October 29, 2016
"Constitutional Liberty and the Progression of Punishment"
The title of this post is the title of this notable new paper authored by Robert Smith and Zoe Robinson now available via SSRN. Here is the abstract:
The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants. This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse.
This Article challenges these assumptions. It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause. The Court’s contemporary Eighth Amendment jurisprudence — with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments — reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess.
Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment. Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence. Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty. Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences and the prolonged use of solitary confinement.
SCOTUS takes up Booker/mandatory sentencing issue and two sex-offender collateral-consequences cases
I had a spectacular afternoon mostly off-line yesterday: I heard Sandy Levinson talk about his book on the Federalist Papers; I talked with my 1L students about a famous criminal case after an infamous disaster; I spoke at lengthy to a reporter about the prospects for federal criminal justice reform in 2017; I had great happy hours conversations with students, friend and family, followed by a spectacular burger at my favorite local gastropub; and I managed to stay awake for (most of) one of the all-time great modern World Series games.
What I did not manage to do until this morning, however, was remember that SCOTUS yesterday had a conference to consider new cases for its docket. Helpfully, this SCOTUblog post reports on the five SCOTUS cert grants on the last Friday in October 2016, and three of the cases are sure to be worth sentencing fans' attention. Here are the three grants as described by Amy Howe from SCOTUSblog, organized by me in order of "importance" for those most obsessed with modern sentencing systems:
The facts of Dean v. United States read like a “true crime” novel, involving robberies of drug dealers in the Midwest. Levon Dean, the defendant in the case, was convicted under the Hobbs Act, a federal law that makes it a crime to “obstruct, delay, or affect commerce” through a robbery. The justices today declined to review Dean’s challenge to his Hobbs Act convictions, but they agreed to weigh in on a separate question: the scope of a federal trial court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c), which makes it a crime to use or carry a firearm during a crime of violence, in determining a sentence for the felony that serves as the basis for the Section 924(c) conviction. Dean argued that the district court had the authority to impose a very short sentence — as little as one day — for his Hobbs Act convictions, to take into account the much longer sentence required by Section 924(c), but the lower courts disagreed.
Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor. Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket. The justices today agreed to review Packingham’s contention that the law violates the First Amendment.
In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” — the intersection of immigration and criminal law. The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old. The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The lower courts agreed with the federal government, but now the Supreme Court will decide.
October 28, 2016
"Should 25-Year-Olds Be Tried as Juveniles?"
The question in the title of this post is the headline of this new lengthy New Republic article, which includes these excerpts:
Over the past year, several states — including Vermont, Illinois, New York, and Connecticut — have debated laws that would change how the justice system treats offenders in their late teens and early twenties. It remains the case that in 22 states, children of any age — even those under ten — can be prosecuted as adults for certain crimes. “Raise the Age” campaigns across the country are pushing for legal changes in order to treat all offenders under 18 as juveniles. But some advocates and policymakers are citing research to argue 18 is still too young, and that people up to the age of 25 remain less than fully grown up.
Some of the most compelling evidence comes via magnetic resonance imaging, or MRI. In 2011, brain researchers Catherine Lebel and Christian Beaulieu published a study of 103 people between the ages of five and 32, each of whom received multiple brain scans over the course of six years. The researchers were looking for changes in white brain matter, a material that supports impulse control and many other types of cognitive functioning.... Altogether, the research suggests that brain maturation continues into one’s twenties, and even thirties....
Researchers are using the term “post-adolescence” or “extended adolescence” to describe this period of development in one’s twenties and early thirties. Social change is as important as biological change in understanding why some people in this age group are drawn to crime. Individuals who are “disconnected” — neither working nor in school — are more likely to get in trouble with the law. While fewer young women are disconnected today than in previous decades, the opposite is true for young men....
Experts used to believe that “adult onset” criminals, or those who get in trouble for the first time in their twenties or older, were more likely than juvenile offenders to come from affluent backgrounds, and to have higher intelligence. New research questions those assumptions....
If people in their twenties are a lot like adolescents socially and biologically, should they really be considered full adults under the law? Many advocates who work directly with this population say no. “For many years, the idea of how to achieve public safety with this group was you want to lock them up, protect the community by not having them around,” said Yotam Zeira, director of external affairs for Roca, a Massachusetts organization that provides counseling, education, and job training to 17- to 24-year-old male offenders. “The sad reality is that after you lock them up, nothing gets better. Public safety is not really improved. Prosecutors know they are prosecuting, again and again, the same people.”...
While politically palatable, young adult prisons may not be all that successful in decreasing reoffending. Research shows that even detention in a juvenile facility is “criminogenic,” meaning it makes it more likely that a person will reoffend, compared to a juvenile who committed a similar crime, but was not incarcerated.
Beyond politics, one of the challenges of asserting that 18- to 25-year-olds are not full adults is that science shows some people in this age group are much more mature than others, with more static brains. “You can’t look at a brain scan from someone you don’t know and say that person is 18,” said Lebel, the brain researcher. “You can pick out any age, whether it’s five or 30, and you see people are distributed over a wide range.”
Moffitt, the psychologist, agrees that the policy implications of the new research are far from clear. “In our justice system, it has to be the same rule for everyone for it to be just and fair,” she said. “There will always be the sort of very serious, early onset kind of offenders that ... will have a crime career as a lifestyle.” There is also a “larger group of young people who are milling around, being young, getting in trouble, annoying everyone. But young people have always done that. You don’t want them to get a criminal record that prevents them from getting a job.” The problem, Moffitt added, is that “as long as you make a cut point based on age, you are treating both groups the same.”
October 27, 2016
Prez Obama grants sentence commutations to 98 more federal offenders
As reported in this new USA Today article, "President Obama granted 98 more commutations to federal inmates Thursday, bringing the total for this year to 688 — the most commutations ever granted by a president in a single year." Here is more:
In all, he's now shortened the sentences of 872 inmates during his presidency, more than any president since Woodrow Wilson. The actions were part of Obama's extraordinary effort to use his constitutional power to rectify what he sees as unduly harsh sentences imposed during the "War on Drugs." Through a clemency initiative announced in 2014, he's effectively re-sentenced hundreds of non-violent drug dealers to the sentences they would have received under today's more lenient sentencing guidelines....
But while Obama's commutation grants get most of the attention, he's also been quietly denying a record number of commutations at the same time — a function of the unprecedented number of applications submitted through the clemency initiative. On Oct. 6, for example, the White House announced that Obama granted 102 commutations. It wasn't until a week later that the Justice Department updated its clemency statistics to reveal that he had denied 2,917 commutation petitions on Sept. 30.
Some advocates for inmates say there's not enough transparency about why some get clemency while others wait. "We want answers for the families who are still waiting for their clemency," said Jessica Jackson Sloan, national director of the pro-clemency group Cut 50. "There needs to be more communication about why people are being denied."
As of Oct. 7, Obama has granted just 5.5% of commutation applications — still more than many of his predecessors. President George W. Bush granted just 0.1% of commutation applications that reached his desk, but was more generous with full pardons at this point in his presidency.
"While there has been much attention paid to the number of commutations issued by the president, at the core, we must remember that there are personal stories behind these numbers," White House Counsel Neil Eggleston wrote on the White House web site. "These are individuals -- many of whom made mistakes at a young age — who have diligently worked to rehabilitate themselves while incarcerated." Eggleston said 42 of the inmates who had received commutations were serving life sentences.
Sixty-three of the inmates granted presidential mercy on Thursday will still have two years or more to serve on their sentences, part of a recent White House strategy of issuing deferred "term" commutations instead of the more common time-served commutations. The longest of those: David Neighbors, a 34-year-old man from Evansville, Ind., whose 2008 life sentence for cocaine trafficking Obama commuted to 30 years. That means he has up to 22 more years left to serve.
And 42 of the commutations granted Thursday have strings attached. As part of an increasing practice of attaching conditions to his commutations, Obama required inmates with a documented history of drug use to enroll in a residential drug treatment program before being released.
The full statement from White House Counsel Neil Eggleston is available at this link, which is also the source for the graphic reprinted above.
Defense attorneys assert Ohio's new execution protocol is akin to "burning at the stake"
As reported in this local AP article, capital defense attorneys in Ohio are not so impressed with the state's recently announced new execution protocol. The piece is headlined "Lawyers: Ohio Execution Plan Like Burning Inmates at Stake," and here are excerpts:
Ohio's new lethal injection system is akin to burning inmates at the stake or burying them alive, say federal defense lawyers rushing to stop the state's first execution in three years.
Ohio's three-drug method, announced Oct. 3, is worse than a similar procedure used years ago, and multiple problems remain with the way the state prepares and carries out executions, federal public defenders said in a Wednesday court filing.
The filing attacks the first drug in that process — midazolam, meant to sedate inmates — as unlikely to relieve an inmate's pain. The drug was used in problematic executions in Arizona and Ohio in 2014. But the U.S. Supreme Court last year upheld the use of midazolam in executions in a case out of Oklahoma.
According to the filing, because midazolam is not a barbiturate and cannot relieve pain, inmates are likely to experience "severe physical pain," mental suffering and anguish, As a result, "such an execution would be inhuman and barbarous, akin in its level of pain and suffering to being buried alive, burning at the stake, and other primitive methods long since abandoned by civilized society," the filing said.
Executions have been on hold in Ohio since January 2014, when death row inmate Dennis McGuire gasped and snorted during the 26 minutes it took him to die. It was the longest execution since Ohio resumed putting inmates to death in 1999. The state used a 2-drug method with McGuire, beginning with midazolam, but then discontinued it. Afterward, Ohio struggled for years to find new supplies of drugs, which have been placed off limits for executions by drug makers. Now the prisons agency says it will use midazolam; rocuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart.
On Jan. 12, Ohio is scheduled to execute Ronald Phillips for the rape and murder of his girlfriend's 3-year-old daughter in Akron in 1993. The state also plans to carry out executions on Feb. 15 and March 15. But the federal defense lawyers say the new procedures are unconstitutional and executions in Ohio should be put on hold. The state will respond with its own filing, said Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine.
Prior related post:
- Ohio planning to use new three-drug execution protocol to get its machinery of death operative in January 2017
Significant new report calls for closing all traditional youth prisons due to their inefficacy
This recent item from the Harvard Gazette, headlined "Youth justice study finds prison counterproductive: New report documents urgent need to replace youth prisons with rehabilitation-focused alternatives," spotlights a significant new report concerning the way juvenile offenders are punished. Here are excerpts:
A new report, published by Harvard Kennedy School’s Program in Criminal Justice Policy and Management (PCJ) and the National Institute of Justice (NIJ), documents ineffectiveness, endemic abuses, and high costs in youth prisons throughout the country. The report systematically reviews recent research in developmental psychology and widespread reports of abuse to conclude that the youth prison model should be replaced with a continuum of community-based programs and, for the few youth who require secure confinement, smaller homelike facilities that prioritize age-appropriate rehabilitation.
The authors, who are leading youth justice researchers and former youth correctional administrators, find that the current youth prison model, which emphasizes confinement and control, often exacerbates youth trauma and inhibits positive growth while failing to address public safety. Rather, the paper argues, programs work best when youths are in their home communities with rehabilitative programs or in smaller, homelike facilities that promote opportunities for healthy decision-making and development. Corrections agencies should provide a range of options depending on the individual’s needs, from smaller secure facilities to noncustodial programs.
Annual youth imprisonment costs are approximately $150,000 per individual, yet recidivism rates remain close to 70 percent. The report examines the experiences of several states that have pursued alternative models and finds community-based approaches can reduce recidivism, control costs, and promote public safety.
“Youth in trouble need guidance, education, and support, not incarceration in harmful and ineffective youth prisons,” said PCJ Senior Fellow Vincent Schiraldi, a co-author of the report. Previously, Schiraldi directed juvenile corrections in Washington, D.C., and served as commissioner of probation in New York City. “We now know from research and on-the-ground experience that youth prisons are not designed to best promote youth rehabilitation. This report offers concrete alternatives for policymakers across the country to maintain public safety, hold young people accountable, and turn their lives around.”
“Juvenile-justice systems must have the clear purpose of giving each youth the tools he or she needs to get on the right path to a successful adulthood and to reintegrate into the community,” said Patrick McCarthy, president and chief executive officer of the Annie E. Casey Foundation and a co-author of the report. Like Schiraldi, McCarthy is a former director of youth corrections — in his case, in Delaware. “By closing traditional youth prisons and leveraging increased political will to reform our country’s dependence on incarceration, states can use the savings to begin implementing a new, more effective approach to serving young people.”
This report, titled “The Future of Youth Justice: A Community-Based Alternative to the Youth Prison Model,” is available in full at this link. And here is a key paragraph from its opening pages:
Whether the benefits and costs of youth prisons are weighed on a scale of public dollars, community safety, or young people’s futures, they are damaging the very people they are supposed to help and have been for generations. It is difficult to find an area of U.S. policy where the benefits and costs are more out of balance, where the evidence of failure is clearer, or where we know with more clarity what we should be doing differently.
"Consolidating Local Criminal Justice: Should Prosecutors Control the Jails?"
The title of this post is the title of this interesting new essay authored by Adam Gershowitz now available via SSRN. Here is the abstract:
Most observers agree that prosecutors hold too much power in the American criminal justice system. Expansive criminal codes offer prosecutors wide discretion to charge defendants with a huge number of offenses. And stiff authorized punishments provide prosecutors with leverage to pressure defendants to plea guilty. As a result, prosecutors hold most of the plea bargaining cards. Massive prosecutorial power has resulted in mass incarceration.
I do not disagree with the conventional wisdom that prosecutors hold too much power. However, absent drastic legislative and judicial change, it will be nearly impossible to substantially reduce prosecutors’ power and discretion. As such, this essay offers the counter-intuitive proposal that we should give prosecutors more, not less, power and responsibility.
This essay argues that states should change their nearly uniform policy of having sheriffs run local jails. Instead, we should place local prosecutors in charge of their local jails. While sheriffs would remain responsible for safety and discipline, prosecutors should be charged with all of the logistical responsibility for checking inmates in and out of the facilities and with handling the overall budgets.
Putting prosecutors in charge of the jails would take a bite out of the “correctional free lunch” in which prosecutors impose sentences but do not have to internalize the financial costs of their decisions. Put simply, prosecutors would have to pay for and live with their misdemeanor charging and sentencing decisions. Consolidating local criminal justice might also have spillover effects that encourage prosecutors to reduce the sentences they seek in felony cases.
Looking into nuanced reality of death penalty perspectives in deep blue California
The always interesting Charles Lane has this interesting new Washington Post opinion piece headlined ""Most Americans don’t like the death penalty, right? Wrong." Here are excerpts:
You’d think Proposition 62, a referendum to abolish California’s death penalty and replace it with life without parole, including for the 749 current occupants of death row, would win easily on Nov. 8. Democrats dominate this state; their 2016 national platform advocated an end to capital punishment. Former president Jimmy Carter, left-populist icon Sen. Bernie Sanders (I-Vt.), the state’s major labor unions and 38 newspaper editorial boards are urging a “yes” vote.
California’s death row costs millions to maintain but the state has only executed 13 people since restoring capital punishment in 1978, mainly due to lengthy appeals processes, including recent successful challenges to its lethal-injection protocol. “Replace the Costly, Failed Death Penalty,” read the yellow-and-black “Yes on 62” sign I saw planted in a well-kept Brentwood yard.
And yet, 12 days before Election Day, Prop 62’s prospects are uncertain. Of five statewide polls since Sept. 1, only one, a Field Poll, showed Prop 62 ahead, 48 percent to 37 percent. Measures that poll below 50 percent tend not to win, even if they are leading, according to Field Poll director Mark DiCamillo. Meanwhile, four other polls showed “no” up by an average of 50 to 37. Survey USA, which has polled on Prop 62 twice, predicts flatly that it is “headed for defeat” — just like a similar anti-death-penalty measure that lost 52 to 48 in the state in 2012.
Prop 62 faces various local political headwinds — including competition for financial resources, and public attention, from more than a dozen other ballot measures, such as marijuana legalization and Gov. Jerry Brown’s pet project, parole reform. Given Prop 62’s potential impact — in one stroke, it would reduce America’s total death-row population of 2,905 by 26 percent — the debate about it is remarkably low-profile. There are next to no ads on TV; the Brentwood yard sign was the only one I saw in three days on the West Coast.
The main lesson, though, has to do with public opinion about the death penalty, which is much more nuanced than media coverage generally reflects....
Long-term Gallup trends suggest that the very high support for the death penalty of the mid-1990s — up to 80 percent one year — was an anomaly, probably a reaction to the soaring violent crime rates of the time. Now that crime has fallen, Gallup’s pro-death-penalty majority is reverting to historical norms; it may go lower still, unless this year’s spike in violent crime turns into a wave.
Another new Gallup survey intriguingly shows decreasing punitive sentiment: 45 percent say the justice system is “not tough enough” on crime, down 20 points since 2003. Meanwhile, 50 percent believe the death penalty is applied “fairly,” and 67 percent say it is imposed either “the right amount” or “not often enough.”
Gallup asks about capital punishment for “murder.” In 2013 and 2015 Quinnipiac interestingly asked whether “murder during acts of terrorism” should be punished by life without parole or death. Both times, about three-fifths said “death” — remarkably high, given that offering life without parole as an alternative usually reduces the number of poll respondents opting for capital punishment.
A rough summary of most Americans’ views of the death penalty might be: “Yes, though it depends.” It depends on what’s going on in society. It depends on the specific crime. It depends on whether you’re asking me in the abstract, as a juror or as a voter.
The very fact the Prop 62 campaign focused on what spokesman Jacob Hay calls a “cost-effectiveness message” implies that categorical moral opposition cannot command a majority, even in a deep-blue state. And two can play at the cost-effectiveness game. California’s pro-death-penalty forces, led by prosecutors and police unions, are promoting Proposition 66, which would deal with the system’s notorious backlog not by abolishing executions but by facilitating them, through streamlining the appeals process.
Both conflicting measures might lose, essentially perpetuating the status quo; California would continue having whatever satisfaction comes with sentencing people to death, without whatever risks come from actually executing them. Also, both might get a majority — Californians could vote yes and no on the death penalty — in which case the one with the most votes becomes law, and the nation’s largest death row would start shrinking, one way or the other.
UDPATE: This new Los Angeles Times opinion piece strikes similar notes under the headline "Despite optimism by abolitionists, the death penalty isn't on the ropes – yet." - 9 hours ago
October 26, 2016
Has DOJ's "Smart on Crime" initiative had a big impact in federal white-collar sentencing outcomes in recent years?
It has now been more than full three years since then-Attorney General Eric Holder made his historic speech to the American Bar Association (reported here and here) about excessive use of incarceration in the United States. In that speech, AG Holder announced the US Justice Department's "Smart on Crime" initiative while making the case that "too many Americans go to too many prisons for far too long and for no good law enforcement reason" and that "widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable." At the time, and subsequently as a result of officials' comments (including 2015 remarks by then AG Holder and 2016 statements by now AG Loretta Lynch and Deputy AG Sally Yates), much has been made about the impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of federal drug offenders.
But recently, as the question in the title of this post suggests, I have been thinking about, and wondering if there is a good way to assess, the possible impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of white-collar offenders. Critically, as I have noted to a number of courts in a number of ways in a number of settings, DOJ's public "SMART on CRIME" materials uses a lot of language that applies to, and should impact, how non-violent white-collar offenders are sentenced. For example, DOJ has stressed the importance of alternatives to incarceration for all non-violent offenders while advocating a "shifting away from our over-reliance on incarceration" to reflect the reality that "[f]or many non-violent, low-level offenses, prison may not be the most sensible method of punishment." And AG Holder's speech was not only focused on drug offenses or offenders when he emphasized excessive incarceration "comes with human and moral costs that are impossible to calculate," and when he stressed that "the judiciary [can] meet safety imperatives while avoiding incarceration in certain cases."
Notably, as some links above highlight, DOJ officials have in 2015 and 2016 documented and promoted how DOJ's "Smart on Crime" initiative has impacted the case processing and sentencing of federal drug offenders. But, perhaps unsurprisingly in these political times, DOJ officials have not said a word (at least that I have seen) about how DOJ's "Smart on Crime" initiative might be impacting white-collar cases (or really any other non-drug cases).
Against that backdrop, I took another look this week at recent US Sentencing Commission data published through its great Quick Facts series on Theft, Property Destruction, & Fraud and Tax Fraud. These two reports seem to cover, roughly speaking, the pools of white-collar cases I have in mind that might be readily impacted by "Smart on Crime" talk about reduced reliance on lengthy terms of imprisonment. And, perhaps significantly, two notable parallel sentencing "trends" were reported in these USSC documents:
- During the past five years, the rate of within range sentences for §2B1.1 offenders has steadily decreased (from 54.4% in fiscal year 2011 to 42.4% in fiscal year 2015).
- During the past five years, the rate of within range sentences for tax fraud offenders has decreased (from 37.8% in fiscal year 2011 to 25.8% in fiscal year 2015).
These two data notes are not, of course, conclusive qualitative proof that DOJ's "Smart on Crime" initiative has had a big impact on federal white-collar sentencing outcomes in recent years. But it does suggest something is helping to "move the sentencing needle" in these kinds of cases in recent years. Relatedly, I would love to hear in the comments or some other way any and all reports (dare I say "qualitative" evidence) from white-collar sentencing practitioners concerning whether they think what AG Holder said and DOJ did as part of its "Smart on Crime" initiative back in 2013 is having a continual tangible impact on case processing and sentencing in non-violent fraud and other white-collar cases.
October 26, 2016 in Criminal justice in the Obama Administration, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3)
Famous "war on drugs" voice now voicing support for marijuana reform: any questions?
This new MarketWatch article, headlined "War on drugs spokesman now supports marijuana legalization," gives me an excuse to flag an iconic 1980s public service announcement while reporting on its new symbolic significance:
The voice behind one of the war on drugs’ most iconic ads has cast a vote to legalize marijuana. During the height of the ’80s war on drugs that gave rise to the “Just Say No” campaign, actor John Roselius stared in an antidrug TV ad for the Partnership for a Drug-Free America. The ad featured Roselius frying an egg in a skillet to portray what happens to the brain while using drugs.
Roselius, who is now 72, recently told Colorado-based Rooster Magazine he voted “yes” on California’s Adult Use of Marijuana Act, or Prop 64, which would legalize and regulate the use and sale of the plant to adults. “I’m 100% behind legalizing it, are you kidding? It’s healthier than alcohol,” Roselius told the publication.
And he’s not alone. Just ahead of the Nov. 8 election — in which five states will vote on legalizing the recreational use of marijuana and four will vote on legalizing medical marijuana—a Gallup poll shows that 60% of Americans support legal marijuana use. That’s the highest percentage of support recorded in the 47-year trend, with support rising among all age groups in the past decade.
That follows a separate poll by Pew Research earlier in the month which found 57% of Americans support legalization. “The topline number obviously bodes well for the marijuana measures on state ballots next month,” said Tom Angell of Marijuana Majority, an organization tasked with educating people and fighting for marijuana legalization. “More politicians — presidential candidates included — would do themselves a big favor to take note of the clear trend and then vocally support legislation catering to the growing majority of Americans who support modernizing failed marijuana policies.”
Roselius told Rooster Magazine he’d smoked marijuana in the ’60s, and that when he made the ad, he knew it didn’t fry the brain like an egg.
The war on drugs has been one of the most scrutinized and debated policies to come out of the Reagan era. Drug dealers were cast as violent villains and were blamed for devastating some of America’s cities. Incarceration rates shot higher and disproportionately affected men of color.
The cannabis industry has since fought back against that portrayal, calling for an end to arrests for nonviolent marijuana-related offenses. Roselius’ vote to legalize marijuana in California could help push one of the most important states in the movement to the forefront.
Of course, if you do have question about these matter, my blog Marijuana Law, Policy and Reform has a lot more coverage. And, with that intro and a good excuse now, here is a review of some recent posts there (many of which are the fine work of my relatively new co-blogger):
- "The Hazy Rollout of Ohio’s Medical Marijuana Control Program"
October 26, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)
"Democratizing Criminal Law: Feasibility, Utility, and the Challenge of Social Change"
The title of this post is the title of this new paper authored by Paul Robinson now available via SSRN. Here is the abstract:
The notion of “democratizing criminal law” has an initial appeal because, after all, we believe in the importance of democracy and because criminal law is so important – it protects us from the most egregious wrongs and is the vehicle by which we allow the most serious governmental intrusions in the lives of individuals. Given criminal law’s special status, isn’t it appropriate that this most important and most intrusive governmental power be subject to the constraints of democratic determination?
But perhaps the initial appeal of this grand principle must give way to practical realities. As much as we are devoted to democratic ideals, perhaps the path to a better society is one that must recognize inherent weaknesses in the system of democratic action, which necessarily relies upon the judgments of common people. Perhaps, when dealing with things as important as doing justice and preventing crime, we must look instead to experts, such as criminologists and moral philosophers. Perhaps the path to a better society is one that, in this instance, should skirt democratic preferences as needed?
More specifically, consider some of the realities that might derail a movement toward democratizing criminal law: First, perhaps there is no such thing as a shared community view of justice on which to base a criminal law, but simply an endless list of individual disagreements. There can be no such thing as a criminal code that reflects community views if there is no such thing as a community view. Second, even if there were a shared community sense of justice, perhaps it is brutish and draconian, something born of anger and suspicion and not something that even the people themselves feel should be enshrined in public principles of liability and punishment. Third, even if community views of justice are in fact enlightened, something that people would be proud to enshrine in public law, perhaps they are not the path to a society with less crime. That is, perhaps the path to effective crime control is not through justice -- either the community’s view of it or the moral philosopher’s view -- but through more instrumentalist crime-control mechanisms, such as general deterrence or incapacitation of the dangerous. And finally, even if relying upon the community’s views of justice did turn out to be a mechanism of effective crime-control, wouldn’t such a system condemn us to live under the status quo of current community views, when history teaches us that a society can improve itself and the lives of its members only by moving ever forward in refining its judgments of justice?
Thus, this brief essay will take up these four questions: Is there any such thing as the community’s views of justice? Are the community’s views of justice brutish and draconian? Why should a criminal law concerned with crime-control care what the community thinks is just? Should the criminal law ever deviate from the community’s shared judgments of justice?
The Opportunity Agenda produces huge report on "Transforming the System: Criminal Justice Policy Solutions"
The Opportunity Agenda, which is a project of Tides Center and calls itself a "social justice communication lab," has just released this huge new on-line report (which is also available as a pdf here) under the title "Transforming the System: Criminal Justice Policy Solutions." Here is the main introduction and the headings for links to different sections of this report:
Our criminal justice system must keep all communities safe, foster prevention and rehabilitation, and ensure fair and equal justice. But in too many places, and in too many ways, our system is falling short of that mandate and with devastating consequences. The United States is saddled with an outdated, unfair, and bloated criminal justice system that drains resources and disrupts communities.
People of color, particularly Native American, black, and Latino people, have felt the impact of discrimination within the criminal justice system. Many immigrants experience mandatory detention, racial profiling, and due process violations because of laws and policies that violate their human rights—and the principles of equal justice, fair treatment, and proportionality under our criminal justice system. The good news is that we as a nation are at a unique moment in which there is strong public, bipartisan support for criminal justice reform; we see positive policy developments in many parts of the country; and mass action and social movements for change are growing, including the Movement for Black Lives. More is needed, however, to move from positive trends to transformative, lasting change.Criminal Justice Policy Solutions
- Promote Community Safety through Alternatives to Incarceration: Our criminal justice system should ensure that all individuals feel safe and secure in their communities.
- Create Fair and Effective Policing Practices: To work for all of us, policing practices should ensure equal justice and be supported by evidence.
- Promote Justice in Pre-Trial Services & Practices: The right to due process is a cornerstone of our commitment to freedom and fairness.
- Enhance Prosecutorial Integrity: Prosecutors represent the government, and therefore must reflect the highest levels of integrity and ethics in their work.
- Ensure Fair Trials and Quality Indigent Defense: Every accused person is entitled to a fair trial. Indigent defendants have a constitutional right to competent representation at trial.
- Encourage Equitable Sentencing: People convicted of crimes should receive fair sentences. These sentences should reflect the severity of the crime and be administered in a fair manner.
- Ensure Decent Detention Conditions: Decent, rehabilitative prisons are a basic human right and crucial to the successful reintegration of formally incarcerated people.
- Require Equitable Parole and Probation: Parole and probation practices should be fair and consistent. They should be used as a tool to allow accused persons to safely remain in their communities.
- Foster Successful Reintegration: Most Americans agree that after completing a criminal sentence, released people should be given an opportunity to successfully reintegrate into their communities.
- Foster an Environment for Respecting Children's Rights: We must adopt policies that ensure children reach their full potential and are not placed off track for childhood mistakes.
- Eradicate the Criminalization of Sex, Gender, & Sexuality: We all should have freedom to live without fear of criminalization because of our expressed sex, gender or sexuality.
- Eliminate the Criminalization of Poverty: Instead of increasing opportunities to succeed, our law too often funnels low-income people into the criminal justice system.
- Eliminate the Criminalization of Public Health Issues: The criminal justice system is too often used as a cure-all for social problems that are better suited to social services and public health responses.
- Promote Fairness at the Intersection of Immigration and Criminal Justice: Everyone is entitled to have their human rights respected regardless of immigration status.
- Public Opinion Report: A New Sensibility: This report is based on a review of about fifty public opinion surveys and polls, most of them conducted between 2014 and June 2016.
I suspect most, if not all, of this report's various sections will be of interest to readers. And I hope it is useful for all to see what is listed as 10 action items under the "Encourage Equitable Sentencing" section. That section starts this way and they has these 10 "Solutions and Actions to Encourage Fair Sentences":
We all want a criminal justice system that treats people fairly, takes a pragmatic and responsible approach, and ultimately, keeps us safe. When we’ve reached the point of deciding to deprive someone of their liberty, we have to be particularly fair and responsible and consider all options. Sentences should consider a range of factors and reflect the severity of the crime. We owe it to ourselves, our justice system, and to those being imprisoned to ensure that our sentencing practices are thoughtful and fair. Nonetheless, the explosion of the American prison population is largely due to sentences that are disproportionate to the severity of crimes. Prisons and jails are filled by many people who pose no threat to their communities. Laws that impose mandatory minimums contribute to mass imprisonment. Sentencing laws should be reformed to require transparency and mandate equitable practices that ensure that sentences are appropriate to the particular circumstances of an offense.
1) Repeal “Truth-in-Sentencing” and “Three-Strikes” Law...
2) Repeal Mandatory Minimums...
3) Use Alternatives to Incarceration...
4) Prohibit Incarceration for Failure to Appear...
5) Revise Sentencing Guidelines...
6) Commit to Cutting Incarceration in Half...
7) Collect Data...
8) Train Judges on Implicit Bias...
9) Appoint Judges from Diverse Backgrounds...
10) Evaluate Ability to Pay
October 26, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)
Two interesting reviews of the (in)application of Graham and MIller in two states
In my upper-level sentencing course, we are now discussing the past, present and future of Eighth Amendment jurisprudence placing limits on the imposition of prison terms. Of course, this discussion now culminates in a review of the Supreme Court's recent work in Graham v. Florida and Miller v. Alabama and their continuing fallout. Conveniently, just this past weekend, two different newspapers in two different states published these two articles on how that fallout is playing out:
From Jacksonville.com here about developments in Florida, "No Second Chance: Why juvenile offenders stay locked away"
From the Milwaukee Journal Sentinel here about developments in Wisconsin, "Juvenile offenders in legal limbo: Although life sentences without parole banned for youths, 68 state inmates not likely to benefit"
This passage from the first of these articles highlights some reasons why, even years after Graham and Miller were decided and required resentencing of certain juvenile offenders, most of these offenders are still going to be spending many decades in prison before even having a chance at release:
In striking down these harsh sentences, the Supreme Court “obviously was concerned, No. 1, about locking kids up and throwing away the key,” said Marsha Levick, Philadelphia attorney and co-founder of the Juvenile Law Center. “The court was very clear that it believes kids are truly different.” Indeed Justice Elena Kagan has written that, “given all that we have said … about children’s diminished culpability, and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”
But in Courtroom 12, Circuit Judge John H. Skinner was unmoved. Despite hundreds of hours of legal work, stacks of documents and a morning of arguments, the judge told Thomas, “I haven’t really changed my mind at all as far as what you should get in this case.”
So Thomas, the youngest child in a tight-knit military family, was sentenced again to 40 years. This time, there will be a review in front of a judge and chance for release after 15 years, a provision that brings the penalty into compliance with state law.
Scenes like this one in a Jacksonville suburb are playing out around the state and across the country as judges resentencing juvenile offenders continue to issue lengthy sentences that advocates say defy the intent of the Supreme Court.
It will take years for the courts to work through the 58 Duval County homicide cases in which the juveniles’ original sentences have been deemed unconstitutional. Preparing for a resentencing hearing is intensive, and an area where the case law is constantly evolving.
But if the results from some of the earliest resolved Jacksonville cases are any indication, judges will continue to hand down long punishments. In the nine cases in which teens were first sentenced to life for childhood crimes that weren’t murder, seven of the defendants will be 60 or older when they are released.
October 25, 2016
"Assessing the Impact of Johnson v. United States on the Void-for-Vagueness Doctrine"
The title of this post is the title of this effective and extensive new Casetext essay authored by Carissa Hessick. It starts and ends this way:
Johnson v. United States, 135 S. Ct. 2551 (2015), held that the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague. Johnson generated a large amount of litigation in the federal courts. Less than a year after it was decided, the Supreme Court decided another Johnson case, Welch v. United States, 136 S. Ct. 1257 (2016), which held that the rule in Johnson should be applied retroactively to those defendants whose convictions and sentences have already become final. The Supreme Court has also agreed to hear two new Johnson cases in the 2016 Term.
Johnson raised important constitutional doubts about federal statutes that employ the so-called “categorical approach” to classifying criminal conduct, as well as doubts about certain Federal Sentencing Guidelines. This short essay describes Johnson and explores the Johnson-related issues that the Court will hear this Term....
Johnson v. United States is of the most cited U.S. Supreme Court cases from recent Terms. Johnson obviously affected the large number of defendants who were sentenced under the residual clause of the Armed Career Criminal Act. It may, however, have a lasting impact on the vagueness doctrine itself. By questioning the viability of the categorical approach and by clarifying that the doctrine applies also to laws that fix sentences, Johnson has called into doubt the constitutionality of other federal criminal laws and various Federal Sentencing Guidelines. We will have to await the decisions in Lynch v. Dimaya and Beckles v. United States in order to fully assess the legacy of Johnson. If the government loses those cases, then we are likely to see a further challenges to laws that fall within the long shadow of Johnson.
Latest USSC data suggest prison savings now exceeding $2 billion from "drugs -2" guideline amendment retroactivity
The US Sentencing Commission's website has this new data document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated October 2016, provides updated "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through September 30, 2016, and for which court documentation was received, coded, and edited at the Commission by October 20, 2016."
The official data in the report indicate that, thanks to the USSC's decision to make Amendment 782, the so-called "drugs -2" guideline amendment, retroactive, now 29,391 federal prisoners have had their federal drug prison sentences reduced by an average of over two years. So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers around $2.1 billion dollars.
As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and taxpayer costs of the federal government. Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be relatively cautious in his use of his clemency power, this data provide still more evidence that the work of the US Sentencing Commission in particular, and of the federal judiciary in general, remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.
"Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases"
The title of this post is the title of this notable report authored by Joanna Shepherd and Michael S. Kang which I learned about via an email from The American Constitution Society for Law and Policy. Here is the text of that email, which provides a summary of the report's contents:
The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. That’s according to independent research sponsored by the American Constitution Society for Law and Policy (ACS). State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.
The report, Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases, is a compilation of data from over 3,000 criminal appeals decided in state supreme courts in 32 states from 2008 to 2013. Researchers found that the more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to rule in favor of criminal defendants; and justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the Citizens United decision.
“The amount of money spent in state judicial elections has skyrocketed and the results of that spending are clear. The flood of interest group money set free by Citizens United are endangering what should be impartial judicial decision-making and putting the fundamental constitutional rights of every American at risk,” said ACS President Caroline Fredrickson. “The data show that the television campaign ads this money buys put a thumb on the scale in criminal cases, and undermine the promise of equal justice that is a cornerstone of our democracy.”
Skewed Justice, by Dr. Joanna Shepherd and Dr. Michael S. Kang, both law professors at Emory University, follows the report Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions, published by ACS in 2013. That report, authored by Professor Shepherd, revealed the growing influence of contributions on state supreme court judges. While the majority of media attention is focused on the United States Supreme Court, elected judges at the state level handle more than 90 percent of the United States’ judicial business. This gives money and advertising huge influence in American democracy. Beginning in the 1990s, and accelerating in almost every election cycle since, judicial elections have become more competitive and contentious, and campaign spending on these elections has skyrocketed, the research finds. Incumbent judges almost never lost their reelection bids during the 1980s, but by 2000 their loss rates had risen higher than those of congressional and state legislative incumbents.
UPDATE: A helpful reader realized that this ACS-sponsored study is actually not so new, as it was first released a couple tears ago. I now assume ACS was promoting it anew (and led me to think it was new) because the report is extra-timely during a big elections season.
Great back-and-forth discussion at RealClearPolicy over crime policy ideas "that should guide the next presidential administration's agenda"
During an election cycle characterized by bombast, sound bites, and sensationalism, it’s easy to forget what we, as voters, are being asked to decide: What are the best policies for our country? What concrete proposals and legislative frameworks should guide the next presidential administration?
We at RealClearPolicy are creating a conversation among the partisans to help answer that question. In this special series, we’ve asked 12 leading authorities from both Left and Right to make their best case for the policy ideas that should guide and influence the next administration. Between now and Election Day, we will publish 24 articles, focusing on 12 major policy issues from differing points of view — from education policy and economic growth to health-care reform and energy policy — including a response by each author to the opposing position and a recommended reading list. This is a rare chance to hear top thinkers try out their best policy ideas — and respond to the strongest objections — in a public forum leading up to the election.
The series so far has covered four issue, and I was very pleased to see the third issue covered was "Crime" and it was covered via these entries:
PART 3: CRIME
In Part 3, Heather Mac Donald, Thomas W. Smith fellow at the Manhattan Institute, squares off against Danyelle Solomon, Director of Progress 2050 at the Center for American Progress:
Heather Mac Donald, "Telling the Truth About Crime and Policing."
Danyelle Solomon, "Time to Fix Our Failing Criminal-Justice System."
Heather Mac Donald and Danyelle Solomon, "Mac Donald v. Solomon: The Authors Respond."
There is so much that is interesting and effective in this back-and-forth that I am just going to encourage everyone to read the commentaries in full and also urge readers to share in the comments their views on the most important crime policy ideas to guide the next Administration.
UPDATE: I just notices that Andrew King over at Mimesis Law has this extended new commentary criticizing what both Heather Mac Donald and Danyelle Solomon say in these dueling commentaries. Here is how his commentary on the commentaries starts and finishes:
Crime has been a big issue in this presidential campaign. But the issues of crime swirling around the campaign has not been about policy—it’s been about the candidates. Hillary Clinton has had her email issues, and the detestable-yet-legal bribery surrounding the Clinton foundation. Donald Trump has been accused of sexual assault, and he has threatened his critics with re-criminalizing libel.
Besides caring a lot about who knows what about Aleppo, the debates and the recent campaigning has been relatively free of policy discussions. In an effort to interject some policy into the political dialog, Real Clear Polics asked Heather McDonald and Danyelle Solomon to discuss crime policy and represent the right and left respectively. Perhaps, not surprisingly to J.D.s who do policy work for think tanks, they begin with hyperbole....
The next President will have to budget for a trillion dollars and set policy for tens of thousands prosecutors, special agents, and support staff. And there are serious criminal law issues right now that deserve careful consideration. But it doesn’t look like either candidate will be the President to do that. The only solace is that we get to pick one of them. In the meantime, we can expect more of each side talking past the other.
October 24, 2016
Former Pennsylvania AG sentenced to 10-23 months in prison following jury convictions for perjury and obstruction of justice
I have not closely followed developments surrounding the political downfall and criminal prosecution of former Pennsylvania Attorney General Kathleen Kane. But today this matter involved some interesting sentencing stories and drama, as reported via this lengthy local article headlined "Despite plea for leniency, Kane gets 10-23 months in jail." Here are excerpts:
Former Pennsylvania Attorney General Kathleen Kane was sentenced Monday to 10 to 23 months in jail for orchestrating an illegal news leak to damage a political enemy, capping a spectacular downfall for a woman once seen as one of the state's fastest-rising stars.
"The case is about ego, ego of a politician consumed by her image from Day 1," Judge Wendy Demchick-Alloy told Kane at the end of a five-hour hearing in Norristown. "And instead of focusing solely on the business of fighting crime, the focus was battling these perceived enemies . . . and utilizing and exploiting her position to do it."
A tearful Kane pleaded for leniency, urging the judge to consider the impact on her sons. "I would cut off my right arm if they were separated from me and I from them," she said. "Please sentence me and not them." But Demchick-Alloy was not swayed. "It's a shame that they had to go through all of this," she told Kane. "But that's a decision you made, not this court."
Unable to immediately post $75,000 bail, Kane was led in handcuffs from the courtroom to the Montgomery County Correctional facility in Eagleville. She was released hours later — and might not have to return anytime soon. She will remain free on bail until she exhausts her state appeals, a process that could take months.
Still, the sentencing marked a bitter end to a career that drew national attention after Kane, a political neophyte and Scranton-area prosecutor, in 2012 became the first Democrat and woman to be elected as attorney general of Pennsylvania. Over hours on Monday, the judge heard Kane's supporters — including her son — extol her accomplishments and describe how devastating her conviction has been.
But Montgomery County prosecutors countered by calling to the stand Kane's current and former colleagues, who testified how she let a personal feud and paranoia poison the state's top law enforcement office and plunge it into disarray.
Erik Olsen, a top prosecutor, said he was thrilled when Kane won election, thinking her victory would bring a much-needed fresh perspective to an office he said had at times been "misogynistic and mean-spirited." Instead, he testified, "through a pattern of systematic firings and Nixonian espionage, she created a terror zone in this office."
Kane's first year was marked by political and public relations successes. She drew attention for her stands in support of marriage equality and gun control and for crippling Republican Gov. Tom Corbett's move to privatize the lottery — all positions her lawyer cited Monday in arguing for house arrest. But after her star began to dim in 2014, she leaked confidential grand jury material to a newspaper in a bid to embarrass a political enemy, and then lied about her actions under oath. The ensuing two years became a bitter war, often played out through legal filings or public statements, that at times entangled government officials, Supreme Court justices, and the legislature.
At a trial in August, a jury found her guilty of perjury, obstruction and other charges. She resigned a day later.
In her plea to the judge, Kane did not directly apologize for her crimes but rather for the consequences of her actions, saying she never intended to hurt anyone and was sorry if Pennsylvanians had lost a sense of trust in the attorney general's office. But her appeal for house arrest was a personal one: A 50-year-old mother in the throes of a divorce, she said a sentence sending her to prison could devastate her sons, 14 and 15....
Kane's lawyer, Marc R. Steinberg, said Kane's unprecedented fall from grace had been a punishment in itself. "She stands a convicted felon subject to public shame and public humiliation," he said. Steinberg also argued Kane could be in danger behind bars, a prediction echoed by Frank V. DeAndrea Jr., a former Hazleton police chief who raised the specter of drug gangs ordering a prison hit and told the judge incarceration could be a "death sentence" for the former prosecutor.
Demchick-Alloy retorted: "When you unfortunately dirty yourself with criminal behavior, you assume that risk."
Prosecutors had sought a stiff prison term, pointing to the impact of Kane's crimes and the office culture of fear and paranoia that developed under her tenure. A former state prosecutor, Clarke Madden, testified that Kane's wrongdoing caused the State Police and the FBI to refuse to cooperate with their office, discouraged victims and witnesses from being helpful to their cases and led judges and defense lawyers to subject prosecutors to sarcastic and sniggering remarks.... After the sentencing Monday, Montgomery County District Attorney Kevin R. Steele and fellow prosecutor Michelle Henry told reporters they were satisfied with the outcome. "We suggest that is a significant sentence," Steele said. "Nobody is above the law."
Is the death penalty in the United States really "nearing Its end"?
The question in the title of this post is prompted by this notable new New York Times editorial headlined "The Death Penalty, Nearing Its End." Here is the full text of the editorial:
Although the death penalty is still considered constitutional by the Supreme Court, Americans’ appetite for this barbaric practice diminishes with each passing year. The signs of capital punishment’s impending demise are all around.
For the first time in nearly half a century, less than half of Americans said they support the death penalty, according to a Pew Research poll released last month. While that proportion has been going down for years, the loss of majority support is an important marker against state-sanctioned killing.
At the same time, executions and new death sentences are at historic lows, and each year they go lower. In 2015 only 49 new death sentences were handed down, the lowest one-year total since the Supreme Court reinstated capital punishment in 1976.
Since there were about 14,000 murders around the country last year, it’s easy to imagine that the small number of newly condemned people shows that the justice system is focusing on the “worst of the worst.” But that’s wrong. In fact the crimes of the people sentenced to death are no worse than those of many others who escape that fate. Rather, nearly all of last year’s death sentences came from a tiny fraction of counties with three common features: overzealous prosecutors; inadequate public defenders; and a pattern of racial bias and exclusion. This was the key finding of a two-part report recently issued by the Fair Punishment Project at Harvard Law School.
Even in the most death-friendly counties, public support appears to be fading. In two of the worst — Duval County in Florida and Caddo Parish in Louisiana — local prosecutors lost elections at least partly due to voters’ concerns about their stance on the death penalty. In other counties around the country, prosecutors are finding that aggressive advocacy for death sentences isn’t the selling point with the public that it once was.
In some of the biggest states, death-penalty systems are defunct or collapsing. Earlier this month, the Florida Supreme Court struck down a terrible state law that allowed nonunanimous juries to impose death sentences — increasing the likelihood that innocent people and those with intellectual or mental disabilities would be condemned. A large number of Florida’s 386 death-row inmates could now receive new sentencing trials, or have their sentences thrown out altogether.
In California, which hasn’t executed anyone since 2006 even though more than 740 inmates sit on death row, voters will decide in November whether to eliminate capital punishment for good. A similar ballot initiative in 2012 was narrowly defeated. In 2014, a federal judge ruled that the state’s decades-long delays in capital cases violated the Eighth Amendment’s ban on cruel and unusual punishment. (The decision was overturned by an appeals court on technical grounds the following year.)
While capital punishment is used rarely and only in some places, only a definitive ruling from the Supreme Court will ensure its total elimination. How close is the court to such a ruling? In recent dissenting opinions, three of the justices — Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor — have expressed deep misgivings about the death penalty’s repeated failure to meet the requirements of due process and equal protection. Justice Breyer has said it is “highly likely that the death penalty violates the Eighth Amendment,” and has called for the court to consider whether it is constitutional at all.
The death penalty has escaped abolition before, but there are no longer any excuses: The nation has evolved past it, and it is long past time for the court to send this morally abhorrent practice to its oblivion.
I wonder if anyone who is a strong supporter of capital punishment will write (and get published) a response to this editorial which might be headlined something like "The Death Penalty, Poised for a Big Comeback." That response might highlight that, according to polls in deep blue California, voters there are seemingly going to provide "majority support" for making more efficient in California "state-sanctioned killing." That response might highlight that, in swing state Ohio, executive officials have been working extra hard to get the state's machinery of death operative again and have execution dates scheduled for nearly two dozen condemned murderers in 2017 and 2018. That response might highlight that, in swing state Florida, the state legislature has been quick and eager to retain and revise its death penalty statutes every time a court has found constitutional problems with its application. That response might highlight that, in deep blue Massachusetts, a federal jury in 2015 wasted little time in deciding that “worst of the worst” capital defendant Dzhokhar Tsarnaev should be condemned to die for his crime. And that response might highlight that, in the most liberal national criminal justice administration of my lifetime, federal prosecutors of the Obama Administration were seemingly eager to pursue capital charges against the Charleston Church shooter Dylann Roof.
I could go on and on (mentioning, inter alia, developments in Alabama, Oklahoma, Nebraska and elsewhere), but my main point here is highlight the critical reality that the description of "death-penalty systems [as] defunct or collapsing" is largely a product of effective litigation by abolitionists and the work of courts, not really a reflection of a sea-change in public opinion or radical changes in the work of most legislatures and prosecutors in key regions of the United States. The NYTimes editorial board my be right that we may soon see litigation by abolitionists achieve the ultimate success in the courts by having the Justices of the Supreme Court declare the death penalty per se unconstitutional. But, absent some surprising political and social developments over the next few years, would-be abolitionists ought to be careful about counting chickens too soon.
October 24, 2016 in Baze and Glossip lethal injection cases, Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
"Autonomy and Agency in American Criminal Process"
The title of this post is the title of this intriguing new short paper now available via SSRN authored by the always intriguing David Sklansky. Here is the abstract:
This is an essay about the interaction of two assumptions that shape the way fairness is pursued in American criminal procedure. The first assumption is that fairness is best advanced through a series of procedural rights that defendants can invoke or waive at their discretion. The second assumption is that the choices made by defense attorneys can fairly be attributed to their clients.
The first of these assumptions reflects a strong national commitment to individualism; the second reflects a heavy reliance on lawyers to safeguard defendants’ interests. Both reflect a deeply rooted distrust of government. Each of these two assumptions is defensible, and each relates to fundamental aspects of the national political culture. Taken together, though, they have narrowed what fairness means in American criminal adjudication; they combine with a kind of negative synergy, making each harder to defend than it might be without the other.
October 23, 2016
California judge imposes prison term of 1,503 years(!?!) on father who repeatedly raped daughter
As reported in this local article, a state judge in California gave new meaning to the term "mass incarceration" by imposing a prison sentence on a rapist that will not be completed until the year 3519. Here are the details:
Fresno prosecutor Nicole Galstan asked a judge on Friday to sentence Rene Lopez to 1,503 years in prison for raping his teenage daughter over a four-year period, ending in 2013. Judge Edward Sarkisian Jr. agreed, sentencing the 41-year-old Lopez to the longest-known prison sentence in Fresno Superior Court history.
It stands in stark contrast to recent high-profile sentencings in sexual assault cases such as six months for ex-Stanford swimmer Brock Turner and, just this week, 60 days for a Montana man convicted of felony incest for raping his 12-year-old daughter.
In announcing the punishment, Sarkisian told Lopez he violated a position of trust, engaged in violent conduct and is a “serious danger to society.” Sarkisian also noted that Lopez had never shown remorse and has blamed his daughter for his predicament.
Lopez, who sat shackled in the courtroom, sat silently, never acknowledging his daughter, who told Sarkisian that she feared her father. (The Fresno Bee does not name victims of sexual abuse.) “When my father abused me, I was young. I had no power, no voice. I was defenseless,” said the daughter, who now is 23 years old. She also told the judge that her father never has shown remorse for her pain and suffering....
In September, a jury found Lopez guilty of 186 felony counts of sexual assault, including dozens of counts of rape of a minor. Galstan said the victim was first sexually abused by a family friend. But instead of the father protecting his daughter, “he chose to turn her into a piece of property and use her to satisfy his sexual needs,” the prosecutor told the judge.
The victim was raped two to three times a week from May 2009 to May 2013. Galstan said it ended only when the girl got the courage to leave him. Even then, her father would drive by her new home and later leave love songs on her message machine, the judge said....
At Friday’s hearing, Sarkisian read the date of each felony count, which included Lopez raping his daughter on Christmas and other holidays. Before he announced the sentence, Sarkisian said Lopez turned down two plea deals. Before his preliminary hearing, if he had admitted his guilt, prosecutors would have recommended 13 years in prison. Lopez rejected the offer. Then before his trial, he was offered 22 years in prison if he admitted his guilt. Lopez declined that offer, saying he should be released from jail for the time he already had served, Sarkisian said.
“He ruined her teenage years and made her feel like it was her fault,” Galstan said in arguing for the maximum sentence.
Lopez, who did not testify in his trial, wrote in a letter to the judge that he didn’t get a fair trial and that his daughter lied on the witness stand. “It’s hearsay,” he says in the letter. But Sarkisian told him that he received a fair trial and that the evidence was overwhelming. In addition to the victim’s testimony, jurors heard entries from her diary in which she chronicled her father’s crimes against her, Galstan said. And when she got pregnant from her father, he paid for the abortion, the judge said.
In addition to the prison sentence, Sarkisian said Lopez will have to register as a sex offender.
Though this defendant was convicted of extreme crimes that justified an extreme sentence, the decision of the prosecutor to seek and the judge to impose a term of 1,503 years in prison strikes me as silly and arguably counterproductive to the goal of helping all victims of sexual assault feel vindicated by the criminal justice system. It is silly, I think, to impose upon a defendant a crazy-long-impossible prison sentence just for symbolic effect, just as a restitution sentence of, say, "one trillion, zillion, billion dollars" would be silly. And this crazy-long-impossible prison sentence could, at least indirectly, make other victims of sexual assault whose victimizers were given much shorter sentences feel as though their harms were not entirely vindicated in their cases.
UPDATE: Over at his blog Simple Justice, Scott Greenfield has this effective new post titled "Rape, Incest And Retribution" to highlights how this case takes us from "the sublime to the ridiculous" as we reflect on what this case represents against the backdrop of other recent controversial sexual assault cases in California and Montana. In addition to recommending this post in full, I also recommend the comments there (as well as this funny button Scott provides if his post hurts your feelings).
"Punishment Theory for the Twenty-First Century: The Need to Replace Retributive and Mixed Theories"
The title of this post is the title of this notable new paper authored by Michael Tonry now available via SSRN. Here is the abstract:
The retributive conception of punishment as a process for censuring blameworthy conduct provides an important element of a complete theory of punitive justice, but by itself is not enough. Nor are “mixed” theories that attempt to reconcile traditional retributive and consequentialist elements. In the abstract, if punishment were unidimensional and based solely on the offenses of which offenders were convicted, they should be censured, and punished, precisely as much as they deserve relative to the censure and punishment of other offenders who commit the same and different offenses. All that would be needed is a sufficiently discriminant ordinal scale of offense seriousness tied to proportionate punishments.
Punishment, however, cannot be unidimensional, as recent exploratory efforts to develop principled accounts of sentencing of individuals convicted of multiple offenses show. A complete theory of punitive justice must also take account of principles, values, and goals besides blameworthiness and crime prevention. These include fairness, equality, and human dignity, but not merely as side constraints. A conception of punishment based on blameworthiness, or blameworthiness and prevention, can be no more than one among several interacting normative frameworks governing just punishment of convicted offenders.
Supreme Court of Louisiana declares 99-year term without parole for juve armed robber violates Graham
The Supreme Court of Louisiana issued an interesting and significant unanimous ruling last week in Morgan v. Louisiana, No. 2015-KH-0100 (La. Oct. 19, 2016) (available here). Here is how the opinion gets started:
A jury found the defendant, Alden Morgan, committed the offense of armed robbery at age 17. Following return of the guilty verdict, the district court sentenced him to 99 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. After being denied relief on direct review, the defendant filed a motion to correct an illegal sentence in light of recent developments in Eighth Amendment jurisprudence pertaining to the sentencing of juveniles. Specifically, the defendant relied on Graham v. Florida, 560 U.S. 48 (2010), wherein the United States Supreme Court concluded that a sentence of life without the possibility of parole for a nonhomicide offense committed when the defendant was a juvenile constitutes cruel and unusual punishment. We granted the defendant’s writ application to determine whether the defendant’s 99-year sentence is an effective life sentence and is, therefore, illegal under the Supreme Court’s decision in Graham. For the reasons that follow, we hold that a 99-year sentence without parole is illegal because it does not provide the defendant “with a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. at 75. Accordingly, we amend the defendant’s sentence to delete the restriction on parole eligibility and direct the Department of Corrections to revise the defendant’s prison masters according to the criteria in La. R.S. 15:574.4(D) to reflect an eligibility date for consideration by the Board of Parole.
What makes the Morgan opinion especially blogworthy is the short concurring opinion authored by Justice Crichton, which reads as follows:
“I do solemnly swear that I will support the constitution and laws of the United States and the constitution and laws of this state. . .” La. Const. art. X, § 30.
These words, which each justice of this Court affirmed upon taking office, which all Louisiana lawyers affirm, and which the District Attorney also affirms, reflect our solemn duty as members of the judiciary and the broader judicial system to uphold the constitutions of the United States and Louisiana. Despite the clear mandate of the United States Supreme Court in Graham v. Florida, 560 U.S. 48 (2010), the Orleans Parish District Attorney has taken the stunning position that this defendant does not face the functional equivalent of life imprisonment and that he would have — in the year 2082 and at age 101 — a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. at 75. Even worse, the District Attorney has invited this state’s high court to join him in this constitutionally untenable position that directly conflicts with a line of United States Supreme Court cases rolling back excessive punishment of juvenile offenders. See Graham, supra, Roper v. Simmons, 543 U.S. 551 (2005), Miller v. Alabama, 567 U.S. -- (2012). This position would, in my view, violate our oath of office insofar as it would contravene the Supreme Court’s pronouncements and, therefore, also violate the Supremacy Clause. U.S. Const. art. VI, cl.2. See State ex rel. Barrabino v. Henderson, 283 So. 2d 764, 766 (La. 1973) (Tate, J., concurring) (“The United States Constitution as interpreted by that court is binding upon every court in this land, including the Supreme Court of Louisiana. . . .”). See also generally La. Rules of Prof. Conduct R. 3.1, 3.3.
Relatedly, I emphasize that the district attorney has an awesome amount of power in our justice system, which encompasses the “entire charge and control of every criminal prosecution instituted or pending in his district,” including the determination of “whom, when, and how he shall prosecute.” La. C.Cr.P. art. 61. As such, a prosecutor’s responsibility is as “a minister of justice and not simply that of an advocate.” Model Rules of Prof’l Conduct R. 3.8 cmt (Am. Bar. Ass’n 1983). See also State v. Tate, 171 So. 108, 112 (La. 1936) (noting that the district attorney “represents the State, and the State demands no victims. It seeks justice only, equal and impartial justice. . . .”). Given both this power and responsibility, the District Attorney should seek to uphold the integrity of his office by declining to take positions that, as reflected by the 7-0 decision in this case, contravene federal constitutional law.
Anyone eager to predict the exact results of Nebraska Referendum 426, the state's "Death Penalty Repeal Veto Referendum"?
Practically and politically, the most important vote this fall concerning the present and future of the death penalty will be taking place in California where voters will weigh in on competing initiatives offering to end or to mend capital punishment in the state. But as highlighted effectively by this recent Marshall Project article, there are notable death penalty ballot questions before voters in two other states. This article, headlined "Three States to Watch if You Care About the Death Penalty: Nebraska, Oklahoma, and California will test the prospects of abolition," provides an astute review of all the measures and it ends this way:
Pew’s national poll numbers aside, the death penalty for years now has been a regional punishment, not a national one, largely confined to the South and West, where skirmishes over its application will continue to play out the way we see it this election. A mixed verdict on the four measures won’t change the national narrative reflected in the latest polls. But if the death penalty is restored in Nebraska, protected in Oklahoma, and expedited in California, we’ll know there are clear popular limits to the abolitionist movement. And if voters choose to keep the death penalty dead in Nebraska, kill it in California and leave it be in Oklahoma, the latest poll numbers will look more like a trend. Either way, these local battles, and not some grand pronouncement from the Supreme Court in Washington, are how the future of capital punishment will be decided.
There has been a good bit of (not-so-clear) recent polling on the death penalty issues in California, and Kent Scheidegger at Crime & Consequence unpacks the latest polling in this new post speculating that the "mend-the-death-penalty" initiative might win in a landslide. Meanwhile, I cannot find any recent polling from Nebraska on its Referendum 426, the state's "Death Penalty Repeal Veto Referendum." That reality has prompted the question in the title of this post, along with this notable new local article from the Cornhusker state headlined "Catholic Church intensifies effort to abolish Nebraska’s death penalty."
I am inclined to predict that Nebraska voters will end up reversing the repeal of the death penalty in the state. This prediction is based not only on Nebraska's status as a solid "red state," but also on the reality that pro-capital-punishment forces in the state have significant resources and a high-profile leader thanks to Gov. Pete Ricketts. (This recent article discusses some recent campaign funding realities under the headlined "Gov. Ricketts gives another $100,000 — for a total of $300,000 — to pro-death penalty group.")
For a variety of symbolic and practical reasons, I think the exact voting percentages on Referendum 426 could be nearly as important as which side prevails. If the vote end up reasonably close either way (e.g., if the winning side gets less than 60% of the vote), I suspect the losing side can and will suggest that it could have prevailed with more resources and more time to educate voters. But if one side wins big after this issue has been garnering attention in the state, I think the vote will be (perhaps rightly) viewed by national advocates as a very clear indication of what folks in the heartland think about the present and future of capital punishment.
Helpfully, some media in Nebraska are do their part seeking to educate voters as revealed by these links to special coverage:
From the Ohama World-Herald, "Death penalty in Nebraska: A three-part series"
From NET News, “Classroom Conversations: Nebraska’s Death Penalty Vote.”