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August 26, 2017

Split en banc Eleventh Circuit concludes Florida felony battery is "crime of violence" under FSG

A remarkable amount of energy and (digital?) link has been spent assessing and reviewing what criminal history counts or does not count as a crime of violence under various provisions of federal sentencing law.  That amount grew that much more on Friday with the release of an 67-page en banc ruling by the Eleventh Circuit in US v. Vail-Bailon, No. 15-10351 (11th Cir. Aug. 25, 2017) (available here). This opening paragraph by the majority provides the basics:

This appeal requires us to decide whether Florida felony battery is a crime of violence under the Sentencing Guidelines. Defendant Eddy Wilmer Vail-Bailon was convicted in 2014 of illegally reentering the United States, in violation of 8 U.S.C. §§ 1326(a) and (b)(1), after having been deported following a conviction for felony battery under Florida Statute § 784.041.  Based on Vail-Bailon’s felony battery conviction, the district court imposed a sentencing enhancement that applies when a defendant has been deported after committing a crime of violence as defined by the applicable Guidelines provision. Vail-Bailon appealed his sentence, arguing that a Florida felony battery conviction does not qualify as a crime of violence. A divided panel of this Court agreed with Vail-Bailon, and vacated his sentence. See United States v. Vail-Bailon, 838 F.3d 1091 (11th Cir. 2016), reh’g en banc granted, opinion vacated (11th Cir. Nov. 21, 2016). Our full Court granted the Government’s petition to rehear the case en banc, and we now hold that Florida felony battery does categorically qualify as a crime of violence under § 2L1.2 of the Guidelines. Thus, we affirm and reinstate Vail-Bailon’s sentence.

The majority thereafter needs 30 pages to explain its "crime of violence" conclusions, and the dissenters need more than 30 to explain why they think the majority got this wrong. The lead dissent gets started this way:

If, while walking down the street, you tap a jogger on the shoulder and the tap startles him, causing him to trip, hit his head, and suffer a concussion, have you committed a violent act?  Most would say no.  But if you punch the jogger and the punch causes him to fall, hit his head, and suffer a concussion, you have undoubtedly committed a violent act. The difference between a non-violent and violent act, then, is the degree of force used. 

August 26, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8)

August 25, 2017

As he had hinted, Prez Trump decides to make his first use of the clemency power a pardon for Joe Arpaio

As reported here by Politico, "President Donald Trump pardoned attorney former Sheriff Joe Arpaio on Friday."  Here is more:

Arpaio had been convicted of federal contempt. The outspoken immigration opponent has long backed Trump. The president teased a pardon during a campaign rally in Phoenix on Tuesday. The White House cited a lifetime of public service in announcing Apraio's pardon.

I cannot yet find any official White House statement about this action, but I will update this post if and when one appears.

A few prior related posts:

UPDATE: This Reuters piece provides more context on the pardon as well as reaction thereto. Commentor Joe helpfully noticed that the official White House statement appears on the ABC News Twitter feed, and as of early Saturday morning I cannot yet find that statement on the White House website.

August 25, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (24)

"Jeff Sessions Should Be Screaming Bloody Murder About a Potential Joe Arpaio Pardon"

The title of this post is the headline of this interesting Reason commentary authored by Mike Riggs.  Here are excerpts:

President Donald Trump did not pardon former Maricopa County Sheriff Joe Arpaio at his Arizona rally on Tuesday, but CNN reports that the paperwork and accompanying talking points are ready.  Should he pardon Arpaio at some point in the near future, it would be both completely legal and an affront to everything his attorney general supposedly holds dear.

"One of the talking points is that Arpaio served his country for 50 years in the military, the Drug Enforcement Administration and as Arizona's Maricopa County sheriff," CNN's Kaitlan Collins reports, "and that it is not appropriate to send him to prison for 'enforcing the law' and 'working to keep people safe.'"  Arpaio is not facing six months behind bars for "enforcing the law" or "working to keep people safe," any more than drug dealers are sentenced to prison for "making people happy."  Arpaio disregarded a judge's order and was convicted of felony contempt of court.  He did the crime, by his own logic and that of the U.S. Attorney General, and he should now do some time.

But if Trump decides to spare the 85-year-old Arpaio six months of incarceration — we won't know until October if he'll actually serve any time behind bars — he has that power. Yes, it would signal a break with historical precedent, but that's really the only constraint on executive clemency....

If anyone in Trump's orbit should be discouraging him from pardonning Arpaio, it's Sessions.  When Pres. Bill Clinton pardoned financier Marc Rich in the final hours of his presidency, Rich had not even stood trial.  He fled the U.S. in 1983 after being indicted for trading with Iran during the hostage crisis, and spent the rest of his life living comfortably abroad.  During his absence, Rich's family in the U.S. funneled more than a million dollars to the Democratic National Committee, the senatorial campaign of Hillary Clinton, and the Clinton Presidential Library.  When Clinton eventually pardoned him at the behest of Israel's government, the prosecutors who worked to indict Rich were understandably furious, as were many members of Congress.

"From what I've seen, based on the law of bribery in the United States, if a person takes a thing of value for himself or for another person that influences their decision in a matter of their official capacity, then that could be a criminal offense,'' Sen. Jeff Sessions told the New York Times in 2001.  One might think Sessions would feel similarly about the current president rewarding a campaign surrogate with a Get Out of Jail Free card.

Sessions also objected to the clemency initiative, which Obama launched in 2014 and continued through the end of his second term.  This was the most systematic attempt to heal the wounds of a stupid war since President Jimmy Carter pardoned men who evaded the draft for Vietnam.  Sessions, however, declared Obama's efforts to shorten insanely long drug sentences a betrayal of the American justice system.  "To unilaterally determine that a sentence was unjustified simply because the president disagrees with the underlying criminal justice policy is a thumb in the eye of the law enforcement officers, prosecutors, defense attorneys, judges, court and prison personnel who put time and resources into these cases," Sessions said in 2014.

Just a month ago, Sessions said he was committed to holding law-breaking cops accountable.  "Just as I'm committed to defending law enforcement who lawfully have to use deadly force to defend themselves while engaged in their work," he told the National Organization of Black Law Enforcement Executives, "I will also use the power of the office I'm entrusted with to hold any officer responsible who violates the law."

If Arpaio is an exception to Sessions' position on executive clemency and holding criminal cops accountable, I can't wait to hear his explanation.

A few prior related posts:

August 25, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (11)

Supreme Court of Wyoming continues to interpret Graham and Miller broadly

A helpful colleague made sure I did not miss an interesting opinion handed down yesterday by the Supreme Court of Wyoming in Sam v. Wyoming, No. S-16-0168 (Wy. Aug. 24, 2017) (available here), involving the Supreme Court's juve sentencing jurisprudence.  Here are concluding passages from the majority opinion ruling for the defendant in Sam:

Mr. Sam argues that his consecutive sentences of a minimum of 52 years, with release possible when he is 70 years old, is unconstitutional....

In Bear Cloud III, we analyzed the United States Supreme Court case law leading up to Miller and concluded that the prohibition of life without parole sentences required a “‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” 2014 WY 113, ¶ 21, 334 P.3d at 139 (quoting Graham, 560 U.S. at 75, 130 S.Ct. at 2030). And we held that “‘[t]he prospect of geriatric release . . . does not provide a meaningful opportunity to demonstrate the maturity and rehabilitation required to obtain release and reenter society as required by Graham . . . .’” Bear Cloud III, 2014 WY 113, ¶ 34, 334 P.3d at 142 (quoting State v. Null, 836 N.W.2d 41, 71 (Iowa 2013) (internal quotation marks omitted)).   Since then, the United States Supreme Court has confirmed that the release for juveniles contemplated by the Roper, Graham, and Miller courts should allow them “hope for some years of life outside prison walls . . . .” Montgomery, 136 S. Ct. at 736-37. We held in Mr. Bear Cloud’s case that his sentence of a minimum of 45 years, with possible release when he is 61, was the functional equivalent of life without parole. Bear Cloud III, 2014 WY 113, ¶¶ 11, 33, 334 P.3d at 136, 142. In this case, the sentencing court has made the determination that Mr. Sam is not one of the juvenile offenders whose crime reflects irreparable corruption. An aggregated minimum sentence exceeding the 45/61 standard is the functional equivalent of life without parole and violates Bear Cloud III and Miller and its progeny. The sentence imposed on Mr. Sam of a minimum 52 years with possible release at age 70 clearly exceeds that. We therefore reverse and remand with instructions to the sentencing court to sentence Mr. Sam within the confines set forth in Bear Cloud III.

A dissenting justice in Sam took a distinct view, and here are conclusing passages from the dissenting opinion:

Mr. Sam did not act from impulse, immaturity, or at the invitation or inducement of others.  He intentionally prepared for his crimes, baited the victims into an ambush, committed multiple aggravated assaults on numerous victims, and culminated the spree with an execution-style murder.  Proportionality requires that those factors be considered in his sentence, as well as the remote possibility of rehabilitation.

The U.S. Supreme Court has not defined a “meaningful opportunity to obtain release.”  Nothing in any Supreme Court decision suggests that a “meaningful opportunity to obtain release” must be the same for every defendant.  To the contrary, the proportionality required by the Eighth Amendment indicates that a more mature defendant who commits multiple crimes including murder should receive a lengthier sentence than someone who is less mature or commits only one crime.

In this case, the district court did all it was required to do in sentencing Mr. Sam.  It conducted a thorough individualized sentencing hearing and considered multiple times Mr. Sam’s youthful factors, family history, and participation in the crime as required by Miller and Bear Cloud III. It crafted a sentence it felt was appropriate based upon all of these factors, and it believed this sentence did not constitute a de facto life sentence.  It concluded that Mr. Sam deserved a longer sentence than if he had only committed the murder, or the murder and one additional aggravated assault.

The majority remands this case to the district court to impose an aggregate sentence of something less than the 45 years that was rejected in Bear Cloud III, concluding that Mr. Sam’s sentence denies him any meaningful opportunity for release before he is “geriatric.”  I disagree.  If Mr. Sam is motivated by the possibility of parole and comports himself well while in prison he will receive credit for “good time” under Wyo. Stat. Ann. § 7-13-420 (LexisNexis 2017) and Department of Corrections rules.  He will then be eligible for parole on the last of his sentences at about age 61.  I do not agree that release at that age deprives Mr. Sam of all meaningful portions of life.

August 25, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Florida completes (historic?) execution 30 years after double murder

As reported in this local article, headlined "In a first, Florida executes a white defendant for killing a black victim," a demographically notable execution was carried out late yesterday.  Here are the details:

For the first time in 18 months, Florida carried out a death sentence, killing Mark James Asay as final punishment for two 1987 murders in Jacksonville and making Asay the first white man ever executed in the state for killing a black victim. Asay was pronounced dead at 6:22 p.m. Thursday. He was 53.

The execution began at Florida State Prison after the U.S. Supreme Court, without comment, denied Asay’s final appeal. At 6:10 p.m., a curtain lifted between the death chamber and a room for witnesses. The lighting flickered, and the air-conditioning was turned off, making for an eerie quiet. “Mr. Asay, do you have a final statement?” a guard asked. “No, sir,” he replied. “I do not.”...

Asay’s chest moved up and down, and then it stopped. The guard shook Asay’s shoulders, then stood back. Eight minutes later, a doctor emerged.

The state executed Asay because a jury found him guilty of killing Robert Lee Booker and Robert McDowell minutes apart in Jacksonville’s Springfield neighborhood. The jury recommended he be put to death by a vote of 9 to 3. The U.S. Supreme Court later ruled that death sentencing system unconstitutional, and though the Florida Supreme Court now requires unanimous jury decisions, the new standard applies only to cases going back to 2002.

Asay’s attorneys said the best argument for stopping the execution would have been to say that 2002 is an arbitrary date, and because the death sentence vote wasn’t unanimous, he should be resentenced. Asay refused to let them make that argument, attorney Marty McClain said, instead asking them to argue he wasn’t guilty of murdering Booker, the black man.

When Asay was arrested, his arms bore white supremacist tattoos, and witnesses said he referred to one of the victims by the N-word. Frank Booker, Robert Booker’s brother, said Thursday afternoon that “we’ve been waiting for this since 1987, and that’s a long time. I feel a lot of pressure and anxiety will be off me, and I’ll be able to continue in life, I think, a lot more peaceful because this was something that touched a lot of us really, really deep. I know he feels sorry now, but he should’ve thought about that in ’87 when he did what he did. He did it. All the evidence pointed that way.”

Asay’s brother and another friend who were with him the night of the killings testified that the three were drinking and looking for sex. While his brother was talking to Booker, Asay used racial slurs. He then shot Booker in the stomach and fled. The men then hired McDowell, who was dressed as a woman and using the name Renee Torres, to perform oral sex, according to their testimony. Asay then shot and killed McDowell. One of the witnesses said Asay killed McDowell because he felt ripped off. A jailhouse informant later said Asay referred to McDowell using a derogatory word for gay men.

Asay admitted this week to News4Jax that he killed McDowell, who was white. The race of Asay’s victims matters because a racist motive can help prove a murder is cruel, calculated and premeditated, and worthy of execution.

The execution of Asay included the use of two drugs never before used in Florida: potassium acetate, which was used by accident in an Oklahoma execution in 2015, and etomidate, which had never been used anywhere for an execution. States that still carry out the death penalty have struggled to acquire the necessary drugs for lethal injection and have started changing their cocktails. Asay’s lawyers argued that the new injection mixture would violate his constitutional right to be free of cruel and unusual punishment. On Thursday afternoon, a corrections official handed out packets about how the new injection process would work, but she wouldn’t answer questions about how the state chose the drugs.

Since Asay’s trial in 1988, Duval County has led the state in handing down death sentences, with Assistant State Attorney Bernie de la Rionda getting more death sentences than almost any prosecutor in the country. Asay’s execution was the first of de la Rionda’s death sentences to be carried out.

As hinted in the title of this post, I am not sure I want to use the label "historic" to describe the fact that a southern state has carried out the execution of a white murderer who had a black victim. At the same time, I do think it worth noting that this murderer was actually sentenced to death for his crime way back in the 1980s, and thus this execution might be deemed historic simply because it took three decades for Florida to be able to carry out his sentence. Also historic, in some sense, is an execution based on a a non-unanimous jury death recommendation, which will not be possible any longer.

August 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (11)

August 24, 2017

"Procedures for Proportionate Sentences: The Next Wave of Eighth Amendment Noncapital Litigation"

The title of this post is the title of this notable paper recently posted to SSRN and authored by Sarah French Russell and Tracy Denholtz. Here I the abstract:

With its 2010 decision in Graham v. Florida, the U.S. Supreme Court for the first time placed categorical Eighth Amendment limits on noncapital sentences.  Graham prohibits life-without-parole sentences for juveniles in nonhomicide cases and requires states to provide these juveniles with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  In 2012, in Miller v. Alabama, the Court again set a categorical Eighth Amendment limit — prohibiting mandatory life-without-parole sentences for all juveniles and requiring sentencers to give mitigating effect to youth-related factors when juveniles face life-without-parole sentences.

Following Graham and Miller, 23 states have enacted statutes responding to the decisions and there has been extensive litigation nationwide.  The first wave of litigation has largely focused on the scope of the Court’s categorical holdings, with lower courts considering questions such as: How long is a “life” sentence?  Which crimes are “nonhomicides?”  Do the decisions apply retroactively?

A new wave of litigation is beginning to examine what procedures are required to ensure proportionate sentences under the Eighth Amendment.  Across the country, states are using a range of approaches.  In providing a “second look” for juveniles, some states are simply using existing parole systems, whereas other states have reformed their parole practices for juveniles or created special mechanisms for sentencing review through the courts. With respect to sentencing procedures, some states have adopted special procedures for serious juvenile cases.  Other states have provided little guidance to sentencing courts.

In the past several years, many individuals have been sentenced or resentenced under Miller, and parole boards have started holding hearings in some states. W ith these sentencing and second look proceedings underway, advocates have started to challenge the procedures that states are using.  Are state parole boards in fact providing a “meaningful opportunity” for release to juveniles based on demonstrated maturity and rehabilitation?  Are courts conducting sentencing hearings in compliance with Miller’s mandates?

Eighth Amendment capital litigation has often focused on the procedures governing capital cases, and much can be accomplished by pushing for better procedures in the noncapital sentencing context.  With hope, reforms to parole and sentencing processes for juveniles will not only improve outcomes for juveniles but will also lead to better procedures and outcomes for adults.  Yet at the same time, advocates should not abandon efforts to push for further substantive Eighth Amendment limits on sentences — not only for children but for adults.

August 24, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

California Supreme Court seems to clear way for resumption of executions after resolving Prop 66 challenges against capital defendant

As reported in this local article, the "California Supreme Court on Thursday upheld a ballot measure narrowly approved by voters to change the state's dysfunctional death penalty system and speed up executions."  Here is more on the ruling and its context from this press account:

The highly anticipated ruling concerned Proposition 66, a push to "mend not end" capital punishment in California. The measure aimed to expedite death sentences in part by setting a five-year deadline on court appeals by condemned inmates. With two of the seven justices dissenting, the state Supreme Court said the five-year deadline was advisory, not mandatory — a point that supporters of the measure had conceded during oral arguments....

Condemned inmates in California currently languish for decades and are more likely to die of natural causes than from lethal injection. There are nearly 750 inmates on death row and only 13 have been executed since 1978 — the last in 2006. It now takes up to five years for death row inmates to get an attorney, and it can take upward of 25 years to exhaust appeals.

Proposition 66 would expand the pool of appellate lawyers handling capital cases and allow lower level state courts — not just the California Supreme Court — to hear appeals.

Death penalty opponents agreed with Proposition 66 backers that the current system was broken, but they argued that the measure would lead to the appointment of incompetent attorneys and overwhelm courts. The result: Insufficient review that could send innocent people to their deaths. Arguments before a divided California Supreme Court in June focused on whether the measure's five-year deadline to hear appeals was realistic and enforceable. Supporters of the measure surprised observers when they conceded the time limit was not mandatory but more of a guideline....

The measure — approved by 51 percent of voters — was designed by prosecutors to revamp the appeals process so the "worst of the worst" murderers are actually executed. Under the measure, more lawyers would have to take death penalty appeals, and they would be assigned almost immediately after sentencing. It would shift one type of appeal focused on newly discovered evidence or alleging misconduct by jurors or prosecutors to trial court judges. With 380 death penalty appeals now pending, there was concern from some legal observers that the state's high court would be overwhelmed trying to meet the deadline imposed by the measure and would hardly hear other cases of merit.

The full ruling in Biggs v. Brown runs 121 pages and is available at this link. I hope to have time to read and perhaps comment further on the opinion in the days ahead, and in the meantime here is how the opinion for the court begins:

In the November 2016 election California voters approved Proposition 66, the Death Penalty Reform and Savings Act of 2016. (Gen. Elec. (Nov. 8, 2016) § 1.) The measure’s various provisions are intended to facilitate the enforcement of judgments and achieve cost savings in capital cases. Petitioner Ron Briggs seeks writ relief from this court, challenging the constitutionality of certain aspects of the proposition.  Governor Edmund G. Brown, Jr., Attorney General Xavier Becerra, and the Judicial Council of California oppose the petition as respondents.  They are joined by intervener Californians to Mend, Not End, the Death Penalty, a campaign committee representing the proponents of the initiative. The issues raised are of sufficient public importance to justify the exercise of our original jurisdiction in the interest of a prompt resolution. (Legislature v. Eu (1991) 54 Cal.3d 492, 500.)

Petitioner asserts four grounds for relief.  He claims Proposition 66 (1) embraces more than one subject, as prohibited by the California Constitution; (2) interferes with the jurisdiction of California courts to hear original petitions for habeas corpus relief; (3) violates equal protection principles by treating capital prisoners differently from other prisoners with respect to successive habeas corpus petitions; and (4) runs afoul of the separation of powers doctrine by materially impairing the courts’ ability to resolve capital appeals and habeas corpus petitions, and to manage their dockets in general.

Petitioner’s constitutional challenges do not warrant relief.  However, we hold that in order to avoid serious separation of powers problems, provisions of Proposition 66 that appear to impose strict deadlines on the resolution of judicial proceedings must be deemed directive rather than mandatory.

August 24, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

"Criminal Injustice: Alec Karakatsanis puts 'human caging' and 'wealth-based detention' in America on trial"

The title of this post is the headline of this extended profile in the latest issue of Harvard Magazine. Here is an excerpt:

Alex Karakatsanis [has been] honored for his work at both Civil Rights Corps (CRC), a legal nonprofit that he founded in 2016, and Equal Justice Under Law (EJUL), a legal nonprofit that he co-founded with law-school friend Phil Telfeyan J.D. ’08 in early 2014. (He had left EJUL the month before to found CRC; Telfeyan still runs EJUL.) With his small band of colleagues — CRC just hired its tenth staff member — Karakatsanis, now 33, has swashbuckled around the country, partnering with local legal nonprofits and community groups to file lawsuits challenging egregious forms of such “human caging” across the balkanized constellation of local authorities in which the vast majority of American criminal procedure plays out each day.

Though he had clerked in Alabama, served as a federal public defender there, and practiced as a lawyer with the District of Columbia’s storied Public Defender Service (PDS), co-founding EJUL was Karakatsanis’s first foray into tackling what he calls “the American criminal system” more broadly.  (He’s observed that “if you say things like ‘the criminal justice system,’ people might get the sense that you’re talking about a system that does justice.”)

For a year and a half after he and Telfeyan founded EJUL in early 2014 with their seed grant, the two of them worked out of their Washington, D.C., apartments. Karakatsanis often used his bed and a small standing desk next to it as his workspace. Juliana Ratner, J.D. ’17, who first met Karakatsanis when they worked together at PDS, recalls that she “used to joke to him: ‘Do these cities that you’re suing know that it’s one man in a bed?’ ”

Their challenges to date have focused on the jailing of poor people for failing to pay municipal fines and fees, and the jailing of poor criminal defendants who cannot afford to pay the bail amounts that would allow them to be released from jail before trial. In challenging these two forms of what CRC and other groups have termed “wealth-based detention,” Karakatsanis and his colleagues have launched two frontal assaults at a broader system of criminal punishment that keeps 2.3 million people locked away from the rest of society.  It may sound amazing to attack something so Goliath-like with the organizational equivalent of sticks and stones. But so far, at least, they are winning.

August 24, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

August 23, 2017

Federal district judge finds due process problems with Indiana's forfeiture procedures

As reported in this local article, a "federal judge has issued an order that partially halts the police seizure of vehicles in Indiana drug cases and other related crimes, calling the seizure of vehicles before an official forfeiture action unconstitutional." Here are the basics and the context of the ruling:

U.S. District Chief Judge Jane Magnus-Stinson ruled that Indiana's forfeiture law violates the due process clause of the Fifth and Fourteenth Amendments of the U.S. Constitution. "The Court concludes that the statutory provisions allowing for the seizure and retention of vehicles without providing an opportunity for an individual to challenge the pre-forfeiture deprivation are unconstitutional," Stinson ruled

The order comes as the Indiana legislature reexamines the state's forfeiture laws in an interim study committee. Under Indiana law, law enforcement can hold a vehicle for up to six months. If the state decides to file a forfeiture claim against the vehicle within the first 180 days, the vehicle is held indefinitely until the case is concluded, which can often be several additional months, according to court documents. ​

The full 35-page opinion in this matter is available at this link, and it gets started this way:

This matter involves a challenge to Indiana’s civil forfeiture statute, specifically as it applies to the seizure and pre-forfeiture retention of vehicles.  Plaintiff Leroy Washington, on behalf of himself and a putative class of plaintiffs, contends that Indiana’s statute violates the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution.  Mr. Washington argues that the statute allows law enforcement officers to seize and hold vehicles based on an officer’s probable cause determination for up to six months without judicial oversight and without allowing individuals the opportunity to challenge that seizure and deprivation -- in other words without a post-seizure, pre-forfeiture hearing. In his Motion for Summary Judgment, Mr. Washington requests a declaratory judgment that the statute is unconstitutional, and a permanent injunction enjoining Defendants from enforcing the statute.  For the reasons that follow, the Court concludes that Indiana Code Section 34-24-1-1(a)(1), as read in conjunction with the statutory provisions of the same chapter, violates the Due Process Clause of the Fifth and Fourteenth Amendments. The Court therefore permanently enjoins Defendants from enforcing that statutory provision.

August 23, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (2)

"Can a General Conquer the Federal Prison System?"

The question in the title of this post is the headline of this new extended Marshall Project piece looking at the challenges facing the newly appointed head of the federal Bureau of Prisons. Here is how it gets started:

The federal Bureau of Prisons faces a sea of troubles: Escalating medical costs, a prison population with little access to job training programs or computers, an institutional culture averse to change. In steps Mark S. Inch, the retired two-star general selected by Attorney General Jeff Sessions last month to run the Bureau of Prisons.

Inch retired from the Army in May after more than three decades in the military, mostly as a police officer. While some prison advocates are wary of a leader from an organization disgraced by the abuses at Abu Ghraib, others say a military man may have the courage and discipline to move a stodgy federal prison system toward reforms that have been stalled for years.

“He would provide strong leadership, demand accountability, transparency, and I believe he would be a general who has the ability to think outside the box,” said federal prison consultant Jack Donson, who does not know Inch but worked for the Bureau of Prisons for more than two decades.

In a statement after appointing Inch, Sessions called the retired general “uniquely qualified” because of his policing background and his time overseeing Army Corrections over the past two years.  He replaces Thomas Kane, a 40-year veteran of the federal prison system who had been acting director since early 2016.

The Bureau of Prisons houses more than 187,000 inmates and employs more than 39,000 workers spread out across 122 correctional facilities, six regional offices, a headquarters, two training centers, and 25 residential reentry management offices.  The BOP also has contracts with 11 private prisons.

Outside the military, not much is known about Inch, especially among those who have worked in the federal prison system, prisoner advocates and corrections officials.  Will Inch be an ally for better prisoner education? Will he limit the amount of time prisoners are held in isolation?  Will he rely on controversial for-profit prisons to house new inmates?Inch hasn’t said.

Prisoner advocacy groups have asked Justice officials if any hearings will be held to examine Inch’s background and priorities.  They were told no.

August 23, 2017 in Prisons and prisoners, Who Sentences? | Permalink | Comments (1)

August 22, 2017

Missouri Gov halts scheduled execution and appoints Board of Inquiry to investigate innocence claim

As reported in this local article, today just "before Marcellus Williams was to be put to death for the 1998 murder of a former newspaper reporter, Gov. Eric Greitens issued a stay of execution and appointed a board to look into the case." Here is why:

“A sentence of death is the ultimate, permanent punishment,” Greitens said in a statement Tuesday afternoon. “To carry out the death penalty, the people of Missouri must have confidence in the judgment of guilt. In light of new information, I am appointing a Board of Inquiry in this case.”

Williams’ attorneys have been pleading for a stay, arguing that Missouri was on the verge of executing the wrong person. Williams, 48, was sentenced to death in 2001 for killing Felicia Gayle, who had been a reporter with the St. Louis Post-Dispatch. Gayle was stabbed 43 times with a butcher knife in her home. Williams was scheduled to be executed in 2015, but the Missouri Supreme Court stayed his lethal injection, allowing him time to obtain new DNA testing.

DNA testing of the murder weapon, conducted in 2016 and using technology that was not available at the time of the killing, shows Williams is not a match for the male DNA found on the murder weapon.

The Missouri Supreme Court last week turned down his attorneys’ attempt to have the execution stopped. The court did not provide a reason....

Greitens said he would appoint a five-member board that will include retired judges and have the power to subpoena evidence and compel witnesses to testify. The board will look into the case and make a recommendation to the governor as to whether Williams should be executed or have his death sentence commuted....

A spokeswoman for Attorney General Josh Hawley told The Washington Post this week that based on “non-DNA evidence in this case our office is confident in Marcellus Williams’ guilt and plans to move forward.” Among the other evidence cited by Hawley’s office is testimony by Williams’ former cellmate and an ex-girlfriend implicating him in the murder. Some of the victim’s belongings were found in a car Williams drove the day she was killed.

Opponents of the death penalty say Williams’ case should help fuel the push to end the practice in Missouri. “Marcellus Williams’ case is a classic example of the inherent injustice of the death penalty system,” said Zeke Johnson, senior director of programs at Amnesty International USA, “and why it should be altogether abolished.”

Williams was set to face lethal injection at 6 p.m. Tuesday if not for the governor’s order 

Gov. Greitens' full two-page statement is available at this link.

August 22, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

Considering clemency echoes of a possible Arpaio pardon as Prez Trump's first

This new Daily Beast piece, headlined "Donald Trump May Circumvent the Usual Process to Pardon Sheriff Joe Arpaio," provides some notable quotes from notable federal clemency excerpts in reaction to Prez Trump's indication that he is considering a pardon for a high-profile law enforcement official. Here are excerpts:

President Donald Trump has learned about his power to issue pardons.  And in the last week, White House aides have suggested that he use his first one on a controversial choice: Sheriff Joe Arpaio, the schismatic Arizona lawman convicted of contempt of court.

In recent days, speculation has mounted that Trump will follow through on this suggestion at a campaign rally in Phoenix on Tuesday.  Should he do so, it will be a unique moment in modern presidential politics.  Trump will have given the first pardon of his presidency to someone for what appears to be purely political reasons and he will have done so without going through the normal review process.

The possibility has left some clemency advocates feeling a little queasy. “There are literally hundreds of no-name people we’ve never heard of, who will never been in the newspaper, who are not cause célèbres, who have had applications waiting and waiting and waiting,” said P.S. Ruckman, political science professor at Northern Illinois University. “They’re sick to their stomach right now reading about Arpaio getting a potential pardon, that’s breaking their heart.”

Like George W. Bush and Barack Obama before him, Trump has proven stingy with the pardon power granted to the president.  And that’s probably a generous way to put it.  Two hundred days into his presidency, he has yet to pardon anyone.  This isn’t unprecedented. It took Obama more than 600 days to issue a pardon.  He nearly broke the record for fewest pardons, though he granted more clemencies than any other president by shortening the sentences of more than a thousand people....

Ruckman said that most American presidents started pardoning people in their first month in office, and kept pardoning at a regular clip through their administrations.  The drop-off in pardons is a relatively new change.  And while high-profile grants of clemency to political allies get the most press — think Bush’s commutation of Scooter Libby’s sentence or Bill Clinton’s pardon of Democratic mega-donor Marc Rich — the vast majority of people who get pardoned never become household names....

Were Trump to give his first pardon to Arpaio, who endorsed him during the Republican presidential primary, Ruckman argues that it would undercut the populist message from the campaign.  “It would give people the sense that only famous people, cause célèbres, and connected people are going to get pardons from Trump,” Ruckman said.

Sam Morison, an attorney who worked in the Justice Department’s pardon office for more than a decade, predicted Trump will pardon Arpaio when he goes to Arizona, though he added that it would send a terrible message. “He hasn’t even been sentenced yet, he’s just been convicted,” Morison said.  “And he’s not contrite, he doesn’t accept responsibility — quite the opposite. So in that sense, it’s very unusual.  And the only reason he’s getting any traction at all is that he’s a well-known political figure. So it is special pleading of the worst kind.”

Prior related post:

UPDATE: This local report on a speech Tuesday night by Prez Trump provides the latest news on this front via its headline: "Trump didn't pardon Joe Arpaio in Phoenix — but hints that he will."

August 22, 2017 in Celebrity sentencings, Clemency and Pardons, Who Sentences? | Permalink | Comments (3)

Looking at US prison history while charting "How to End Mass Incarceration"

The quoted title of this post is the headline of this lengthy Jacobin commentary authored by Roger Lancaster, which starts with an extended review of prison history in the United States.  I recommend the full piece, and here is a how it gets started:

The United States has not always been the world’s leading jailer, the only affluent democracy to make “incapacitation” its criminal justice system’s goal.  Once upon a time, it fashioned itself as the very model of what Michel Foucault called “the disciplinary society.”  That is, it took an enlightened approach to punishment, progressively tethering it to rehabilitative ideals.  Today, it is a carceral state, plain and simple.  It posts the highest incarceration rate in the world — as well as the highest violent crime rate among high-income countries.

Politicians, reporters, and activists from across the political spectrum have analyzed the ongoing crisis of mass incarceration.  Their accounts sometimes depict our current plight as an expression of puritanism, as an extension of slavery or Jim Crow, or as an exigency of capitalism.  But these approaches fail to address the question that ought to be foremost in front of us: what was the nature of the punitive turn that pushed the US off the path of reform and turned its correctional system into a rogue institution?

While the state-sanctioned brutality that now marks the American criminal justice system has motivated many activists to call for the complete abolition of prisons, we must begin with a clearer understanding of the complex institutional shifts that created and reproduce the phenomenon of mass incarceration.  Only then will we be able to see a clear path out of the current impasse.

August 22, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Johnson & Johnson the latest drug company to balk about its drugs being used in lethal injection protocol

This notable new Wall Street Journal article reports on a notable new company expressing concern about an execution protocol. The piece is headlined "Johnson & Johnson Wades Into Death Penalty Debate For First Time: J&J’s Janssen Pharmaceuticals protests use of its drug in a lethal injection."  Here is how the piece gets started:

A Johnson & Johnson company opposes plans by Florida authorities to use one of its drugs in a coming execution, marking the first time the world’s largest pharmaceutical manufacturer has waded into the death-penalty debate.

Earlier this year, Florida amended its lethal-injection protocol to include etomidate, an anesthetic agent that has never been used in executions, after exhausting its supply of the sedative midazolam.  Florida authorities are slated to use the updated protocol for the first time on Thursday in the execution of Mark Asay, who was sentenced to death for the 1987 killings of Robert Lee Booker and Robert McDowell in Jacksonville, Fla.

Scientists at Johnson & Johnson’s Janssen Pharmaceuticals NV created etomidate in the 1960s.  The company never distributed the drug in North America and divested the rest of the business in 2016.  But the company protested on Monday Florida’s plan to use etomidate to render death-row inmates unconscious before injecting them with a paralytic agent and a third drug to stop their hearts.  “We do not support the use of our medicines for indications that have not been approved by regulatory authorities,” a Janssen spokesman said in an email.  “We do not condone the use of our medicines in lethal injections for capital punishment.”

No Johnson & Johnson drugs have been used so far in executions, according to Reprieve, an international-rights group that opposes the death penalty.  At least eight companies make etomidate. Florida, like many states, keeps the identity of its suppliers secret.

August 22, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8)

"In Defense of Substantial Sentencing Discretion"

The title of this post is the title of this new article posted on SSRN authored by Antje du Bois-Pedain. Here is the abstract:

This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed “substantial” sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision.  The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical-political grounds.

August 22, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

August 21, 2017

NACDL and FAMM launch "State Clemency Project"

Site_logosThis new NACDL press release reports on an exciting new project that provides another example of new and important state-level criminal justice and sentencing work afoot these days.  Here are the details:

The National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory Minimums (FAMM), with support from the Foundation for Criminal Justice (FCJ), announce today a major state-focused clemency initiative, the NACDL/FAMM State Clemency Project, a program designed to help to recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners to submit petitions to have their sentences commuted.  Outreach has already begun to several governors' offices across the nation.  And Governor Cuomo of New York has just announced a partnership with the NACDL/FAMM State Clemency Project to develop the necessary processes and procedures to enable volunteer lawyers through the project to help prisoners seeking clemency pursuant to the Governor's initiative. The Project will provide logistical support for the governor's initiative, among other ways, by recruiting and training volunteer lawyers to help prisoners apply for clemency.

"We are committed to provide training and resource support to volunteer lawyers to facilitate a process through which applicants can have access to counsel who can expeditiously submit a petition that makes the case for a second chance," said NACDL Executive Director Norman L. Reimer.  "We want the executive authority to see clearly that many offenders have learned from past mistakes and are ready to safely and productively return home."

"Those individuals who have worked hard to rehabilitate themselves and take responsibility for their mistakes deserve a chance to get out of the penalty box.  Their families, communities, and state will be better off with their release," said FAMM President Kevin Ring.  "We're excited to work with NACDL and Governor Cuomo on this important initiative and we look forward to partnering in other states."

"NACDL is proud to build on its experience as a Clemency Project 2014 founding partner in order to make this state-level clemency project a success," said NACDL President Rick Jones. "As a New York City defense attorney, I am especially pleased that Governor Cuomo is taking the lead in this effort.  Our goal is to provide many hundreds of applicants with qualified counsel who will submit first-rate petitions.  And our hope is that other Governors will launch their own programs, and we pledge to support them. It is long past time to recognize that people can change and that redemption is possible. This program recognizes that fundamental truth."

This project brings NACDL's and FAMM's collective experience as partners of the federal-level Clemency Project 2014 (CP 2014), to state-level clemency efforts. CP 2014, a partnership that also included the American Bar Association, American Civil Liberties Union and the Federal Public and Community Defenders, provided pro bono legal assistance to prisoners seeking to have their sentences commuted under specific criteria set by the White House.

Similarly the NACDL/FAMM State Clemency Project will focus on training lawyers to identify eligible prisoners based on criteria provided participating state executives.  Project staff will work with state agencies to devise the most efficient way to connect applicants to volunteers, provide essential applicant information, and submit well-crafted petitions.  The Project will have a state-based focus that will respond to the criteria for articulated by each governor or state clemency authority, and will rely heavily upon local attorneys, law firms and law clinics.

This link provides the press release from Gov. Cuomo's offices stating "Governor Andrew M. Cuomo today announced a first-in-the-nation partnership between a state and a coalition of legal organizations to expand New York's pro bono clemency program."  And more information about the NACDL/FAMM State Clemency Project with instructions on how to sign up to volunteer can be found here at the project website.  

Kudos to NACDL and FAMM and others involved in this project for building on the wisdom and successes achieved through the federal Clemency Project 2014.  Despite facing an array of challenges, CP14 ended up playing a huge role in helping secure clemency relief for many hundreds of federal prisons.  It would be amazing if this new project can achieve similar successes in a number of states in the months and years ahead.  (For those interested in a review of some recent federal clemency developments, the most recent issue of the Federal Sentencing Reporter has a group of articles curated by Professor Mark Osler looking broadly at Prez Obama's overall clemency initiative.) 

August 21, 2017 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Reviewing recent chapters of the long-running US "war on drugs"

The Guardian has this lengthy new article on federal drug crime policies headlined "How Jeff Sessions and Donald Trump have restarted the war on drugs."  I find the headline frustrating because the federal government never really ended the "war on drugs" so it is misguided to suggest something that never stopped has been restarted.  That lingo notwithstanding, the extended piece provides a useful primer on recent drug war developments during the Obama and Trump era, and here are excerpts:

Barack Obama’s attorney general, Eric Holder, [in 2013] was pushing through a set of “smart on crime” reforms that included directing federal prosecutors to avoid triggering mandatory minimum sentences when dealing with lower-level, nonviolent drug offenders.  For many years research and advocacy groups had opposed mandatory minimum sentences as cripplingly expensive, marked by racial disparities and of dubious value for crime prevention. But the laws were still on the books and the federal prison population continued to grow.

Holder was announcing that federal prosecutors were being instructed to use minimum sentences in fewer, and more serious, cases. Central to this push for change, said America’s first black attorney general, was the evidence that America’s harsh drug enforcement had fallen more heavily on African Americans....

In May [2017], Sessions reversed his predecessor’s initiative, claiming, without evidence, that Holder’s sentencing changes had led to America’s sudden 10.8% increase in murders in 2015.... What is so striking about the move by Sessions and the Trump administration is that it is at odds with much thinking across the globe about the war on drugs, including among leaders in Latin America.  Ever since 2011 when Juan Manuel Santos, as the president of Colombia, declared that the war on drugs had failed, a growing international consensus has been forming on the need for a new conversation to discuss the violence, bloodshed and ruined lives that followed in the wake of the war on drugs – whether in Colombia, Mexico or America.

The change in direction in the US has come at a time when America has been also seeing an increasing number of states liberalizing laws on the consumption and sale of marijuana.  Into this evolving international and national context has stepped Sessions, with a very different approach.  The new attorney general and his initiatives represent a huge setback for advocates who have worked for decades to build bipartisan agreement that America’s war on drugs had been a failure and it was time to reverse the damage....

For decades, reciting law and order slogans has been the path of least resistance for politicians -- and the policymakers who sign such harsh legislation have not been held responsible for its consequences. “I am unaware of any legislator who has gotten into political trouble for codifying a simple-minded slogan or soundbite that pushes up the incarceration rate with no effect on crime,” says Bobby Scott, an African American Democratic congressman from Virginia who has been fighting for a better approach to criminal justice since he was first elected in 1993. “I am aware of many politicians who voted for intelligent, research-based initiatives that reduce crime and save money, and because they’re labeled ‘soft on crime’ they get in political trouble.”

In recent years, driven by the enormous price tag of mass incarceration for taxpayers, reforming America’s criminal justice system has become a bipartisan effort, with the Republican mega-donor Koch brothers and the advocacy group Right on Crime supporting the cause, and conservative states like Texas leading the way on reducing their prison populations.  Rick Perry, the former Texas governor who now serves as Trump’s energy secretary, was one of the many Republicans who signed on to these reforms. “After 40 years of the war on drugs, I can’t change what happened in the past,” he said at the World Economic Forum in 2014. “What I can do as the governor of the second largest state in the nation is to implement policies that start us toward a decriminalization and keeps people from going to prison and destroying their lives, and that’s what we’ve done.”... “

You are never going to win the war on drugs. Drugs won,” Koch Industries executive Mark Holden told reporters in Colorado in June, expressing frustration at Sessions’ return to war on drugs policies and rhetoric. “Illegal drug usage is at the same or higher levels now than it was when we started the war on drugs,” Holden, who leads the Koch criminal justice reform efforts, told the Guardian. “We need to go to a different approach.”

Sessions’ rollback of Holder’s sentencing reforms has been hailed by some law enforcement groups, and the Justice Department has also defended Sessions’ changes by pointing to his backing from people “actually on the front lines dealing with violent criminals on a daily basis”.  Among Sessions’ supporters in law enforcement are the Fraternal Order of Police (the nation’s most prominent police union), the Federal Law Enforcement Officers Association, and the National Association of Assistant US Attorneys, which represents the frontline federal prosecutors whom Holder had tried to rein in.

Larry Leiser, the national association’s president, says that many federal prosecutors believe that tough mandatory minimum sentences are a crucial tool in convincing lower-level drug defendants to cooperate with the government when it’s prosecuting the higher-ups involved with the criminal activity.  “The tools we have [to tackle drugs and violence] are the tools that Congress has created for us, Leiser says. “We’re just trying to hold on to the ones we’ve got.”

“Some organizations and people like to make these drug traffickers the victims. What about the people whose lives they kill and the lives they destroy?” Leiser asks. “We’ve lost our way on this issue; we’ve failed to focus on the victims.”...  Leiser and Patrick O’Carroll, the executive director of the Federal Law Enforcement Officers Association, both say they believe the Obama administration’s modest criminal justice reforms are connected to 2015’s increase in murders. “If you have less drugs in the marketplace, there are less people dying and fighting over the drugs, and you’re going to have less murders,” Leiser says.

August 21, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

August 20, 2017

Eleventh Circuit upholds a 57-year sentence for federal juve offender for non-homicide crimes based in part of possibility of good-time credits

I just came across the interesting opinion handed down late last week by an Eleventh Circuit panel in US v. Mathurin, No. 14-12239 (11th Cir. Aug. 18, 2017) (available here), which rejects an Eighth Amendment challenge (and other challenges) to a 685-month sentence imposed for multiple armed robbery and carjacking crimes committed by the defendant just before he reached age 18.  The underlying facts and the sentencing dynamics in Mathurin are interesting, in part because an older defendant would have gotten a 300-year(!) prison sentence based on many applicable consecutive mandatory-minimum terms that went with the convictions in this case.  The defendant argued that his long prison term was still a functional LWOP term that violated the Supreme Court's Graham Eighth Amendment ruling, and the Eleventh Circuit had a lot of interesting things to say in response.  Here are snippets:

For purposes of this appeal, we will assume that Graham does apply to a non-parolable term-of-years sentence that extends beyond a defendant’s expected life span.  Applying Graham to a term-of-years sentence, however, then gives rise to another question: how does one measure the life expectancy of an individual....  [I]n resolving this case, we do not need to decide whether Defendant’s granular approach to calculating life expectancy should carry the day for purposes of a Graham analysis because even assuming the accuracy of his proffered lower life expectancy for black males in their mid-twenties, as opposed to the life expectancy of all males in their mid-twenties, we conclude that Defendant’s Graham challenge fails....

[A]lthough there is no parole for federal sentences, Defendant has it within his power to shorten his sentence by earning good-time credit. Pursuant to 18 U.S.C. § 3624, Defendant can earn up to 54 days of credit towards his sentence for each year he serves in prison, “subject to determination by the Bureau of Prisons that, during that year, [he] has displayed exemplary compliance with institutional disciplinary regulations.” 18 U.S.C. § 3624(b)(1). The Government has calculated that if Defendant earns the maximum good-time credit available, Defendant can reduce his total sentence by over 7 years and be released when he is 67 years old.  Defendant has never disputed this calculation. Earning this credit means that Defendant would serve a remaining sentence of about 43.4 years, which is more than five years shorter than his own proffered life span for black males and almost ten years shorter than the projected life span for all males his age.  Thus, Defendant’s sentence provides him with a realistic opportunity to obtain release before the end of his life, as required by Graham.

It is true that Defendant may not receive all of the above good-time credit if he misbehaves and thereby forfeits some of that credit.  But it is totally within Defendant’s own power to shorten the sentence imposed.  Graham does not require that a sentence “guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.” Graham, 560 U.S. at 75.  It just requires that the offender have a chance to show that he has earned the right to be given a second chance at liberty.

August 20, 2017 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (25)

A late-summer review of some marijuana reform news and notes

In this post about a month ago, I set out a midsummer review of posts from Marijuana Law, Policy & Reform.  A month later, I figure it is a good time to provide a late-summer review via this abridged set of links to some MLP&R postings: 

August 20, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Is it important to have laws barring sex offenders from living anywhere near their victims?

The question in the title of this post is prompted by this new AP piece headlined "Sex offenders can live next door to victims in many states." Here are excerpts:

A convicted sex offender who molested his niece when she was 7 years old moved in next door to his victim nearly a dozen years after he was sent to prison for the crime. Outraged, the Oklahoma woman, now 21, called lawmakers, the police and advocacy groups to plead with them to take action.  Danyelle Dyer soon discovered that what Harold Dwayne English did in June is perfectly legal in the state — as well as in 44 others that don't specifically bar sex offenders from living near their victims, according to the National Conference of State Legislatures.

"I always felt safe in my home, but it made me feel like I couldn't go home, I couldn't have my safe space anymore," Dyer told The Associated Press, which typically doesn't identify victims of sexual assault, but is doing so in Dyer's case because she agreed to allow her named to be used in hopes of drawing attention to the issue.  "He would mow in between our houses.  Him moving in brought back a lot of those feelings."

Advocacy groups say the Oklahoma case appears to be among the first in the U.S. where a sex offender has exploited the loophole, which helps explain why dozens of other states have unknowingly allowed it to exist. "This is something that I would dare say was never envisioned would happen," said Richard Barajas, a retired Texas judge and executive director of the nonprofit National Organization for Victim Assistance.  "In all the years that I've been involved with the criminal justice system, I've never seen a case like this."

Alabama, Arkansas, Indiana, Tennessee and West Virginia have laws dictating how far away sex offenders must stay from their victims — 1,000 feet in Tennessee, for example, and 2,000 feet in Arkansas. Other states haven't addressed the issue, though like Oklahoma they have laws prohibiting sex offenders from living within a certain distance of a church, school, day care, park or other facility where children are present.

"You assume it can't happen and then realize there is no provision preventing it from happening," said one Oklahoma prosecutor, Rogers County District Attorney Matt Ballard, whose agency is responsible for keeping tabs on sex offenders in his area. "To have even the possibility of an offender living next to the victim is extremely troubling."

Arkansas passed its provision in 2007. State Sen. Jeremy Hutchinson, a former prosecutor, said lawmakers drafted the provision out of "common sense," not as a response to a situation like Dyer's. But Barajas, whose group discussed the loophole with attendees at its annual training event this past week, said support for such laws typically gain traction "when someone who was impacted steps up," like Dyer. "Legislation is never created in a vacuum," he said.

Oklahoma lawmakers have now drafted legislation to close the loophole, using Dyer as their champion.  "Of the 70,000 square miles in Oklahoma, this individual happened to choose a place next door to the victim," said state Rep. Kyle Hilbert, who represents Dyer's mostly rural district and is sponsoring the legislation....

Advocacy groups said most legislatures across the U.S. would be able to close the loophole in their laws relatively easily, and said such measures typically receive strong backing from victims, clergy, parents and police.  "I don't see any legal reason why those statutes cannot be amended to ensure that the actual victims are protected; it's no different than prohibiting sex offenders from living 1,000 feet from a church or school," Barajas said. "It's not that the legislation (already on the books) is anti-victim, it's just that we have lacked the voice. We certainly have a megaphone, but when you talk about victims of (sexual abuse), you can't have a megaphone big enough."

Dyer, who is attending the University of Central Oklahoma in the Oklahoma City suburb of Edmond, said she hopes her story will help other victims who may think they're trapped in similar situations. "I think a lot of people feel like they are alone and that nobody cares," Dyer said. "The biggest thing is that they're not alone."

I fully understand the desire and need to protect victims from those who criminally victimized them, not only in sex offense cases but also in other settings.  But if the problem highlighted in this article is rare, I would urge legislatures to be cautious before passing broad new laws that would impact a broad swath of offenders.  With research suggesting that broad sex offender residency restrictions may be doing much more harm than good, I worry about one disconcerting case prompting states to embrace more broad collateral consequences that could create some unexpected consequences.

August 20, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (14)

"Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence"

The title of this post is the title of this paper recently posted to SSRN authored by Mirko Bagaric and Sandeep Gopalan. Here is the abstract:

Justice Scalia is renowned for his conservative stance on the Eighth Amendment and prisoners’ rights Justice Scalia held that the Eighth Amendment incorporates no proportionality requirement of any nature regarding the type and duration of punishment, which the state can inflict on criminal offenders.  Justice Scalia has also been labelled as “one of the Justices least likely to support a prisoner’s legal claim,” and as adopting, because of his originalist orientation, “a restrictive view of the existence of prisoners’ rights.”  The criticism of Justice Scalia’s approach to the Eighth Amendment, so far as it relates to the harshness of criminal sanctions, is wide-ranging and sometimes verging on the disparaging. The overwhelming weight of prevailing sentiment is that Justice Scalia was a foe of Criminal Law and Procedure to the extent that this is associated with a moderate or lenient approach to the punishment of offenders.  A closer examination of the seminal judgments in these areas and the jurisprudential nature of the principle of proportionality and rights (including prisoners’ rights) arguably put this characterization in a different light.  While Justice Scalia may have resisted a move to less harsh sentencing and expansive rights to prisoners, there is an underlying coherence to some of his key decisions that is underpinned by the provisions he was applying and, even more so, the logical and normative contents or vagueness of the concepts under consideration.

August 20, 2017 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)