eighth Amendment.
Prior related posts:
- Harvard Law School launches "Fair Punishment Project"
- New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty
October 12, 2016
"Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States"
The title of this post is the title of this lengthy new Human Rights Watch report. Here is part of the report's summary introduction:
Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.
As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.
This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.
There are injustices and corresponding harms at every stage of the criminal process, harms that are all the more apparent when, as often happens, police, prosecutors, or judges respond to drug use as aggressively as the law allows. This report covers each stage of that process, beginning with searches, seizures, and the ways that drug possession arrests shape interactions with and perceptions of the police—including for the family members and friends of individuals who are arrested. We examine the aggressive tactics of many prosecutors, including charging people with felonies for tiny, sometimes even “trace” amounts of drugs, and detail how pretrial detention and long sentences combine to coerce the overwhelming majority of drug possession defendants to plead guilty, including, in some cases, individuals who later prove to be innocent.
The report also shows how probation and criminal justice debt often hang over people’s heads long after their conviction, sometimes making it impossible for them to move on or make ends meet. Finally, through many stories, we recount how harmful the long-term consequences of incarceration and a criminal record that follow a conviction for drug possession can be—separating parents from young children and excluding individuals and sometimes families from welfare assistance, public housing, voting, employment opportunities, and much more.
Old prison problems from new school smuggling
This new Washington Post piece discusses and old prison problem and its new dimensions. The piece is headlined "Prisons try to stop drones from delivering drugs, porn and cellphones to inmates," and here are excerpts:
Prison inmates, a remarkably ingenious bunch, are disrupting long-standing methods of smuggling drugs, porn and cellphones the same way online retailers hope to one day deliver socks and underwear to American homes — through the air, with drones.
By coordinating with wingmen on the outside for shipments of contraband, inmates can bypass the need to bribe corrupt guards or persuade family members to hide forbidden items in body cavities.
Though nobody is precisely sure just how many drones are landing every day in prisons, the threat is global. Last year, there was a melee at an Ohio prison after a drone dropped heroin into the exercise yard. In April, security cameras at a London prison recorded a drone delivering drugs directly to an inmate’s window.
And in Western Maryland earlier this year, prosecutors convicted a recently released inmate and a prisoner serving a life sentence on charges of attempted drug distribution and delivery of contraband after they completed several nighttime missions netting them $6,000 per drop in product sales. It was such a lucrative scheme that the former inmate had purchased a new truck for himself with the profits....
Prison officials are dealing with this new threat even as inmates continue using older, higher-risk methods. Earlier this month, more than 50 correctional officers and inmates were charged in a smuggling scheme at Eastern Correctional Institution, Maryland’s largest prison.
Drone deliveries, while clever, aren’t all that surprising given how much time inmates spend watching television news, security officials say. They’ve likely seen stories about retailers such as Amazon (founded by Washington Post owner Jeffrey P. Bezos) pushing the concept. “We are trying to keep up with technology just like everyone else,” said Stephen T. Moyer, secretary of Public Safety & Correctional Services for Maryland. “So this is a huge challenge for all of us in corrections.”...
The threats to prisons and other facilities have given rise to start-ups selling anti-drone detection systems that use thermal imaging and other technology to spot airborne infiltrators. Some executives have jokingly compared the technology to “Star Wars” — not the movies, but the Reagan-era missile defense system.
"The Challenges of 'Improving' the Modern Death Penalty"
I had the opportunity and honor of speaking at a Duke Law School symposium about the death penalty earlier this year, and the follow-up essay has now been published and can be accessed here via SSRN. The essay has the same title as the title of this post, and here is the SSRN abstract:
In his dissent in McCleskey v. Kemp, Justice William Brennan turned a famous phrase that has long resonated with criminal justice reformers. In upholding Georgia’s capital sentencing system, the majority expressed concern about Eighth Amendment claims based on statistics revealing racial disparities in the application of the death penalty, fearing that such claims “would open the door to widespread challenges to all aspects of criminal sentencing.” Justice Brennan lamented that “on its face, such a statement seems to suggest a fear of too much justice.”
Disconcertingly, almost everyone seriously involved in debates over the modern administration of death penalty seemingly has a fear of too much capital justice. This essay seeks to explain this practical reality of modern death penalty advocacy in order to spotlight the problems it necessarily creates for any sustained efforts to improve the modern death penalty. By unpacking the fear of too much capital justice among capital punishment’s active supporters and ardent opponents, this essay seeks first to expose an enduring disconnect between lay interest and insider advocacy concerning death penalty reform, and second to explain my pessimistic concern that even moderate and modest efforts to improve the modern administration of capital punishment may, more often than not, constitute something of a fool’s errand.
After discussing these dynamics surrounding modern capital punishment advocacy and reform, this essay closes by admitting uncertainty concerning what enduring lessons should be drawn from my observations for the future of the death penalty in the United States. It may be tempting to conclude simply that it would be far wiser for existing death penalty jurisdictions to try to end, rather than just mend, their modern capital punishment systems. But in an effort to provide a silver lining to what may otherwise seem like a dark story, this essay concludes by noting some unique potential benefits for American criminal justice systems when capital jurisdictions try (and fail) to achieve “too much justice” in their death penalty systems.
You be the judge: what sentence for mother and grandmother who delivered deadly heroin to teen?
The question in the title of this post is prompted by this disturbing AP story headlined "Mom, grandma face sentencing in teen's heroin death at hotel." Here are the depressing details:
The mother and grandmother of a teen who died from a heroin overdose at an Ohio hotel are scheduled to be sentenced for giving the 16-year-old the drugs that killed him. Prosecutors say the grandmother delivered the drugs that her daughter and a friend used with the teen at a hotel in suburban Akron.
Investigators say Andrew Frye was found dead last April in a chair inside the hotel room that was littered with syringes and drug paraphernalia.
Both his mother, Heather Frye, and grandmother, Brenda Frye, pleaded guilty to involuntary manslaughter and other charges last month. Prosecutors say Brenda Frye got the heroin from her boyfriend who pleaded guilty to heroin possession.
This prior story about the guilty pleas entered last month reports that the mother, Heather Frye, is 31 years old and the grandmother, Brenda Frye, is 52 years old. With those additional details, I am now genuinely interested in and eager to hear from readers about what they think would be a fair and effective sentence for these two individuals.
October 11, 2016
"Could Atticus Finch get elected?"
The question in the title of this post is the headline of this notable new commentary authored by Kevin Burke, who is a state trial judge in Minnesota and past president of the American Judges Association. Here are excerpts:
Atticus Finch, the fictional lawyer in “To Kill a Mockingbird,” passionately believed in justice. He didn't like criminal law, yet he accepted the appointment to represent Tom Robinson, an African-American man charged with raping a young white girl. The story, set in Maycomb County, Alabama, in the early 1930s, portrays a lawyer who felt that the justice system should be colorblind. Had Atticus Finch run for office after the trial, could he have been elected?
A web video from the Republican National Committee darkly portrays Democratic vice presidential nominee Sen. Tim Kaine as having “protected the worst kinds of people” on death row as a defense attorney. The video features Lem Tuggle, whom Kaine defended on rape and murder charges. Tuggle was eventually executed. The video also focuses on Richard Lee Whitley, who was executed despite what the Richmond Times-Dispatch described as “about 1,000 hours of largely free legal work” on Kaine's part. We admire Atticus Finch, so why is it that Kaine’s defense of death penalty defendants is treated differently?
Representing unpopular clients has a long tradition in the American legal system. John Adams represented British soldiers accused of murder in the 1770 Boston Massacre. Before agreeing to represent the British soldiers (who were that era’s terrorists), Adams worried about his reputation. Yet, he said of his experience, “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.” John Adams was elected president of the United States. In an age of 24-hour cable, Willie Horton ads, and internet-driven misinformation, could Adams be elected president today?
Paul Clement was a superstar appellate lawyer in the Bush administration. After resigning as solicitor general of the United States, he joined King & Spalding as a partner. Clement agreed to represent the Republican majority in the U.S. House of Representatives to defend the Defense of Marriage Act, the law that federally defined marriage as between one man and one woman. Shortly thereafter, King & Spalding withdrew from the case, and Clement promptly resigned from the firm to continue his representation. He said, "Representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters." Clement’s decision to leave his firm had a notable defender: Attorney General Eric Holder. Holder said, “In ... representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best ... [the] criticism, I think, was very misplaced.”
“Mr. Clement’s statement misses the point entirely,” Richard Socarides, president of Equality Matters, wrote in The New York Times. “While it is sometimes appropriate for lawyers to represent unpopular clients when an important principle is at issue, here the only principle he wishes to defend is discrimination and second-class citizenship for gay Americans.”
Paul Clement will likely never run for public office, but there are those who speculate Clement may someday be nominated for the U.S. Supreme Court. The confirmation process has become quite partisan. Would it be fair to deny him confirmation because of his representation of a client and defense of a ban on gay marriage?
In 2014, the Senate rejected the nomination of Debo Adegbile to be chief of the Civil Rights Division of the Justice Department. Adegbile's nomination was rejected because as an executive of the NAACP Legal Defense Fund, he worked on a series of briefs made on behalf of Mumia Abu-Jamal, who was convicted of killing a Philadelphia police officer in 1991. Every Republican senator voted against Adegbile and several Democrats joined them. “I made a conscientious decision [to vote against Adegbile] after talking to the wife of the victim,” Democratic Sen. Joe Manchin told reporters. After talking with gay victims of discrimination would it be appropriate for a senator to vote against Paul Clement?...
Edward Bennett Williams was among the greatest trial lawyers of the last century. He represented a slew of unpopular clients, including Jimmy Hoffa, organized crime figures Sam Giancana and Frank Costello, as well as Sen. Joe McCarthy. In a speech given to the New York State Bar Association, Williams argued there was an epidemic of “guilt by client,” and warned of the “insidious identification” that would scare off lawyers from standing by the unpopular and degraded. Williams said, “When a doctor takes out Earl Browden's appendix, nobody suggests that the doctor is a Communist [Browden was the head of the American Communist Party]. When a lawyer represents Browden, everybody decides that lawyer must be a Communist, too.”...
Not every lawyer has the skill to represent a person facing the death penalty, nor the skill to argue before the Supreme Court. The video suggests you should not vote for Kaine because he had that skill, but should we embrace the demagoguery of the video used against him? This is not an issue about lawyers’ ethics; it is about what each of us wants from the American system of justice.
John Ferguson was executed after he tricked his way into a woman’s home and bound, blindfolded, and then shot eight people. Six of them died. While under indictment for those crimes, Ferguson murdered two teenagers on their way to church. What kind of lawyer would defend John Ferguson? The lawyer was Chief Justice John Roberts.
Fascinating SCOTUS per curiam summary opinion stresses that Eighth Amendment still limits victim testimony in capital cases
The Supreme Court's order list this morning includes a little and very interesting summary opinionin Bosse v. Oklahoma, No. 15-9173 (S. Ct. Oct. 11, 2016) (available here). The order rules in favor of Shaun Michael Bosse, who was convicted and sentence to death by a jury "of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children." Here is the per curiam Bosse ruling account of the problem below and its consequences:
Over Bosse’s objection, the State asked three of the victims’ relatives torecommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P. 3d 1203, 1226–1227. We grant certiorari and the motion for leave to proceed in forma pauperis, and now vacate the judgment of the Oklahoma Court of Criminal Appeals.
“[I]t is this Court’s prerogative alone to overrule one of its precedents.” United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); internal quotation marks omitted); see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). The Oklahoma Court of Criminal Appeals has recognized that Payne “specifically acknowledged its holding did not affect” Booth’s prohibition on opinions about the crime, the defendant, and the appropriate punishment. Ledbetter, 933 P.2d at 890–891. That should have ended its inquiry into whether the Eighth Amendment bars such testimony; the court was wrong to go further and conclude that Payne implicitly overruled Booth in its entirety. “Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Hohn v. United States, 524 U. S. 236, 252–253 (1998).
The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless this Court reconsiders that ban. The state court erred in concluding otherwise.
The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law. See Brief in Opposition 14–15. Those contentions may be addressed on remand to the extent the court below deems appropriate.
Justice Thomas (joined by Justice Alito) added this one paragraph concurring opinion:
We held in Booth v. Maryland, 482 U. S. 496 (1987), that the Eighth Amendment prohibits a court from admitting the opinions of the victim’s family members about the appropriate sentence in a capital case. The Court today correctly observes that our decision in Payne v. Tennessee, 501 U.S. 808 (1991), did not expressly overrule this aspect of Booth. Because “it is this Court’s prerogative alone to overrule one of its precedents,” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997), the Oklahoma Court of Criminal Appeals erred in holding that Payne invalidated Booth in its entirety. In vacating the decision below, this Court says nothing about whether Booth was correctly decided or whether Payne swept away its analytical foundations. I join the Court’s opinion with this understanding.
"Slave Narratives and the Sentencing Court"
The title of this post is the title of this interesting new paper authored by Lindsey Webb available via SSRN (and which certainly serves as an interesting scholarly "chaser" after watching the new documentary 13th). Here is the abstract:
The United States incarcerates a greater percentage of its population than any other country in the world. Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances, and African Americans in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.
This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing. In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist. As advocates, defense lawyers can incorporate information about conditions of confinement into sentencing narratives to support arguments for shorter sentences or against imprisonment altogether. As abolitionists, defense lawyers can juxtapose the humanity of their clients with the poor or even dire conditions of confinement in our jails and prisons — not only to influence the court’s decision about an individual client’s sentence, but to impact the court’s view of our systems of incarceration as a whole. Defense lawyers acting as abolitionists thus seek to disrupt and dismantle a system of imprisonment that disproportionately affects African American and Latino people in significant and damaging ways.
In examining how invoking conditions of confinement at sentencing engages defense attorneys as advocates and abolitionists, this Article seeks insight from a tool of abolitionists and advocates from a different time: Civil War-era slave narratives. Slave narratives exposed the hidden conditions of slavery while also seeking to humanize the enslaved people subjected to those conditions. Using slave narratives as a touchstone in a conversation about sentencing advocacy provides a new perspective on the role of storytelling in litigation and social movements, including questions of who tells the story and which stories are told, in the context of systems of control with deep disparate impacts based on race.
October 11, 2016 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)
October 10, 2016
Is supposedly "tough-on-crime" GOP Senator (and former federal prosecutor) Jeff Sessions actually not-so-tough on sexual assault?
The provocative question in the title of this post is my reaction to seeing these two new (right-leaning-source) stories about comments made last night by Alabama GOP Senator (and former US Attorney) Jeff Sessions:
From RedState here, "Senator Jeff Sessions Unsure Whether Grabbing Women by Their Genitals is Sexual Assault"
From the Weekly Standard here, "Jeff Sessions: Behavior Described by Trump in 'Grab Them by the P---y' Tape Isn't Sexual Assault"
One of many notable aspects of GOP Prez candidate Donald Trump's campaign has been the fact that his three most-prominent political surrogates are all former US Attorneys: Chris Christie was US Attorney for New Jersey from 2002 to 2008, Rudy Giuliani was US Attorney for the Southern District of New York from 1983 to 1989, and Jeff Sessions was US Attorney for the Southern District of Alabama from 1981 to 1993. I have long assumed that this notable troika of US Attorneys advising Trump has played a significant role in Trump's effort to brand himself as the "law-and-order" candidate.
As regular readers surely know, I often have a number of different perspectives on a number of crime and punishment issues than do many current and former US Attorneys. As I also hope readers also realize, I always have had a significant amount of respect for the professional honesty and personal integrity of current and former US Attorneys. But Senator Sessions' statements reported above (as well as some other actions by Chris Christie and Rudy Giuliani in recent weeks and months) has really dealt a significant blow to my continued ability to have continued respect for the professional honesty and personal integrity of at least some former US Attorneys.
UPDATE: This local article reports on Senator Sessions' effort to clarify his remarks under the headline, "Sen. Jeff Sessions denies dismissing Trump's lewd video comments: 'Crystal clear' sexual assault unacceptable."
October 10, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (94)
Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade
I had the great fortune of having the Assistant Chief Counsel for Ohio Governor John Kasich come speak to my OSU Moritz College of Law Sentencing Class about the decade-long litigation in Ohio over the state's various lethal injection protocols (which, as this post explains, is now poised to kick into yet another new phase). With that class freshly in mind, I was intrigued to see this notable new local AP story headlined "Death penalty stalls in Mississippi." Here are excerpts:
With sprawling litigation over Mississippi’s use of execution drugs now scheduled to stretch into 2017, the state could go five years without executing a death row inmate. That would be the longest gap between executions in Mississippi in 15 years.
Mississippi has executed 21 people, all men, since the death penalty resumed. That includes a 13-year gap between the 1989 execution of Leo Edwards and the 2002 execution of Tracy Edwards. During that time, executions stalled out over concerns about adequate legal representation for the condemned. That’s also when Mississippi switched it execution method from the gas chamber to lethal injection. Multiyear gaps remained even after 2002, but the state picked up the pace, executing 11 people in a 25-month span ending in 2002. Then, just as it became routine, the death penalty sputtered out.
That halt is in some ways a tribute to lawyer Jim Craig. He’s tying state government in knots fighting Mississippi’s plan to use a new drug to render prisoners unconscious before injecting additional drugs to paralyze them and stop their hearts. Craig, of the MacArthur Justice Center, says the litigation isn’t aimed at overturning the death penalty in Mississippi, only at seeking a better way of executing people. But he’s doing a good job of keeping his clients alive.
On behalf of Richard Jordan, Ricky Chase and Charles Ray Crawford, Craig argues Mississippi can’t use midazolam as a sedative because it doesn’t meet state law’s specification for an “ultra-short-acting barbiturate” Until 2012, the state used pentobarbital. But drug makers have choked off supplies of the drug for executions.
Midazolam doesn’t render someone unconscious as quickly as a barbiturate. Craig argues midazolam leaves an inmate at risk of severe pain during execution, violating the U.S. Constitution’s prohibition on cruel and unusual punishment. The U.S. Supreme Court in 2015 upheld as constitutional Oklahoma’s use of midazolam, but Craig’s lawsuit is based in part on his claims about Mississippi state law. He’s also trying to reopen other issues surrounding midazolam.
One part of Craig’s legal offensive is a federal challenge to the drug’s use. U.S. District Judge Henry T. Wingate had issued a preliminary injunction freezing executions, but executions didn’t resume when appeals judges lifted the freeze in July. Last month, Craig and lawyers for Attorney General Jim Hood extended that lawsuit into next year, setting a trial for May. Craig rates it unlikely that the state Supreme Court will green-light executions with that case unresolved. “They aren’t stayed automatically,” Craig said. “But I think the Mississippi Supreme Court will respect the federal process and thus will not set execution dates while the federal case is active.”
To aid that case, Craig is also fighting Missouri, Georgia and Texas in court, arguing they must say who’s still supplying them with pentobarbital, so he can argue Mississippi has alternatives to midazolam and could return to its old drug. Mississippi said it destroyed all its pentobarbital and can’t get more.
There are also three cases before the Mississippi Supreme Court. Crawford is challenging the state’s ability to execute him with a drug compounded from raw ingredients, how other states are likely getting pentobarbital. Meanwhile, Jordan and Gerald Loden are fighting use of midazolam based on the barbiturate requirement.
Hood says he’s working to resume executions, but acknowledges Craig’s efforts are gumming the works. “The Mississippi Supreme Court’s resolution of those pending petitions will determine when any executions will be re-set,” Hood said in a statement. “Any delay in the federal lawsuit has been the result of the Jordan plaintiffs’ strategic decisions.”
Coming SCOTUS argument "week" (lasting one day) should still be of interest to criminal justice fans
At Crime & Consequences here, Kent Scheidegger briefly explains why this week the "US Supreme Court has a one-day argument week": "Monday is a legal holiday, Columbus Day. No arguments are scheduled for Wednesday, which is Yom Kippur. So it's all about Tuesday." Kent also has this brief and interesting accounting of the two criminal cases to be heard by SCOTUS tomorrow:
The main action, for our purposes, is Peña-Rodriguez v. Colorado, asking whether the Constitution requires an exception to the time-honored rule that you can't impeach a jury verdict by calling the jurors to testify as to what was said during deliberations. CJLF's brief, written by Kym Stapleton, is here. Our press release is here.
Manrique v. United States is a technical question about restitution. The Question Presented, as drafted by counsel for defendant, occupies an entire page and is a fine example of how not to write a Question Presented. However, the fact that the Court took it anyway is an example of why that may not matter as much as some of us think.
For those eager for a more details review of what these cases are about, factually and legally, here are case links and more fulsome previews via SCOTUSblog:
October 9, 2016
"Betterman v. Montana and the Underenforcement of Constitutional Rights at Sentencing"
The title of this post is the title of this new essay authored by Carissa Byrne Hessick now available via SSRN. Here is the abstract:
This past Term, in Betterman v. Montana, the U.S. Supreme Court took up the question whether the Sixth Amendment’s speedy trial guarantee applies to sentencing proceedings. In a unanimous opinion by Justice Ginsburg, the Court held that it does not. Perhaps in order to achieve unanimity, Betterman left open important questions, which may ultimately allow defendants, at least in some situations, to demand a speedy sentencing. But, as this short commentary explains, Betterman represents an unfortunate example of the courts’ tendency to underenforce constitutional rights at sentencing.