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June 3, 2017

"Is the death penalty dying in Dallas County?"

The question in the title of this post is the headline of this local article which documents a trend that leads me to think that the death penalty is never again likely to be a significant part of American criminal justice systems (if it every really was in the recent past).  Here are excerpts:

The crimes were heinous but Dallas County jurors couldn't condemn the convicted killers. A college student killed three people at a drug house in a premeditated robbery. A former special education teacher and U.S. Army veteran killed his girlfriend, her teenage daughter, his estranged wife, her adult daughter and severely wounded four children in a two-city rampage.

But neither killer received the death penalty, a punishment reserved for the "worst of the worst." Statewide, juries have declined death sentences in nearly half of the cases presented to them in the past two years.

So, what does it take to win a death penalty sentence? "You gotta be perfect probably these days," said Edwin King, a special prosecutor in one of the Dallas County cases.

Jurors couldn't agree to the death sentence in the two recent capital murder trials. They were the first Dallas County cases in which the state sought the death penalty since 2014.

The decision to seek the death penalty is based on the the severity of the crime, criminal background and what the victim's family wants, said Dallas County District Attorney Faith Johnson. "Our office only seeks the death penalty in the most heinous and serious of crimes," Johnson said....

"Even in Texas, the death penalty is dying," said Jason Redick of the Texas Coalition Against the Death Penalty. In the 15 death penalty cases tried in Texas since 2015, jurors have sent only eight men to death row. Death sentences peaked in the 1990s. Between 2007 and 2013, Dallas County led the state in defendants sent to death row. During that time, the county sentenced 12 people to death. Executions in Texas are also declining because of legal reforms that give prisoners more chances to have their sentences reviewed.

Jurors are only selected after they agree that they can give the ultimate punishment. Even so, they appear to be split on the issue in recent years. "We know these aren't folks who are anti-death penalty folks," Redick said. "At one point, they said they could hand out a death sentence."

June 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

NPR covers debate over federal sentencing and mandatory minimums in three parts

This past week, National Public Radio ran a notable three-part series with conversations about modern federal sentencing realities on its Morning Edition program.  Here are the links, headings and brief descriptions of who what talking about what:

Mass Incarceration Is A Major U.S. Issue, Georgetown Law Professor Says

Rachel Martin talks to Georgetown University Law professor Paul Butler about the ongoing and new challenges facing the nation regarding the criminal justice system.

Former Prosecutor On Why He Supports Mandatory Minimums

Attorney General Sessions told federal prosecutors to seek the harshest penalties possible against defendants.  Former federal prosecutor Bill Otis tells Rachel Martin why he supports the guidelines.

A Federal Judge Says Mandatory Minimum Sentences Often Don't Fit The Crime

NPR's Rachel Martin speaks to federal Judge Mark Bennett of Iowa, who opposes mandatory minimum charging and sentencing guidelines for nonviolent drug offenses.

June 3, 2017 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

June 2, 2017

Former Penn State administrators get a few months in jail for failing to report Sandusky sex crimes leading to child endangerment convictions

As reported in this USA Today article, "former Penn State officials Tim Curley, Gary Schultz and Graham Spanier were all sentenced to jail time Friday for failing to alert authorities to the allegations against ex-football coach Jerry Sandusky, allowing the now-convicted serial predator to continue molesting boys for years." Here is more:

All three were convicted of child endangerment. Schultz, the former university vice president, could serve a minimum of two months in jail and a maximum of 23 months. Curley, the former university athletic director, could serve a minimum of three months in jail and maximum of 23 months. And Spanier, the former university president, could serve a minimum of two months and a maximum of 12 months. All three are also poised to have house arrest after the jail time.

Prosecutors in the case argued that the ex-Penn State staffers failed as leaders and cared more about themselves and the school’s image than protecting the children. Judge John Boccabella in the case called it a “Shakespearean tragedy” and was befuddled by the former administrators lack of action. “These men are good people who made a terrible mistake,” the judge said. “Why no one made a phone call to police … is beyond me. All three ignored the opportunity to put an end to (Sandusky’s) crimes when they had a chance to do so."

“I deeply regret I didn’t intervene more forcefully,” Spanier said, expressing remorse, in reference to Sandusky’s victims. Spanier will appeal a misdemeanor of child endangerment charge that both Schultz and Curley pleaded guilty on.

Curley and Schultz also told the court they were sorry they didn’t do more. “I am very remorseful I did not comprehend the severity of the situation. I sincerely apologize to the victims and to all who were impacted because of my mistake,” Curley said. Said Schultz: “It really sickens me to think I might have played a part in children being hurt. I’m sorry that I didn’t do more, and I apologize to the victims.”

Sandusky is serving a 30 to 60-year prison term after being convicted of sexually abusing 10 boys.

June 2, 2017 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (8)

Considering the unique housing challenges for aging sex offenders

This new Atlantic article explores the questions that now attend an ever-growing and ever-aging sex offender population.  The piece is headlined "The Puzzle of Housing Aging Sex Offenders: States are grappling with how to care for a growing population of registered offenders in long-term care facilities."  Here are excerpts:

When state officials finally released William Cubbage from the Iowa Mental Health Institute in 2010, they predicted he was too sick to hurt anyone again. But the octogenarian only became an even more notorious sex offender....

And while Cubbage’s case is extreme, he’s symptomatic of a larger puzzle in America’s long-term care facilities that no one’s managed to solve.  As lawmakers in Oklahoma and Ohio have found, isolating aging sex offenders is easier planned than achieved.

“The problem is that you’re talking about a project that’s uniquely difficult when it comes to structural needs and safety,” says Amy McCoy, a public-information officer with the Iowa Department of Human Services. “You’re talking about things like hallways without corners. You’re also talking about building a place that isn’t a prison. It’s something entirely different from a traditional care facility. You want people in the least restrictive setting, but you also want to be able to respond if something does happen.”

Local lawmakers have been sounding alarms for at least a decade whenever sex offenders strike.  With no federal regulations dictating how long-term care centers should handle offenders, solutions vary state to state. In 2012, Iowa’s Governor pushed a bill requiring nursing homes to notify residents if an offender moved in, but it died in the legislature.  California’s Department of Corrections notifies nursing homes if anyone on the sex-offender registry applies for residency, and the nursing homes are required to notify residents and employees.  Illinois facilities forbid offenders from having roommates and tests them for any special care needs before sending the results to local police and the Department of Public Health. (Requests to interview multiple nursing homes in Iowa, Ohio, and Illinois for this story went unanswered.)

Just as Iowa’s now considering, Oklahoma passed law in 2008 to create a specialized nursing home for offenders.  But not a single bid to construct the property was submitted.  A contractor’s reluctance to be involved with such a property could be due to its specialized requirements, but in the view of the sex-offender advocate Derek Logue, it’s just as likely another case of people not wanting any connection to the registry. Logue is the founder of Once Fallen, which calls itself the “leading reference & resource site for Registered Citizens.” A Cincinnati resident, Logue himself is registered in Ohio for a 2001 conviction of First Degree Sexual Abuse against an underage girl. At age 40, he calls himself “one of the younger guys”; most offenders who call for help finding a place to live or a job are in their 50s or 60s.

“If you look at the nursing homes that do take registered citizens, they tend to have below-average grades,” Logue says. “It’s the same issue [offenders] face when they’re trying to find a place to live.  You’ll never be anywhere decent, you always end up with some landlord who doesn’t care about the property.  We don’t exactly get quality service.”

Logue knows you won’t cry over his failure to score a luxury penthouse, but he counters that he’s served his time.  And it’s his tribe’s pariah statues, he says, that makes registered offenders likely to need extra medical attention in their declining years.  Beyond the Gordian knot that is the ongoing argument over the sex-offender registry’s effectiveness, constitutionality, and methods of inclusion, offenders are less likely to be employed, more likely to live in poverty if they do have full-time work, and subsequently less likely to have access to preventive care.

It’s also hard to gauge exactly how much of a danger they pose as seniors. Sexual assaults are already underreported crimes, and recidivism rates among all ages vary from study by study. Karl Hanson and Kelly Morton-Bourgon, a pair of sex-crimes researchers who work for the Canadian government, estimate that the average rate is likely around 13.7 percent. Meanwhile, multiple recent studies suggest recidivism rates seem to decline among the elderly....

Another blind spot is that almost no one is counting how many sex offenders require end-of-life care. Back in 2006, the U.S. Government Accountability Office counted 700 registered sex offenders living in nursing homes or intermediate care facilities. More recent numbers among the nation’s 15,600 long-term care facilities and their 1.4 million residents are hard to come by.

June 2, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

"From Grace to Grids: Rethinking Due Process Protection for Parole"

The title of this post is the title of this notable new paper available via SSRN authored by Kimberly Thomas and Paul Reingold. Here is the abstract:

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free.  The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art — rooted in assessing the individual “character” of the potential parolee.

In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes in sentencing and parole practice over the years.  Since the development of the parole due process doctrine in the 1970s, two seismic shifts have occurred.  First, the constitutional protections provided at the initial sentencing have vastly increased.  Second, the parole process itself has been transformed by the move to evidence-based parole guidelines and the use of actuarial risk-assessment instruments as the norm in parole decision-making.

In this Article we document the changes in this under-scrutinized area and assert that the liberty interest in parole should more closely match the present-day legal account of the liberty interest that courts afford defendants at sentencing. 

June 2, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tracking state work on criminal justice and drug policy through Stateline

The Pew Charitable Trusts Stateline site does a great job tracking state-level developments on an array of criminal justice and drug policy issues. Here are some examples from recent weeks that caught my eye:

 

June 2, 2017 in Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

June 1, 2017

Can football stars help get Ohio criminal justice reform over the goal line?

I am fond of stressing to students in my sentencing classes that a wide array of actors are involved in the development and application of sentencing law and policy.  And now this new local article, which prompts the question in the title of this post, will allow me to highlight in future classes that even famous football players can sometimes get in on the sentencing action.  Here are the basic details (with links from the original):

Three former Ohio State football players and one Cleveland Browns player are among those imploring the Ohio Senate to embrace a plan that will keep low-level offenders out of prison.  Former Buckeyes Malcolm Jenkins, Raekwon McMillan and Chris "Beanie" Wells have signed a letter to Ohio senators in support of the Targeted Community Alternatives to Prison plan.  So, too, has Ibraheim Campbell, a defensive back at Northwestern University who was drafted by the Cleveland Browns in the fourth round of the 2015 NFL draft.

"As NFL players who have personal connections to our broken justice system and have seen its impact on our own neighborhoods, we support justice reforms that strengthen families and restore communities," begins the letter.

The TCAP reforms, which are included in Gov. John Kasich's budget proposal, include eliminating mandatory prison sentences for minor parole violations and transferring low-level, non-violent to local jails or to drug treatment programs or other community-based alternatives.  A House of Representatives version of the budget includes significantly less money than what Kasich wants for TCAP reforms, said Holly Harris, executive director of the U.S. Justice Action Network....

She said the football players who signed the letter are not being paid. "They simply care about their communities," Harris said.

Campbell said during an interview with cleveland.com that he's had family members who have been subjected to injustices in the legal system and that reform is "something that I'm passionate about."

The governor's plan would mean an estimated 3,400 offenders a year would be jailed or supervised locally instead of being sent to prison. The House version would divert only 2,100 offenders, Harris said.

Not everyone supports the plan. John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said the plan would limit sentencing options. The County Commissioners Association of Ohio believes the plan has merit, but is concerned about the cost to counties and the timeline for the change.

The Ohio Department of Rehabilitation and Corrections has instituted pilot TCAP programs in eight counties - Clinton, Ross,, Medina, Lucas, Defiance, Henry, Williams and Fulton counties.

June 1, 2017 in Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (2)

“Using Time to Reduce Crime: Federal Prisoner Survey Results Show Ways to Reduce Recidivism”

Prison-Report_Website-BannerThe title of this post is the title of this notable new report from the folks at Families Against Mandatory Minimums. This FAMM press release provides this overview of the report and its key findings:

Families Against Mandatory Minimums (FAMM) today released the findings of the first-ever independent survey of federal prisoners, which focused on the type and quality of educational and vocational training programs, as well as substance abuse and mental health treatment, currently available in America’s federal prisons. “Using Time to Reduce Crime: Federal Prisoner Survey Results Show Ways to Reduce Recidivism” offers unique insights from inside federal prisons and includes 13 recommendations for reform.

“Roughly 94 percent of federal prisoners are going to go home one day.  If they leave smarter, sober, and job-ready, they will be much more likely to thrive — and our country will be safer and more prosperous,” said FAMM President Kevin Ring.  “Unfortunately, our survey found that the federal government is failing to make recidivism-reducing programming available to all prisoners who need it.  President Trump’s new budget proposal, which slashes the Bureau of Prisons’ staff and corrections officers, will only make the problem worse.”

FAMM regularly corresponds with more than 39,000 prisoners via email, and more than 2,000 inmates responded to the survey.  This report quantifies, analyzes, and confirms the numerous stories we have heard from prisoners over the years.  FAMM found that too many prisoners are not getting access to the programs that have been proven to reduce recidivism....

Key findings from the report include:

  • Access to quality education is scarce.  Most classes lack rigor and substance and are taught by other prisoners. Inmates reported taking classes such as crocheting and one based on the TV show Jeopardy.  Attaining a college degree is difficult, if not impossible, for most prisoners.

  • Most jobs afforded to inmates are “make work” jobs to service the prisons, such as cleaning bathrooms and living spaces or dining hall services.  Vocational training is popular and coveted, but is limited and only offered to prisoners who are close to their release dates.

  • Not all inmates who need substance abuse or mental health services are getting help.  Two-thirds of respondents said they entered prison with a drug or alcohol addiction.  In addition, more than two-thirds said they had not received mental or behavioral health treatment in prison.  These types of programs should be expanded to help all prisoners in need of treatment, no matter the length or duration of their sentence.

  • Most prisoners are housed too far away from their families to maintain connections.  Family connections have been proven to reduce recidivism, yet most prisoners are housed more than 500 air miles away from home.

June 1, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Is the Ninth Circuit right in holding a federal sentencing judge cannot reject a jury special verdict finding on drug quantity?

The question in the title of this post is one that has been simmering in the Ninth Circuit and resulted in today's release of an amended opinion and a dissent from the denial of en banc review in US v. Pimentel-Lopez, No. 14-30210 (9th Cir. June 1, 2017) (available here). Here is the heart of the amended opinion:    

[T]he record is clear that the jury didn’t merely acquit defendant of possessing 50 grams or more of methamphetamine; it made an affirmative finding “beyond a reasonable doubt” that the amount attributable to defendant was “[l]ess than 50 grams.” Our own caselaw, and simple logic, precludes us from vouchsafing sentencing judges the power to make contradictory findings under these circumstances....

In our case, the government proposed the verdict form that set both a lower and an upper boundary for the amount of drugs involved.  Having proposed the language, the government now urges us to read the verdict form as “acquitt[ing] [Pimentel-Lopez] on the 500-gram amount,” with which he was initially charged.  But none of the choices offered by the verdict form were capable of capturing that view.  That may have been a blunder, but the jury answered the questions it was asked and so the die is cast: The government cannot disavow the finding that the jury makes as a result....

Nothing prevented the government from proffering [a different special verdict] form.  But, having proposed a form that required the jury to find that the drug quantity was less than 50 grams, the government locked itself out of the possibility of proving more than 50 grams at sentencing. It can easily avoid this pitfall in future cases....

Because the district court may not contradict an affirmative finding by the jury, we must vacate the sentence and remand with instructions that defendant be resentenced on the premise that his crimes involved less than 50 grams of drugs.

The dissent from the denial of en banc authored by Judge Graber (and joined by five other judges) gets started this way:

I respectfully dissent from the denial of rehearing en banc. The panel held that when a jury finds that the amount of drugs the government has proved, beyond a reasonable doubt, is attributable to a defendant falls within a specified range, the sentencing judge may not find by a preponderance of the evidence that the amount of drugs attributable to the defendant is higher than that range.  United States v. Pimentel-Lopez, 828 F.3d 1173, 1176–77 (9th Cir. 2016). That holding is wrong both as a matter of logic and as a matter of Supreme Court law, it has far-reaching consequences for the prosecution of drug crimes in our circuit, and it conflicts with holdings in other circuits.  For all those reasons, we should have reheard this case en banc.

As long as the Supreme Court's 1999 Watts ruling is still good law, I think the dissent here has the better of the legal argument (though post-Watts SCOTUS Sixth Amendment jurisprudence arguably undermines Watts).  But I also think Watts is a rotten decision that ought to be formally overruled.  For that reason, I would love to see the US Solicitor General seek Supreme Court review and then see the defendant suggest a reconsideration of Watts if the Justices care to take up the case.

June 1, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"Will the Death Penalty Ever Die?"

The title of this post is the title of this new article in The New York Review of Books authored by Judge Jed Rakoff and reviewing of the book "Courting Death: The Supreme Court and Capital Punishment" by Carol and Jordan Steiker. Here is the intriguingly personal start to what then becomes a fairly standard review of the modern death penalty debate:

When my older brother Jan David Rakoff was murdered in 1985, bolts of anger and outrage not infrequently penetrated the black cloud of my grief.  Though I knew almost nothing about Jan’s confessed murderer except his name, I wished him dead.

My brother, aged forty-four, had just begun to come into his own.  His innovative educational theories were starting to attract attention, and, just as important, he had come to terms with his homosexuality, which for many years he had struggled to suppress.  While on a trip to Manila, he engaged the services of a male prostitute, but at the end they quarreled over money.  In a fit of rage, the prostitute assaulted my brother with a pipe burner and an ice pick, bludgeoning and stabbing him to death.  To cover his tracks, the prostitute then set fire to the bungalow where my brother was staying; but the smoke attracted the attention of a security guard, who apprehended the fleeing assailant.  Later that evening, the prostitute provided a full written confession.

When my brother’s body arrived back in the United States, his face and head were barely recognizable, so vicious had been the assault.  My heart cried out for vengeance. Although the death penalty was then available in the Philippines, the defendant, taking full advantage of a corrupt legal system, negotiated a sentence of just three years in prison.  Had, instead, the prosecutor recommended the death penalty, I would have applauded.

It took many years before I changed my mind.

The law professors Carol S. Steiker and Jordan M. Steiker (sister and brother) have written a revealing book about the history of the death penalty in the US and, in particular, the continued difficulties the Supreme Court has had in attempting to regulate capital punishment so that it conforms to constitutional standards.  If I have a criticism of their otherwise trenchant account, it is of their failure to give more than passing attention to the moral outrage that provides much of the emotional support for the death penalty — outrage felt not only by the family and friends of a murder victim, but also by the many empathetic members of the public who, having learned the brutal facts of the murder, feel strongly that the murderer has forfeited his own right to live.

For the Steikers, the debate over the death penalty is “first and foremost” a symbolic battle over cultural values, with a strong current of racism running just below the surface.  This may well be true, but unless one acknowledges that rational human beings can feel such revulsion at the taking of an innocent life as to wish the taker dead, one misses part of the reason that the death penalty continues to enjoy significant popular support, even in many of the states and countries that have banned it.

June 1, 2017 in Death Penalty Reforms | Permalink | Comments (5)

Lots of notable new reporting and commentary from The Marshall Project

The always terrific Marshall Project always has many great pieces that should be must-reads for sentencing fans.  Though I rarely have the time or ability to give shout-outs to all of the great work done there, the last few days have seen the posting of these pieces or reporting and commentary that all struck me as particularly blog-worthy:

Tuesday brought this Commentary, authored by Mark Osler, headlined "The Problem with the Justice Department: It’s a building full of prosecutors."

Wednesday brought this News piece, authored by Justin George, headlined "What Are Inmates Learning in Prison? Not Much: A new survey of 2,000 federal prisoners reveals big gaps in teaching reentry skills."

Thursday brought this Feature piece, authored by Anat Rubin, "Downloading a Nightmare: When autism, child pornography and the courts collide."

The last of these pieces is especially lengthy, but should be especially interesting for sentencing fans who think about when and how offender characteristics should or should not impact sentencing decisions. Here is a portion of the piece:

The “autism defense” was thrust into the spotlight by the case of Gary McKinnon, who, in 2002, from an apartment in London, broke into computers at the Army, Air Force, Navy, Department of Defense and NASA, searching for evidence of a UFO cover-up.  In fighting his extradition to the United States, McKinnon’s legal team argued that his crime was the result of his autistic compulsions.  “And then we started to see an increase in other individuals coming forth and claiming that Asperger's was causal in their need to — and their compulsion to — download child pornography,” said Chad Steel, who conducts digital forensics investigations for the federal government.

Steel, who also teaches digital forensics at George Mason University, wrote a paper to help forensic psychologists and others in law enforcement gather evidence to refute the central assumptions of the autism defense in child pornography investigations. “A frequent argument we get is that the person was unable to control their impulses, unable to know it was wrong.  There have been some cases where that’s absolutely been true,” he said.  “But when you read ‘this person has high-functioning autism, they didn’t know what they were doing’ — that’s not necessarily true.”  He said before the McKinnon case, he was seeing defendants who were likely autistic, even if they didn’t have an official diagnosis. But since McKinnon, the disability is more likely to take center stage.

The autism defense can be a double-edged sword in court.  Arguing that the defendant has the social and emotional maturity of a child can backfire.  Prosecutors can use that information to argue the defendant is likely to reoffend.  More often, parents whose lives have been defined by their child’s disability find that, in the eyes of the criminal justice system, their child doesn’t seem disabled enough.

The Marshall Project reached out to state and federal prosecutors with experience in child pornography cases.  With few exceptions they were unwilling to discuss cases involving autism.

For all child pornography defendants, outcomes depend largely on geography.  Some judges stick close to the federally-recommended sentences, while others have spoken out against the increased punishments. But for autistic defendants, the outcomes seem also to depend on how autism is explained to the court.  “In cases where judges and prosecutors have really been informed on all the dimensions in which Asperger’s applies, they got drastically reduced punishments,” [defense attorney Mark] Mahoney said. “If they get the right information, there’s a good chance — a much better chance than defense attorneys imagine — that prosecutors will understand that this is a population that just doesn’t have the dangerousness we associate with the behavior.”

In arguing for diversion, Mahoney focuses on what prison is like for an autistic person.  Many people with autism are unable to understand the hidden social structure of a prison environment.  They sometimes tell on others who break the rules.  They are eager to please and easily manipulated.  Their behavior can be misinterpreted by prison staff, and they are often placed in isolation, either as a form of punishment or for their own protection.

June 1, 2017 in Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

May 31, 2017

"Random If Not 'Rare'? The Eighth Amendment Weakness of Post-Miller Legislation"

The title of this post is the title of this new paper authored by Kimberly Thomas and available via SSRN. Here is the abstract:

First, this Article surveys the U.S. Supreme Court’s decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes.  Second, this Article examines the state legislative response to Miller v. Alabama, and scrutinizes it with the Court’s Eighth Amendment death penalty law — and the states’ responses to this case law — in mind.  This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of offenders to the most likely to have demonstrated “irreparable corruption,”; and 3) provide for meaningful appellate review, among other deficiencies. 

May 31, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Diving into the Pfaffian perspective on modern mass incarceration

Regular readers have seen me regularly highlight in this space the work of Professor John Pfaff and his important accounting of what accounts for modern mass incarceration (e.g., in this post a few years ago, I flagged prior posts chronicling nearly a decade of Pfaff's empirical insights and analysis).  These days Pfaff's recently published book, "Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform," is helping to give his perspectives a wider airing.  And just today I noticed that two notable media sources are talking up and talking with Pfaff about his work:

From The Crime Report, a two-part Q&A:

From Vox: "Why you can’t blame mass incarceration on the war on drugs: The standard liberal narrative about mass incarceration gets a lot wrong. A new book breaks through the myths."

May 31, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Second Circuit affirms convictions and LWOP sentence for Silk Road creator Ross Ulbricht

The Second Circuit today released a 139-page panel opinion in US v. Ulbricht, No. 15-1815 (2d Cir. May 31, 2017) (available here), which starts this way:

Defendant Ross William Ulbricht appeals from a judgment of conviction and sentence to life imprisonment entered in the United States District Court for the Southern District of New York (Katherine B. Forrest, J.).  A jury convicted Ulbricht of drug trafficking and other crimes associated with his creation and operation of Silk Road, an online marketplace whose users primarily purchased and sold illegal goods and services.  He challenges several aspects of his conviction and sentence, arguing that (1) the district court erred in denying his motion to suppress evidence assertedly obtained in violation of the Fourth Amendment; (2) the district court committed numerous errors that deprived him of his right to a fair trial, and incorrectly denied his motion for a new trial; and (3) his life sentence is both procedurally and substantively unreasonable.  Because we identify no reversible error, we AFFIRM Ulbricht’s conviction and sentence in all respects.

The sentencing discussion covers roughly the last 25 pages of this lengthy unanimous panel opinion, and it includes a number of notable passages while covering a lot of notable ground. Here are just a few highlights of an opinion that sentencing fans and drug policy folks should read in full:

Ulbricht’s only claim of procedural error is that it was improper for the district court to consider six drug-related deaths as relevant to his sentence because there was insufficient information connecting them with drugs purchased on Silk Road.  In terms of our sentencing jurisprudence, Ulbricht claims that the district court relied on clearly erroneous facts in imposing sentence.  We are not persuaded....

[I]t was certainly appropriate for the district court to consider the risk of death from use of drugs in assessing the seriousness of the offense conduct, one of the factors that a judge must consider in imposing sentence.  See 18 U.S.C. § 3553(a)(2)(A).  That appears to be the only way the judge in this case used the evidence of the drug-related deaths. Emotionally wrenching as the statements of the decedents’ parents were, we cannot and do not assume that federal judges are unable to put their sympathies for particular victims to one side and assess the evidence for its rational relationship to the sentencing decision. And here, the record makes clear that the district court did not use the evidence of the drug-related deaths to enhance Ulbricht’s sentence, either as a formal matter under the Guidelines or otherwise....

[W]hile a life sentence for selling drugs alone would give pause, we would be hard put to find such a sentence beyond the bounds of reason for drug crimes of this magnitude. But the facts of this case involve much more than simply facilitating the sale of narcotics. The district court found by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity, a finding that Ulbricht does not challenge in this appeal.  Ulbricht discussed those anticipated murders callously and casually in his journal and in his communications with the purported assassin Redandwhite....

Ulbricht and amici point out that life sentences are rare in the federal system, typically reserved for egregious violent crimes, thus rendering Ulbricht’s sentence substantively unreasonable.  Moreover, according to amici, life sentences are normally imposed in cases where that is the district judge’s only sentencing option.  Thus, they claim that Ulbricht’s life sentence is substantively unreasonable in the context of the federal system, where life sentences are particularly rare for those with no criminal history who are convicted of drug crimes.

We agree with Ulbricht that life sentences are extraordinary and infrequent, which is as it should be.  But the rarity of life sentences does not mean that the imposition of such a sentence in this case is substantively unreasonable under our law.  Each case must be considered on its own facts and in light of all of the circumstances of a particular offense as well as other relevant conduct, which, in this case, includes five attempted murders for hire.  As we have described, the district court carefully considered Ulbricht’s offense, his personal characteristics, and the context for his crimes, recognizing that only exceptional cases justify such a severe sentence. Although we might not have imposed the same sentence ourselves in the first instance, on the facts of this case a life sentence was “within the range of permissible decisions” that the district court could have reached. 

A few prior related posts:

May 31, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (6)

"Era of Mass Expansion: Why State Officials Should Fight Jail Growth"

Era_MassIncarceration_250The title of this post is the title of this notable new report from the Prison Policy Initiative. This PPI press release provide context and summary for the report's coverage:

State capitols share responsibility for growing jail populations, charges a new report by the Prison Policy Initiative. “Jails are ostensibly locally controlled, but the people held there are generally accused of violating state law, and all too often, state policymakers ignore jails,” argues the new report, Era of Mass Expansion: Why State Officials Should Fight Jail Growth.

The fact that jails are smaller than state prison systems and under local control has allowed state officials to avoid addressing the problems arising from jail policies and practices. “Reducing the number of people jailed has obvious benefits for individuals, but also helps states curb prison growth down the line,” says Joshua Aiken, report author and Policy Fellow at the Prison Policy Initiative.

Every year, 11 million people churn through local jail systems, mostly for minor violations of state law. Of the 720,000 people in jails on a given day, most have not been convicted of a crime and have either just been arrested or are too poor to make bail. And since the 1980s, crime has fallen but the number of people jailed has more than tripled.

The new report finds that the key driver of jail growth is not what one might expect – courtroom judges finding more people guilty and sentencing them to jail. In fact, the number of people serving jail sentences has actually fallen over the last 20 years. Instead, the report finds two troubling explanations for jail growth:

  • An increasing number of people held pre-trial.

  • Growing demand from federal and state agencies to rent cell space from local jails.

Recognizing the importance of state-specific data for policymakers and advocates, the report offers more than a hundred graphs that make possible state comparisons of jail trends. The report uncovers unique state problems that drive mass incarceration:

  • In some states, state officials have not utilized their ability to regulate the commercial bail industry, which has profited from the increased reliance on money bail and increased bail amounts. These trends have expanded the pre-trial population dramatically over time.

  • In other states, state lawmakers have expanded criminal codes, enabled overzealous prosecutors, and allowed police practices to play a paramount role in driving up jail populations, while underfunding pre-trial programs and alternatives to incarceration.

  • In 25 states, 10% or more of the people confined in local jails are being held for state or federal agencies, with some counties even adding capacity to meet the demand. This report is the first to be able to address the local jail population separately from the troubling issue of renting jail space.

Era of Mass Expansion draws particular attention to the states where the dubious practice of renting jail space to other authorities contributes most to jail growth. “Local sheriffs, especially in states like Louisiana and Kentucky, end up running a side business of incarcerating people for the state prison system or immigration authorities,” explains Aiken. “Renting out jail space often creates a financial incentive to expand jail facilities and keep more people behind bars.” The report finds that renting jail space for profit has contributed more to national jail growth since the 1980s than people who are being held by local authorities and who have actually been convicted of crimes.

For state policymakers, the report offers 10 specific recommendations to change how offenses are classified and treated by law enforcement, eliminate policies that criminalize poverty or create financial incentives for unnecessarily punitive practices, and monitor the upstream effects of local discretion. “There are plenty of things local officials can do to lower the jail population,” says Aiken. “With this report, I wanted to bring in state-level actors by showing how much of the solution is in their hands.”

May 31, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

May 30, 2017

Notable new talk of notable new mandatory minimum sentences in Congress

The Hill has this notable new article headlined "GOP pushes new minimum sentencing laws."  Here are excerpts:

The debate over criminal justice reform has taken a head-spinning turn on Capitol Hill.  After months of debate over whether to curb mandatory minimum prison sentences, Republicans are now going in the opposite direction.

A new border security bill includes mandatory minimum sentences for certain immigrants who try to re-enter the country after they’ve already been deported and for people convicted of violent crimes against judges and police officers. The Hill reviewed a draft copy of the legislation, which is still being hammered out by Sen. John Cornyn (Texas), the No. 2 Senate Republican, and House Homeland Security Committee Chairman Michael McCaul (R-Texas).

The legislation includes “Kate’s law,” a measure named for Kathryn Steinle, a 32-year-old woman killed in 2015 by a felon who had been deported but returned to the United States. The law effectively creates a three-strike rule. Immigrants with prior aggravated felony convictions or two prior convictions for illegal re-entry would get a mandatory 5-year sentence.

President Trump repeatedly talked about Steinle during his presidential campaign as he backed policies cracking down on legal and illegal immigration.

The legislation also incorporates Cornyn’s Back the Blue Act, which creates a 30-year mandatory minimum sentence for killing a judge or federal law enforcement officer; a 10-year minimum for assault if the judge or law enforcement officer is seriously injured; a 20-year mandatory minimum if a deadly or dangerous weapon was used in the assault; and a 10-year minimum for fleeing after killing, attempting to kill or conspiring to kill a judge or law enforcement office. The law defines a law enforcement officer as any federally funded public safety officer or judicial officer for a public agency, including firefighters.

The new legislation represents a shift in the battle over mandatory minimum sentences and criminal justice reform more broadly. Over the last several years, momentum for eliminating mandatory sentencing laws gained steam with the backing not only of former President Barack Obama, but also from conservatives such as Sen. Mike Lee (R-Utah) and Charles and David Koch, the conservative GOP mega-donors and political heavyweights.

With the election of Trump, however, there are some signs that things are now moving in a different direction. Trump and Attorney General Jeff Sessions have vowed to empower law enforcement and crack down on illegal immigration....

Cornyn’s work on the new bill appears to represent another shift given his past work on the Sentencing Reform and Corrections Act. That legislation, which Sen. Dick Durbin (D-Ill.) spearheaded alongside Lee and Sen. Chuck Grassley (R-Iowa), called for reducing mandatory minimums for certain drug crimes. Cornyn was one of the first 15 original co-sponsors of that legislation, which never made it to the floor for a vote....

Cornyn said the new legislation is in draft form and still evolving. “We don’t have a final product,” he told The Hill on Thursday. “We’ve been sharing some language with the Department of Homeland Security and the House so there isn’t a final product. I know people like to comment on leaked draft documents, but I don’t find that very productive.”

When asked for his response to claims that provisions in his bill contradict his past support for reform, Cornyn said his bill is not a statement about mandatory minimums generally. “I’m not opposed to all mandatory minimums,” he said. “For example, felons carrying guns, I like the five-year mandatory minimum because it acts as a deterrent and saves lives.”...

Kevin Ring, president of Families Against Mandatory Minimums, said he understands Cornyn's reasoning for supporting minimums for certain crimes. “But just because you support some [mandatory minimums], doesn’t mean you should support the worst,” he said. “These are incredibly broad and expensive.”

Ring claims the provisions in Cornyn’s bill will cause more damage than any good Grassley's and Durbin’s reforms would have done in terms of reducing the prison population. “These are two of the biggest prison expanding proposals we’ve seen combined into one massive bill,” he said. “We can’t possibly build prisons fast enough to keep up with the influx we’d have.”

Without seeing the particulars of the new mandatory minimums (MMs) being developed by Senator Cornyn, I am not yet prepared to weigh in on just how much of an impact they could have on the federal prison population. I am hopeful that the US Sentencing Commission might have an opportunity to analyze the possible impact of any and all new MMs before they come up for a vote in any committees or before the full Congress.

If Senator Cornyn and other GOP members are strongly and aggressively committed to moving forward with new MMs for certain violent offenses and/or repeat immigration offenders, advocates of progressive reforms might be strategically wise to urge adding to any bill parallel provisions that reduce or eliminate MMs for certain nonviolent offenses and/or first-time offenders. Like many advocates of federal sentencing reform, I generally think all forms of mandatory minimums generally do more harm than good. But lengthy mandatory minimums for nonviolent and first offenders seem to me to be especially pernicious, and thus I would urge those troubled by the lemons of new proposed MMs try to find a way to make some sentencing reform lemonade.

May 30, 2017 in Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (5)

"What Happened to the American Jury? Proposals for Revamping Plea Bargaining and Summary Judgment"

The title of this post is the title of this short paper by Suja Thomas now available via SSRN.  Here is the abstract:

Plea bargaining and summary judgment have contributed to the disappearance of the jury.  This short paper describes the "plea offer," "sentence" and "consensus" requirements -- three seemingly controversial but rational ways to restore the jury in our present system.

Here are a few paragraphs from the piece focused on plea bargaining:

Under the proposed plea offer requirement, if a criminal defendant does not accept the offered plea, then the prosecutor must try the criminal defendant on the charge in the proposed plea agreement along with the original charge.  In other circumstances, where the plea offer involved a charge reduction or sentencing bargaining, the defendant can present evidence of that plea offer at the trial for consideration by the jury.

Under the proposed sentence requirement, at trial, the jury would also hear information about the sentences that the defendant would receive if convicted of the different crimes and could convict based on these sentences.  Historically, juries possessed this information and could act on it.

By permitting the plea and sentence information to be presented at trial, the criminal defendant now has good reason to take a jury trial over the plea bargain.  The defendant can be found not guilty but, alternatively, if convicted, may receive the same sentence that the prosecutor offered in the plea agreement.

May 30, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Australia working on a novel travel ban for certain sex offenders ... to keep them in the country

This new AP article, Headlined "Australia plans to ban pedophiles from traveling overseas," reports on a kind of travel ban being discussed down under that is quite distinct from the one now being litigated here in the US.  Here are the details:

Australia plans to ban convicted pedophiles from traveling overseas in what the government said Tuesday is a world-first move to protect vulnerable children in Southeast Asia from exploitation.  Australian pedophiles are notorious for taking inexpensive vacations to nearby Southeast Asian and Pacific island countries to abuse children there.

Foreign Minister Julie Bishop said she would cancel the passports of around 20,000 pedophiles on the national child sex offender register under legislation that will be introduced to Parliament soon.  "There has been increasing community concern about sexual exploitation of vulnerable children and community concern is justified," she told reporters.

Almost 800 registered child sex offenders travelled overseas from Australia last year and about half went to Southeast Asian destinations, she said.  "There will be new legislation which will make Australia a world leader in protecting vulnerable children in our region from child sex tourism," Bishop said.

Justice Minister Michael Keenan said no country has such a travel ban.  He said 2,500 new convicted pedophiles would be added to the sex offender register each year and would also lose their passports.

The register contains 3,200 serious offenders who will be banned from travel for life.  Less serious offenders drop off the register after several years of complying with reporting conditions and would become eligible to have their passports renewed.

Independent Senator Derryn Hinch, who was molested as a child and was jailed twice as a radio broadcaster for naming pedophiles in contravention of court orders, took credit for the government initiative. Hinch said he had not known that convicted pedophiles were allowed to travel before he received a letter from Australian actress and children's rights campaigner Rachel Griffiths soon after he was elected to the Senate last year. "If we can take a passport from a bankrupt, why can't we stop our pedophiles from traveling to Myanmar?" Griffiths wrote. Under Australian law, a bankrupt person cannot travel overseas without a trustee's permission.

Hinch, who was involved in drafting the legislation, said temporary passports could be provided to pedophiles who need to travel for legitimate business or family reasons, and for pedophiles living overseas who need to return to Australia as their visas expire. "This will not apply to a teenager who has been caught sexting to his 15-year-old girlfriend," said Hinch, referring to sexual phone communications. "I know sometimes, I think unfairly, they go on registers, but we're trying to work it out so they don't," he added....

Australia has attempted to crack down on Australian child sex tourists by adding a new criminal offense punishable by up to 25 years in prison for Australian citizens or residents who molest children overseas.

May 30, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Consensus reigning (for now) as SCOTUS continues working through its criminal docket

Because the Supreme Court has already resolved all of its major sentencing cases, there is not all that much for sentencing fans to anticipate as the Justices wind down with final opinions over the final weeks of its Term.  But there are still plenty of criminal justice cases pending that may still lead to notable opinions, and two such rulings were handed down this morning.  As the title of this post highlights, what strikes me as notable about these new opinions is how the Justices were content to speak in one voice despite the potential contentiousness of the issues.  

In Esquivel-Quintana v. Sessions, No. 16-54 (S. Ct. May 30, 2017) (available here), Justice Thomas wrote the opinion for the unanimous Court and it starts this way:

The Immigration and Nationality Act (INA), 66 Stat. 163, as amended, provides that “[a]ny alien who is convicted of an aggravated felony after admission” to the United States may be removed from the country by the Attorney General. 8 U. S. C. §1227(a)(2)(A)(iii). One of the many crimes that constitutes an aggravated felony under the INA is “sexual abuse of a minor.” §1101(a)(43)(A). A conviction for sexual abuse of a minor is an aggravated felony regardless of whether it is for a “violation of Federal or State law.” §1101(a)(43). The INA does not expressly define sexual abuse of a minor.

We must decide whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA.  We hold that it does not.

In County of Los Angeles v. Mendez, No. 16-369 (S. Ct. May 30, 2017) (available here), Justice Alito wrote the opinion for the unanimous Court and it starts this way:

If law enforcement officers make a “seizure” of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force?  The Ninth Circuit has adopted a “provocation rule” that imposes liability in such a situation.

We hold that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.

May 30, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

May 29, 2017

"Predicting Sex Offender Recidivism: Using the Federal Post-Conviction Risk Assessment Instrument to Assess the Likelihood of Recidivism Among Federal Sex Offenders"

The title of this post is the title of this new article available via SSRN authored by Thomas Cohen. Here is the abstract:

Sex offenses are among the crimes that provoke serious public concern.  The federal response to the problem of sex offending has resulted in an exponential increase in the number of sex offenders on federal post-conviction supervision; however, relatively few studies have explored whether and how well the actuarial risk instrument currently used by federal probation officers — the federal Post Conviction Risk Assessment instrument or PCRA for short — accurately predicts reoffending behavior among the federal sex offender population.

This study provided an exploration of the PCRA’s capacity to effectively predict subsequent recidivism activity for convicted federal sex offenders.  Results show that the PCRA accurately predicts recidivistic behavior involving the commission of any felony or misdemeanor offenses, violent offenses, and probation revocations for this population. However, the PCRA’s predicative capacities deteriorate when the instrument is used to assess the likelihood of sexual recidivism.  In addition, this study showed that offenders convicted of online child pornography offenses presented some challenges in terms of predicting their reoffending behavior because they manifested lower PCRA risk scores and recidivism rates compared to offenders convicted of other major federal sexual offenses that typically involve more hands-on behavior.

May 29, 2017 in Data on sentencing, Offender Characteristics, Offense Characteristics, Reentry and community supervision | Permalink | Comments (2)

The Economist urges "Rethinking Prison"

20170527_cna400The current print edition of The Economist has a series of article on prison policies and practices. Here are links to the article in the series and their extended headlines:

"America’s prisons are failing. Here’s how to make them work: A lot is known about how to reform prisoners. Far too little is done."

"More women are being put behind bars. Fewer should be: Female convicts are less violent and more likely to have stolen to support children

"Too many prisons make bad people worse. There is a better way: The world can learn from how Norway treats its offenders"

Here is an excerpt from the last of these articles:

Reserving prison for the worst offenders has hefty benefits.  First, it saves money.  In America, for example, incarcerating a federal convict costs eight times as much as putting the same convict on probation.  Second, it avoids mixing minor offenders with more hardened criminals, who will teach them bad habits.  “The low-level guys don’t tend to rub off on the higher-level prisoners. It goes the other way,” says Ron Gordon of the Utah Commission on Criminal and Juvenile Justice, a state body.

Modern electronic tags are cheap and effective. In a recent study Rafael Di Tella of Harvard University and Ernesto Schargrodsky of Torcuato Di Tella University compared the effects of electronic tagging versus prison for alleged offenders in Buenos Aires.  Earlier research had failed to deal with the fact that criminals who are tagged are less likely to reoffend than the more dangerous ones who are locked up.  The authors found a way round this.  Alleged criminals in Argentina are assigned randomly to judges for pre-trial hearings. Liberal judges are reluctant to hold them in the country’s awful jails, so they often order them to be tagged.  So-called mano dura (tough hand) judges prefer to lock them up.  The researchers observed what happened to similar offenders under different regimes.  Only 13% of those who were tagged were later rearrested; for those sent to prison the figure was 22%.

May 29, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

May 28, 2017

"No Indeterminate Sentencing Without Parole"

The title of this post is the title of this new paper available via SSRN authored by Kevin Morrow and Katherine Puzauskas. Here is the abstract:

This article looks critically at Arizona’s indeterminate sentencing system that survived after the elimination of parole in Arizona in 1993.  It begins by exploring the purpose and history of indeterminate sentencing and parole as well as its earliest constitutional challenges and eventual decline.  Next it compares two commonly confused forms of “release”: parole and executive clemency.  The article then examines the three types of defendants and the potential consequences if Arizona does not reestablish parole for its indeterminate sentences: death row defendants denied parole eligibility instructions at trial, defendants whose plea agreement includes parole and defendants sentenced to parole at trial.  Finally, the article argues that without parole, Arizona’s indeterminate sentences should be ruled unconstitutional.

May 28, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

DC sniper Lee Malvo to get resentencing thanks to Miller Eighth Amendment rule

As reported in this AP piece, a "federal judge on Friday tossed out two life sentences for one of Virginia's most notorious criminals, sniper Lee Boyd Malvo, and ordered Virginia courts to hold new sentencing hearings."  Here is why:

In his ruling, U.S. District Judge Raymond Jackson in Norfolk said Malvo is entitled to new sentencing hearings after the U.S. Supreme Court ruled that mandatory life sentences for juveniles are unconstitutional.

Malvo was 17 when he was arrested in 2002 for a series of shootings that killed 10 people and wounded three over a three-week span in Virginia, Maryland and the District of Columbia, causing widespread fear throughout the region. His accomplice, John Allen Muhammad, was executed in 2009.

Malvo also was sentenced to life in prison in Maryland for the murders that occurred there. But his lawyers have made an appeal on similar grounds in that state.  A hearing is scheduled in June.

Fairfax County Commonwealth's Attorney Ray Morrogh, who helped prosecute Malvo in 2003, said the Virginia attorney general can appeal Jackson's ruling.  If not, Morrogh said he would pursue another life sentence, saying he believes Malvo meets the criteria for a harsh sentence....

Michael Kelly, spokesman for Virginia Attorney General Mark Herring, said Friday evening that the office is "reviewing the decision and will do everything possible, including a possible appeal, to make sure this convicted mass murderer serves the life sentences that were originally imposed."  He also noted that the convictions themselves stand and emphasized that, even if Malvo gets a new sentencing hearing, he could still be resentenced to a life term....

Jackson, in his ruling, wrote that Malvo was entitled to a new sentencing hearing because the Supreme Court's ruling grants new rights to juveniles that Malvo didn't know he had when he agreed to the plea bargain.

The full 25-page opinion resolving Malvo's habeas petition is available at this link.

May 28, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)