December 17, 2016
Is there any way to predict how Trump judges will develop sentencing jurisprudence?
The question in this post is prompted by this new Politico article headlined "Trump set to reshape judiciary after GOP blockade: The Senate left town with 99 judicial vacancies, as well as the current Supreme Court opening." Here are excerpts:
I have truly no idea whether or how or when Trump insiders will focus seriously on filling judgeships in lower federal courts, but the persons who end up filling all these vacancies will certainly have a major impact on sentencing law and policy as developed through constitutional and non-constitutional sentencing jurisprudence. When and how Prez-Elect Trump names a replacement for Justice Scalia in the weeks ahead may provide some window into how the Trump Administration will approach lower federal court appointments, but I have a feeling judicial appointments could be a kind of "work-in-progress" for the entire first term of the Trump Administration.
Mitch McConnell’s refusal to confirm many of President Barack Obama’s judicial nominees has set the table for Donald Trump to dramatically reshape the judiciary over the next four years, as the Republican Senate set a modern record for the fewest confirmations of lifetime judicial appointees.
The Senate GOP confirmed just 20 lifetime judicial appointments to district and appeals courts in its two years in the majority, the lowest number by far in the past 28 years, according to a Congressional Research Service report obtained by POLITICO. That means that President-elect Trump will have major sway over the courts next year, starting with the Supreme Court and going all the way down to the district level.
The Senate left town last week with 99 judicial vacancies covering district and appeals courts, as well as the current Supreme Court opening. There are 52 Obama nominations to those courts pending, with Supreme Court nominee Merrick Garland the most prominent nominee still waiting for action.... Most, if not all of Obama's nominations, will be wiped away next year by Trump and Senate Republicans.
There are also 38 judicial emergencies, according to the federal judiciary. Republicans had mulled confirming some judges if Hillary Clinton had won, GOP sources said before the election, but since Trump prevailed Republicans believed there was little reason to do any judicial confirmations in the lame duck. The Senate last voted on a judge on July 6, when Brian Martinotti was confirmed to a New Jersey district court....
Over eight years, Obama got roughly the same number of judges confirmed as Bush. The Senate confirmed 323 district, circuit and Supreme Court judges for Obama and 322 for Bush, according to CRS. President Bill Clinton enjoyed 370 such confirmations. That’s led McConnell to claim that he treated “President Obama fairly with respect to his judicial nominations."
But Democrats said they had treated Bush far better in his last two years as president. “Our constitutional duty of advise and consent is not about comparing one president to another. It is to ensure our Federal courts have the judges they need,” said Sen. Patrick Leahy (D-Vt.), the outgoing top Democrat on judicial matters, in a statement as Congress left town last week. “Right now, that is not the case when one of every nine judgeships across the country is vacant.”
"Prosecutorial Misconduct: The Best Defense Is a Good Defense"
A helpful reader altered me to this recent on-line law review essay in which LawProf Fredrick Vars responds to a notable law review article by LawProf Michael Perlin. These first two paragraphs from the essay should whet the appetite for those who may be eager to consume both writings:
In “Merchants and Thieves, Hungry for Power”: Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities, Professor Michael L. Perlin persuasively argues that prosecutorial misconduct leads many people with mental disabilities to be sentenced to death and executed. Toward the end of his article, he compiles over a dozen previously-proposed reforms aimed at improving prosecutorial practice. As explained below, I am not optimistic about the prospects of these reforms, either to be adopted or to be highly effective. I think more could be accomplished by directing resources and training to the other side of the equation — public defenders. A smaller number of counties each year account for the majority of death sentences and executions. We need to better equip front-line public defenders in those counties to identify and counter prosecutorial misconduct, and, more broadly, to provide competent representation in capital cases, particularly those involving mental disabilities.that engages.
Perlin is optimistic that recent death row exonerations will be a turning point in the battle against prosecutorial misconduct in capital cases involving defendants with mental disabilities. He hopes that one particularly egregious case, in which no one questioned the defendants’ guilt, will be a watershed like the Birmingham church bombings, the most notorious of which took place just a few minutes from my home. I share Perlin’s hope but not his optimism. The bombing helped push forward the civil rights movement because everyone could empathize with the four little girls dressed in their Sunday best. Dr. Martin Luther King, Jr. quite credibly described the bombing as “one of the most vicious and tragic crimes ever perpetrated against humanity.” Mentally disabled death row inmates, even the innocent ones, live on the other side of a divide wider even than race in the 1960s. Few of us can identify closely with exonerated inmates. As a result, only the accumulation of exonerations, not one signature event, reveals the flaws in the process and shifts public opinion gradually against the death penalty.
December 16, 2016
Noticing that other states are now messing with Texas for being capital punishment's capital
This new Vice article, headlined "Texas Is No Longer America's Death Penalty Capital," reports on the unique features of 2016 in the modern history of the death penalty in the United States. Here are highlights:
Texas has long been the heartland of the death penalty in America. Since capital punishment was reinstated by the Supreme Court in 1976, the Lone Star State has executed 538 people — more than the next top six states combined. But 2016 saw a precipitous drop in the number of executions in the state. Thanks in part to new judicial scrutiny of death sentences, just seven Texans were executed this year, the fewest since 1996.
For the first time since 2001, Texas is not the most execution-happy state in the country — that grisly title belongs to Georgia, which executed nine people. This is the first year since 1984 that Texas didn't execute a single black person. And juries sentenced just three new Texas defendants to death for the second year in a row. The data was highlighted in a report released Thursday by the Texas Coalition to Abolish the Death Penalty [available here]....
One way to understand the decline is by looking at the people on death row who weren't executed. The Court of Criminal Appeals — the highest criminal court in the state — granted stays of execution to seven people who were scheduled to die this year, a higher number than normal: From 2012 through 2014, the court only granted three stays, according to the coalition. "The rising number of stays suggests that the Court of Criminal Appeals is registering the concerns about the fairness and accuracy of our state's capital punishment system," Kathryn Kase, executive director of the nonprofit criminal justice legal group Texas Defender Service, told me in an email. "These stays give the court opportunities to remedy the failures of past death penalty practices for which Texas has been roundly criticized."
In several of the cases where inmates received stays, the court leaned on a 2013 state law that gives inmates whose convictions were based on discredited science the opportunity for a new trial. Reformers say the law is among the most progressive in the country at fighting junk science in the courtroom.... Gregory Gardner, an attorney who represented two Texas death row defendants who received stays of execution this year — and a third client who was executed — believes the junk science law to be a powerful tool for defendants. "It shows how many convictions in the late 90s and the turn of the century were based on this crappy science that's been discredited," he said. "It's scary because we know people in Texas have been executed because of it in the past."
Of course, just because executions are down doesn't mean the ones taking place aren't still controversial. According to the anti-death penalty coalition's report, almost half of the people executed in the state in the last two years had a significant mental impairment. Similarly, the fact that Texas didn't execute any black people this year doesn't mean the death penalty is suddenly race-blind. All three of the Texas defendants sentenced to death in 2016 were black, and 80 percent of new death sentences in the state over the last five years have been imposed on people of color. Research has also consistently shown that murders of white victims are more likely to result in a death sentence than murders of minority victims....
And it's possible that Texas's slump in executions won't last. The state has already scheduled nine executions in the first six months of 2017. Even so, the reduction in new death sentences may augur a future where seven executions a year isn't celebrated as a noteworthy dip, but questioned as a macabre reality. "The courts are finally being more careful with these cases," Gardner told me. "We've seen the number of death sentences plummet, and I think that trend will continue."
"Why Congress May Bring Criminal Justice Reform Back to Life"
The title of this post is the headline of this effective new Marshall Project analysis by Bill Keller, which carries the subheadline " Four reasons a bipartisan bill has a better chance than you think." Here are excerpts:
It’s no wonder criminal-justice reformers woke up from Election Day 2016 with a sense of existential gloom. Given candidate Donald J. Trump’s law-and-order bluster, his dystopian portrayal of rising crime and an ostensible war on the police, and a posse of advisers who think the main problem with incarceration is that we don’t do enough of it, the idea that justice reformers have anything to look forward to is at best counterintuitive.
It is reasonable to expect that President Trump and his choice for attorney general, Jeff Sessions, will dismantle at least some of what their predecessors leave behind. Based on what they have said, the Trump-Sessions Justice Department may well roll back federal oversight of troubled police forces, escalate the war on drugs, enlarge the share of the corrections business that goes to private companies, accelerate deportations of undocumented immigrants and use the threat of financial sanctions to challenge so-called sanctuary cities....
But those inclined to look for silver linings may find one on Capitol Hill.... I can think of four reasons the prospects of federal reform are actually better in 2017.
First, it is not an election year. Nothing makes members of Congress squirm like the specter of attack ads portraying them as coddlers of criminals. There is reason to think those Willie Horton-style gotchas have lost some of their potency, but the prospect tends to make members of Congress more risk-averse in even-numbered years. And the lobbying alliance in favor of reform has grown and diversified and offers supportive candidates some political cover. It now includes significant numbers of police executives and prosecutors, who say our tendency to over-criminalize and over-punish wastes money and human potential without making us safer.
Second, President Obama will be gone. Some of the resistance to this year’s sentencing bill was a reluctance to give the president a parting victory. His heartfelt embrace of criminal-justice reform in the final years of his presidency was — through no fault of his own — the kiss of death in a hostile Congress.
Third, at least one of the hard-core Senate opponents of sentencing reform will no longer be there. That would be Jeff Sessions, the Republican senator from Alabama. True, as attorney general he will be in a position to encourage a presidential veto. But he will not be joining the obstructionists who this year never let a bill come to a vote at all. The chairman of the Senate Judiciary Committee, Charles Grassley, said in October that if his party leadership had brought the bill to the floor, it would have garnered 65 to 70 votes — enough to override a veto.
And fourth, the Republican leadership will be looking very hard for bipartisan successes to demonstrate that Washington is no longer in a state of ideological paralysis. On the short list of things Congress could do to reassure voters that government is back in business, criminal justice ranks near the top. The subject attracts libertarians who have come to see the machinery of criminal justice as another example of overbearing government, conservative Christians who see the criminal justice morass as dehumanizing, fiscal conservatives who have noticed that incarceration is expensive, and policy wonks who see a “corrections” system that largely fails to correct.
December 16, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)
Circuit judges Diane Sykes and William Pryor reportedly on top of Prez-Elect's SCOTUS short-list
This new CNN article reports that we may not be getting a SCOTUS nominee from Prez-Elect Donald Trump anytime soon and that the current front-runners are both federal circuit judges. Here are the details:
It will be some time before Donald Trump announces a nominee to fill the vacancy left by Antonin Scalia, according to transition insiders.
But two names continue to emerge to the top of the president elect's list of potential Supreme Court justices. Judges Diane Sykes and William Pryor are among the top contenders, according to multiple sources
The Supreme Court vacancy is "actively being discussed," but there is no timetable at the moment, Trump transition aide Jason Miller told reporters Thursday. "The President-elect, he had previously put out a list of 20 very qualified individuals from which he would select. I know that they have continued to narrow that list down," Miller said. "He himself has said that's probably a shorter list of 5 or 6 folks that are near the top of that, that's being narrowed down to. And again, but this is another one where it's an absolute utmost priority, so we need to make sure we get this one right."
Trump first mentioned Sykes and Pryor after a February debate -- and the two conservatives are among the only ones Trump has mentioned by name. However, aides acknowledge that given the size of the list and Trump's previous approach to filling vacancies, things are subject to change.
Sykes, 58, sits on the 7th Circuit Court of Appeals. The Marquette University School of Law grad voted to uphold Wisconsin's voter ID law and also sided with businesses in challenging the Affordable Care Act's contraception mandate. While some conservatives view Sykes favorably, others expressed concern given her age.
Pryor, a staunch conservative, called Roe v. Wade, the 1973 decision making abortion legal, the "worst abomination in the history of constitutional law." The 54-year-old Tulane Law University grad sits on the 11th Circuit Court of Appeals.
As regular readers should know, Judge Pryor would be an especially interesting pick for sentencing fans because of his recent and continuing service as a member of the US Sentencing Commission. Indeed, if Judge Pryor were to get the nomination, an interesting issue would arise concerning his continued service as a member of the USSC. I do not think there are any major legal or ethical problems with a sitting SCOTUS Justice also being an active member of the USSC, but I suspect others might believe it more appropriate for Judge Pryor to resign his position on the Commission if elevated to SCOTUS.
A few prior related Trumpian SCOTUS posts:
- Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
- Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
- Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
- Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21
December 15, 2016
Post-Hurst hydra chews up all death sentences in Delaware via new retroactivity ruling
Regularly readers know I use the term "post-Hurst hydra" to describe the aftermath litigation in various courts in various states as judges sort ought what Supreme Court ruling in Hurst v. Florida must mean for past, present and future capital cases. Today the post-Hurst hydra took another big bite out the the death penalty in the First State as reported in this AP article:
A Delaware Supreme Court ruling earlier this year declaring the state's death penalty law unconstitutional is retroactive, meaning an inmate convicted of killing a police officer must be resentenced to life in prison, the justices said in a follow-up decision Thursday.
The ruling came in an appeal by Derrick Powell, who was convicted of killing Georgetown police Officer Chad Spicer in 2009, but it likely means that 11 other former death-row inmates also will be spared from execution.
In August, a majority of the justices said Delaware's death penalty law was unconstitutional because it allowed judges too much discretion in sentencing and did not require that a jury find unanimously and beyond a reasonable doubt that a defendant deserves execution.
That ruling came after the U.S. Supreme Court said Florida's death sentencing law, which also gave judges the final say, was unconstitutional. Alabama is the only other state that allows judges to override jury decisions on whether an offender should get life in prison or the death penalty.
In its 15-page decision Thursday, the Delaware court said its August ruling invalidating the state's death penalty law was a "watershed procedural ruling" that must be applied retroactively.
The full opinion in Powell v. Delaware is available at this link.
Unsurprisingly, Dylann Roof gets convicted on all counts by federal jury
As this extended USA Today article reports, a federal "jury in the trial of Emanuel AME Church shooter Dylann Roof on Thursday found Roof guilty of 33 counts, including hate crimes after two hours of deliberations." Here is more:
The verdict came about an hour after they asked to look at a video of his confession, expressing interest in his statements that he didn't know how many people he had shot. The jury of eight white females, one white male, two black females and one black male was sent out initially a little after 1 pm, then recalled to clarify a legal instruction by the judge....
Closing arguments in the guilt phase of the trial ended late Thursday morning. Dylann Roof's chief defense lawyer told the jury that the most important question in the 2015 murders of nine black parishioners is why and he pointed to Roof's internet exploration of racial crimes as an explanation. "That is the why as far as the evidence shows," David Bruck told the jury.
But government prosecutors told the jury there was no mystery to Roof's motivation, which they said stemmed from racial hatred so immense that he was willing to shoot innocent people as they prayed in a church and lay wounded on the floor.
Roof's lawyers called no witnesses when testimony ended this week and Roof has indicated he will take over his defense in the sentencing phase if he is found guilty. Bruck did not contest the evidence in his closing arguments and even offered praise for the FBI's probe in the case. He focused instead on what motivated Roof, sowing seeds of doubt about his intent, an argument that might be useful if jurors deliberate his sentence....
U.S. District Judge Richard Gergel sustained multiple objections from prosecutors during Bruck's closing, as he did during the opening of the trial when prosecutors felt Bruck was attempting to take jurors to the penalty phase of the trial before Roof's guilt was decided. One of the objections came after Bruck attempted to discuss Roof's mental status, a discussion that Gergel said should take place during a penalty phase.
The penalty phase of this trial is due to take place in January.
Interesting review of impact of Prop 47 on drug cases and offenders in California
This lengthy local article takes a remarkable and effective deep dive into the impact and import of California's Prop 47 two years after its passage. The piece carries a lengthy headline that serves as a kind of summary: "Two years after Prop 47, addicts walk free with nowhere to go: In 2014, California Voters Freed About 13,500 Low-Level Offenders From Crowded Prisons and Jails. But Many Ex-inmates Have Traded Incarceration for a Cycle of Homelessness, Drug Abuse and Petty Crime." Here are excerpts:
Two years after it was approved by California voters, Prop 47 has scaled back mass incarceration of drug addicts, but successful reform is woefully incomplete. Proponents celebrate how the law freed at least 13,500 inmates like Lopez from harsh sentences in crowded prisons and jails, but Prop 47 has done little to help these people restart their lives. Instead, the unprecedented release of inmates has exposed the limits of California’s neglected social service programs: Thousands of addicts and mentally ill people have traded a life behind bars for a churning cycle of homelessness, substance abuse and petty crime.
Prop 47 earmarked millions saved in prison costs for inmate rehabilitation, but not a penny has been spent. Meanwhile, the state’s shortage of treatment programs is more glaring than ever. Expanding rehab would be expensive, but it is still a cheaper, more effective and more humane strategy for addressing addiction than locking drug abusers in prison.
"The problem is, if you don’t actually do anything to change conditions of their lives, they’re going to be back on the streets anyway," said Elliot Currie, a University of California, Irvine criminologist. "What’s to prevent them from going back to the same old ways when they get out? The answer is nothing."
This alarming lack of support services is one key finding in a landmark investigation by USA TODAY Network-California journalists who spent seven months analyzing the impacts of Prop 47, a sweeping criminal justice reform law that has been debated and demonized but rarely understood. To uncover the ramifications of the law, reporters from four publications — The Desert Sun, The Ventura County Star, The Record Searchlight and The Salinas Californian — filed 65 records requests, scrutinized thousands of pages of public documents and performed over 50 interviews with policymakers, academics, police, district attorneys, public defenders, drug addicts and former felons. Among our findings:
California police have dramatically deprioritized drug busts in the wake of Prop 47, arresting and citing about 22,000 fewer people in 2015, a 9.5 percent decrease in the first year since the possession of meth, heroin and cocaine was downgraded to a misdemeanor.
Nearly 200,000 felony convictions have been retroactively erased by Prop 47 as of September, according to a first-ever analysis. Government agencies were not required to track how many convictions were reduced, so journalists gathered public records from 21 counties to calculate a statewide estimate. Many former felons will be slow to take advantage of their restored rights because they are unaware their convictions have been downgraded.
For those who are aware, however, Prop 47 offers an unparalleled chance for better jobs. Tens of thousands of people no longer have to report felony convictions on job applications, making them drastically more employable than they’ve been in years or decades.
Michael Romano, a Stanford law expert who helped write Prop 47, stressed in a recent interview the law has been "amazingly successful" in its primary goal, which was always to get low-level drug offenders out of California’s crowded, damaging prison system. But tackling drug addiction and mental illness, which plague so many who were released under the law, is a task that will require investing hundreds of millions of dollars in community treatment programs across the state. "It is incumbent on local governments to engage this problem," Romano said. "Prop 47 was not a cure-all. It’s not a panacea. It is one piece in an extraordinarily complicated puzzle — perhaps the most complicated puzzle in our communities."
"Repurposing: New Beginnings for Closed Prisons"
The title of this post is the title of this new Sentencing Project policy brief, which gets started this way:
Since 2011, at least 22 states have closed or announced closures for 92 state prisons and juvenile facilities, resulting in the elimination of over 48,000 state prison beds and an estimated cost savings of over $333 million. The opportunity to downsize prison bed space has been brought about by declines in state prison populations as well as increasing challenges of managing older facilities. Reduced capacity has created the opportunity to repurpose closed prisons for a range of uses outside of the correctional system, including a movie studio, a distillery, and urban redevelopment.
The U.S. prison population numbered 1,508,636 at year end 2014 — a reduction of approximately 1% since 2013. Thirty-nine states have experienced a decline since reaching their peak prison populations within the past 15 years; in most states this reduction has been relatively modest. Four states — New Jersey, New York, Rhode Island, and California – have reduced their prison populations by over 20%. Southern states like Mississippi and South Carolina have reduced their prison populations by 18% and 11% respectively. The political environment shaping criminal justice policy has been moving in a direction emphasizing evidence-based approaches to public safety for more than a decade. This has involved efforts to address the unprecedented growth and correctional costs resulting from several decades of policy initiatives.
In recent years, 29 states adopted reforms that scaled back the scope and severity of their mandatory sentencing policies. Voters in California approved ballot initiatives in 2012 and 2016; the former curbed the state’s notoriously broad “three strikes and you’re out” law and the latter expanded parole eligibility and limits the process governing juveniles tried as adults. California and Oklahoma voters also authorized reclassifying certain felonies as misdemeanors. In other states, policymakers have become increasingly supportive of initiatives that reduce parole revocations, establish treatment courts, and divert prison bound defendants through alternatives to incarceration.
Declines in state prison populations and the shifting politics underlying incarceration have created an opportunity to downsize prison bed space for a range of reasons, including excess capacity and the challenge of managing older facilities.
December 14, 2016
Making the case for AG-nominee Jeff Sessions as an advocate for crime victims
Paul Cassell and Steven Twist have this notable new FoxNews commentary run under the headlined "Why Jeff Sessions, a conservative attorney general, would be best for crime victims." Here are excerpts:
As two crime victims’ rights advocates and law professors, we welcome the announcement that President-elect Trump will nominate Alabama Senator Jeff Sessions to be the next attorney general of the United States. Senator Sessions has a long and robust record of fighting for justice, and more specifically for enforceable victims’ rights. If confirmed by the Senate, he will undoubtedly be a powerful voice for crime victims as the chief law enforcement officer of the United States.
Our enthusiasm about Senator Sessions stems from the fact that he was an early supporter of amending the U.S. Constitution to protect rights for crime victims. This idea was first proposed by a Task Force assembled by President Ronald Reagan and later endorsed by Presidents Bill Clinton and George W. Bush. The Victims’ Rights Amendment was first introduced in Congress in 1996 by Senators Dianne Feinstein and Jon Kyl. Senator Sessions strongly advocated for the amendment and will be the country’s first Attorney General to cast votes for amending the Constitution to give rights to crime victims....
The Senator’s strong bipartisan record on behalf of crime victims does not end there. Senator Sessions crossed the aisle to work with Senator Feinstein to preserve restitution rights for crime victims and to provide stronger protections for victims of child abuse. He joined with the late-Senator Ted Kennedy to reduce sexual assaults in prison. He worked with Illinois Democratic Senator Dick Durbin to address sentencing disparities in federal drug laws and increase penalties for the most serious drug traffickers. And in many other ways, he fought against weakening the federal criminal laws whenever they posed an undue risk of creating even more victims of crime.
More impressive still is his courage as a prosecutor to take up the cause of pursuing justice for crime victims through the prosecution of their attackers. He stood against headwinds of the Old South to prosecute KKK criminals in Alabama. He prosecuted Klansman Henry Francis Hays, son of Alabama Klan leader Bennie Hays, for abducting and killing Michael Donald, a black teenager.
As a prosecutor, Senator Sessions established a record as aggressive, but fair. He remained focused on the ethical duty to do justice. We are excited about the prospect of an attorney general who sees the need for expanding rights and services for crime victims, and who has demonstrated the heart, the courage, and the leadership to head a Department of Justice that will ensure justice is pursued for all, including and especially for the crime victim.
SCOTUS adds a few more criminal cases to its current merits docket
Via this post at SCOTUSblog, I see that the Supreme Court today added a handful of cases to its docket. Here is the SCOTUSblog description of the criminal cases in the bunch:
Two of the cases that the justices agreed to review today, Turner v. United States and Overton v. United States, arise out of the brutal 1984 murder of Catherine Fuller, a District of Columbia mother. The petitioners in the case are a group of D.C. men who were convicted of the crime, based in large part on testimony from alleged eyewitnesses. Decades later, a reporter learned that defense attorneys had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had failed to turn over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts.
Today the Supreme Court agreed to review both cases. Overton had asked the court to weigh in on the standard that the lower court used to evaluate his claim that prosecutors had not complied with their obligations under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant. Turner and his co-defendants had asked the court to consider whether, when determining the significance of suppressed evidence, courts can consider information that comes to light after trial. But the court today announced that it would review a more straightforward question in both cases: whether the men’s convictions must be set aside under Brady....
In Lee v. United States, the justices return to a familiar topic: the case of a non-citizen who gets into trouble with the law and then receives poor legal advice, jeopardizing his stay in the United States. The petitioner in the case, Jae Lee, is a Tennessee man who came to the U.S. from South Korea in 1982 and eventually became a successful restauranteur. In 2009, he was charged with possession of ecstasy with intent to distribute. After seeing the evidence against Lee, Lee’s attorney recommended that Lee plead guilty, so that he would receive a shorter sentence. But, and despite Lee’s attorney’s assurances to the contrary, a guilty plea would result in Lee’s permanent and mandatory deportation.
Lee then sought to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate assistance from his attorney. The government agreed that Lee could satisfy the first prong of the test to determine whether an attorney’s representation violated the Constitution: The attorney had indeed provided deficient advice when he told Lee that a guilty plea would not expose him to deportation. But the lower courts ruled that Lee could not show, as required by the second prong of the test, that he was prejudiced by that bad advice, because the evidence of his guilt was so overwhelming that he would have been convicted and deported anyway. That is the question that the court agreed to review today.
Today’s cases will likely be argued in late winter or early spring. The justices’ next regularly scheduled conference is January 6.
Interesting accounting of who is putting up capital to try to end capital punishment
The publication Inside Philanthropy has this interesting new article headlined "Capital Against Capital Punishment: Who's Fighting the Death Penalty?". Here are excerpts:
This year’s election results don’t bode too well for opponents of the death penalty. A year after they abolished it, Nebraska voters decided to reinstate capital punishment. Oklahoma voters approved “any method of execution” not prohibited by the U.S. Constitution. And California, the nation’s most populous state, struck down a repeal measure, instead approving a measure to make executions easier.
But will this capital punishment comeback last? A cadre of dedicated funders, including Atlantic Philanthropies, Open Society Foundations, the Proteus Fund and others wants to make sure it doesn’t. These death penalty opponents are playing a long game and some have been at it for years. Angry populist elections come and go, but progress against the death penalty has been ongoing. Death sentences handed out in the U.S. have dropped almost tenfold since 1996, and actual executions per year have declined by about 75 percent. A full 42 percent of the American public opposes the death penalty, a 44-year high.
While capital punishment enjoys its day in the sun (and in approving comments from President-elect Donald Trump), several big funders are working behind the scenes to chip away at the penalty’s long-standing popular support. One major player (if not the major player) is Atlantic Philanthropies, which recently granted $3.25 million to Cornell Law School to establish the Cornell Center on Death Penalty Worldwide.
The first center of its kind in the U.S., the Cornell Center will work on the policy, research and advocacy side to advance international human rights norms that favor abolition. Indeed, most executions occur in a small number of countries: the United States, and top human rights violators like China, Pakistan, Iran, and Saudi Arabia.
Those fighting the death penalty have three main strategic goals. The first involves changing public perception of executions from a necessary measure to a cruel and unusual punishment. Second, advocates focus on the states, supporting grassroots efforts to repeal. Finally, the end goal for many advocates is a nationwide ban handed down from the Supreme Court. Often, this work involves direct political appeals and lobbying, backed through 501(c)(4) organizations. While appeals to human rights are effective to a point, philanthropic efforts against the death penalty are also now quite focused on the practical problems of this punishment: why executions aren’t just wrong, but ineffective and costly to boot.
Leading the charge are groups like the National Coalition to Abolish the Death Penalty and Equal Justice USA, both recipients of large Atlantic grants in the years since 2006. While fighting the death penalty isn’t one of its major funding priorities, the Ford Foundation has also contributed at least $500,000 to the National Coalition.
All told, Atlantic Philanthropies has invested $60 million over the past decade to end the American death penalty. And although the foundation plans to discontinue its grantmaking this year (no doubt a worrisome fact for the abolition movement), it has already fertilized a whole bunch of anti-execution organizations that will continue raising funds. Among Atlantic’s biggest beneficiaries on this issue, besides the two mentioned above, are the Proteus Action League, the Advocacy Fund, Texas Defender Service, and the Southern Center for Human Rights.
In addition to its regular grantmaking, Atlantic Philanthropies backs direct lobbying, ballot initiatives and voter mobilization efforts against the penalty through its 501(c)(4), the Atlantic Advocacy Fund. But Atlantic’s greatest contribution to the fight (at least in terms of dollar support) has been its support for the Proteus Fund, via the 501(c)(4) Proteus Action League.
A longtime supporter of progressive policy efforts, the Proteus Fund channels money from donors to organizations where it can make the most impact. Proteus’s Themis Fund is dedicated solely to combating the death penalty. Aside from Atlantic Philanthropies, additional supporters include the Open Society Foundations, Tides Foundation, Butler Family Fund, Fund for Nonviolence, and the Wallace Global Fund....
The Proteus Fund isn’t the only funding intermediary taking on capital punishment. Through its Death Penalty Mobilization Fund, the Tides Foundation has awarded over $6 million in grants since 2000. Besides Atlantic Philanthropies, George Soros’s Open Society Foundations is another regular source of money for those fighting the penalty. Since the early 2000s, Open Society has granted regular sums ranging from five to six figures to prominent anti-penalty organizations. Those grantees include the National Coalition to Abolish the Death Penalty, the Tides Foundation, the Death Penalty Information Center, Death penalty Focus, and People of Faith Against the Death Penalty.
The Fund for Nonviolence, true to its name, is another anti-penalty stalwart. Through its Justice With Dignity grants program, it has disbursed modest but regular funding to many of the organizations we’ve already named. As elsewhere, many of this funder’s grants are region-specific, supporting local efforts to push back against the penalty. The Wallace Global Fund is another progressive funder with a hand in anti-death penalty work. Its funds several big-name advocacy organizations like the National Coalition, Themis at the Proteus Fund, and the Equal Justice Initiative. The numbers here are modest as well, in the high five figures. Rounding out our list, we have the Oak Foundation, whose contributions to the fight have been substantial. While Oak has offices in the U.S., it is an international funder and its death penalty work is also international, through a commonwealth nations initiative called the Death Penalty Project.
"Why All Americans Should Go To Prison: Out of sight, out of mind isn’t good enough."
The title of this post is the extended headline of this new Ozy commentary. Here are is how it starts and ends:
Americans love their prison entertainment. How could they not lap up the best moments of Orange Is the New Black, what with the lesbianness and the realness … the prison wars, the guards’ criminality, the racial commentary and, um, the lesbianness.
Sure, it feels authentic, but how would the audience know? Safe to say that few of OITNB’s millions of fans have spent even a moment in a lockup — although probably half are engaged in the illicit sharing of Netflix passwords. Remote and security-sensitive, prisons aren’t exactly accessible to the general public. States consider visits a privilege, doled out for the incarcerateds’ good behavior. To enter, one must be on the prisoners’ approved visitor list or in an organized volunteer program. Even the Supreme Court has come down in favor of strict visitation policies.
This is wrongheaded. We believe every American should be required to visit a prison. After all, some two million of their fellow citizens are incarcerated — that’s almost 1 percent of the population. For the most part, those on the outside ignore this significant minority: Inmates don’t much figure into discussions about policy, which is one reason it took decades for politicians to start dismantling mass-incarceration policies that had long ago been deemed expensive and ineffective.
Isn’t it weird that the first sitting president to visit a federal prison was … Barack Obama, in the last year of his second term? While there, he was surprised to discover that three fully grown men were housed in a minuscule 9 x 12 cell.
The idea of mandatory prison visits isn’t ours; law professor Neal Katyal tweeted about it this fall. “The bottom line is, until you experience it and understand the total disconnect between life inside and life outside, it’s really hard to understand who you want to punish and how,” Professor Katyal told us on the phone....
Katyal tells of one Iowa judge who visits every single prisoner he puts behind bars to see how they’re doing. Instead of mandatory minimums, how about mandatory visits from all?
I have been to a handful of prisons to visit clients over the last two decades (and I also got to tour a local jail as part of serving on a grand jury). But I often think I ought to make more of a habit of visiting active prisons and jails, especially because I often go out of my way to tour famous old prisons (e.g., Eastern State, Alcatraz, Moundsville) whenever my travels allow it.
Remarkably, and usefully for those unlikely to be able to head right now to any nearby graybar hotel, this lead piece this morning from The Marshall Project is headlined "Let’s Go to Prison!: A national field trip to Incarceration Nation, under the shadow of Donald Trump." The lengthy article does not substitute for a prison visit, but it highlights a project by the Vera Institute of Justice very much in the spirit of the Ozy commentary. Here is a passage providing the backstory:
[Last month brought] the Vera Institute of Justice's "National Prison Visiting Week." Through a series of field trips to 29 facilities in 17 states, Vera welcomed a diverse array of community members — from bankers to prosecutors to real estate agents to teachers, doctors, and clergy — into Incarceration Nation. The goal was to promote the value of transparency: to demonstrate that if corrections officials allowed people in, the sky wouldn't fall. In the process, the organizers hoped, both staff and visitors would engage in a "re-imagining" of the very purpose of a prison: Is it punishment? Incapacitation? Deterrence? Rehabilitation?
The event was conceived during the administration of the first president ever to visit a federal prison, and in anticipation of a next president who had vowed she would reform criminal justice “from end-to-end.” So the election of Donald J. Trump, less than a week earlier, left many participants wondering whether this field trip would still be the new beginning that was intended, or rather a last gasp of idealism about reform.
December 13, 2016
Federal District Judge says federal death penalty "operates in an arbitrary manner" but still rejects broadside constitutional challenge
United States District Judge Geoffrey Crawford issued a lengthy opinion today in the long-running federal capital case of US v. Fell, No. 5:01-cr-12-01 (D. Vt. Dec. 13, 2016). A helpful reader sent me the full 57-page opinion, which I have uploaded below and which gets started this way:
In 2015, the U.S. Supreme Court issued its decision in Glossip v. Gross, 135 S. Ct. 2726. The case concerned challenges under the Eighth Amendment to execution by lethal injection of four defendants sentenced to die by state courts in Oklahoma.
Justice Breyer, joined by Justice Ginsburg, issued a dissent calling "for full briefing on a more basic question: whether the death penalty violates the Constitution." Id. at 2755. The dissent identified a series of systemic shortcomings in the administration of the death penalty in the United States, especially as it is applied by the states. It divided these into four categories: "(1) serious unreliability, (2) arbitrariness in application, (3) unconscionably long delays that undermine the death penalty's penological purpose [and] (4) most places in the United States have abandoned its use." Id. at 2756.
In response, Justice Scalia and Justice Thomas wrote two strongly worded concurring opinions which defended the death penalty as the legitimate exercise of democratic authority. Both justices pointed to the shocking cruelty of the crimes which led to the death sentences in these and other death penalty cases. Both questioned the authority of the judiciary to interpose its own philosophical concerns about the death penalty. And both identified utilitarian purposes such as deterrence which may justify executions.
The dissent and concurring opinions in Glossip offer a particularly vivid account of the long-running dispute over the constitutionality of the death penalty within the Supreme Court. A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court. The current state of the law is that the death penalty is a constitutional punishment for murder committed by adults not disqualified for reasons of intellectual disability who have received a trial which meets the standards set by Gregg v. Georgia, 428 U.S. 153 (1976) and Ring v. Arizona, 536 U.S. 584 (2002). Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself.
But a trial court has its own contribution to make to the debate. The court can hold a hearing and permit witnesses to testify. In Glossip, Justice Breyer raised a series of questions about whether the death penalty is imposed fairly or in an incurably arbitrary manner. The questions he raised are troubling. They are essentially empirical. They require consideration of what has actually happened in the United States since the restoration of the death penalty following the Gregg decision.
Over the course of two weeks last summer this court sought to develop a factual record based on live testimony and supporting exhibits sufficient to answer the question of whether the constitutional requirements for a death penalty statute set out in Gregg have been met in practice. As the court's findings indicate, the Federal Death Penalty Act, 18 U.S.C. §§ 3591, et seq. ("FDPA"), falls short of the standard required in Furman v. Georgia, 408 U.S. 238 (1972), and in Gregg for identifying defendants who meet objective criteria for imposition of the death penalty. Like the state statutes enacted after Furman, the FDPA operates in an arbitrary manner in which chance and bias play leading roles.
The trial court's obligation does not end with a review of the facts. The court is required to address the legal issues raised by the parties. That resolution may be no more than an acknowledgment that the law has been settled on a particular question. Alternatively, the new factual record may require a fresh look at the manner in which existing principles are applied to a factual record which continues to develop. The court has sought to undertake this new look in a manner consistent with existing authority which comes principally from the Supreme Court.
To get right to the point, the court has sought to follow the method expressed in Atkins v. Virginia, 536 U.S. 304 (2002) in considering the proportionality of the death penalty. The court has also considered the separate argument that application of the death penalty has become arbitrary.
The disproportionality challenge falls short because of the absence of proof of a national consensus to abolish the death penalty. As the law stands now, proof of consensus is a prerequisite for finding the death penalty unconstitutional as applied to particular crimes or particular types of defendants. By assessing public opinion, especially as it is expressed through legislation in the states, the Supreme Court finds a basis for determining evolving standards of decency for the nation as a whole. If the requirement of consensus applies to the limited challenges brought in cases like Atkins, then it must also apply to the claim of disproportionality which the defense levels against the imposition of the death penalty in all cases.
The court has also considered the problem of arbitrary application of the death penalty to small numbers of defendants whose crimes are indistinguishable from the far greater number who receive life sentences. The court has followed existing law in declining to rule that "arbitrariness" is an independent constitutional violation.
Announcing a "Call for Papers for the 2017 Innocence Network Conference"
I am happy to be able to provide this space for this announcement:
The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2017 Innocence Network Conference in San Diego, California on March 24-25.
Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction. International papers are welcome but must be submitted in English. Please submit a title and paper proposal to the Innocence Scholarship Committee at this Gmail account: email@example.com by February 1, 2017. Paper proposals must be no more than 200 words. Completed drafts must be submitted to the Committee by March 17, 2017.
The Innocence Scholarship Committee is actively seeking publication for those papers accepted for Conference presentations in a law review symposium edition. More information about that is forthcoming.
The Innocence Scholarship Committee is composed of the following Members: Professor Aliza Kaplan, Oregon Innocence Project, Lewis & Clark Law School, Portland, Oregon; Professor Valena Beety, West Virginia Innocence Project, West Virginia College of Law; Professor Keith Findley, Wisconsin Innocence Project, University of Wisconsin Law School; Professor Stephanie Roberts Hartung, New England Innocence Project, Northeastern Law School; and Associate Clinical Professor Paige Kaneb, Northern California Innocence Project at Santa Clara Law.
Vice series takes close look from multiple perspectives at "The Future of Imprisonment"
The media outlet Vice has a big collection of article that should be of interest to sentencing fans assembled here under the heading "THE FUTURE OF INCARCERATION: Exploring what's next for criminal justice reform in America." Here are links and the full headlines for just some of the interesting-looking pieces that are part of the series:
A deep look into Alabama's new sentencing systems and their impacts
Because our next Attorney General (and perhaps also our next Supreme Court justice) emerged from and still have roots in the Alabama legal system, I thought it timely and valuable to spotlight this lengthy local article about Alabama sentencing reforms headlined "How has prison reform impacted Alabama?" Here are excerpts:
The criminal justice system has historically relied on human judgment for sentencing, but Alabama’s recent criminal justice reforms are attempting to equate human error to a quantifiable number. Crimes now equal a score that effectively decides an offender’s punishment. A similar score sheet labels parolees as high, medium or low risk.
Alabama is a bit of a trendsetter — for better or for worse — on the criminal justice front, said Bennet Wright, executive director of the Alabama Sentencing Commission tasked with both implementing the 2013 and 2015 reforms as well as crunching the data. “With the passage of the 2015 reforms, I think you’re seeing Alabama acknowledge for the first time that data driven decisions need to be the driving force of all criminal justice policy,” Wright said. “That’s a huge shift in policy. Obviously that’s not something everybody will jump on board with, but I think it’s important to make decisions, particularly ones that have huge price tags attached to them, to much more of a data driven process.”
The reforms are not without controversy. Attorneys remain critical of the sentencing guidelines, and judges are split on whether or not the score sheets rob them of their ability to adjudicate, but the reforms have shown promising returns in popping the balloon on Alabama’s prison population and the data collected over the next few years could continue to spur progressive criminal reform.
The two-pronged reform began with the implementation of presumptive sentencing guidelines in 2013 that essentially reduced sentencing decisions to a score sheet in an effort to be more selective and consistent about who gets locked away. For drug offenses, eight or more points — perhaps a distribution of marijuana charge (6 points) and a possession with intent to distribute charge (5 points) — will land that person in prison barring mitigating factors. For property crimes, 15 points is required for a prison sentence. Both sheets also add points for prior adult convictions, incarcerations, probation revocations and juvenile delinquencies, but the idea was — and still is — to send fewer non-violent offenders to prison to relieve the burden on a prison system that, at the time the guidelines were implemented, housed nearly twice the inmate population (25,299) than it was designed for (13,318).
The guidelines also made sentencing consistent across the state. A possession of marijuana charge, for instance, no longer relies on the presiding judge’s views of the drug. “Some judges are heavy on possession of marijuana. They detest it and (before the guidelines) would give harsher sentences than other judges would,” said former Montgomery County Circuit Judge William Shashy who retired this past month.
The 2015 prison reform, also known as Senate Bill 67 sponsored by Sen. Cam Ward, R-Alabaster, focused more on fighting the bloated prison system. A new class of felony, Class D, was created for sentencing guidelines to include non-violent offenses such as minor drug possession and third-degree theft. Those crimes now carry the lowest point totals as legislators are more concerned with locking up violent offenders. “They’re focused on felony offenses the Alabama Legislature has deemed non-violent. Mostly drug and property offenses,” Wright said.
If fewer non-violent offenders are going to prison, more are naturally going to parole and probation. The bill accounted for that by injecting funding into the state parole system to hire 100 more parole officers. Darrell Morgan, assistant executive director of the Board of Pardons and Paroles, said they have hired 71 additional parole officers as of the end of October. Seventeen more are currently being interviewed, and Morgan said more officers will be added using their general fund in an effort to reduce parole officers’ caseloads. “When this began we were around 200 cases per officer. Our target is to have everybody down to 100 offenders per officer by the end of the fiscal year (Sept. 30),” Morgan said. “That was one of the biggest issues with previous parole boards was we didn’t have the adequate staff. Now that these numbers have increased we’re able to better manage our caseloads and we can manage more people.”...
Montgomery County Deputy District Attorney Ben McGough said the sheets and implementation of Class D felonies have incentivized crime and taken the teeth out of the justice system. “When a defendant looks at their sheet and their score is two and it takes 15 to go to prison, they’re guaranteed from the beginning. You’re not going to prison no matter what happens,” McGough said. “Then they look at the sheet and think, ‘I’ve got 13 points to burn.’ they can look at the sheet, do the math, and think, ‘I can do four more non-violent offenses before the judge even has the option to send me to prison.’ And we’re literally giving them the figures.”
On the defense side, Public Defender’s Office Director Aliya McKee said the sheets reduce her clients to a figure instead of treating each case as a unique situation. “Our clients, from my perspective, get reduced to a number,” McKee said. “I’m somewhat comfortable with that being the starting point, but it’s not the solution. We want the court to see the person behind the charge. The name, not the case number.”...
As judges and attorneys feel their way through the reforms, all eyes are keen to judge what impact reforms have had on key statistics such as prison population, crime rate, parole caseload and recidivism. It’s still too soon to make definitive claims, but Wright said some early data returns are promising. State prison population, for example, has dropped from 25,299 in 2013 (189.9 percent capacity) to 23,318 this year (175 percent). “I think the initial results of the presumptive sentencing standards are promising,” Wright said. There has been a steady decrease in the prison population averaging 80-100 fewer inmates per month.”
State crime rate has also dropped during the period going from nearly 174,000 total crimes in 2013 (about 3,586 crimes per 100,000 people) to just over 162,000 this year, however, that rate was already falling from 191,318 in 2011 and 181,752 in 2012, according to Alabama Law Enforcement Agency.
Parole caseload has also begun to dip slightly. Morgan said it took longer than expected to hire new officers but active caseload is down to about 145 cases per officer. When adding inactive cases, that decline looks much smaller (about 215 per officer to about 195), but Morgan said the reform has had a noticeable impact. “(Adding inactive cases) makes the numbers still look high, but the hiring of the officers have gotten our active caseload down to a manageable level, which is lower than it was. But we still have to hire more people,” Morgan said....
On a local level, one particular statistic has the District Attorney’s Office concerned that the guidelines may be doing more harm than good for public safety. Montgomery has seen 530 more thefts this year than last year, and many in the DA’s office, including Chief Deputy District Attorney Lloria James, see the lenient sentencing guidelines as the blame.
“Those statistics don’t surprise us at all. It’s almost like a revolving door,” James said. “The problem is sort of like word travels fast on a college campus or neighborhood or things like that, in the criminal community word travels fast, and I think it’s gotten out there that pretty much if it’s non-violent — thefts, burglaries things like that — there’s almost zero chance you’re going to see some prison time, so it’s worth it to them.”
Whether or not there is a connection remains up for debate, but that hasn’t stopped District Attorney Daryl Bailey from reaching out to Sen. Ward in recent weeks about possibly making some changes. “We’ll continue looking at it, but we’ve done a lot of reform already,” Ward said. “Obviously that’s a point being made by the district attorneys, but if there's any changes needed to be made in the guidelines we need to do that. We need to make sure it's prudent for the safety of the public.”
The reforms have shown themselves not to be perfect, but Wright said that should engender further study and support in his ideal scenario. The reforms were put in place after studying prison reform in other Republican states such as Texas and North Carolina, but implementing front-to-back change is “trendsetting,” Wright said.
For now, the state must wait and see what the numbers hold. “It’s a little daunting, but that’s trendsetting to have this big of a process going on at one time,” Wright said. “That’s also why I tell people both for it and against it to take a deep breath and let’s do our best to implement it. I think with a lot of things, people get in the way of things before they implement it. We owe it to ourselves to embrace what the Legislature passed and what the intent was. Let’s give it our best good faith effort, wait a while and then sit around the table and talk about it then.”
December 12, 2016
Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home
This new Business Insider article, headlined "Prisoners set free by President Obama are urging him to expand his clemency program before he leaves office," reports on the latest interesting pitch to Prez Obama concerning his clemency work. Here are the basics:
The day Ramona Brant walked out of prison after serving 21 years of what was supposed to be a life sentence, she felt an overwhelming mixture of emotions — elation and gratitude for her freedom, and sadness for the inmates she was leaving behind. Many of them had stories like hers. They had in one way or another gotten involved in selling drugs, often through boyfriends or husbands who would eventually testify against them in conspiracy trials. L
ike Brant, many were there to serve decades, or even life sentences without the possibility of parole. “I was not comfortable being free knowing that there were so many people who weren’t free to experience the same opportunities that I was experiencing,” Brant told Business Insider. “I’m not saying I want to go back to prison — what I’m saying is my heart is still with my sisters that I left behind, and my brothers.”
Brant was granted a sentence commutation by President Obama last February, as part of an unprecedented clemency initiative that has now reduced more than 1,000 federal inmates’ sentences. She is one of more than 40 clemency recipients who signed an open letter sent to the president on Monday pleading for mercy for nonviolent drug offenders serving lengthy sentences who have demonstrated clear conduct in prison. “We ask for your immediate intervention for thousands more prisoners who will continue to suffer needlessly unless a broader clemency plan is implemented,” the letter said.
“We have remained largely silent in appreciation of your compassion to many suffering under draconian sentencing laws passed during the crack hysteria of the late 1980s and 1990s. But with only six weeks of your presidency left, we must speak out.”
The letter, also signed by dozens of clemency advocates and former inmates, recommends the president adopt a broad amnesty program in place of the current case-by-case review of inmates’ petitions. It suggests that all nonviolent drug offenders with clear conduct have their sentences reduced to five, 10, or 15 years for first-, second-, and third-time offenders, respectively. It also specifically asks that clemency be granted to female inmates, who the letter argues are more likely than men to be serving lengthy sentences because of drugs their partners or spouses sold, and who make up less than 10% of the inmates to whom Obama has granted clemency....
The Office of the Pardon Attorney, which reviews clemency applications and recommends them to the president, the White House, and the Department of Justice did not immediately respond to Business Insider’s requests for comment on the letter....
Although Deputy Attorney General Sally Yates has previously said “every single drug petition” received before Aug. 31 will be reviewed by the Obama administration, activists and clemency advocates have been urging the president for months to quicken the pace of approvals.
Last month’s presidential election, too, has only added to the pressure. President-elect Donald Trump, who has previously called the inmates released by Obama “bad dudes,” has not expressed interest in continuing his clemency initiative. Nor has Jeff Sessions, Trump’s nominee for Attorney General, who supports harsh drug laws and mandatory minimum sentencing.
It is estimated that at least 2,000 federal prisoners serving nonviolent drug offenses were eligible for sentence reductions under the requirements laid out under Obama’s program, which stipulate that inmates have served at least 10 years of their sentences. Even more could be eligible should the Obama administration consider inmates who have served less than a decade, as it has already done in some cases.
Some recent (post-Election Day) posts on Prez Obama and clemency:
- How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
- "Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
- Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
- Terrific content and context for Prez Obama's clemency work at Pardon Power
- Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
- At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push
"Adversarial Asymmetry in the Criminal Process"
The title of this post is the title of this interesting looking new article that I just noticed via SSRN and that is authored by Daniel Epps. Based on the abstract, this article seems both provocative and somewhat counter-intuitive. But I think current and former prosecutors might have particular insights concerning the article's claims. Here is the abstract:
It is a common lament that prosecutors in our criminal justice system are too adversarial. This Article argues that in a deeper sense, prosecutors may not be adversarial enough. The issue — which I call adversarial asymmetry — is that, as political actors, prosecutors have no inherent desire to seek maximal punishment, at least in any consistent way. While commentators tend to see this as a good thing, adversarial asymmetry helps explain a range of seemingly disparate pathologies in the criminal process. A number of problems — including the coerciveness of plea bargaining; pretextual prosecution; discriminatory charging practices; the proliferation of overly broad criminal statutes; the difficulty in deterring prosecutorial misconduct; and use of the grand jury as political cover for unpopular decisions — would not exist, or at least could be more easily solved, in a world where prosecutors were more single mindedly focused on maximizing victory in the criminal process.
In fact, a more consistently adversarial system might have surprising advantages over our own, providing more accountability for prosecutors while being more consistent with the rule of law. And while heightened adversarialism unquestionably poses risks, alternative institutional structures could minimize those dangers. Even if actually implementing such a system is unrealistic or unappealing, the proposal has value as a thought experiment, for it exposes deep fault lines in the theoretical foundation of our system of criminal prosecution.
Our current approach combines an adversarial process with politically accountable prosecutors — yet we lack a compelling account of what precise level of adversarialism is optimal or why political accountability is the right tool for producing good behavior from prosecutors. It should thus be unsurprising that our system often works poorly in practice. Absent a better reason to think that our current approach is the only option, we should be more willing to reconsider basic structural arrangements in criminal justice.
Remembering Eighth Circuit Judge Myron Bright, a first-ballot "Sentencing Hall of Famer"
More than a decade ago, I did some blog musing here on a winter's day to imagine a "Sentencing Judges Hall of Fame" — an institution like The National Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system. (Compare the mission statement of The National Baseball Hall of Fame.) Today, the 2016 winter seems just a bit darker to me upon hearing this news report: "Champion of equality Judge Myron Bright dies at 97."
Regular readers know why I am inclined to call the late Judge Bright a first-ballot "Sentencing Hall of Famer," and the news report does a solid (though necessarily incomplete) job of documenting just some reasons why Judge Bright was a singular judicial figure whose accomplishments and work will surely shine on for many years:
Bright was born March 5, 1919, in Eveleth, Minn., the son of Jewish immigrants from Russia. He grew up on the Iron Range during the Great Depression, and he served in the U.S. Army Air Corps in the Pacific during World War II, rising to the rank of captain. He married Louise Reisler in 1946, and they had two children.
He was admitted to the North Dakota Bar in 1947, and he practiced law for 21 years before President Lyndon Johnson appointed him to the federal bench. On Aug. 16, 1968, Bright was sworn in as a judge on the 8th Circuit appeals court.
By 2013, Bright estimated he had heard 7,000 cases and written 2,500 opinions – many of them dissents or separate concurrences – in his time on the bench. Even as late as 2014, he was hearing 40 to 50 cases a year, he said. In all, Bright served more than 48 years as a federal judge between full time and senior status.
Judges often reflect the philosophies of the presidents who appoint them, and in a December 2010 interview, Bright said he was proud to have done so, too. He and other Johnson appointees “worked unceasingly to batter down the prejudice against blacks and other minorities and women,” Bright said....
For years, Bright was concerned by the disproportionately long sentences for Native Americans who commit the same crimes as whites. In recent years, Bright said the nation needed to address the sentencing of large numbers of nonviolent drug offenders to prison, which cost the U.S. billions of dollars annually.
His efforts paid off. In 2013, then-U.S. Attorney General Eric Holder spoke out against harsh mandatory minimum sentences for nonviolent offenders. Legal experts credited Bright with being one of the most influential judges in advocating an end to mandatory minimum sentencing. “What shall I say? I got vindication,” he told The Forum in a 2013 interview.
Bright’s efforts also loomed large in the life of James Dean Walker, an Arkansas man imprisoned for more than two decades after being convicted of murdering a police officer in 1963. “After I looked at the Walker case, it didn’t smell right,” Bright told The Forum, even though he at first regarded the appeal with skepticism.
After a series of hearings and procedural reversals, Bright prevailed in a 5-4 decision that allowed Walker to leave prison as a free man in 1985. The divided appeals court concluded Walker was convicted with false evidence, and found that favorable eyewitness testimony had been suppressed....
As a judge, Bright said he had the satisfaction of seeing many of the decisions he helped to mold become embraced by the U.S. Supreme Court. Often, the son of an immigrant storekeeper who repeatedly granted credit to jobless customers found himself siding with the disenfranchised while on the bench. “I suppose I have a sympathetic heart, you might say,” Bright said, though he added that his decisions must be based on the law.
For those interested in an additional kind accounting of just some of Judge Bright's work, I am pleased to have been permitted to reprint here a letter authored by another one of my judicial heroes, U.S. District Judge Robert Pratt, which supported Judge Bright's nomination for the Morris Dees award.
Another unanimous SCOTUS win for feds in bank fraud case
Last week, as blogged here, the Supreme Court handed down its first significant criminal justice ruling of the Term via a unanimous decision against a white-collar defendant in Salman v. US, No. 15-628 (S. Ct. Dec. 6, 2016) (available here). Today, brought another such ruling in Shaw v. US, No. 15-5991 (S. Ct. Dec. 12, 2016) (available here), which gets started this way:
A federal statute makes it a crime “knowingly [to] execut[e] a scheme . . . to defraud a financial institution,” 18 U.S.C. §1344(1), for example, a federally insured bank,18 U. S. C. §20. The petitioner, Lawrence Shaw, was convicted of violating this provision. He argues here that the provision does not apply to him because he intended tocheat only a bank depositor, not a bank. We do not accept his arguments.
Here is part of the substantive heart of the opinion for the Court and its closing flourish via Justice Breyer:
[F]or purposes of the bank fraud statute, a scheme fraudulently to obtain funds from a bank depositor’s account normally is also a scheme fraudulently to obtain property from a “financial institution,” at least where, as here, the defendant knew that the bank held the deposits, the funds obtained came from the deposit account, and the defendant misled the bank in order to obtain those funds....
The statute is clear enough that we need not rely on the rule of lenity. As we have said, a deposit account at a bank counts as bank property for purposes of subsection (1). Supra, at 2–3. The defendant, in circumstances such as those present here, need not know that the deposit account is, as a legal matter, characterized as bank property. Supra, at 4–5. Moreover, in those circumstances, the Government need not prove that the defendant intended that the bank ultimately suffer monetary loss. Supra, at 3–4. Finally, the statute asapplied here requires a state of mind equivalent to knowledge, not purpose. Supra, at 5–6.
With only two dissenters, SCOTUS refuses to hear Ohio death row defendant's arguments against a second execution attempt
I am somewhat surprised to see Rommell Broom's case, recently discussed here and here, on the cert denied list on this morning's Supreme Court order list. Interestingly, this denial of cert came with two dissenters: Justice Breyer and Justice Kagan. And Justice Breyer mentioned the Broom case and others is a broader three-page dissent from the denial of cert in another capital case at the end of the order list. Here are excerpts from that dissent:
Henry Sireci, the petitioner, was tried, convicted ofmurder, and first sentenced to death in 1976. He has lived in prison under threat of execution for 40 years. When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen. Few Americans knew of the personal computer or the Internet. And over half of all Americans now alive had not yet been born....
Forty years is more time than an average person could expect to live his entire life when America constitutionally forbade the “inflict[ion]” of “cruel and unusual punishments.” Amdt. 8; see 5 Dictionary of American History 104 (S. Kutler ed., 3d ed. 2003). This Court, speaking of a period of four weeks, not 40 years, once said that a prisoner’s uncertainty before execution is “one of the most horrible feelings to which he can be subjected.” In re Medley, 134 U. S. 160, 172 (1890). I should hope that this kind of delay would arise only on the rarest of occasions. But in the ever diminishing universe of actual executions, I fear that delays of this kind have become more common....
<P> Nor is this case the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what I would consider especially cruel and unusual circumstances. On September 15, 2009, the State of Ohio attempted to execute Romell Broom by lethal injection. State v. Broom, 146 Ohio St. 3d 60, 61–62, 2016-Ohio-1028, 51 N. E. 3d 620, 623. Medical team members tried for over two hours to find a useable vein, repeatedly injecting him with needlesand striking bone in the process, all causing “a great deal of pain.” Id., at 62, 51 N. E. 2d, at 624. The State now wishes to try to execute Broom once again. Given its first failure, does its second attempt amount to a “cruel and unusual” punishment? See In re Kemmler, 136 U. S. 436, 447 (1890) (“Punishments are cruel when they involve . . . a lingering death”). I would have heard Broom’s claim.
As I and other Justices have previously pointed out, individuals who are executed are not the “worst of the worst,” but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race. See Glossip v. Gross, 576 U. S., ___, ___–___ (2015) (BREYER, J., joined by GINSBURG, J., dissenting) (slip op., at 9–17)... Cf. Smith v. Alabama, 580 U. S. ___, (Dec. 8, 2016) (judge overrode jury’s recommendation of a life sentence) (this Court, by an equally divided vote, denied a stay of execution).
I have elsewhere described these matters at greater length, and I have explained why the time has come for this Court to reconsider the constitutionality of the death penalty. Glossip, supra, at ___ (dissenting opinion); see also Knight v. Florida, 528 U. S. 990, 993 (1999) (opiniondissenting from denial of certiorari); Valle v. Florida, 564 U. S. 1067 (2011) (opinion dissenting from denial of stay); Boyer v. Davis, 578 U. S. ___, ___ (2016) (opinion dissenting from denial of certiorari); Conner v. Sellers, 579 U. S. ___ (2016) (opinion dissenting from denial of certiorari and denial of stay). Cases such as the ones discussed here provide additional evidence that it is important for us to do so. See Lackey v. Texas, 514 U. S. 1045 (1995) (Stevens, J., memorandum respecting denial of certiorari). I would grant this petition for certiorari, as I would in Broom v. Ohio, No. 16–5580, and Smith, and include this question.
"Trump should reform criminal justice system to foster economic growth"
The title of this post is the headline of this new commentary published in The Hill and authored by Eric Sterling, who is now the executive director of the Criminal Justice Policy Foundation and long ago was counsel to the U.S. House Judiciary Committee. Here are excerpts:
President-elect Trump has expressed a commitment to fostering economic growth and preserving American jobs. In that pursuit, he would be well advised to work towards reforming the criminal justice system. If he embraced a bankruptcy-like program to restore clean criminal records to the millions of Americans who have not been in trouble for many years, he could generate hundreds of thousands jobs – many more than were saved by his intervention and promises to Carrier and United Technologies.
One of the first measures of any economy is employment and job growth. Surprisingly (and unbeknownst to most politicians), our criminal justice system, and its focus on punishment instead of prevention, is one of the biggest drags on our economy because its long-term impact on employment. Once you have a criminal conviction, your ability to get a job is slashed for the rest of your life. If you can get a job, it is likely be “off-the-books.” One Department of Justice study estimated that the average wage loss is 50 percent.
The Bureau of Justice Statistics reported a decade ago that about 68 million Americans have a criminal record. Many of these records are not convictions, but some estimate that about one-third of American working age adults have a criminal conviction.
More than two-thirds of the U.S. gross domestic product is based on the activity of consumers. Cumulatively, the "under-earning" by perhaps one-third of American consumers means lost purchases of everything that every American company makes and sells. Imagine how many Americans could get a mortgage and buy a home if millions of Americans no longer had a criminal record (and imagine how many new Carrier furnaces and air conditioners would be sold and installed).
We have a prison population of 1.8 million (that excludes the jail and juvenile detention populations). In 1970, that number was about .25 million. We know that none of the men and women in prison bought a Ford or Chevrolet last year. We also know that most of those in prison are not there for violent offenses. If they were home – yes, with their liberty restricted, and under supervision – they could work, and many of them would need and could buy a car....
Imagine what the Social Security trust fund would like if millions more American men and women were working, instead of in prison or unemployed or underemployed. Trump should direct his economic team to fully calculate the large-scale economic benefits of smart on crime justice reform.
Trump is proud of his mastery of bankruptcy laws. A criminal record clean slate law is like a bankruptcy. Instead of wiping your financial debts away, such a law would wipe away your criminal record after five or seven years of verifiable good conduct. Bankruptcy, which is in the Constitution, is a useful model for rebuilding the records of formerly convicted persons to re-enter the economy by the millions and help build economic growth for all Americans.
December 12, 2016 in Criminal justice in the Trump Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)
December 11, 2016
Vermont Gov promising to pardon all marijuana offenses on his way out of office
As reported in this local article from Vermont, "before he leaves office, Gov. Peter Shumlin is planning to pardon people who were convicted of possessing up to one ounce of marijuana." Here are the details:
Vermont removed criminal penalties for small amounts of marijuana possession in 2013. Shumlin said in a statement that pardoning the convictions now is "the right thing to do," and he hopes to review as many applications as possible before he leaves office in the new year. [The official statement is here.]
“Decriminalization was a good first step in updating our outmoded drug laws," Shumlin said. "It makes no sense that minor marijuana convictions should tarnish the lives of Vermonters indefinitely.”
The governor will consider pardons for people who have never been convicted of "violent criminal Vermont convictions or felonies," according to a news release. The governor's office believes as many as 10,000 people are eligible for pardons, said James Pepper, a policy adviser and director of intergovernmental affairs for Shumlin....
People interested in a pardon for marijuana possession can apply through the governor's website before Dec. 25 [link here]. The website cautions applicants that their applications may be considered public records and that a pardon "will not necessarily erase a conviction or the record of that conviction."
"If you are requesting a pardon because you believe the pardon will have certain legal consequences for you, you should talk to a lawyer," the governor's website states....
A 2015 Vermont law allows people in certain circumstances to expunge criminal records of acts they committed before age 25 that are no longer criminal, including possession of small amounts of marijuana. Shumlin believes Vermont should legalize recreational marijuana. A legalization bill passed the state Senate this year but did not pass the House of Representatives.
This story provides further reinforcement of my long-standing view that marijuana reform = sentencing reform and that everyone interested in sentencing reform should be a supporter of marijuana reform. And, of course, for more on marijuana law, policy and reform, my other blog has been covering these stories:
Nobel Peace Prize winner suggests that drug war may be most harmful of all wars currently being waged, combines
The BBC News account of this weekend's Nobel Prize awards highlights a notable comment from a notable Nobel laureate. The article is headlined "Nobel Peace Prize: Santos calls for 'rethink' of war on drugs," and here are some excerpts:
The President of Colombia, Juan Manuel Santos, has used his Nobel Peace Prize acceptance speech to call for the world to "rethink" the war on drugs. He said the zero-tolerance policy might be "even more harmful" than all the other wars being fought worldwide.
Mr Santos's government and the country's biggest rebel group, the Farc, signed a peace deal last month. Bob Dylan, the first songwriter ever to receive the Nobel literature prize, did not collect his award in person. He received a standing ovation nevertheless.
The conflict with the Farc rebels in Colombia has killed more than 260,000 people and left millions internally displaced. Accepting the prize for his efforts in the peace process, Mr Santos paid tribute to the families of victims of the conflict. He said the "great paradox" of peacemaking was that "the victims are the ones who are most willing to forgive, to reconcile and to face the future with a heart free of hate".
In a deviation from his prepared remarks, he asked the representatives of the victims present to stand and be recognised for their own efforts in the peace process, to much applause. He previously pledged to donate the prize money -- eight million Swedish krona ($925,000) -- to help the conflict's victims. "I have served as a leader in times of war -- to defend the freedom and the rights of the Colombian people -- and I have served as a leader in times of making peace," he said. "Allow me to tell you, from my own experience, that it is much harder to make peace than to wage war."
Mr Santos said it was "time to change our strategy" on drugs, and that Colombia had "paid the highest cost in deaths and sacrifices" in the so-called war on drugs. The term, coined by US President Richard Nixon more than four decades ago, refers to US-led efforts to stop drug production at its source. In Latin America this has included on-the-ground policing, and fumigation of coca fields from the air.
"We have moral authority to state that, after decades of fighting against drug trafficking, the world has still been unable to control this scourge that fuels violence and corruption throughout our global community," he said. "It makes no sense to imprison a peasant who grows marijuana, when nowadays, for example, its cultivation and use are legal in eight states of the United States.
"The manner in which this war against drugs is being waged is equally or perhaps even more harmful than all the wars the world is fighting today, combined."
You be the federal sentencing judge: how long a prison term for convicted Philly US Representative? UPDATE: He got 10 years!
I find high-profile, white-collar sentencing cases to be among the most interesting and dynamic because they often require a judge (and others) to balance and calibrate competing punishment theories and goals. Because most white-collar offenders are not violent and often had a successful/productive life before getting into trouble, the need for severe punishment to incapacitate or specifically deter an offender from committing future crimes is often diminished. But because potential white-collar offenders are likely influenced by the deterrent impact emerging from the punishment of others like them, and also because white-collar offenders typically have had a relatively advantaged background, one can reasonably believe that crime control and just punishment concerns justify always throwing the book at any and all serious white-collar offenders.
With that backdrop, I am not surprised to have seen this past week a pair of articles reporting on lawyers are fiercely debating the federal sentences for a convicted politician from the City of Brotherly Love. The sentencing of Chaka Fattah takes place this Monday, and these two local articles, linked here and with their introductions, provide the basics for any wanna-be federal sentencing judge:
Chaka Fattah could spend the next two decades in prison if federal prosecutors get their way at the former congressman's sentencing hearing next week. In a memo filed with the court late Monday, government lawyers described the Philadelphia Democrat as "self-serving" and utterly unremorseful and urged U.S. District Judge Harvey Bartle III to sentence him within a range of 17 to 22 years in prison.
"Fattah understood the power and trust given to elected officials and that corruption benefits the few at the expense of the many," Special Assistant U.S. Attorney Eric Gibson wrote. "He chose to violate the trust of his constituents and the taxpayers to line his pockets and advance his personal and professional goals at their expense."
That punishment, if imposed, would far exceed those received by other Philadelphia-area politicians who ran afoul of federal corruption cases. State Sen. Vincent Fumo received five years after his 2009 conviction on 137 counts including conspiracy and fraud. But prosecutors noted that their recommended sentence for Fattah fell well within the federal sentencing guidelines for his crimes. What's more, they said, it tracks with other recent sentences for corrupt politicians, including former New Orleans Mayor Ray Nagin and former Detroit Mayor Kwame Kilpatrick, convicted of similar crimes.
Chaka Fattah's lawyers pushed back against prosecutors Thursday, calling the two-decade-long sentence they recommended for the former congressman "extreme" and "unnecessarily harsh." Such a punishment, they said in a court filing, would be the longest prison term ever received by a member of Congress for corruption.
Instead, the defense urged U.S. District Judge Harvey Bartle III to consider a far shorter term and argued that the Philadelphia Democrat's misdeeds hardly compared to those of politicians found guilty in more serious cases. "While it is true that Chaka Fattah now stands before this court convicted of serious crimes, he is also a man that has dedicated his entire life to the service of others," defense lawyer Mark Lee wrote. "As a legislator, he made the education of disadvantaged youth his life's work. And as a mentor and role model, Chaka Fattah inspired countless young men and women to service and self-improvement."
The defense's sentencing recommendation followed one filed Monday by prosecutors, who argued that Fattah deserves a sentence of between 17 and 22 years under federal sentencing guidelines. Fattah's team, in its filing, countered that the correct guideline range was 11 to 14 years — and suggested a far shorter term than that.
Their back-and-forth set up what is likely to be a contentious court battle Monday when Fattah, 60, will become the first member of Pennsylvania's congressional delegation to be sentenced in a federal corruption case since 1996, when Pittsburgh-area Rep. Joseph P. Kolter was sentenced to six months for covering up his theft of thousands of dollars in taxpayer funds with vouchers that claimed he used the money to buy stamps for his office.
My own punishment views in these kinds of white-collar cases, which may be influenced both by my ivory-tower history and my past work for certain white-collar defendants, lead me to believe that a few years in federal prison (plus a big financial sanction) will usually be sufficient to achieve utilitarian and retributivist goals. Stated slightly differently and in terms of the key directive of federal sentencing law, I tend to view any prison sentence of more than a few years when the defendant poses no real continuing threat to public safety to be "greater than necessary" to achieve congressional punishment purposes.
UPDATE: This Politico article completes the sentencing story in its headline: "Fattah sentenced to 10 years in prison."
December 11, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (10)