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June 10, 2017

Is adequate due process for capital cases "arguably impossible"?

The question in the title of this post is prompted by this San Francisco Chronicle editorial complaining about the prospect that the state of California might try to give effect to the voter initiative passed in the Fall, Proposition 66, intended to try to get the state's death penalty operational again.  Here are excerpts from the editorial, headlined "California should not speed up death penalty," which concludes with the phrase quoted in the title of this post:

Voters last fall narrowly approved Proposition 66, which sets a deadline for court review of capital-punishment appeals and takes other steps to restart a capital punishment machine that ground to a halt a decade ago. Fortunately, the state’s Supreme Court justices, who are considering a challenge to the initiative, have expressed appropriate doubts.

Efforts to prevent wrongful or torturous executions have slowed or stopped executions in many states as attorneys wrangle over challenges to convictions, court procedures and killing methods. The delays inevitably suggest one of two diametrically opposed political solutions: ending executions or expediting them. California voters rejected death penalty abolition and supported acceleration.

The constitutional amendment they approved sets a five-year deadline for each of two stages of death penalty appeals, which would shorten the average appeal by several years. With some 750 prisoners on Death Row and a backlog of more than 300 appeals, the justices noted, that would substantially shift court resources toward capital punishment and away from all other cases.

Prop. 66 also attempts to force more defense attorneys to take on capital cases, raising questions about how many of them would be qualified and eager to do so. Another provision would curtail review of lethal-injection procedures; California stopped executions in 2006 amid claims that its drug cocktail caused cruel and unusual punishment, and the state has yet to devise a new protocol.

The trouble with all these execution-efficiency measures is that they add up to an assault on the level of due process the death penalty requires, which is at least extraordinary and arguably impossible.  Barriers to carrying out the death penalty have their roots in serious questions about its irreversibility, arbitrariness and immorality.  Executing prisoners more quickly is exactly the wrong answer to those questions.

I understand all sorts of variations on abolitionist arguments, but I am sometimes troubled this notion that it is "arguably impossible" to provide capital cases with sufficient due process.  Recent high-profile federal and state capital cases involving Dzhokhar Tsarnaev (Boston Marathon bomber) and James Holmes (Aurora mass shooter) provide good examples of mass murderers getting plenty of process. Of course, if a jurisdiction is trying to secure many hundreds of death sentences every year, it is certainly possible (perhaps even likely) that a kind super due process would not be provided in every case.  But still, as long-time readers know well, I generally worry a lot more about lesser criminals not getting much process at all than about modern capital defendants not getting enough procedural protections.

June 10, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (27)

June 9, 2017

Reviewing Prez Trump's judicial nomination success so far (and noting Prez Obama's early relative failings)

The New Republic has this notable and important article which highlights one big reason why notable and important members of the GOP are unlikely to defect from Team Trump anytime soon.  The full headline of the article accounts in part for my post title (with my emphasis added): "Trump’s Judicial Picks Are Keeping Republicans Happy — and Quiet: In a rare show of competency, he's tapped five times as many judges as Obama had at this point — and conservatives are delighted." Here are excerpts:

The most critical government document released on Wednesday — the one that’ll have the most wide-ranging impact in the future — was not James Comey’s prepared testimony for the Senate Intelligence Committee about his interactions with Donald Trump.  It was a simple press release, issued by the White House, announcing a “fourth wave” of judicial nominations since the Trump inauguration.  The eleven nominations included four district court judgeships, three for the U.S. Circuit Court of Appeals, three for the Court of Appeals for Veterans Claims, and one for the Court of Federal Claims.  Conservatives were uniformly delighted.

All told, Trump has nominated 22 judges to fill vacancies across the federal bench.  Thus far, only two — Supreme Court Justice Neil Gorsuch and Sixth Circuit Court Judge Amul Thapar — have been confirmed.  But the prospect of filling vacancies over time explains a lot about why congressional Republicans have stood by Trump, despite the erratic and stormy start to his presidency.  As long as Trump keeps funneling a steady supply of conservative jurists to the Senate, in a bid to dramatically reshape the federal courts, Republicans can go to bed happy that they’re fulfilling at least one major element of their political project.

Judicial nominations are the one area where the Trump administration is “running like a fine-tuned machine,” as the president boasted in February.  In fact, Trump’s team has far outstripped the efforts of his predecessor.  By this date eight years ago, President Obama had made just four judicial nominations: Supreme Court Justice Sonia Sotomayor, and three nominations for the Court of Appeals.

It is true that Trump was blessed — thanks mostly to a virtual freeze on judicial confirmations in the last two years of the Obama presidency — with more opportunities than Obama.  According to the American Bar Association, at the beginning of June 2009 there were 72 judicial vacancies; today there are 132.  But even given that, if you want to do this by percentages, President Trump, at this point in his presidency, has nominated replacements for 16.7 percent of all judicial vacancies; President Obama by this time had nominated replacements for just 5.6 percent.

What accounts for this rare outburst of competency from the Trump White House?  Certainly, judicial nominations are a lighter lift than legislation; thanks to changes to the Senate filibuster made by both parties, judges at all levels now need only 50 votes for passage, meaning Republicans can confirm them without Democratic support.  Those rules were still in place in 2009, and throughout Obama’s first term. He did have a filibuster-proof majority for brief periods, from July–August 2009 and September 2009–February 2010.  But the former president certainly had less margin for error....

In the judicial arena, at least, Trump is fulfilling the duty laid out by Grover Norquist when he said that conservatives just need a president “with enough working digits to handle a pen.” His unpopularity and the overarching Russia investigation aside, he’s signing off on the nominations that conservatives want. If Republicans in Congress manage to get their act together on legislation, he’ll sign those bills into law as well. The GOP won’t abandon him because he’s giving them what they want.

I have left out some of the political spin that this article adds to this discussion largely because I think it most worth stressing how relatively successful Prez Trump has been in this arena despite difficulties elsewhere especially in contrast to where the Obama Administration was at this point.  The particular irony, of course, is that Prez Trump was a businessman before getting into politics while Prez Obama was a lawyer and law professor.  But this point may provide an explanation rather than an irony: Prez Trump may be much more willing to accept and move forward with judicial recommendations from others than Prez Obama might have been.  (Also, the Trump team gave themselves a kind of running start by putting together a SCOTUS possibilities list during the 2016 campaign.)

June 9, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (12)

"Measuring the Creative Plea Bargain"

The title of this post is the title of this interesting-looking paper authored by Thea Johnson available via SSRN. Here is the abstract:

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining.  But what is a good deal?  And how do defense attorneys secure such deals?  Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence.  Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea.  Through in-depth interviews with twenty-five public defenders in four states, I investigate the ways in which collateral consequences impact the negotiation of the plea.  What emerges is a picture of creative plea bargaining that takes into account a host of noncriminal sanctions that fall outside of the charge and sentence.  Public defenders assess the priorities of their clients — regarding both the direct and collateral consequences of the case — and piece together pleas that meet these varied needs.  The length of sentence after a plea does not tell the full story about whether a defendant got a good deal because a successful plea now encompasses much beyond the final sentence.

These findings have broad implications for the way we think about assessing public defense offices and individual defenders.  Much of what goes into a plea — particularly at the misdemeanor level — is a product of the client’s desire to avoid certain collateral consequences, and those desires generally do not enter the formal record or off-the-record negotiations with prosecutors.  As a result, pleas that look bad on paper may actually be meeting the needs of the client.  Therefore, in order to assess pleas and the defenders who negotiate them, we must understand the limits of publicly available data and focus on creating a more robust data set by which to judge public defenders.  Additionally, this Article provides a fuller picture of prevailing professional norms at the plea phase after Padilla, Lafler, and Frye.  As courts grapple with the role of the defense attorney during plea bargaining, it is critical that they understand that in many cases lawyers achieve optimal outcomes by providing advice and advocacy for their clients on concerns outside of the immediate criminal case.  Finally, this Article serves as a renewed call for attention and funding for the holistic model of public defense.

June 9, 2017 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Alabama carries out second execution in as many weeks using midazolam as first lethal injection drug

A couple of weeks ago, as noted here, Alabama carried out the death sentence of Tommy Arthur for a 1982 murder-for-hire.  Last night, as this AP article reports, the state executed a "man convicted of killing three people during the 1994 robbery of an Alabama fast-food restaurant." Here are the basics:

Robert Melson, 46, was pronounced dead at 10:27 p.m. CDT Thursday at a southwest Alabama prison, authorities said. The execution was the state's second of the year. State prosecutors said Melson and another man who used to work at the restaurant, robbed a Popeye's in Gadsden, 60 miles northeast of Birmingham, and Melson opened fire on four employees in the restaurant's freezer. Nathaniel Baker, Tamika Collins and Darrell Collier were killed.  The surviving employee, Bryant Archer, crawled for help and was able to identify one of the robbers as the former worker which led police to Melson.

Collins' family members wore a badge with her photograph and the phrase "In Our Hearts Forever."  Her family issued a statement saying that three young people lost their lives for "a few hundred dollars" and criticized court filings on behalf of Melson that challenged the state's execution procedure as inhumane. Collins' mother and two sisters witnessed the execution. "He has been on death row for over 21 years being supported by the state of Alabama and feels he should not suffer a little pain during the execution. What does he think those three people suffered after he shot them, leaving them in a freezer?" the statement said.

Melson shook his head no when the prison warden asked if he had a final statement.  A prison chaplain knelt with him. Melson's hands quivered at the start of the procedure and his breathing was labored, with his chest moving up and down quickly, before slowing until it was no longer perceptible.

Melson's attorneys had filed a flurry of last-minute appeals seeking to stay the execution.  The filings centered on Alabama's use of the sedative midazolam which some states have turned to as other lethal injection drugs became difficult to obtain.  The U.S. Supreme Court temporarily delayed the execution to consider Melson's stay request, but ruled after 9 p.m. that the execution could go forward....

"Robert Melson's decades-long avoidance of justice is over. For twenty-three years, the families of the three young people whose lives he took, as well as a survivor, have waited for closure and healing. That process can finally begin tonight," Attorney General Steve Marshall said in a statement after the execution.

I have stressed in my post title the drug Alabama has used in its recent executions in part because that drug is sure to be at the center of discussions next week when the full en banc Sixth Circuit considers a current stay on Ohio executions based in part on concerns with the use of the drug midzolam. For basic background on that story, one can check out these posts:

June 9, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (5)

June 8, 2017

Noticing that the Trump DOJ budget predicts a 2% growth in the federal prison population in fiscal year 2018

The Wall Street Journal has this new article noting that the Trump Administration is already making plans for an increased federal prison population.  The article is headlined "Federal Prison Population Expected to Grow Under Trump: Increase is anticipated in prosecutions of illegal immigrants, drug offenders."  Here is how it gets started:

The federal prison population is expected to grow next year by 4,171 to a total of 191,493 as the Trump administration steps up prosecutions of illegal immigrants and drug offenders, reversing the trend toward a smaller prison population under former President Barack Obama.

That estimate of 2% growth in fiscal 2018 was tucked into in a Justice Department budget proposal posted online after the Trump administration's broader spending plan was released two weeks ago.  The proposed budget also calls for 300 new federal prosecutors and 75 new immigration judges.

June 8, 2017 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

"Neither Justice Nor Treatment: Drug Courts in the United States"

PhrThe title of this post is the title of this notable new report issued by the group Physicians for Human Rights. Here is an excerpts from the report's executive summary:

U.S. drug courts [are] specialized courts within the criminal justice system set up to provide alternative sentencing options — treatment instead of jail or prison time — for people charged with criminal behavior linked to drug possession, sale, or addiction.  The first courts were opened in 1989 to ease dockets and jails that were overflowing as a result of strict federal and state laws passed in the 1980s in an attempt to reduce drug supply and consumption.

Almost three decades later, there are more than 3,100 drug courts operating in the United States.  But while the courts’ proponents say they reduce recidivism for people with substance use disorders, critics say the system abuses due process, often mandates treatment for people who don’t actually need it — people without drug dependence — and fails to provide quality care to many who do.

Physicians for Human Rights (PHR) assessed the availability and quality of substance use disorder treatment through drug courts in three states — Florida, New Hampshire, and New York, chosen for the diversity of their drug court and health system approaches — and found major obstacles to quality evidence-based treatment for drug court participants in all three states.  Overall, PHR found that drug courts largely failed at providing treatment to those who truly needed it, and filled up limited treatment spaces with courtmandated patients who didn’t always need the care.  In many cases, court officials with no medical background mandated inappropriate treatment not rooted in the evidence base, or mandated treatment for people who didn’t need it.  In all cases, the functioning and mandate of the drug courts posed significant human rights concerns.

At the most basic level, PHR found that access to quality treatment was hampered by the inherent tension between a punitive criminal justice logic and therapeutic concern for drug court participants as patients.  In fact, despite the stated intention of drug courts to treat people who use drugs as ill rather Executive Summary than deviant, drug court participants were often punished for relapsing, missing therapy appointments, or otherwise failing to follow court rules.

One key concern motivating this research was whether drug courts were able to appropriately diagnose and facilitate treatment for people with substance use disorders who are in conflict with the law.  We found that, in many cases, they were not.  Diagnosis and initial treatment plans for drug court participants were often developed by people with no medical training or oversight, at times resulting in mandated treatment that was directly at odds with medical knowledge and recommendations.  The most egregious example of this was the refusal, delay, or curbing of medication-assisted treatment (MAT) (also known as substitution or replacement therapy) to people with opioid use disorders, despite evidence that treatment for such disorders in many cases requires long-term — sometimes permanent — medication.  Some drug courts also prevented participants from accessing or staying on medically prescribed treatment for anxiety, Attention Deficit Hyperactivity Disorder, and other chronic health problems.

Human rights concerns are thus particularly relevant for drug courts, as these courts blur the line between voluntary and coerced treatment, and compel participants to waive the right to confidentiality.  Furthermore, most drug courts operate with regulations that subject medical expertise and advice regarding treatment to prosecutorial oversight and potential veto, raising questions about a person’s ability to access impartial evidencebased care.  Even where courts did not actively violate human rights protections of their participants, the regulatory set-up constantly threatened such violations.

June 8, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

More interesting new "Quick Facts" publications from the US Sentencing Commission

The US Sentencing Commission has released two notable new Quick Facts covering "Drug Trafficking Offenses" and "Federal Offenders in Prison" as of February 2017. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  Here are a few of the many intriguing data details from these two small data-filled publications:

June 8, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

"Facial Profiling: Race, Physical Appearance, and Punishment"

The title of this post is the title of this notable new empirical paper authored by Brian Johnson and Ryan King.  Here is the abstract:

We investigate the associations among physical appearance, threat perceptions, and criminal punishment.  Psychological ideas about impression formation are integrated with criminological perspectives on sentencing to generate and test unique hypotheses about the associations among defendant facial characteristics, subjective evaluations of threatening appearance, and judicial imprisonment decisions.

We analyze newly collected data that link booking photos, criminal histories, and sentencing information for more than 1,100 convicted felony defendants.  Our findings indicate that Black defendants are perceived to be more threatening in appearance.  Other facial characteristics, such as physical attractiveness, baby-faced appearance, facial scars, and visible tattoos, also influence perceptions of threat, as do criminal history scores.  Furthermore, some physical appearance characteristics are significantly related to imprisonment decisions, even after controlling for other relevant case characteristics.  These and other findings are discussed as they relate to psychological research on impression formation, criminological theories of court actor decision-making, and sociological work on race and punishment.

June 8, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Judge Jack Weinstein talks through general deterrence and gang activity in federal gun sentencing

A helpful reader forwarded to me the latest interesting sentencing opinion authored by US District Judge Jack Weinstein. The full 25-page opinion in US v. Lawrence, No. 16-CR-243 (E.D.N.Y. May 23, 2017), is an interesting read for a lot of reasons, is not readily summarized and is available for download below. Here is how it gets started and ends to provide taste for the full opinion:

Defendant in the instant case pled guilty to a serious crime.  He is either a gang member or on the verge of becoming one.  He recklessly fired an illegally possessed handgun repeatedly down a public street, with the likelihood that a passing pedestrian might be hit: in fact he wounded his companion.

This case presents some of the critical difficulties in federal sentencing. It requires balancing general deterrence (and, relatedly, incapacitation) by a relatively long prison term with specific deterrence (and its other aspect, rehabilitation) by a relatively short term in prison. Both must be considered under section 3553(a)(2)(B) of section [1]8 of the United States Code.  By compromising, and reducing a somewhat draconian sentence (possibly less effective for general deterrence), or increasing the sentence (possibly less effective for rehabilitation), the sentence may risk frustrating either goal.

The subtle weighing of alternatives is made more difficult by the presence of numerous competing vectors (such as family or work or criminal history).  In the present case the court accepted, and acted on, testimony of an expert witness that increasing the length of incarceration does not proportionally increase general or specific deterrence....

The Guidelines do not consider gang membership as a factor in sentencing, except for defendants who are sentenced under 18 U.S.C. § 521 (pertaining to criminal street gangs), where the Guidelines provide for an upward departure. U.S.S.G. § 5K2.18.  Were gang membership a sentencing factor in cases other than those under 18 U.S.C. § 521, courts would give greater weight to this factor.  This court recommends that the Sentencing commission revisit the gang membership problem.

Download Lawrence - Judgment%2c Memo%2c and Order

June 8, 2017 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

June 7, 2017

Four Senators write to AG Sessions with pointed questions about the Sessions Memo on charging and sentencing

As detailed in this press release from Senator Mike Lee, "Sens. Mike Lee (R-UT), Dick Durbin (D-IL), Cory Booker (D-NJ), and Rand Paul (R-KY) sent a letter to Attorney General Jeff Sessions Wednesday, seeking answers about the Department of Justice’s May 10, 2017 memorandum, directing federal prosecutors to pursue the most serious offense possible when prosecuting defendants."  The three-page letter is available at this link, and it starts this way:

We write concerning the Department of Justice's May 10, 2017 memorandum directing federal prosecutors to "pursue the most serious, readily provable offense." The Department's new policy ignores the growing bipartisan view that federal sentencing laws are in grave need of reform.  In many cases, the new policy will result in counterproductive sentences that do nothing to make the public safer. And it appears to force the hand of the prosecutors closest to each case to seek the highest possible offense rather than enable them to determine an appropriate lesser charge, which can help guard against imposing excessive sentences.

Among the six pointed questions (with sub-questions) that end the letter are these that strike me as especially interesting:

Pursuant to the Department's new policy, prosecutors are allowed to apply for approval to deviate from the general rule that they must pursue the most serious, readily provable offense.  The memo, however, does not explain how the Department will decide whether to grant approval to deviate from the general rule.  What factors will the Department consider in making these decisions? How often do you anticipate that prosecutors will request approval to deviate from the Department's charging policy? How often do you expect such requests will be granted?  Will Main Justice track how frequently attorneys seek departures from the new policy?

Are there any federal criminal offenses carrying mandatory minimum sentences that you believe are unfair?  Do you believe that all applications of 18 U.S.C. § 924(c) result in fair sentences?  If the answer to either of those questions is "no," why do you believe the Department's new policy allows enough discretion to individual prosecutors to result in fair outcomes in cases implicating these statutes?

 Prior recent related posts: 

June 7, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Prof Stephanos Bibas among new slate of notable nominees to the circuit courts by Prez Trump

5914168_origThis big news in the world of Presidential nominations this morning would seem to be Prez Trump's decision, reported here, to nominate Christopher Wray to serve as head of the FBI.  Long-time and hard-core sentencing fans will perhaps recall that Wray was an Assistant AG for the Justice Department back when Blakely and Booker came down, so there is an interesting sentencing history that his name necessarily evokes.

But, other nomination news from inside-the-Beltway should be of even more interest to long-time and hard-core sentencing fans.  According to this Washington Times article, sentencing scholar Stephanos Bibas is getting tapped for an open position on the Third Circuit.  Here are the details from the press account, along with a bit of notable commentary therein:

President Trump announced a new round of 11 judicial nominations Wednesday, including three nominees for high-profile federal appeals courts.

One of the nominees, Colorado Supreme Court Justice Allison H. Eid, is being tapped by the president to fill a vacancy on the 10th U.S. Circuit Court of Appeals created when Justice Neil Gorsuch was confirmed for the Supreme Court in April. Justice Eid was on Mr. Trump’s list of conservative potential Supreme Court nominees that he presented to voters during the presidential campaign last year. She has served on Colorado’s high court since 2006, and previously was the state’s solicitor general.

“These appointments follow the successful nomination and confirmation of associate Justice Neil M. Gorsuch to the United States Supreme Court, the successful nomination and confirmation of Judge Amul R. Thapar of Kentucky to serve as a circuit judge on the United States Court of Appeals for the Sixth Circuit, and the nomination of numerous candidates to other judgeships,” the White House said in a statement.

Mr. Trump also is nominating U.S. District Court Judge Ralph R. Erickson of North Dakota for the 8th U.S. Circuit Court of Appeals, and University of Pennsylvania Law School professor Stephanos Bibas to serve on the 3rd U.S. Circuit Court of Appeals. Judge Erickson has served on the district court since 2003. The White House called Mr. Bibas, director of the university’s Supreme Court Clinic, “one of the nation”s leading experts in criminal law and procedure.” He has argued six cases before the Supreme Court, taught at the University of Chicago Law School and served from 1998 to 2000 as an assistant U.S. Attorney in the Southern District of New York....

“President Trump continues to put forward superlative judicial nominees with sterling credentials and impressive intellects,” said Jonathan Adler, director of the Center for Business Law & Regulation at Case Western Reserve University School of Law. “It’s especially notable that President Trump continues to pick current and former academics for the appellate bench — more so than any recent president. This will only magnify the impact his nominees are likely to have on the federal courts.”

I have previously noted in this space Prez Trump's apparent affinity for academics in his early judicial selections (as well as for folks with some sentencing history).  And I have a particular affinity for Prof Bibas not only because of his long history as a sentencing scholar, but also because we worked together on a Supreme Court case Tapia in which he was an appointed amicus and we co-authored one of my favorite articles, Making Sentencing Sensible.  Stephanos and I also co-authored an essay about capital sentencing, Engaging Capital Emotions.

Also, long-time and eagle-eyed blog readers may recall that Prof Bibas did a stint of guest-blogging in this space in conjunction with the release of his book, "The Machinery of Criminal Justice," which was published in 2012 by Oxford University Press and is available here.  All of his posts are linked under the category tab, Guest blogging by Professor Stephanos Bibas, and here are links to my introduction and then to all his substantive posts:

June 7, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (18)

Spotlighting the continued challenges for juve lifers like Henry Montgomery even after SCOTUS victories in Miller and Montgomery

Mother Jones has this notable new article about Henry Montgomery and other juveniles who are still fighting to get relief after seemingly helpful recent Supreme Court Eighth Amendment rulings. The full headline of this piece is "The Supreme Court Said His Prison Sentence Was Unconstitutional. He’s Still Behind Bars. Despite a ruling in their favor, Henry Montgomery and other juvenile lifers are no closer to getting out."  Here are excerpts:

But although the Supreme Court often appears all-powerful, its clout is more limited than it seems. Nearly 18 months after his victory, Montgomery is still sitting in Angola, and there’s no guarantee that he — or many of the roughly 1,000 others serving similar sentences across the country — will ever get out....

Montgomery’s saga began in November 1963 in East Baton Rouge, Louisiana, during a turbulent time of racial tensions, Ku Klux Klan activity, and cross-burnings. Montgomery, who is African American, was in 10th grade and playing hooky when he encountered the local sheriff, Charles Hurt, who was white. In a panic at being caught out of school, Montgomery allegedly shot and killed Hurt with his grandfather’s gun, which he had stolen....

[If sentenced today], Montgomery would be allowed to present evidence of mitigating circumstances, and his lawyers could argue that his youth and mental disability — he had an IQ of around 70 — should be grounds for a reduced sentence. Instead, a state appellate court upheld his mandatory life sentence, and that was the end of his contact with a lawyer for decades to come....

In 2012, the US Supreme Court offered juvenile lifers such as Montgomery a glimmer of hope. In Miller v. Alabama, a case of two men who’d been sentenced to mandatory life without parole for crimes they committed at the age of 14, the court ruled 5-4 that such sentences were unconstitutional. Mandatory life without parole violated the Eighth Amendment prohibition on cruel and unusual punishment, the court said, because such sentences failed to recognize that adults differ from children, who have “diminished culpability and greater prospects for reform.” The court held that life-without-parole sentences should be used only for “the rare juvenile offender whose crime reflects irreparable corruption.”

The decision set off a flurry of litigation by inmates incarcerated as children who argued that the Miller decision should be applied retroactively. Montgomery filed a petition to have his sentence overturned without the help of a lawyer, but the Baton Rouge public defender’s office eventually took up his case. The local district attorney fought him every step of the way, and he lost in all the state appeals courts. But in 2015, the US Supreme Court agreed to hear his case.

In January 2016, the court ruled in Montgomery’s favor, with Kennedy writing that the decision, which gave juvenile lifers a shot at parole, “would afford someone like Montgomery, who submits that he has evolved from a troubled, misguided youth to a model member of the prison community, the opportunity to demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”

But the decision was only the beginning of Montgomery’s fight.  The Supreme Court decision gave states a lot of leeway in how they handle cases like Montgomery’s and punted the details to lower-court judges and state legislators.  In Louisiana, a judge could reduce Montgomery’s sentence to life with parole, but that would leave his fate to Louisiana’s notoriously stringent parole board, which could deny him release.  The Supreme Court also left room for judges to simply resentence eligible inmates to life without parole by declaring them irreparably corrupt. And that’s exactly what the Baton Rouge district attorney pushed for in Montgomery’s case....

Montgomery’s case has languished in part because the state didn’t know quite how to handle Louisiana’s 300 juvenile lifers who’d won the right to resentencing.  Should an inmate have a full-blown sentencing hearing that would resemble those used in capital cases?  And who should decide the outcome, a jury or a judge?  The courts put Montgomery’s case on hold while the state Legislature considered a bill that would automatically grant juvenile lifers a shot at parole after they’d served 30 years in prison.  But the bill died last summer, and although it’s been taken up again this year, the courts have decided to move forward without any new legislation.  Some juvenile lifers have been able to win plea bargains that freed them, but they aren’t the majority.

Working against Montgomery is the fact that the adult children and grandchildren of his victim have been involved in the process and are opposed to his release....

Montgomery is one of many juvenile lifers whose sentences remain in limbo after the Supreme Court decision. Michigan, for example, has about 350 juvenile lifers behind bars. Since the Supreme Court decision in Montgomery, the state has begun resentencing them.  [Juvenile Law Center's Marsha] Levick says that in about 85 percent of those cases, prosecutors are again seeking life without parole.  In one jurisdiction, the local prosecutor is the same former judge who sentenced many of the inmates to life in the first place. She has requested new life sentences for 44 of 49 inmates serving life without parole for murders they committed before the age of 18....

Jody Kent Lavy, executive director of the Campaign for Fair Sentencing of Youth, visited Montgomery in Angola earlier this year and says that because of the resistance of states like Louisiana and Michigan to implementing the Montgomery decision, the high court really “needs to take another step to bar life without parole [for juveniles] outright.”  She notes that local district attorneys are usually elected, and so the Montgomery decision “still leaves room for racially charged decisions, politically motivated decisions, as opposed to what is fair.  It keeps me up at night.”

A state court judge heard Montgomery’s case last month and promised a decision by late June.

June 7, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Brennan Center provides a "final" accounting of rising violent crime in 2016

The folks at the Brennan Center have this new report titled "Crime in 2016: Final Year-End Data" authored by Ames Grawert and James Cullen. This Brennan Center webpage includes a link to the report, other past reports on crime rates, and this accounting of the report's primary findings:

Chicago accounted for more than 55 percent of the murder increase last year, according to a new analysis of crime data by the Brennan Center. The overall national crime rate remained stable.

This analysis finds that Americans are safer today than they have been at almost any time in the past 25 years.

Based on new year-end data collected from police departments in the 30 largest cities, crime in 2016 remained at historic lows across the country. Although there are some troubling increases in murder in specific cities, these trends do not signal the start of a new national crime wave. What’s more startling, this analysis finds that the increase in murders is even more concentrated than initially expected. Chicago now accounts for more than 55.1 percent of the total increase in urban murders — up from an earlier projection of 43.7 percent.

Final Year-End Findings:

  • The overall crime rate in the 30 largest cities in 2016 remained largely unchanged from last year. Specifically, overall crime rose by 0.9 percent, essentially remaining stable.

  • The murder rate rose in this group of cities last year by 13.1 percent.

  • Alarmingly, Chicago accounted for 55.1 percent of the total increase in urban murders — more than preliminary data suggested.

  • A similar phenomenon occurred in 2015, when three cities — Baltimore, Chicago, and Washington, D.C. — accounted for more than half (53.5 percent) of the increase in murders.

  • Some cities are experiencing an increase in murder while other forms of crime remain relatively low. Concerns about a national crime wave are premature, but these trends suggest a need to understand how and why murder is increasing in these cities.

  • Violent crime rates rose slightly. The 4.2 percent increase was driven by Chicago (16.5 percent) and Baltimore (18.6 percent). Violent crime still remains near the bottom of the nation’s 30-year downward trend.

These crime data, however one might view or spin them, help ensure that Justice Department officials like Jeff Sessions Steve Cook have strong talking points whenever they are eager to make the case for tougher federal criminal justice policies and practices.  Moreover, they can help support a pitch for sentencing toughness that can be enduring: if crime keep going up in 2017 and beyond, then the case gets made that even great toughness is needed; if crime starts going down in 2017 or later, then the case gets made that toughness works.

June 7, 2017 in Criminal justice in the Trump Administration, National and State Crime Data | Permalink | Comments (2)

June 6, 2017

"Where Are the United States Attorneys?"

The title of this post is the title of this New York Times editorial, which starts and ends this way:

Three months after President Trump abruptly fired half of the nation’s 93 United States attorneys, following the resignations of the other half, he has yet to replace a single one.

It’s bizarre — and revealing — that a man who called himself the “law and order candidate” during the 2016 campaign and spoke of “lawless chaos” in his address to Congress would permit such a leadership vacuum at federal prosecutors’ offices around the country.  United States attorneys are responsible for prosecuting terrorism offenses, serious financial fraud, public corruption, crimes related to gang activity, drug trafficking and all other federal crimes....

Especially when it comes to higher-profile, long-term cases, Senate-confirmed heads are needed to work in coordination with the Justice Department.  The United States attorneys are only the tip of the iceberg.  Mr. Trump has yet to nominate a new F.B.I. chief after firing the former director, James Comey, last month.  The Justice Department’s criminal, civil and national-security divisions are all under temporary leadership.  These delays are strange even for a White House that ran what one former official called the “slowest transition in decades” and that has dealt with key government posts with all the urgency of a summer barbecue.

While his hiring freeze, which is leaving many lower federal jobs unfilled, is part of a broader strategy to hobble or suffocate entire federal agencies, this seems less deliberate and harder to understand.  The prosecutors certainly won’t be coming on board anytime soon.  Even in a fully functioning administration, it takes months for nominees to be screened by the F.B.I. and approved by the Senate.

One familiar rationale — that Mr. Trump wasn’t prepared because he never expected to win — may account for some of the delay, but it’s an increasingly embarrassing excuse.  You don’t run for president on a major-party ticket as a lark, and you don’t pink-slip top federal prosecutors en masse without a long list of qualified candidates in your back pocket.

There are two other obvious, and perhaps simpler, explanations, and both may be correct.  Mr. Trump does not actually believe in or care about his campaign claim of “lawless chaos” in our streets.  And Mr. Trump is not a good manager — not of his businesses, certainly, and not of the vastly larger, more complex organization he now runs, the one that matters to the well-being of every American.

June 6, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

Senators Grassley and Feinstein working on enhanced federal penalties for synthetic opioid offenses

This slightly confusing new NPR story, headlined "Lawmakers Consider Tough New Penalties For Opioid Crimes, Bucking Trend," suggests that the only kind of sentencing reform being now discussed in Congress involves increasing rather than decreasing drug offense sentences.  Here are the still opaque details as reported by NPR (with my emphasis added, for subsequent comment):

For nearly four years now, an unusual coalition of Republicans and Democrats has worked to reduce mandatory prison terms for many federal drug crimes.  But that bipartisan movement may be shallower than it appears. Indeed, Republican Sen. Chuck Grassley of Iowa and Democratic Sen. Dianne Feinstein of California, who both supported a cut-back on some drug punishments, are preparing a bill that would create tough new penalties for people caught with synthetic opioid drugs.  Grassley chairs the Senate Judiciary Committee, and Feinstein is the panel's ranking member.

A draft of the legislation reviewed by NPR suggests the plan would give the attorney general a lot more power to ban all kinds of synthetic drugs, since criminals often change the recipe to evade law enforcement.  It would impose a 10-year maximum sentence on people caught selling them as a first offense. That would double if they do it again.

Michael Collins of the Drug Policy Alliance, which advocates for lighter punishments for drug offenders, has seen language in the proposal. He said he thinks it's a bad idea. "These synthetic drugs are added to heroin often outside the U.S., but the bill takes such a broad approach that it's penalizing individuals who sell drugs at a low level inside the U.S., and so it's going to do nothing to deter and stop the supply of drugs," Collins said.

Collins said drug addiction is a public health challenge. He said sending more people to prison won't help, just as it didn't help in the crack cocaine era a few decades ago. "The problem is really we've been here before with this approach in terms of the war on drugs and ramping up sentences, and we know that escalating sentences ... does nothing to help the opioid epidemic," Collins said. "In fact, it only serves to increase the prison population."

Many people inside the Justice Department disagree. Just last week, federal prosecutors in Utah announced charges against a half-dozen people in suburban Salt Lake City.  Authorities say two of them quit their jobs at eBay to embark on a new enterprise. They allegedly ordered a version of the synthetic opioid fentanyl by mail from China, then pressed the drug into counterfeit pills and sold them online to customers across the country.

U.S. Attorney John Huber brought the case. "Like much of the country, we are not escaping the heroin and opioid epidemic and this latest version or brand of it with the fentanyl danger just makes it that much more pressing of a concern for us," Huber said.  The alleged ringleader — 27-year-old Aaron Michael Shamo — could spend the rest of his life in prison if he's convicted under the current drug laws.  "Mr. Shamo faces a mandatory life minimum sentence if he's convicted and that shows how serious this is, when you're dealing in such large quantities of such a dangerous substance," Huber said. "This is as serious as it gets."

As this NPR story already indirectly indicates, severe federal sentences are already on the books for serious drug dealers who traffic in fentanyl, and I am pretty sure a first offense of even a small amount of fentanyl dealing already carries a mandatory maximum sentence of decades. Thus, I think the highlighted line from the article here meant to report that Senators Grassley and Feinstein are working on a bill that would have a 10-year mandatory minimum sentence for even low-lever, first-time dealing of fentanyl.

I am not yet going to criticize a bill I have not yet seen, nor am I going to criticize the instinct of many legislators and law enforcement officials that drastic action needs to be taken in response to the still growing opioid epidemic.  But I am certainly prepared to express disappointment that leaders like Senators Grassley and Feinstein still apparently think that new mandatory minimum sentencing provisions serve as a wise and appropriate response to a national drug problem.

June 6, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Might AG Sessions resign due to tension with Prez Trump?

As I write the question in the title of this post, I already realize the answer surely is "No."  But the very fact the question arises is somewhat remarkable, and this ABC News report is the reason it does.  The report is headlined "Jeff Sessions suggested he could resign amid rising tension with President Trump," and here are excerpts:

As the White House braces for former FBI Director James Comey’s testimony Thursday, sources tell ABC News the relationship between President Donald Trump and Attorney General Jeff Sessions has become so tense that Sessions at one point recently even suggested he could resign.

The friction between the two men stems from the attorney general's abrupt decision in March to recuse himself from anything related to the Russia investigation -- a decision the president only learned about minutes before Sessions announced it publicly. Multiple sources say the recusal is one of the top disappointments of his presidency so far and one the president has remained fixated on.

Trump’s anger over the recusal has not diminished with time. Two sources close to the president say he has lashed out repeatedly at the attorney general in private meetings, blaming the recusal for the expansion of the Russia investigation, now overseen by Special Counsel and former FBI Director Robert Mueller.

But sources say the frustration runs both ways, prompting the resignation offer from Sessions. Asked by ABC News if the attorney general had threatened or offered to resign, Justice Department spokesperson Sarah Isgur Flores declined to comment.

The New York Times is on this beat with these recent articles on this front:

"Trump Grows Discontented With Attorney General Jeff Sessions"

"Sessions Is Said to Have Offered to Resign"

Dare I say that perhaps AG Session has offered to resign because he is now just so sick and tired of winning?

June 6, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (6)

A timely call for "Reorganizing the Federal Clemency Process"

Paul Larkin, who has written a number of recent notable article on clemency noted here and here, now has this new "Legal Memorandum" at The Heritage Foundation titled ""Reorganizing the Federal Clemency Process."  Here its abstract and "Key Points":

The President relies on the Department of Justice to filter out ineligible applicants and recommend from the remainder which ones should receive clemency, but the department suffers from an actual or apparent conflict of interest.  One proposed remedy would be for Congress to create an independent advisory board like the U.S. Sentencing Commission to review every clemency application and offer the President its recommendations.  A better alternative would be for the President to move the Office of the Pardon Attorney into the Executive Office of the President and use the Vice President as his principal clemency adviser.  The Vice President can offer the President several benefits in the clemency decision- making process that no one else in the government possesses.

Key Points:

Prior related posts:

June 6, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Discouraging account of the state of federal criminal justice reform come summer 2017

On the heels of big talk in summer 2013 from then-Attorney General Eric Holder about criminal justice reforms, some pundits (as noted here) were quick to suggest that momentum for major federal sentencing reform might be unstoppable. Ever the political pessimist, I was then quite hopeful but still not all that optimistic that Congress would find a way to enact some sweeping federal statutory sentencing reforms before too long.

But fast forward four years to the coming summer 2017, and there no seems to be very little reason to be hopeful or optimistic about anything getting done in this space anytime soon. This new Marshall Project feature article by Justin George highlights that this is not only a story of a new Prez and Attorney General with different criminal justice priorities, but also a story of reform voices on the left and right coming to battle each other in ways that may ensure there in no path forward. The article is headlined "Can This Marriage Be Saved?: Left and right came together on criminal justice reform. Then Trump happened." Here are a few notable excerpts:

John Malcolm [is] a legal scholar at the Heritage Foundation, the influential conservative think tank [and] a member of an unlikely alliance that hopes to end America’s status as the world’s most prolific jailer: liberals who find the criminal justice system racist, inequitable, and inhumane are joining forces with conservatives — such as Malcolm — who find it wasteful, harmful to families, and heavy-handed. Last year, reformers on both sides agreed to support a proposed law that would relax mandatory minimum sentences, giving federal judges somewhat more discretion in sentencing and helping low-level offenders avoid prison time. It was a modest proposal, compared to the size of the problem, but the bill attracted a rare amount of bipartisan support in Washington.

Despite that support, however, the measure failed to pass Congress. Some Republicans wanted the law to include a provision on “mens rea” reform, which would expand the category of crimes in which a defendant’s criminal intent is a factor in determining guilt. Democrats, convinced that such a provision would make it harder for prosecutors to go after corporate crime, resisted. The bill stalled, then died—and so did some of the spirit of common cause. Last year, as the contentious presidential election neared its conclusion, the alliance started to come undone.

Liberal members of the coalition, such as Jesselyn McCurdy, a lobbyist for the American Civil Liberties Union, say that the reform bill failed because obstructionist Republicans didn’t want to give President Obama anything he could claim as a bipartisan achievement on the verge of the election. But, as Malcolm sees it, it was Democrats, confident that Hillary Clinton would be president and that the Republican grip on Congress would be loosened, who decided that they no longer needed to compromise. “People’s positions became hardened,” Malcolm said. Conservatives, he added, also bristled at the “anti-police” rhetoric of the Black Lives Matter movement and at the left’s emphasis on the racial disparities of the criminal justice system.... Groups from the right and left still meet regularly on criminal justice issues, including at a monthly work luncheon that Malcolm hosts, at the Heritage Foundation. But momentum has been hard to regain. “Hurt feelings are impacting meaningful discussion,” Malcolm said. “For the right, the criticism of the left is ‘Your messaging stinks, and you don’t make it easy to pass stuff, because you make this difficult for conservatives to sign on to,’ ” Kevin Ring, the president of Families Against Mandatory Minimums, said. “And, for the left, the criticism of the right was ‘You didn't try that hard.’ ”...

But [Senator Mike] Lee, who still believes that a reform bill can get through Congress, said he is not so sure Sessions will be an impediment. “Jeff Sessions is in a different role now — he’s no longer a lawmaker,” Lee said. “I’ve had conversations with people in the White House and elsewhere in the administration in which I’ve explained to them this could be a really good bipartisan win, a nice bipartisan moment, and I’ve been working with the administration to figure out what level of comfort they have with it and what we need to do in order to move forward.” (The Department of Justice said that Sessions was not available for comment, and the White House did not respond to requests to interview Kushner for this story.)...

But the only notable criminal justice measures showing signs of life in the House so far this year would only create more opportunities to put people in prison or to hand out longer sentences, such as a measure expanding the powers of federal probation officers to arrest anyone who interferes with their work. Given this inhospitable climate, Ring, of Families Against Mandatory Minimums, said that perhaps the best course for reformers is to hope for “benign neglect” from the Trump administration and to focus on repairing the damage done to the alliance by the “emotional fallout” of 2016. Maybe, he said, “this is time for us to put our head down and start winning hearts and minds.”

June 6, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

"Kinds of Punishment"

The title of this post is the title of this essay by Douglas Husak now available via SSRN.  Here is the abstract:

Contemporary states execute, imprison, fine, place on probation, conditionally discharge, caution, and do a great deal more to the persons they convict.  What general principles govern how retributivists should choose between the foregoing responses to culpable wrongdoing — or select an altogether different type of sanction?  If my subsequent reasoning is sound, it is easy to understand why retributivists have tended to neglect this issue.  They have neglected it because they have little to contribute to its resolution.  In what follows, I will support this conclusion and discuss a few of the somewhat controversial positions on which it rests.  I hope to make some headway on this topic by defending what I call the deferential view about kinds of punishment (or deferential view for short).

June 6, 2017 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

June 5, 2017

Gearing up for big state court argument on the state and fate of California's death penalty

The San Francisco Chronicle has this new article about the new issues the California Supreme Court is facing concerning the state's old death penalty problems. The piece is headlined "State high court ruling on death penalty could restart executions<" and here are excerpts:

The California Supreme Court hears many high-stakes cases on issues such as individual rights, taxes, and the lawmaking powers of the state and its voters. But it has seldom confronted a case with such potentially dramatic consequences as Tuesday’s hearing on the Proposition 66 death-penalty initiative.

If the court — traditionally deferential to the will of the voters — upholds the central provisions of Prop. 66, it will open the door to the resumption of executions in a state that last put a prisoner to death in January 2006. Nearly 750 condemned inmates inhabit the nation’s largest Death Row, and about 20 have run out of appeals to their conviction and sentence.

Prop. 66 also seeks to speed up future executions, in part by requiring the state’s high court to decide all death-penalty appeals within five years of sentencing — more than twice its current pace. If the court upholds that requirement, one of the most hotly contested in the case, it may have to reconfigure itself as a tribunal that gives priority to capital cases over all other types of criminal and civil law disputes in the nation’s most populous state.

California has long been what one expert calls a "symbolic death penalty state," one of 12 that has capital punishment on the books but has not executed anyone in more than a decade. Prodded by voters and lawsuits, the nation's most populous state may now roll back toward allowing executions, though observers are split on how quickly they will resume, if at all.

The justices could reject the deadlines while upholding other Prop. 66 provisions aimed at shortening the death-penalty process, such as limiting prisoners’ appeals and requiring more lawyers to accept capital cases. But opponents say the proposed timetables for court action are the heart of an initiative that seeks to hamstring judicial authority over state law.

Neither lawmakers nor voters can “force the courts to prioritize a certain type of case at the expense of all other types of cases,” said Christina Von der Ahe Rayburn, a lawyer in the suit to overturn Prop. 66. The requirement to move death cases to the front of the line, she said, would “impair the court’s inherent function of giving fair and equal treatment to (all) litigants.”

Not so, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and an author of Prop. 66. He said the measure would actually relieve the state Supreme Court of some of its current death-penalty workload by transferring some hearings to trial courts. It sets a five-year deadline that he says the court could meet if it eliminated needless delays. “If our side wins, we can get back to having a death penalty that actually works and really see some executions being carried out,” probably before the end of this year, said Scheidegger, who will argue in defense of the measure along with Attorney General Xavier Becerra’s office at the hearing in Los Angeles.

Rayburn said an unrelated federal court case would probably delay any executions in California by at least six months, even if Prop. 66 were upheld. If the court overturns most or all of the initiative, executions will remain on hold for a year or longer as challenges to proposed new lethal-injection procedures work their way through state and federal courts....

Prop. 66 passed with 51 percent of the vote on the same November ballot in which a rival measure to repeal the death penalty in California was rejected by about seven percentage points, nearly twice the margin of defeat for a similar measure in 2012. While the votes were close, the message seemed clear: Californians want the death-penalty law enforced.  But the far-reaching provisions of Prop. 66, which received little attention during the campaign, have evidently raised concerns among the justices, who put the measure on hold while they consider a lawsuit seeking to overturn it....

Another provision of the measure seeks to expand the pool of defense lawyers by requiring attorneys to take capital cases if they already accept court appointments to represent defendants in other criminal cases.  Supporters say the change would ease the shortage of available lawyers, one of the chief reasons appeals take so long.  Opponents say it would put condemned inmates’ fates in the hands of unqualified lawyers and prompt many lawyers to refuse future assignments.

Prop. 66 would also speed up the state’s switch from three-drug executions, in use from 1996 to 2006, to lethal injections of a single barbiturate. Gov. Jerry Brown’s administration proposed procedures for one-drug executions last year in settlement of a lawsuit by relatives of murder victims.  Prison officials are still reviewing those procedures under a long-standing law that requires them to consider public comments.  The commenters have included organizations that say the proposed drugs are untested in executions and the procedures are unreliable....

Two of the court’s seven justices, Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, have removed themselves from the case because they are members of the state’s Judicial Council....  Their replacements are two randomly selected appeals court justices, Andrea Hoch of the Sacramento court, an appointee of Gov. Arnold Schwarzenegger, and Raymond Ikola, appointed to the court in Santa Ana by Gov. Gray Davis.

June 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Deputy AG Rosenstein suggests rising crime justifies prosecutorial shift from Holder Memo to Sessions Memo

I just saw this AP article from late last week reporting on an interesting interview with the second in charge at the US Department of Justice.  Here are the details:

The Justice Department’s new policy urging harsher punishments for most criminals is meant to target the worst gang members and drug traffickers, Deputy Attorney General Rod Rosenstein said Friday in an effort to mollify critics who fear a revival of drug war policies. “We’re not about filling prisons,” Rosenstein told The Associated Press in his first interview since becoming the Justice Department’s No. 2 official. “The mission is to reduce violent crime and drug abuse, and this helps us do that.”

Rosenstein emphasized the department’s plan to fight violent crime that includes prosecutors’ ability to decide whether to level charges that carry mandatory minimum sentences — a carrots-and-sticks approach for gaining cooperation. He acknowledged that federal prosecutors will sometimes charge lower-level criminals to take down entire gangs but “that’s the exception not the rule.”...

Attorney General Jeff Sessions’ directive last month urges federal prosecutors to seek the steepest penalties for most crime suspects, a reversal of Obama-era policies that aimed to reduce the federal prison population and show more leniency to lower-level drug offenders. Sessions’ Democratic predecessor, Eric Holder, told prosecutors they could, in some cases, leave drug quantities out of documents to avoid charging suspects with crimes that trigger years-long mandatory minimum punishments.

Some prosecutors have said they felt constrained by the Holder directive. Under that old rule, they worried about a loss of plea-bargaining leverage — and a key inducement for cooperation — without the ability to more freely pursue charges that carry mandatory minimum sentences.

Advocates for changes to the criminal justice system assailed the reversal as a return to drug-war era policies that helped ravage minority communities and put even nonviolent drug offenders in prison for long terms. Among the sharpest critics was Holder, who called it an “ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety.”

Rosenstein said he dutifully implemented Holder’s policy when it was issued in 2013 but believes recent spikes in violence in some cities necessitate a new approach. Supporters of Holder’s policy “felt like there were too many people in prison and crime rates were falling, and they were hopeful that they could reduce enforcement and keep crime rates low,” he said. “We’re in a different position now.”

Officials will be continually tracking crime statistics in cities that have seen recent spikes in violence. But any change won’t be immediate, Rosenstein said. Sessions’ directive gives prosecutors leeway to veer from the policy and levy less-serious charges when warranted. And federal prosecutors rarely take cases against “minor offenders,” focusing their attention instead on larger criminal organizations, Rosenstein said. “We think it’s important in this circumstance in 2017 to restore to our federal prosecutors the authority to use the penalties Congress has given them in cases they think it’s important,” Rosenstein said. “We’re not micromanaging from Washington.”

I find it quite interesting that DAG Rosenstein here repeated a line used by AG Sessions last month when discussing his new charging/sentencing memo that the new policy is "not micromanaging from Washington." This leads me to think that at least some local US Attorneys expressed concern about being "micromanaged" by the Holder Memos, and it leads me to wonder if these US Attorneys will really feel more free from micromanaging under the Sessions Memo.

Prior recent related posts: 

June 5, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Supreme Court unanimously limits reach of federal drug-offense forfeiture statute

The US Supreme Court this morning handed down a unanimous opinion in Honeycutt v. United States, No. 16-142 (S. Ct. June 5, 2017) (available here), a case concerning the reach of the federal criminal forfeiture statute. The opinion for the Court was authored by Justice Sotomayor, and it starts and ends this way:

A federal statute — 21 U.S.C. § 853 — mandates forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes.  This case concerns how § 853 operates when two or more defendants act as part of a conspiracy. Specifically, the issue is whether, under § 853, a defendant may be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. The Court holds that such liability is inconsistent with the statute’s text and structure....

Forfeiture pursuant to § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime.  In this case, the Government has conceded that Terry Honeycutt had no ownership interest in his brother’s store and did not personally benefit from the Polar Pure sales.  App. to Pet. for Cert. 60a.  The District Court agreed. Id., at 40a.  Because Honeycutt never obtained tainted property as a result of the crime, § 853 does not require any forfeiture.

The opinion's first footnote indicates that a majority of circuit courts embraced a broader view of the federal forfeiture statute, which in turns further reinforces my long-standing view that SCOTUS these days is generally more pro-defendant on a wide range of sentencing issues than most lower federal courts.

June 5, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Supreme Court grants cert on whether Fourth Amendment limits collections of historical cell phone records

In this order list this morning, the US Supreme Court granted certiorari in Carpenter v. United States which asks, in the words of the cert petition, "whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment."

Though obviously not a sentencing case, I suspect lots of criminal justice fan (and others) will be keeping an eye on Carpenter in the months ahead.  In addition, this case would seem to present the first big opportunity for the newest Justice, Justice Neil Gorsuch, to reveal his take on the Fourth Amendment in particular and privacy issues more generally.

June 5, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

June 4, 2017

Some recent highlights from Marijuana Law, Policy & Reform

I has been some time since I have done a round-up of posts of note from blogging over at Marijuana Law, Policy & Reform.  So:

June 4, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Federal District Judge Mark "Bennett says 80% of the mandatory sentences he hands down are unjust"

The quote in the title of this post's headline is just one of a number of notable lines from this extended CNN article headlined "The judge who says he's part of the gravest injustice in America." Here is some of the context and particulars from the article:

[U.S. District Court Judge Mark] Bennett seems exasperated, exhausted almost, as he explains he must sentence [Susan] Rice to a full five years -- the mandatory minimum required by law. It is a sentence he deems unjust, too much for a low-level addict, just for being caught with a certain weight of drugs.  

Bennett makes sure the record reflects he felt strongly enough to request that Iowa's US Attorney consider waiving the mandatory minimum. He accepts the defense mitigation that Rice had never been in trouble before she was in her 50s, when she began drinking heavily after a bad divorce and was introduced to meth. She met a mid-level dealer who offered her a mattress in his basement and free meth if she would drive him around. A willing drug mule to feed her addiction? Yes. But not the drug trafficker or conspirator whom the charges and mandatory minimum sentences were designed to target, the judge believed.

His plea fell on deaf ears.  He was told there was no option for Rice to be treated as an exception to the law. "I strongly disagree with that decision," the judge says firmly from the bench.  It is not the first time he has felt this way. Bennett says 80% of the mandatory sentences he hands down are unjust -- but that he is handcuffed by the law, which leaves no room for judicial discretion to consider a sentence based on individual circumstances of the defendant. 

Too often, Bennett says, low-level nonviolent drug addicts dealing to feed their habit end up being sentenced like drug kingpins.  Bennett says if he had the power, he would jail Rice for perhaps a year, or 18 months.  Across the street in a state courthouse, she would have been put on probation, he says.  "I think it's a miscarriage of justice," Bennett says. "But you know people are entitled to their own sense of what justice is."

Bennett hoped the tide was turning after members of both parties began pushing for sentencing reform on both state and federal levels, arguing it had been a huge mistake.  Now Jeff Sessions, Donald Trump's attorney general, has instructed that the law governing mandatory minimums be enforced with renewed vigor. "If you are a drug trafficker," Sessions said after issuing his memo to prosecutors, "we will not look the other way. We will not be willfully blind to your misconduct."

Bennett thinks this approach is unjust. "I basically couldn't live with myself if I didn't speak out," he says, standing in the center of his courtroom only hours after sentencing Rice. "I'm compelled to talk about it because I think it's one of the gravest injustices in the history of America."  Year after year, giving out those sentences, is wearing on him.  "The burden of having given so many unjust sentences is a very heavy thing for me to carry around," Bennett says beginning to choke up. "I do not consider myself soft on crime, but I consider myself opposed to mandatory minimums for low level non-violent drug dealers who are basically addicts," he says....

The National Association of Assistant US Attorneys, made up of those who prosecute federal cases, supports Sessions' push to charge the most serious crime that is provable.  "It's an effective way of protecting the public and it has served us well for an awful long time," the group's president Larry Leiser says.  "People who were eligible for mandatory minimums are truly people who are involved in significant quantities of these very dangerous substances."  He rejects recent efforts to relax sentencing laws.  And he rejects the view the law unfairly catches non-violent addicts who are simply feeding their addiction by selling drugs.  And he hails the provision that lets offenders help themselves to lower sentences if they in turn help the authorities take serious criminals off the streets.

June 4, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4)