March 25, 2017
"End the death penalty for mentally ill criminals"
The title of this post is the title of this new Washington Post commentary that strikes me as notable because it is penned by two former midwestern governors, Bob Taft (who was governor of Ohio from 1999 to 2007) and Joseph Kernan (who was governor of Indiana from 2003 to 2005). Here are excerpts:
Legislators in six states — Indiana, Ohio, South Dakota, Tennessee, Texas and Virginia — have proposed legislation to prohibit the death penalty for individuals with severe mental illness. As former governors of states that are grappling with this issue, we strongly support this effort to end an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts.
The overwhelming majority of people with severe mental illness are not violent; in fact, they are more likely to be victims than perpetrators of violent crime. For the very small number who do commit a capital crime while suffering from a severe mental disorder, current death-penalty law does not adequately take the effects of their illness into account.
As a result, defendants with severe mental illness — such as schizophrenia, bipolar disorder, post-traumatic stress disorder and traumatic brain injury — continue to be sentenced to death and executed. Last March, Texas executed Adam Ward, a man recognized as “diagnosed with bipolar disorder and placed on lithium as early as age four,” according to appellate court documents. And in 2015, Georgia executed Andrew Brannan, a decorated Vietnam War veteran who also had a pronounced mental illness. He qualified for 100 percent disability from the Department of Veterans Affairs because of his PTSD and bipolar disorder.
Although their grave illnesses do not excuse these defendants’ crimes, we believe that life imprisonment without the possibility of parole would have been a more appropriate punishment. Illnesses such as schizophrenia and bipolar disorder are characterized by impairments that — when untreated — significantly affect one’s ability to distinguish fact from reality, to make rational decisions or to react appropriately to events and other people. Under these conditions, the degree of culpability may not rise to the level of cold, unimpaired calculus that justifies the ultimate penalty....
Studies have also shown that death- penalty jurors often misunderstand mental illness, which is often viewed as an aggravating factor — that is, a reason to sentence someone to death — rather than as a mitigating factor, which is what it should be. The troubling consequence is that some defendants may end up on death row because of their mental illness.
The fact that the death penalty applies to those with mental illness also means that veterans with demonstrated PTSD may be executed. Even though most of the thousands of veterans struggling with PTSD do not commit the serious crimes that may be eligible for the death penalty, an estimated 10 percent of the United States’ death-row inmates are veterans — some of whom suffered from active and severe symptoms of PTSD at the time of their crime. These veterans have experienced trauma that few others have faced and have made a vital contribution to the safety of our country that deserves our recognition....
The death penalty was not intended for people in the throes of severe delusions, living with schizophrenia or suffering from combat-related PTSD. These are not the blameworthy individuals whose executions can be justified. We come from different political parties, but we join the majority of Americans — supporters and opponents of the death penalty alike — who believe it should not be imposed on defendants with such serious impairments. This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency.
March 24, 2017
Thanks to voter approval of Prop 57, "California prisons to free 9,500 inmates in 4 years" based on new early-release credit rules
The middle title of this post quotes the title of this new AP article and provides a bit of context. For more explanation, here is more from the AP article:
Corrections officials adopted new criminal sentencing rules on Friday that aim to trim California’s prison population by 9,500 inmates after four years.
They include steps like reducing inmates’ sentences up to six months for earning a college degree and by up to a month each year for participating in self-help programs such as alcohol and substance abuse support groups and counseling, anger management, life skills, victim awareness, restorative justice, and parenting classes. Virtually any inmate except those on death row or those serving life-without-parole sentences is eligible to earn the credits and lower the sentence.
It’s the latest step in a years-long drive to dramatically lower the state’s prison population in response to federal court orders stemming from lawsuits by prison advocates and pressure to turn away from mass incarceration.
The changes follow voters’ approval of Proposition 57 in November. The initiative lets certain felons seek parole more quickly and gave corrections officials broad discretion to grant early release credits. “I think that it’s a monumental change for the organization and I think across the state, across the nation, I don’t think that anybody has altered how they are incarcerating offenders as much as what Prop 57 does,” Corrections Secretary Scott Kernan told The Associated Press. The goal, he said, is to encourage inmates to start “doing something with their incarceration and not just sitting on their bunks.”
The changes in parole eligibility will take effect April 12 if they win initial approval from state regulators, with final approval by October after a public comment period. The earlier release credits and earlier parole consideration will be phased in starting May 1 while the public review is underway.
Police and particularly prosecutors fought the ballot initiative, arguing that it will release dangerous offenders sometimes years earlier than called for in their sentences. It also will put convicts more quickly into county probation systems that already are stretched. Kernan said he took some of their objections into account, for instance by barring sex offenders and third-strike career criminals from seeking earlier parole.
The changes are projected to eventually lower California’s prison population by about 7 percent and keep the state below the federal court-ordered population of about 116,000 inmates in the 34 adult prisons. The changes also will let the state phase out a long-running program that currently keeps nearly 4,300 inmates in private prisons in other states.
[T]he bulk of the reductions would come from steps like doubling the credits inmates receive for completing education and training programs, to a maximum of three months in any 12-month period, and expanding them to include violent offenders. Inmates would also start getting expanded credits for not violating prison rules starting May 1. That would typically reduce a violent offender’s sentence by 19 days each year, Kernan said, calling the reduction “relatively modest.”
Former Penn State Prez convicted of single misdemeanor court of child endangerment for role in Sandusky sex offense scandal
As reported in this local article, "Graham B. Spanier, the former Pennsylvania State University president once considered one of the nation’s most prominent college leaders, was convicted Friday of endangering children by failing to act on signs that Jerry Sandusky was a serial sex predator." Here is more (with key sentencing factors highlighted):
After nearly 12 hours of deliberation, the jury of seven women and five men found Spanier guilty of a single misdemeanor count of endangerment. He was acquitted of a second endangerment count, as well as a felony count of conspiracy.
Still, the guilty verdict was a stunning blow to Spanier, 68, who had long proclaimed his innocence, and to his supporters, who had fiercely defended him and accused prosecutors of overreaching and unfairly staining the university. Many, including his wife, Sandra, a Penn State English professor, were in the Dauphin County Courtroom to hear the verdict. Spanier didn't appear to react when the verdict was read in a hushed courtroom.
Prosecutors said he agreed in 2001 with two Penn State administrators at the time, Athletic Director Tim Curley and Vice President Gary Schultz, not to report assistant coach Mike McQueary's claim that Sandusky was caught after hours with a young boy in a campus locker-room shower.
Pennsylvania Attorney General Josh Shapiro, who this year took over the office that spent had nearly a decade investigating and prosecuting the Sandusky case, said the verdict showed no one is above the law. "There are zero excuses when it comes to failing to report the abuse of children to authorities," he said.
Spanier's lawyer, Sam Silver, said they were heartened by the jury's acquittal on two counts and would appeal the guilty verdict on the third. That count had originally been a felony count, but jurors downgraded it to a misdemeanor.
Emails show that the three men knew Sandusky, a longtime assistant to head football coach Joe Paterno, had been investigated by university police after a similar claim in 1998. They first decided to report the 2001 incident to child-welfare authorites, but then changed that plan. Instead, they agreed to talk to Sandusky, bar him from bringing boys on campus, and share the report with the president of Second Mile, the charity Sandusky started for vulnerable children.
Sandusky sexually assaulted at least four more children after the 2001 incident, including another boy in a campus shower the next year, jurors were told. That victim was among the witnesses who testified this week. Both Schultz and Curley pleaded guilty and testified for the prosecution, although a deputy attorney general told jurors in her closing argument that they were not the government's star witnesses.
Spanier opted not to testify. His lawyers argued that the prosecution didn't present any evidence that Spanier knew Sandusky was a child sex abuser or that he knowingly conspired to cover up a crime. Spanier, who rose to national prominence as Penn State's leader for 16 years, has maintained that he acted appropriately in 2001 based on the information he had at the time. He contends he was told by his lieutenants that Sandusky's behavior with the boy in the shower amounted to "horseplay."
Followers of federal sentencing know that a jury's acquittal on some but not all counts may sometimes not be a huge sentencing benefit to defendants given that sentencing guideline recommendations can be based on acquitted and uncharged conduct established by merely a preponderance of the evidence. But the impact of the split verdict in this high-profile state case is seemingly quite significant because the defendant is now only facing sentencing on a single misdemeanor count (which I presume means he could not get more than a year in jail).
I find it quite interesting (and somewhat curious) that a jury apparently has authority under Pennsylvania law to take a count that "had originally been a felony count" and decide it should be "downgraded to a misdemeanor." This strikes me as fundamentally a sentencing decision being made by a jury, and as an interesting way for the jury in this particular case to send a (mixed) message about the defendant and his criminal activity.
March 23, 2017
Those who can't federally prosecute anymore (thanks to Prez Trump), teach...
Especially because I come from a family of teachers, I have always found bemusing the old idiom "Those Who Can’t Do, Teach." In this context, my latest bemusement (and the title of this post) is prompted by this new New Jersey Law Journal article headlined "Prosecutors Find Refuge in Law School Posts." Here is how the article starts:
What’s a federal prosecutor forced to resign by a new president to do? Rub elbows with the next generation of lawyers, apparently.
Three of the 46 recently ousted U.S. attorneys have in the past week unveiled plans to join law schools, eschewing — for now — the more well-traveled and lucrative path into Big Law. A fourth U.S. attorney jumped over to the legal academy after resigning several months before President Donald Trump took office.
It’s not unheard of for former U.S. attorneys to find refuge on law campuses, though the concentration of such announcements over the past week is unusual and due to the simultaneous housecleaning of all holdover prosecutors appointed by former President Barack Obama. Joining a law school can offer former prosecutors a way station as they mull their future endeavors, be it running for public office or diving into private practice. Or the academy can be their desired destination—several former federal prosecutors have gone on to serve as law deans or faculty fixtures.
“I think there will be more,” said David Hickton, the former U.S. Attorney for the Western District of Pennsylvania who resigned in November and two months later accepted a position at the University of Pittsburgh School of Law. “There are two reasons for that: First, I think these things catch a little bit like a fever, and now that three of us have done it, others will look at it more closely than they would have before. Secondly, the private practice of law is in a reshuffling and rebalancing. There seems to be an oversupply of lawyers.”
The University of Michigan Law School kicked off the mini-trend on March 14 with an announcement that Barbara McQuade, who spent seven years as the U.S. Attorney for the Eastern District of Michigan, is joining the faculty in May to teach national security, criminal law, and criminal procedure.
Two days later, Seton Hall University School of Law announced that former U.S. Attorney for the District of New Jersey Paul Fishman will be a visiting fellow at the school. Then on Tuesday, New York University School of Law announced that Preet Bharara, former U.S. Attorney for the Southern District of New York and perhaps the most high-profile of the fired prosecutors, would join the school as a scholar in residence on April 1.
Notable discussion of federal criminal justice issues at new Take Care blog
A new legal blog with a number of notable contributors, Take Care, has recently been created seeking to provide "insightful, accessible, and timely legal analysis of the Trump Administration." The blog has topical pages on Criminal Justice and Marijuana Legalization among many others, and here are a few recent posts from those pages readers might find of interest:
"Why Jeff Sessions’s Reversal on Private Prisons Is Dangerous" by Chiraag Bains
"Reliance Defenses in the Trump Era and Beyond" by Zachary Price
"Trump’s Approach to Crime & Punishment" by Chiraag Bains
"How long should Louisiana keep old, ill criminals in prison?"
The title of this post is the headline of this lengthy NOLA.com article. Here are excerpts:
Emanuel Lee [is] doing life for strangling his girlfriend in New Orleans.... Lee arrived at Angola 26 years ago [and] unless something drastic changes, he will die at Angola, one of the hundreds of aging and ill inmates who are costing taxpayers hundreds of thousands of dollars every year to treat and incarcerate.
What to do with Lee and prisoners like him is likely to be a major topic of discussion in the Louisiana Legislature's 2017 session starting April 10. Gov. John Bel Edwards is expected to make a push to lower Louisiana's highest-in-the-world incarceration rate, in part by opening options for parole for non-violent offenders who serve shorter prison sentences. But the governor also has said he is interested in reducing the number of Louisiana inmates with longer sentences as well.
Many of Louisiana's older, long-term prisoners might no longer pose a threat to society, judging from national studies of recidivism. And for prisoners with serious illnesses, the costs of treatment can be daunting. Taxpayers are responsible for prison medical care, but some of that money could be used elsewhere, such as for higher education and mental health care for children, if ill prisoners were released.
The governor's task force on reducing the prison population recommended last week that Louisiana expand parole opportunities to prisoners with long sentences, including lifers. It suggested that lifers be eligible for parole after serving 30 years in prison and reaching age 50, unless they were convicted of first-degree murder. People serving long but less-than-life sentences should be eligible for parole after 20 years in prison and reaching age 45, even if they committed violent or sex crimes, according to the task force.
These provisions are often referred to as "geriatric parole." If put into place, geriatric parole would immediately make about 570 prisoners eligible for parole, and also would affect convicts who are sentenced in the future to life terms. Lee might come up for parole in four years, after serving 30 years of his sentence.
The task force has also suggested that Edwards and lawmakers make it easier for people with serious medical conditions, no matter their age, to get out of prison. They are proposing a medical furlough program to let any inmate who is not on death row be released temporarily from prison to a hospital or nursing home for medical treatment.
These recommendations aren't without controversy. The Louisiana District Attorneys Association has said geriatric parole and other proposals to let violent offenders out of prison are non-starters. The group's representative on the governor's task force, District Attorney Bo Duhe of the 16th Judicial District, voted against geriatric parole.
Duhe supported the medical furlough concept, but the District Attorneys Association said its members have concerns about that recommendation, too, and many want to alter it if it has a chance of becoming law. "Those issues have been suspect because of their potential for abuse," said Pete Adams, executive director of the association.
In a state where the law-and-order crowd insists "life means life," it's easy to see why some are nervous at the prospect of offering the possibility of freedom to a criminal who was banished for life, even if the criminal is sick, old or dying. Many of Louisiana's 4,850 lifers have committed very serious crimes....
Louisiana is an outlier in how it punishes crimes such as Lee's. Only Louisiana and one other state, Mississippi, mandate life without parole for second-degree murder; there is no option in the law. In Texas that crime is punished by five to 99 years in prison, with parole eligibility after 30 years. In Arkansas, it is a 10- to 40-year sentence, according to a report issued by the Louisiana governor's sentencing task force....
One of the arguments for giving older inmates a shot at parole, even those convicted of violent crime, centers on their unlikelihood of committing crimes again. Research suggests that most people "age out" of criminal activity after their 20s....
Even if parole becomes possible for people with life sentences, it's not automatic. That's a decision for the Pardons and Parole Board, which in 2015 granted only 2 percent of discretionary parole requests, according to the governor's task force report....
While some advocates for geriatric and medical parole make a moral argument to release old or ill prisoners, there is also a practical reason: It's expensive for the public. During the fiscal year that ended June 30, the Department of Corrections spent about $52.3 million on hospital and medical wards in its prisons, plus $22.7 million for health care at off-site locations, for a total of $75 million.
Older inmates require treatment for dementia, blindness, hypertension, hearing loss and vision problems at a higher rate than their younger counterparts. Older people who have been locked up for decades are more likely to need medical care than a person who is the same age but not in prison: They go to the doctor about five times more often, according to the Vera Institute of Justice.
March 22, 2017
Department of Justice to host National Summit on Crime Reduction and Public Safety at the end of June
Acting Assistant Attorney General Alan Hanson gave this speech today at the Byrne Criminal Justice Innovation Program Symposium. The entire speech makes for an interesting and encouraging read, and here are a few passages that really caught my eye (including the reference to the coming National Summit mentioned in the post title):
As with any new Administration, I know there are lots of questions about priorities. The President just released his budget last week, and you can see that the White House is clearly focused on reducing crime in America’s communities. That’s good news for all us who care about public safety. I think it’s also important for everyone here to know — and this will come as no surprise — that for our Attorney General, the safety of our communities, and of those who protect them, is paramount.
Attorney General Sessions has made it clear that he’s willing to do what it takes to help cities reduce crime and violence. And having worked very closely with Jeff Sessions during his time in the Senate, I can tell you those are not empty words. For anyone who cares about making sure our neighborhoods are places of promise and opportunity — where citizens can live, work and thrive — you can be sure you have an ally in our Attorney General.
In his short time in office, he has already set up a task force on crime reduction and public safety. The goal of this task force is to work with federal, state and local law enforcement and community organizations to identify effective public safety strategies. As part of this effort, the Department plans to host a National Summit on Crime Reduction and Public Safety at the end of June. We hope to learn at that summit about local strategies that work and determine how we at the federal level can support those efforts....
As you know, the BCJI program offers a unique approach to public safety and neighborhood revitalization. It’s place-based, community-oriented, driven by data and research and grounded in partnerships across agencies and across disciplines — all the elements you would expect in a successful public safety program.
The BCJI model builds on programs like Project Safe Neighborhoods that rely on coordination between federal, state and local law enforcement and prosecutors and on collaboration with researchers. It focuses on crime hot spots, and on distressed areas where resources are most urgently needed. Perhaps most importantly, it brings community leaders and law enforcement to the table together, which guarantees that this work isn’t being done in a vacuum.
This approach is not one we see often enough — which is a shame, because we know it works. In Evansville, Indiana, for example, from 2013 to 2015, reported crime dropped 42 percent in the BCJI target neighborhood of Jacobsville. Five hot spots in Milwaukee’s target area saw a 23 percent drop in violent crime over the same period. That’s compared to a 1 percent increase in the city as a whole. And in Austin, Texas, during the 16 months of BCJI operation in the Rundberg neighborhood, violent crime dropped 15 percent.
These are impressive numbers, and they’re especially notable when many other cities are seeing a trend in the opposite direction....
This work — the work that you’re doing — is more important than ever. Crime rates remain near historically low levels, but there’s no question that some cities are seeing troubling recent surges in violence — in some cases, dramatic increases. This is a time for vigilance, not complacency, because, as the Attorney General said, “When crime rates move in the wrong direction, they can move quickly.”
Unanimous New Jersey Supreme Court rejects "categorical Internet blackout" for sex offender
As reported in this local article, headlined "N.J. Supreme Court tosses 'total' internet ban for sex offender," the top court in the Garden State issued a significant ruling yesterday concerning on-line restrictions on sex offenders. Here are the very basics from the press report:
New Jersey's highest court on Tuesday threw out a state-sanctioned ban on internet use for a convicted sex offender, finding it was an arbitrary infringement on the man's rights.
In a unanimous decision, the state Supreme Court found the state Parole Board had improperly issued a "near-total" internet ban for the man, identified only by the initials J.I., who was subject to lifetime supervision after pleading guilty to charges he sexually abused his three daughters.
Calling internet access a "basic need" of modern life, the justices ruled that state authorities could only revoke it after holding a formal hearing to determine if there was a legitimate public safety reason to do so.
The lengthy ruling in J.I. v. New Jersey State Parole Board, No. A-29-15 (N.J. March 21, 2017) (available here), gets started this way:
Today, the Internet plays an essential role in the daily lives of most people -- in how they communicate, access news, purchase goods, seek employment, perform their jobs, enjoy entertainment, and function in countless other ways.
Sex offenders on community supervision for life (CSL) may be subject to restrictive Internet conditions at the discretion of the New Jersey State Parole Board (the Parole Board), provided the conditions promote public safety and/or the rehabilitation of the offender. In this case, the first issue is whether a total Internet ban imposed on a CSL offender was unnecessarily overbroad and oppressive and whether it served any rational penological purpose. The second issue is whether the Parole Board improperly denied J.I. a hearing to challenge the Internet restrictions that he claims were arbitrarily imposed.
J.I. is a sex offender subject to community supervision for life. After his release from confinement, J.I. was allowed full access to the Internet, with one exception: he could not visit an Internet social networking site without the approval of his District Parole Supervisor.
After J.I. had served thirteen months on community supervision for life without incident, his District Parole Supervisor totally banned his access to the Internet except for employment purposes. The District Parole Supervisor justified the ban based not on J.I.’s conduct while on community supervision for life, but rather on his conduct years earlier -- the accessing of pornography sites and the possession of pornography -- that led to a violation of his parole. A Parole Board panel affirmed, apparently with no input from J.I.
Following imposition of that near-total Internet ban, J.I. accessed several benign websites, such as those of his church and therapist, after repeated warnings not to do so. As a result, the parole authorities completely banned J.I. from possessing any Internet-capable device. The Parole Board upheld that determination and denied J.I. a hearing. The Appellate Division affirmed.
We now reverse and remand to the Parole Board. Conditions imposed on CSL offenders -- like those imposed on regular parolees -- are intended to promote public safety, reduce recidivism, and foster the offender’s reintegration into society. Arbitrarily imposed Internet restrictions that are not tethered to those objectives are inconsistent with the administrative regime governing CSL offenders. We agree with the position taken by federal courts that Internet conditions attached to the supervised release of sex offenders should not be more restrictive than necessary.
The sheer breadth of the initial near-total Internet ban, after J.I.’s thirteen months of good behavior, cannot be easily justified, particularly given the availability of less restrictive options, including software monitoring devices and unannounced inspections of J.I.’s computer. After the imposition of the total ban for J.I.’s Internet violations, J.I. should have been granted a hearing before the Parole Board to allow him to challenge the categorical Internet blackout. The complete denial of access to the Internet implicates a liberty interest, which in turn triggers due process concerns.
Accordingly, we remand to the full Parole Board for a hearing consistent with this opinion. The Board must determine whether the current total computer and Internet ban imposed on J.I. serves any public-safety, rehabilitative, or other penological goal.
March 22, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)
Tenth Circuit clarifies and emphasizes import and reach of Graham's limit on extreme juve sentences
Yesterday in Budder v. Addison, No. 16-6088 (10th Cir. March 21, 2017) (available here), a Tenth Circuit panel granted habeas relief to a juvenile non-homicide offender sentenced in Oklahoma to serve over 131 years in prison before being eligible for parole. The Budden opinion discusses the Supreme Court's Graham ruling at great length in the course of rejecting Oklahoma's effort to defend a sentence that was not technically "life without parole." Here are some excerpts from the opinion:
Despite Oklahoma’s arguments to the contrary, we cannot read the Court’s categorical rule as excluding juvenile offenders who will be imprisoned for life with no hope of release for nonhomicide crimes merely because the state does not label this punishment as “life without parole.” The Constitution’s protections do not depend upon a legislature’s semantic classifications. Limiting the Court’s holding by this linguistic distinction would allow states to subvert the requirements of the Constitution by merely sentencing their offenders to terms of 100 years instead of “life.” The Constitution’s protections are not so malleable.
More importantly, the Court did not just hold that it violated the Eighth Amendment to sentence a juvenile nonhomicide offender to life without parole; it held that, when a state imposes a sentence of life on a juvenile nonhomicide offender, it must provide that offender with a “meaningful opportunity to obtain release.” Id. at 75; see also id. (“[The Eighth Amendment] does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.”). Further, the Court explained that its categorical holding was necessary because it would “give all juvenile nonhomicide offenders a chance to demonstrate maturity and reform.” Graham, 560 U.S. at 79 (emphasis added). If the rule announced in Graham is to provide all juvenile offenders such an opportunity, it must be read to apply to all sentences that are of such length that they would remove any possibility of eventual release. Thus, we conclude, the sentencing practice that was the Court’s focus in Graham was any sentence that denies a juvenile nonhomicide offender a realistic opportunity to obtain release in his or her lifetime, whether or not that sentence bears the specific label “life without parole.” ...
Again, we must emphasize that states may not circumvent the strictures of the Constitution merely by altering the way they structure their charges or sentences. Just as they may not sentence juvenile nonhomicide offenders to 100 years instead of “life,” they may not take a single offense and slice it into multiple sub offenses in order to avoid Graham’s rule that juvenile offenders who do not commit homicide may not be sentenced to life without the possibility of parole. When the Court compared the severity of the crime with the severity of the punishment, in light of the characteristics of the offender, it did not look to the state’s definitions or the exact charges brought. It looked to whether the offender was a juvenile, whether the offender killed or intended to kill the victim, and whether the sentence would deny the offender any realistic opportunity to obtain release. The Court specifically concluded that, not only was a categorical rule appropriate, it was “necessary,” id. at 75, because a case specific approach “would allow courts to account for factual differences between cases and to impose life without parole sentences for particularly heinous crimes,” id. at 77. The Court found this approach to pose too great a risk that some juveniles would receive life without parole sentences “despite insufficient culpability.” Id. at 78 (quoting Roper, 543 U.S. at 572–73). The Court was not convinced “that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” Id. at 77. Not only did the Court draw the line at homicide, it structured a categorical rule specifically to prevent the possibility that a sentencing judge would ever impose a sentence of life without the possibility of parole on a juvenile who did not commit homicide. The Eight Amendment prohibits such a sentence, regardless of the severity of nonhomicide crimes a juvenile has committed.
Interesting letters from and to US Senate about work of federal prosecutors in Trump era
Two new press pieces report on two notable new letters about the work of federal prosecutors in the new Administration. Here are the headlines, links, and leads:
From Politico, "Senators press Sessions on drug policy changes":
Three Democratic senators are urging Attorney General Jeff Sessions not to return to policies that urge prosecutors to pursue long mandatory-minimum prison sentences against low-level drug offenders. Sens. Cory Booker of New Jersey, Dick Durbin of Illinois and Patrick Leahy of Vermont sent Sessions a letter Tuesday pleading with him not to abandon the Obama administration’s “Smart on Crime” initiative that generally led to earlier releases for those convicted of drug dealing in the federal system.
“Changes to current drug charging policies that lead to more mandatory minimum penalties in low-level, nonviolent drug cases will not increase public safety and will only increase taxpayer spending on our bloated federal prison system,” the senators wrote. “We are concerned about a possible shift in the Justice Department’s treatment of federal drug cases and the specter that mandatory minimum penalties may once again be used by the Justice Department on a routine basis as tools to prosecute low-level nonviolent drug offenses.”
From the Washington Examiner, "Groups urge greater oversight of US Attorney nominees":
Criminal justice reform advocates are urging the Senate Judiciary Committee to exercise greater oversight of United States Attorney nominees. Their letter, sent Tuesday and signed by the American Conservative Union Foundation, Families Against Mandatory Minimums, Right on Crime Coalition and R Street Institute, comes less than a month after the Trump administration dismissed 46 U.S. attorneys.
U.S. attorneys make up the 93 positions nationwide. After they are nominated by President Trump, the Senate Judiciary Committee must consider them and make recommendations to the full Senate about confirmation. The letter includes questions the four groups think the Senate committee should ask all nominees, noting that prosecutors "are central to the integrity of the entire criminal proceeding."
March 21, 2017
Senate confirms two (holdover) nominees to US Sentencing Commission!!
Federal sentencing fans should be excited to hear that the full US Senate has now confirmed Judges Charles Breyer and Danny Reeves to be members of the United States Sentencing Commission. (And, proving that somethings can still get done in a bipartisan manner inside the Beltway, this Senate reporting webpage indicates that the confirmation vote was unanimous.) As previously noted, the original nominations of Judges Breyer and Reeves back in 2016 got stalled last Congress, but then outgoing Prez Obama thereafter renominated them for the US Sentencing Commission in January after the new Congress got to work. I had been pessimistic about the prospects of these holdover nominees getting a hearing and a vote, but my pessimism was obviously misguided.
Of particular importance, with Judges Breyer and Reeves now having been confirmed as full voting members of the US Sentencing Commission, they join Acting Chair Judge Bill Pryor and Commissioner Rachel Barkow to form a quorum on the USSC. The Commission needs seven voting members to be fully staffed, but four members are sufficient to get stuff done if they all vote together on amendments and other action items. Though it is not ideal for the USSC to have only four Commissioners rather than the full seven, it is literally "good enough for government work" and thus presents the possibility that the USSC can and will be more than just an effective research agency this year.
As previously flagged here and now highlighted here at the USSC website, the Commission promulgated some notable proposed amendments in late 2016 when it still had a nearly full compliment of Commissioners. Those proposed amendments have generated a whole lots of public comment, and I think they could prove to be quite consequential if formally passed in the coming months. (A USSC hearing on the amendments is now scheduled for April 18.) So, if the two new Commissioners agree to move forward with some form of the amendments promulgated late last year (which seems likely, especially because Judge Breyer was on the USSC during their development), it is now quite possible that the first big tangible federal sentencing development of the "Trump era" could involve significant federal sentencing guideline amendments.
Ruling 6-2, SCOTUS holds in Manuel that Fourth Amendment claim can be brought contesting pretrial confinement
The one criminal ruling handed down by the Supreme Court this morning, Manuel v. City of Joliet, No. 14–9496 (S. Ct. March 21, 2017) (available here), has a majority opinion authored by Justice Kagan than gets started this way:
Petitioner Elijah Manuel was held in jail for some seven weeks after a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime. The primary question in this case is whether Manuel may bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement. Our answer follows from settled precedent. The Fourth Amendment, this Court has recognized, establishes “the standards and procedures” governing pretrial detention. See, e.g., Gerstein v. Pugh, 420 U. S. 103, 111 (1975). And those constitutional protections apply even after the start of “legal process” in a criminal case — here, that is, after the judge’s determination of probable cause. See Albright v. Oliver, 510 U. S. 266, 274 (1994) (plurality opinion); id., at 290 (Souter, J., concurring in judgment). Accordingly, we hold today that Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment (while we leave all other issues, including one about that claim’s timeliness, to the court below).
Justice Alito wrote the chief dissent (which is joined by Justice Thomas), and it gets started this way:
I agree with the Court’s holding up to a point: The protection provided by the Fourth Amendment continues to apply after “the start of legal process,” ante, at 1, if legal process is understood to mean the issuance of an arrest warrant or what is called a “first appearance” under Illinois law and an “initial appearance” under federal law. Ill. Comp. Stat., ch. 725, §§5/109–1(a), (e) (West Supp. 2015); Fed. Rule Crim. Proc. 5. But if the Court means more — specifically, that new Fourth Amendment claims continue to accrue as long as pretrial detention lasts — the Court stretches the concept of a seizure much too far.
What is perhaps most remarkable about the Court’s approach is that it entirely ignores the question that we agreed to decide, i.e., whether a claim of malicious prosecution may be brought under the Fourth Amendment. I would decide that question and hold that the Fourth Amendment cannot house any such claim. If a malicious prosecution claim may be brought under the Constitution, it must find some other home, presumably the Due Process Clause.
Prez Trump to nominate District Judge Amul Thapar to Sixth Circuit
As reported in this official press release, "President Donald J. Trump today announced his intent to nominate Judge Amul R. Thapar of Kentucky for the U.S. Court of Appeals for the Sixth Circuit." Here is more from the statement concerning what I believe is Prez Trump's first judicial nomination other than his selection of Neil Gorsuch for the Supreme Court:
The son of Indian-American immigrants, Judge Thapar serves on the District Court for the Eastern District of Kentucky. With his 2008 nomination by President George W. Bush and subsequent confirmation and appointment, Judge Thapar became the Nation’s first Article III judge of South Asian descent. Before his service on the bench, he was the U.S. Attorney for the Eastern District of Kentucky. Before that, he served as an Assistant U.S. Attorney in the Southern District of Ohio and the District of Columbia. He began his legal career in private practice, after clerkships with Judge S. Arthur Spiegel on the District Court for the Southern District of Ohio and then with Judge Nathaniel R. Jones of the Court of Appeals for the Sixth Circuit.
I know Judge Thapar personally and think very highly of him (in part because he asked me to file an amicus brief in one of his highest-profile sentencing cases). I expect that Judge Thapar will be easily confirmed by the Senate to the Sixth Circuit (though I suppose some Democrats may want to contest even lower-court confirmations as a show of resistance to Prez Trump in particular and to the GOP more generally). In addition, shrewd SCOTUS watchers might also view this nomination as a sign that Prez Trump will again consider seriously Judge Thapar for the next Supreme Court opening.
March 20, 2017
Continued consternation concerning capital charging decision in central Florida
I noted here on Friday the capital kerfuffle that has emerged in central Florida after newly-elected State Attorney Aramis Ayala announced that she would not pursue the death penalty for a cop killer or any other case during. As previously reported, Florida Governor Rick Scott reassigned the cop killer's case to another State Attorney. But now, as this local article reports, today Ayala indicated she might try to contest having the case reassigned:
Orange-Osceola State Attorney Aramis Ayala on Monday said she is not willing to surrender the case of accused cop killer Markeith Loyd. Gov. Rick Scott removed her from the case Thursday, outraged when she said she would not seek the death penalty. He appointed a special prosecutor, Brad King.
At a court hearing in Orlando on Monday, Ayala sat one seat away from King, the state attorney for Florida’s Fifth Judicial Circuit. What the governor did was unprecedented, she told Orange-Osceola Chief Circuit Judge Frederick Lauten, and “overstepped his bounds.” She said she may file a legal challenge and asked the judge temporarily to halt the two murder cases involving Loyd while she figures out what to do.
Loyd is charged with killing Orlando police Lt. Debra Clayton on Jan. 9 and, several weeks earlier, his pregnant ex-girlfriend, Sade Dixon. Ayala said she at least wants to be part of Loyd’s prosecution.
More than 100 lawyers, including two former Florida Supreme Court justices and Gil Garcetti, who prosecuted celebrity O.J. Simpson during his 1995 murder trial, are backing Ayala. They have signed a letter asking Scott to give the case back to her. She is an independently elected official, and Scott is guilty of overreach, they say.
In Tallahassee, Scott defended his decision. When asked whether he would consider removing Ayala from office, he said, “We’ll continue to look at our options. Right now I’m focused on Markeith Loyd.” Asked if he would get involved in other potential death-penalty cases in Orange and Osceola counties, he said, “I’ll deal with that at the time.”
On Monday, the assistant finance director at the Seminole County Clerk of Court Office was placed on paid administrative leave after posting Facebook comments saying Ayala “should be tarred and feathered if not hung from a tree” because she refuses to seek the death penalty. Stan McCullars, author of the post, later deleted it. He could not be reached for comment. His boss, Grant Maloy, said those comments “don’t reflect my beliefs.”
Ayala is the first African-American state attorney in Florida and took office Jan. 3, serving Orange and Osceola counties. During her five-month election campaign, she did not state her position on the death penalty.
There are many interesting elements of this battle over prosecutorial discretion, and the intersection of race and gender and southern politics just adds layers to the story. And speaking of race, former prosecutor Chuck Hobbs has this interesting new Hill commentary on these matters which includes these interesting closing observations:
The irony in this is that the Black Lives Matter movement began in earnest after George Zimmerman was acquitted of murdering Trayvon Martin by a Sanford, Florida jury in 2013. A year before his acquittal, Gov. Scott replaced then Sanford State Attorney Norm Wolfinger with Jacksonville State Attorney Angela Corey after Wolfinger dragged his feet for almost 50 days before finally recusing himself. Scott's move back then was applauded by many black lawyers, civil rights activists and concerned citizens who wanted to ensure that the highest charges and attendant punishments would be sought against Zimmerman.
Today, Scott is being blasted by some lawyers and activists for meddling in Ayala's use of discretion not to seek the death penalty. Now the key distinction is that Wolfinger recused himself while Ayala did not, one that could lead to a fascinating legal battle where the courts may have to determine whether Scott illegally overreached by replacing Ayala, or whether her refusal to follow his dictates allowed him leave to replace her.
Over Posnerian dissent, Seventh Circuit panel upholds two-year prison term for elderly, ill fraudster
A Seventh Circuit panel recently issued an interesting set of opinions discussing federal prison care in the course of rejecting a sentencing appeal in US v. Rothbard, No. 16-3996 (7th Cir. March 17, 2017) (available here). The start of the majority opinion by Chief Judge Wood provides the basics of the case and ruling:
Jeffrey Rothbard pleaded guilty to one count of wire fraud in connection with his participation in a scheme to defraud companies that were interested in obtaining loans for environmentally friendly upgrades to their facilities. He committed this offense, which yielded more than $200,000 for him, while he was on probation for a felony forgery conviction in Indiana. The district court sentenced him to 24 months’ imprisonment, despite the fact that Rothbard is an older man with serious health problems and the Probation Office thought that incarceration was not necessary. On appeal, Rothbard urges us to find that his sentence is substantively unreasonable, both because he has stayed out of trouble for nearly three years and because he fears that the Bureau of Prisons (BOP) may be unable to furnish the medication on which his health critically depends.
Perhaps, had we been the sentencing judges, we would have accepted his arguments. But the district court here gave sound reasons for its chosen sentence. In addition, both the evidence in the record before the district court, and supplemental information that we requested about BOP’s ability to provide appropriate care, satisfy us that the nominal 24-month sentence will not, in reality, spell doom for Rothbard. We therefore affirm the district court’s judgment.
Judge Posner dissented from the majority ruling, citing an array of sources to support his contention and concern that BOP might not adequately attend to the defendant's medical needs. His dissent concludes this way:
To conclude, my inclination would be to reverse the judgment of the district court with directions to impose the sentence recommended by the probation service. But I would be content to reverse and remand with instructions that the district judge appoint neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions, with particular emphasis on the federal prison system, and that the judge reconsider his sentence in light of evidence presented by these witnesses as well as any witnesses that the government or the defendant may care to call.
What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.
"Capital Jurors in an Era of Death Penalty Decline"
The title of this post is the title of this notable paper authored by Brandon Garrett, Daniel Krauss and Nicholas Scurich. Here is the abstract:
The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty.
We conducted surveys of persons reporting for jury duty at the Superior Court of Orange County, California. What we found was surprising. Surveys of jurors in decades past suggested ten to twenty percent of jury-eligible individuals would be excludable due to their substantial doubts about the death penalty. Despite Orange County’s status as a redoubt of death sentencing, we find that 35% or more of jurors reporting for jury service were excludable as having such substantial doubts about the death penalty that it would “substantially impair” their ability to perform their role as jurors. Indeed, large numbers went further: roughly a quarter said they would be reluctant to find a person guilty of capital murder knowing the death penalty was a possibility.
A final question asked whether the fact that executions have not been conducted in California for a decade impacts whether jurors would be favorable towards the death penalty. We found that, across all types of attitudes towards the death penalty, that fact made jurors less inclined to sentence a person to death. Rare punishments may seem more arbitrary, even to those who find them morally acceptable. We conclude by describing how this research can be useful for scholars, litigators, and judges concerned with selection of jurors in death penalty cases, and we discuss why, as social and legal practices change, more study of public attitudes towards punishment is needed.
Split Louisiana Supreme Court refuses to allow jury to hear about potentially applicable mandatory minimum sentence for habitual offender
I just learned today about an interesting set of opinions handed down last week by the Louisiana Supreme Court in Louisiana v. Guidry, No. 2016-KK-1412 (La. March 15, 2017) (available here). This lengthy local article about the decision, headlined "Jurors shouldn't be told possible mandatory minimums for repeat offenders, La. Supreme Court rules," provides this basic summary of the ruling and its context:
Louisiana jurors should not be told of possible mandatory minimum sentences defendants might face under the state's habitual offender law, because the knowledge could distract from their duty to determine guilt or innocence in a case, the Louisiana Supreme Court said in a split decision issued late Wednesday (March 15).
In a 5-2 ruling, the high court said the issue of possible mandatory minimums for repeat defendants "is too far attenuated from the guilt phase of trial to be discussed before a jury," and for a trial judge to allow such disclosure constitutes error. Chief Justice Bernette J. Johnson and Justice John L. Weimer dissented.
The decision comes in response to the Orleans Parish case of Corei Guidry, an accused drug dealer whose trial before Criminal District Court Judge Byron C. Williams has been stayed over this issue since last July. Guidry, 29, faces 10 to 50 years if found guilty of possession with the intent to distribute heroin. Should he be convicted of what would be his fourth felony offense, District Attorney Leon Cannizzaro's office would have the post-trial option to file a multiple-offender bill. If Guidry's prior history of three or more felony convictions can be proven at a post-conviction hearing, the judge would be required under state law to impose a mandatory minimum sentence of 50 years to life.
Here is how the majority opinion in this case begins:
The issue presented in this case is whether the trial court may allow a criminal jury to be informed of the possible mandatory minimum sentence faced by the defendant if, after a conviction on the offense being tried, he were to be sentenced under the Habitual Offender Law. For the reasons set forth below, we find the district court erred in denying the State’s motion in limine, which sought to disallow the defendant from mentioning in argument the mandatory minimum sentence the defendant could be subject to under the Habitual Offender Law should the State seek to enhance his sentence under that law and should the court find the State has proved all of the elements to warrant enhancement of the sentence. We find the issue of the possible mandatory minimum sentences that may be imposed if the defendant is convicted and the State successfully pursues enhancement of the sentence under the Habitual Offender law is too attenuated from the guilt phase of trial to be discussed before a jury, because it shifts the focus of the jury from its duty to determine guilt or innocence to issues regarding sentencing, possibly causing confusion of the issues and inviting the jury to speculate as to why a defendant may be facing such a term of imprisonment. Accordingly, we reverse the district court’s ruling.
And here is how the chief dissenting opinion starts:
I respectfully dissent and would deny the writ because the state has shown no abuse of discretion in the trial court’s denial of the state’s motion to prohibit the defense from referencing the possible life sentence that defendant will all but certainly face if convicted and adjudged a habitual offender. It has long been settled that it is within the trial judge’s discretion, in instances in which a specific punishment is not statutorily mandated, to permit or deny instruction or argument as to sentencing. The majority has accepted the invitation of the Orleans Parish District Attorney’s Office to establish a new per se rule which will substantially limit trial court discretion to control the information given to the jury. Under this new rule, any reference — whether by the court or in argument from the parties — to the enhanced sentence a defendant will face if he is convicted and adjudged a habitual offender, will be impermissible, unless perhaps the defendant elects to testify and subject himself to cross-examination about his prior convictions.
The trial court has the discretion to permit or prohibit references to sentencing, other than for those sentences automatically mandated by statute, because the trial judge sits in the best position to determine whether the penalty provisions at issue, including those applicable under the Habitual Offender Law, constitute “law applicable to the case,” of which the jury should be apprised under the circumstances of the particular prosecution.
I am unpersuaded that the trial court abused its discretion here by refusing to prohibit the defense from referencing the potential habitual offender sentence, especially in light of the overwhelming evidence that the Orleans Parish District Attorney’s Office almost reflexively (through his assistant district attorneys) institutes habitual offender proceedings upon securing the conviction at trial of a defendant with a prior felony. The prosecuting attorneys in Orleans Parish routinely wield the Habitual Offender Law, both during pre-trial plea negotiations and, in the event that tactic fails to yield a guilty plea, after obtaining a conviction at trial, to secure the harsher punishment of even non-violent offenders.
As the start of the dissenting opinion hints, there is a significant back-story to both the substantive and procedural issues surrounding this Louisiana case and the application of the state's Habitual Offender law. Because various opinions in Guidry engage in that back-story in various ways, the full opinion is definitely worth a full read.
March 19, 2017
What crime and punishment questions might you like to see asked of SCOTUS nominee Neil Gorsuch?
I am not really expecting any tough sentencing questions to be directed toward Judge Neil Gorsuch at his coming Supreme Court confirmation hearings, but that will not stop me from imagining what such questions might sound like or from encouraging readers to share their ideas on such questions. And though I might readily spin out a long list of such questions here, I will be content for now to rattle off just two that come to mind on a Sunday afternoon during a brief break from bracket obsession:
In light of the Apprendi, Blakely, Booker line of constitutional rulings, and especially in the wake of the late Justice Scalia's dissent from the denial of cert a few years ago in Jones v. US, do you think it is important for the Supreme Court to soon take up the issue of whether, when and how federal judges may rely on so-called acquitted conduct when calculating guideline sentencing ranges and imposing sentences?
In light of modern capital jurisprudence since Gregg and the more recent Graham, Miller, Montgomery line of constitutional rulings, which have announced various constitutional limits on only two types of punishments, do you think the Eighth Amendment has generally be interpreted too broadly or too narrowly as a limit on modern punishment practices?
A few prior related posts on Judge Gorsuch:
- Prez Trump notes Judge Gorsuch's law school work on behalf of prisoners and defendants during SCOTUS nomination
- Will a Justice Gorsuch be a strong SCOTUS voice against over-criminalization?
- Highlighting the basis for hoping Judge Gorsuch will prove to be like Justice Scalia on some criminal justice issues
- "Will Gorsuch Be Another Scalia on Criminal Justice Issues? Not Likely"
- Reviewing why a Justice Gorsuch "might be hard to pigeonhole on criminal justice issues"
"Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution"
The title of this post is the title of this notable new paper authored by Charlie Eastaugh and available via SSRN. Here is the abstract:
In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication. Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards — decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.
Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions — still visible across the nation — that intelligence is as straightforward as numerical fact. It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.
In Moore v. Texas — for which an eight-Justice Court heard oral argument in November 2016 — SCOTUS is faced with the chance to provide further, essential clarity to this debate. The immediate ramifications of Moore are likely to see this inmate spared from execution. This paper develops the claim that the case could mean far more: The Court’s novel acceptance of professional standards in Hall has created a precedential Trojan Horse — one loaded with medical professionals and armed with epistemic knowledge, and one which provides the strongest opportunity for further Eighth Amendment evolution. Should the Court follow the Hall trajectory in Moore, such an attack is primed for undermining another fundamental portion of capital punishment deemed abhorrent by medical professionals and civil liberties organisations across the nation: long — often decade-long — stays on death row, invariably in extreme solitary confinement.
Remarkable accounting of hundreds of Arizona offenders believing they were getting life with parole after parole abolished in state
The Arizona Republic has fascinating reporting here and here on the significant number of offenders in the Grand Canyon State who were seemingly given life with parole sentences after such sentences had been legislatively abolished. This lengthy main article is headlined "Hundreds of people were sentenced to life with chance of parole. Just one problem: It doesn't exist." Here are excerpts:
Murder is ugly, and murderers are not sympathetic characters. But justice is justice, and a deal is a deal.
We expect the men and women who administer the criminal justice system — prosecutors, defense attorneys, and especially judges — to know the law and to apply it fairly. Yet, for more than 20 years they have been cutting plea deals and meting out a sentence that was abolished in 1993: Life with a chance of parole after 25 or 35 years....
Danny Valdez, for example, was part of a 1995 drug deal that went bad in Glendale. One person was killed, and no one was sure who fired the shot. Valdez took a plea deal to avoid death row, and following the terms of the agreement, the judge sentenced him to life in prison with a chance of parole after 25 years.
The only problem: Parole was abolished in Arizona in 1993. As of January 1994, it was replaced by a sentence that sounds similar, but in fact nearly eliminates the possibility of ever leaving prison alive.
Valdez should have been sentenced to “life with chance of release after 25 years.” “Parole” was something that could be granted by judgment of a parole board, based on the prisoner's behavior and rehabilitation, without the approval of a politician. But release is a long shot, because it requires the prisoner to petition the Arizona Board of Executive Clemency, which can only recommend a pardon or commutation of sentence by the governor. Parole hasn't existed in Arizona since 1994. Even if a judge's sentence includes parole, it still won't happen. Yet since then, hundreds of defendants have been sentenced to life with chance of parole.
No one — not Valdez’s attorney, not the prosecutor, not the judge — ever told Valdez that he was not legally entitled to parole or a parole hearing. He found out when he received a letter last December from The Republic. He didn’t want to believe it. "Why would they sentence me with parole if it was abolished?" he asked in a return letter. “I was sentenced in 1995 and will be eligible for parole in 2020,” he wrote. “If I would of (sic) known that I would have to go through the process of pardons and commutations, I would of (sic) went to trial.”...
Between January 1994 and January 2016, a study by The Republic found, half of Arizona murder defendants sentenced to less than natural life sentences — at least 248 current prisoners in the Arizona Department of Corrections — were given sentences of life in prison with a chance of parole after 25 or 35 years. The sentence has not existed since the law was changed in 1993. But judges, prosecutors and defense attorneys continued to crank defendants through the system, seemingly unaware of the mistake.
Duane Belcher, a former head of the state clemency board, started gathering examples early in this decade, but he was fired by former Gov. Jan Brewer before he could do anything about it. He took the issue to the Arizona Supreme Court, which oversees all state courts.
Belcher, appointed to the Arizona Board of Pardons and Paroles in 1992, remained in the office long after it became the Arizona Board of Executive Clemency under the new law. He served many years as its chairman. “I started asking the question in 1994 when the law changed,” Belcher said. “What’s going to happen when 25 years comes? Nobody seemed to have the answer.”
Belcher was only talking about how the state was going to handle those prisoners sentenced to life with a chance of release. Then he noticed that some defendants were still being sentenced to life with chance of parole. He started to collect examples, concerned about the inaccurate sentences. Belcher, a former parole officer and former supervisor at the Department of Corrections, looked at it from both sides. “People are going into an agreement with the understanding that they will be eligible for parole, and it’s not the case,” he said. But he also worried about whether it could be grounds for reversing a sentence. “We don’t want to go back to the public and say we paved the way to letting go a murderer.”...
Several prisoners contacted by The Republic were unaware they were not really eligible for parole. “When they sentenced me, they did not say that parole didn’t exist,” Juvenal Arellano said in a letter to The Republic. Arellano killed a man while stealing his car in 2004, and he, too, pleaded to life with chance of parole. “The reason why I signed the contract was for the chance to get out after 25 years, and that was in the plea I signed. … I am prepared to pay for my error, but neither should they hide something so important from me.”...
Among the components of Arizona’s Truth in Sentencing bill to make life harsher for bad guys was language to abolish parole and disband the parole board. It established the Arizona Board of Executive Clemency in its place. The sentence of “life with chance of parole after 25 years,” the third-harshest sentence possible in Arizona, was eliminated. It was replaced by “life with chance of release after 25 years,” 35 years if the murder victim was a child. The other sentence options for first-degree murderers were death or natural life, which means no possibility of parole or release, ever.
Life with chance of release, in effect, is a mitigated sentence, meaning it is imposed when there are circumstances that render the crime less horrible than a murder that calls for natural life or death. Life sentences also may be imposed for conspiracy to commit first-degree murder, sexual conduct with a child, and in certain cases where a repeat offender is deemed incorrigible.
The two sentences sound very similar. And this has become a problem, because judges and lawyers tend to conflate the two and use the shorthand phrase “25 to life” to describe either, without defining the end result. But they are substantially different. Those eligible for parole could get a guaranteed hearing before the parole board, a state-appointed panel that had the authority to release the prisoner. It was not a guaranteed release, but instead depended on the prisoner’s behavior and rehabilitation while in prison. And if denied, the prisoner could re-apply after six months to a year.
But under the new system, there is no automatic hearing. Instead, the prisoner has to petition the Board of Executive Clemency, which would likely require a lawyer. The board can then choose to hold hearings on the prisoner’s likelihood to stay out of trouble and make a recommendation to the governor. Rather than parole, the prisoner needs a pardon or a sentence commutation. Only the governor can provide those. In essence, the process ceased to be a rehabilitation matter and became a political decision. The earliest “life with chance of release” cases will reach the 25-year mark in 2019. But there is no mechanism set up to handle the cases yet, and most of the prisoners are indigent and unlikely to be able to hire attorneys to start the process.
A Canadian perspective on constitutional proportionality review
Given the US Supreme Court's various struggles with proportionality review of sentences under the Eighth Amendment, I was intrigue to see this article recently posted on SSRN discussing how the Supreme Court of Canada has approached this same issue. The article authored by Lauren Witten is titled "Proportionality As a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties," and here is its abstract:
This article reconceives proportionality in sentencing as a constructive reasoning process rather than as an instrumental means of achieving a fair quantum of punishment. It argues that the Supreme Court of Canada has wrongly adopted the latter view by determining the constitutionality of mandatory minimum sentences according to hypothetical outcomes. R v. Nur is a paradigmatic example of how this error presumes a false objectivity in proportionality assessments that leaves the Court vulnerable to critiques of judicial activism.
This paper claims that a process-based conception of proportionality offers a stronger defence of judicial discretion in sentencing than the current framework offers; it better respects institutional roles and provides a more principled basis for declaring the current structure of mandatory minimum penalties unconstitutional. The proportionality as a process theory contends that judges alone are capable of reconciling the values of three constituencies in sentencing — the offender, the judge, and the public — and that this tripartite justification is integral to moral punishment. This paper shows how the process view of proportionality in sentencing is an implicit, but under-theorized, current in the law that should be explicitly developed as part of Canadian constitutional theory.