December 23, 2017
Making a space, yet again, for the airing of sentencing grievances this Festivus
Senator Rand Paul, as is his modern tradition, is using Twitter today to air Festivus grievances for all sorts. My personal favorite is this one, which laments that an "octogenarian Mormon has better pot jokes than" he does. But one of my grievances is that Senator Paul has not been quite so vocal an advocate for sentencing reforms in recent years, although he set the bar so high back in 2013 (even on Festivus) that I probably should not have expected him to keep at it so aggressively. (Also, I wonder if having been the victim of a mysterious violent crime at the hand of his neighbor has impacted his thinking on some criminal justice issues.)
As I did here in this space a few years ago, I readily could rattle off a wide range of sentencing grievances against a wide range of persons. But both Festivus and life are too short (and my family and friends too lovely and my stack of exams to grade too large) to justify spending too much time on grievances today. But I always welcome, and benefit from, hearing others air their sentencing grievances; I welcome folks to do just that in the comments here.
December 22, 2017
Reviewing the "hope and skepticism" engendered by Prez Trump's Rubashkin commutation
As reported in this prior post, Prez Trump made some minor modern clemency history by commuting the 27-year prison sentence of Sholom Rubashkin. This NBC News piece, headlined "Trump’s first commutation met with hope and skepticism," provides some context and commentary on this decision:
After President Donald Trump commuted the 27-year sentence of Sholom Rubashkin, a former kosher meatpacking plant CEO convicted of financial fraud, prison reform advocates on Thursday immediately perked up.
Trump, they said, did something not even President Barack Obama — a strong proponent for reform — had done: commuted a sentence during his first year in office. It wasn't until 2011 when Obama — three years into his first term — commuted the sentence of a federal prisoner, although he had pardoned nine people a year before.
"I'm extremely excited about this and am very optimistic that Trump is going to surprise people," said Amy Povah, the founder of CAN-DO, a nonprofit that advocates clemency for federal prisoners convicted of drug crimes. "I communicate with a lot of prisoners, and I guarantee you they woke up to renewed hope."
Still, the number of commutations that could roll out under the Trump administration remains unknown. With so much at stake, some fighting for criminal justice reform are asking whether the Rubashkin case is a precursor of things to come — or just a rare one-off. Neither the White House nor the Justice Department immediately responded to requests for comment Thursday....
Rubashkin had the support of both Democrats and Republicans in Washington for his commutation. Notably, a push for the Obama administration to take action fell on deaf ears. That was even as Obama moved swiftly later in his final term to begin commuting sentences. Obama granted clemency to 1,715 federal prisoners — more than any other U.S. president in history. The vast majority had been sentenced under mandatory minimum laws that were enacted in the 1980s and ’90s to address the scourge of drugs....
Kevin Ring, the president of Families Against Mandatory Minimums, said he's concerned that the bar might be set too high for inmates seeking commutations — given that Rubashkin's case was high-profile enough to attract the interest of lawmakers, including House Minority Leader Nancy Pelosi, D-Calif., and Sen. Orrin Hatch, R-Utah. He also questioned if certain types of prisoners — those not associated with white-collar crimes like Rubashkin — would benefit from clemency. "Most are just families who don't wield any political influence," Ring said.....
In recent days, House Speaker Paul Ryan, R-Wis., has suggested Congress could tackle criminal justice reform in the next year. That's important to Holly Harris, the executive director of the U.S. Justice Action Network, a lobbying group with advocates from the left and right.
She said a bipartisan bill in the House, the Prison Reform and Redemption Act, which would allow certain prisoners to serve the end of their sentences in halfway homes or home confinement, could be a catalyst in overhauling the system. "Voters are very well educated and realize that one-size sentencing doesn't work," Harris said. "The president of the United States has sent a really positive signal" with the release of Rubashkin.
While Trump ran as the "law and order" candidate, his lack of specifics on the criminal justice issue, apart from how it relates to immigration and national security, could end up going beyond what Obama started and result in sweeping change, Povah added. "We know that he's an outsider, and I don't think he always necessarily cares what's conventional," she said. "So I kind of hope that that can benefit people."
Recent related post:
Noting executions uncompleted in 2017
This recent Houston Chronicle story, headlined "71 percent of scheduled executions not carried out in 2017," provides another perspective on US execution data for the year winding down. Here are some details:
Nearly three out of four death dates scheduled nationwide in 2017 were cancelled, after courts and governors intervened in 58 executions across the country. That's one of the striking takeaways from a pair of end-of-year reports that offer sweeping overviews of capital punishment in 2017.
The broader trends offer no surprises: executions are down, but Texas is still the nation's killingest state. Nearly a third of the year's 23 executions took place in Texas....
"The process is better than it was a decade ago," said Robert Dunham of DPIC. "And there were some potentially wrongful executions that resulted in stays this year that would have resulted in executions a decade ago, but there are still significant and troubling failures."
Ohio and Texas both contributed significantly to the number of cancelled executions, Dunham said. The Lone Star state saw nine prisoners' execution dates called off this year, many due to claims of false or misleading testimony or forensic evidence. San Antonio death row inmate Juan Castillo had three dates called off, including one delayed due to Hurricane Harvey and another cancelled in light of claims that his conviction was based on false testimony.
Prior recent related post:
- DPIC releases 2017 year-end report noting "second lowest" executions and death sentences in a quarter century
December 21, 2017
"Even Imperfect Algorithms Can Improve the Criminal Justice System"
The title of this post is the headline of this recent New York Times commentary authored by Sam Corbett-Davies, Sharad Goel and Sandra González-Bailón. Here are excerpts:
In courtrooms across the country, judges turn to computer algorithms when deciding whether defendants awaiting trial must pay bail or can be released without payment. The increasing use of such algorithms has prompted warnings about the dangers of artificial intelligence. But research shows that algorithms are powerful tools for combating the capricious and biased nature of human decisions.
Bail decisions have traditionally been made by judges relying on intuition and personal preference, in a hasty process that often lasts just a few minutes. In New York City, the strictest judges are more than twice as likely to demand bail as the most lenient ones.
To combat such arbitrariness, judges in some cities now receive algorithmically generated scores that rate a defendant’s risk of skipping trial or committing a violent crime if released. Judges are free to exercise discretion, but algorithms bring a measure of consistency and evenhandedness to the process.
The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety. In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime. New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.
Algorithms have also proved useful in informing sentencing decisions. In an experiment in Philadelphia in 2008, an algorithm was used to identify probationers and parolees at low risk of future violence. The study found that officers could decrease their supervision of these low-risk individuals — and reduce the burdens imposed on them — without increasing rates of re-offense.
Studies like these illustrate how data and statistics can help overcome the limits of intuitive human judgments, which can suffer from inconsistency, implicit bias and even outright prejudice.
Algorithms, of course, are designed by humans, and some people fear that algorithms simply amplify the biases of those who develop them and the biases buried deep in the data on which they are built. The reality is more complicated. Poorly designed algorithms can indeed exacerbate historical inequalities, but well-designed algorithms can mitigate pernicious problems with unaided human decisions. Often the worries about algorithms are unfounded...
Still, like humans, algorithms can be imperfect arbiters of risk, and policymakers should be aware of two important ways in which biased data can corrupt statistical judgments. First, measurement matters. Being arrested for an offense is not the same as committing that offense. Black Americans are much more likely than whites to be arrested on marijuana possession charges despite using the drug at similar rates. As a result, any algorithm designed to estimate risk of drug arrest (rather than drug use) would yield biased assessments. Recognizing this problem, many jurisdictions — though not all — have decided to focus on a defendant’s likelihood of being arrested in connection with a violent crime, in part because arrests for violence appear less likely to suffer from racial bias....
The second way in which bias can enter the data is through risk factors that are not equally predictive across groups. For example, relative to men with similar criminal histories, women are significantly less likely to commit future violent acts. Consequently, algorithms that inappropriately combine data for all defendants overstate the recidivism risk for women, which can lead to unjustly harsh detention decisions. Experts have developed gender-specific risk models in response, though not all jurisdictions use them. That choice to ignore best statistical practices creates a fairness problem, but one rooted in poor policy rather than the use of algorithms more generally.
Despite these challenges, research shows that algorithms are important tools for reforming our criminal justice system. Yes, algorithms must be carefully applied and regularly tested to confirm that they perform as intended. Some popular algorithms are proprietary and opaque, stymieing independent evaluation and sowing mistrust. Likewise, not all algorithms are equally well constructed, leaving plenty of room for improvement. Algorithms are not a panacea for past and present discrimination. Nor are they a substitute for sound policy, which demands inherently human, not algorithmic, choices. But well-designed algorithms can counter the biases and inconsistencies of unaided human judgments and help ensure equitable outcomes for all.
December 20, 2017
"President Trump Commutes Sentence of Sholom Rubashkin"!?!?!
The title of this post is the headline of this press release from the White House this evening. Here are the details:
Today, President Donald J. Trump commuted the prison sentence of Sholom Rubashkin, an action encouraged by bipartisan leaders from across the political spectrum, from Nancy Pelosi to Orrin Hatch.
Mr. Rubashkin is a 57-year-old father of 10 children. He previously ran the Iowa headquarters of a family business that was the country’s largest kosher meat-processing company. In 2009, he was convicted of bank fraud and sentenced thereafter to 27 years in prison. Mr. Rubashkin has now served more than 8 years of that sentence, which many have called excessive in light of its disparity with sentences imposed for similar crimes.
This action is not a Presidential pardon. It does not vacate Mr. Rubashkin’s conviction, and it leaves in place a term of supervised release and a substantial restitution obligation, which were also part of Mr. Rubashkin’s sentence.
The President’s review of Mr. Rubashkin’s case and commutation decision were based on expressions of support from Members of Congress and a broad cross-section of the legal community. A bipartisan group of more than 100 former high-ranking and distinguished Department of Justice (DOJ) officials, prosecutors, judges, and legal scholars have expressed concerns about the evidentiary proceedings in Mr. Rubashkin’s case and the severity of his sentence. Additionally, more than 30 current Members of Congress have written letters expressing support for review of Mr. Rubashkin’s case.
Because I have some personal history working on this case, I am not inclined to comment at great length beyond wanting to here praise President Trump for bringing some (non-political?) attention to his historic clemency powers through this grant. I also will link to some prior posts about this long-controversial case.
Some of many prior posts on the Rubashkin case:
- "More Former AGs Question Sentence Sought in Bank Fraud Case"
- Can and should religious considerations influence bail decisions?
- Federal sentencing hearing starting in high-profile Rubashkin white-collar case
- Federal prosecutors now seeking 25-year prison term for Rubashkin
- Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
- An appellate amicus brief in the Rubashkin case on sentencing issues
- Eighth Circuit panel unanimously affirms Rubashkin federal convictions and lengthy prison sentence
- Rubashkin appeal raising more questions about high-profile federal fraud case
- "High court should hear Rubashkin to consider overzealous DOJ and judge who was essentially on prosecution team"
- Former Deputy AG Phil Heymann makes full-throated pitch for Justice Department to address Rubashkin case
Lamenting that the "law descends into a ghoulish inferno" as it contemplates the execution of a condemned Alabama murderer
LawProf Bernard Harcourt has this lengthy new op-ed in the New York Times under the headline "The Ghoulish Pursuit of Executing a Terminally Ill Inmate." Both the substance and style of the commentary is compelling, and here are excerpts:
When judges schedule a lethal injection for a terminally ill prisoner whose struggle against lymphatic cancer and extensive medical history has left him without any easily accessible veins, our law descends into a ghoulish inferno. It is a dreadful place where our most august jurists ruminate over catheter gauges and needle sizes, and ponder whether to slice deep into the groin or puncture internal jugular veins. History will not judge us favorably.
Last week, only a few hours after the stunning electoral victory of a Democratic candidate in the Alabama senatorial race, the justices of the Alabama Supreme Court signed a death warrant in the case of a 60-year-old man who has been languishing on death row for 30 years and fighting cranial cancer since 2014.
I had barely managed to absorb the news from Alabama’s election when I got the call at noon the next day. I recognized the Alabama area code but thought it was a reporter seeking a comment on the election. Instead, a clerk from the Alabama Supreme Court dryly notified me that the justices had just set an execution date for my longtime client, Doyle Lee Hamm.
Mr. Hamm has been on Alabama’s death row since 1987, after being convicted of murdering a motel clerk, Patrick Cunningham, during a robbery. For over three years now, he has been battling a fierce lymphatic and cranial cancer. In February 2014, Mr. Hamm was found to have a large malignant tumor behind his left eye, filling the socket where the nerves from his brain went into his eye. The doctors found B-cell lymphoma, a type of blood cancer of the lymph nodes, with a large mass protruding through the holes of his skull. They also discovered “numerous abnormal lymph nodes” in the abdomen, lungs and chest....
His medical treatment and history has left him without any usable peripheral veins. Back in late September, an anesthesiologist from Columbia University Medical Center, Dr. Mark Heath, conducted an extensive physical examination to determine whether there were any veins suitable to deliver a lethal injection. Dr. Heath found no usable veins. He also found that Mr. Doyle’s lymphatic cancer was likely to interfere with any attempt to utilize his central veins. In Dr. Heath’s expert opinion, “the state is not equipped to achieve venous access in Mr. Hamm’s case.”
Yet, without even addressing the risks associated with attempting venous access for a man who will be 61 years old with no usable veins in his arms or legs, the justices of the Alabama Supreme Court set an execution date. Some other judges — perhaps on the federal bench — now will have to deal with the bloody mess. And a bloody mess it would be.
Those other judges will have to pore over medical reports and sonograms — as a federal judge did in the case of David Nelson, another Alabama death row inmate, in 2006, before he died of cancer — to decide whether they can insert an 18-gauge catheter into Mr. Hamm’s femoral vein in his groin, or scalpel him open to find a subclavian vein, or poke around his neck to find his internal jugular vein; whether the thickness of the catheter would preclude pricking a vein in his hand where a butterfly needle can no longer enter; and how to navigate around malignant lymph nodes while trying to achieve percutaneous access to his central veins....
This is justice today. Court opinions filled with ghastly details about how we prick and poke, and slice and cut, and poison other human beings. Opinions that, someday soon, we will look back on with embarrassment and horror. Our justice is so engrossed with how we kill that it does not even stop to question the humanity of executing a frail, terminally ill prisoner.
In Doyle Hamm’s case, the lack of peripheral veins and lymphatic inflammations create the unconstitutional risk of a cruel and unnecessarily painful execution. But the constitutional violation is only half of it. It is justice itself that is in peril.
You may recall the machine that Franz Kafka brilliantly described in the haunting pages of “The Penal Colony.” That machine tattooed the penal sentence on the condemned man’s body, over hours and hours, before sucking the life out of him. Our machinery of death today makes Kafka’s imaginative machine seem almost quaint. Ours not only tattoos the condemned man’s body with needles and scalpels but also irremediably taints our justice for years to come.
Stories like these continue to reinforce my belief that states seriously interested in continuing with the death penalty ought to be seriously involved in exploring execution alternatives to lethal injection.
Meanwhile for more background on this particular lawyer's work to prevent his client from being executed, one should check out this New Yorker post headlined, "The Decades-Long Defense of an Alabama Death-Row Prisoner Enters a Final Phase."
"Three ways conservatives can lead criminal justice reform"
As head of a conservative think tank dedicated to principles of limited government and constitutional liberties, I find two things increasingly obvious: Our criminal justice system is in dire need of comprehensive reform, and that effort is being led not by bureaucrats in Washington but by policymakers and leaders in the states. I look around the country and see great strides by states like Georgia, Oklahoma, Texas and Louisiana. I see policymakers in my home state of Florida starting to join the movement, and I want to get excited at the possibilities for real culture-changing efforts.
The reforms these states have passed will ultimately accomplish two things: They will improve public safety and will save millions of taxpayer dollars. Nevertheless, the road forward is anything but a clear or easy journey.
In our organization’s research of policy initiatives, a particular statistic disappoints me more than all others: our nation’s incarceration rate. According to data from the International Center for Prison Studies, the United States currently incarcerates approximately 737 people per 100,000 citizens, counting both adults and juveniles. This puts us right at the top of the list -- more than Iran, more than Russia, more than Rwanda. We owe it to ourselves to ask why this is the case and how we can correct course....
Drug and non-violent offenses have created a revolving door in our jails and prisons, both at the state and federal levels. It’s estimated that as many as one-fourth to one-third of our inmates are in prison for drug-related offenses. Many are there because of oppressive sentencing rules that have eliminated the proper role of judges and created an incarceration-industrial complex trapping far too many families in a cycle of prison, poverty and despair. Consequently, we have seen our prisons jam-packed with hundreds of thousands of offenders who have the potential to be rehabilitated but who end up sliding further down the path of crime and punishment....
There are three specific actions that can and should be championed at the state level to continue the progress conservatives have made in addressing criminal justice policy reform:
1. Restore the role of judges in the system. For far too long, judicial discretion in sentencing has been eroded, the unfortunate result of well-intentioned conservatives over many years.
2. Begin to address the distinction between those trafficking in narcotics as a criminal enterprise and those individuals selling smaller amounts of drugs to feed their addiction. We want to lock up the bad guys feeding poison to our children, but we should be able to distinguish between those hardened criminals and addicts needing treatment.
3. Reaffirm the need for substance abuse and mental health approaches in the justice system. The cost for drug crimes is a sliding scale over time. As individuals reoffend and continue the cycle, the long-term costs of incarceration, safety net use, and lower employability far outweigh the short-term investment in treatment and rehabilitation.
This trio of actions is just a small piece of a very broad conservative policy reform agenda that states must champion. As we seek to promote conservative principles and at the same time address the challenges impacting our society from scourges like addiction, it is my hope that states can be the shining example of how to lead the way forward.
December 20, 2017 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)
Brennan Center provides its latest encouraging accounting of crime in 2017
Ames Grawert and James Cullen at The Brennan Center has authored this new report titled "Crime in 2017: Updated Analysis." Here is how it gets started:
In September, the Brennan Center analyzed available crime data from the nation’s 30 largest cities, estimating that these cities would see a slight decline in all measures of crime in 2017. The report, Crime in 2017: A Preliminary Analysis, concluded by noting that “these findings directly undercut any claim that the nation is experiencing a crime wave.”
That statement holds true in this analysis, which updates the September report with more recent data and finds that murder rates in major American cities are estimated to decline slightly through the end of 2017. Murder rates in some cities remain above 2015 levels, however, demonstrating a need for evidence-based solutions to violent crime in these areas.
Updated Tables 1 and 2 show conclusions similar to the initial report, with slightly different percentages:
• The overall crime rate in the 30 largest cities in 2017 is estimated to decline slightly from the previous year, falling by 2.7 percent. If this trend holds, crime rates will remain near historic lows.
• The violent crime rate will also decrease slightly, by 1.1 percent, essentially remaining stable. Violent crime remains near the bottom of the nation’s 30-year downward trend.
• The 2017 murder rate in the 30 largest cities is estimated to decline by 5.6 percent. Large decreases this year in Chicago and Detroit, as well as small decreases in other cities, contributed to this decline. The murder rate in Chicago — which increased significantly in 2015 and 2016 — is projected to decline by 11.9 percent in 2017. It remains 62.4 percent above 2014 levels. The murder rate in Detroit is estimated to fall by 9.8 percent. New York City’s murder rate will also decline again, to 3.3 killings per 100,000 people.
• Some cities are projected to see their murder rates rise, including Charlotte (54.6 percent) and Baltimore (11.3 percent). These increases suggest a need to better understand how and why murder is increasing in some cities.
Like all data, especially crime data, these numbers can and likely will get spun in any number of ways. The start of this report reveals that some will point to these data to accuse AG Jeff Sessions and others of being fear-mongers when talking about a scary new crime trend. But AG Sessions can (and I suspect will) say that any significant 2017 crime declines should be credited to criminal justice policy shifts he and others in the Trump Administration have made this year. AG Sessions and others also can (and I suspect will) assert that 2017 crime rates are still significantly higher than the historic lows reached a few years ago and that we should aspire to have them be lower still.
These dynamics help account for why tough-on-crime thinking and messaging persist: when crime starts going up, claiming we need to get tougher resonates; when crime starts going down, claims about the benefits of toughness resonate. Though many in both political parties and many members of the public are coming to embrace "smart on crime" ideas, nobody should lose sight of the (inevitable?) appeal of tough-on-crime mantras.
December 19, 2017
Notably lenient Nebraska sex offense sentence reversed based on notably questionable judicial comments
This local press report, headlined "Sentence of probation in Nebraska sexual assault case overturned; judge called 12-year-old girl the 'aggressor'," reports on an interesting state appellate court sentencing reversal. Here are the basic details:
The Nebraska Court of Appeals has overturned a Kearney judge’s decision to put a man on probation for a felony sexual assault conviction. In its ruling issued Tuesday morning, the Court of Appeals said Buffalo County District Judge Bill Wright considered forbidden and irrelevant factors when he decided to place Taylor Welty-Hackett on probation.
In February, Wright placed Welty-Hackett on four years of intensive supervised probation for attempted felony first-degree sexual assault of a 12-year-old girl on Aug. 1, 2015, in Kearney. The charge was punishable by up to 20 years in prison.
The Court of Appeals ordered Welty-Hackett’s case be sent back to Buffalo County, where he will be resentenced by a different judge. A hearing date hasn’t been set. Buffalo County Attorney Shawn Eatherton had argued that Welty-Hackett’s sentence was too lenient. During the Feb. 23 sentencing hearing, Wright called Welty-Hackett’s victim the "aggressor" in the case saying, “She made the advances.”
Wright also went on to tell Welty-Hackett that he “screwed up big time, but I’ve got to find some way of bringing balance back into the system, given the nature of what’s been occurring in this community.”
The Court of Appeals said Wright’s statement about the promiscuity of teenage girls and the need to bring “balance” into sentencing sexual offenders went beyond consideration of the facts in the case. “If the sentencing judge (Wright) went awry in this case, it was only in failing to provide a more detailed explanation on the record of the multiple factors in the PSI (pre-sentence investigation report) which clearly justified the probationary sentences. ... Such failure caused the trial judge’s brief mention of the defendant’s small stature to become the focus of attention, when in reality it was but a minor point,” the Court of Appeals ruled.
The full opinion in Nebraska v. Welty-Hackett, No. A-17-239 (Neb. Ct. App. Dec. 19, 2017) (available here), makes for an interesting read. Here are some of its concluding paragraphs:
Unlike in State v. Thompson, the sentencing judge’s comments in this case were more than just a “brief mention” of factors not relevant to imposing sentence. The court’s discussion of the general promiscuity of teenage girls and the need to bring balance into the system was fairly substantial. Further, the comments had nothing to do with this particular defendant, in contrast to State v. Thompson. We recognize that the trial judge in this case indicated he had reviewed the PSR before the sentencing hearing. While the information contained in the PSR may well have supported the probationary sentence imposed, we cannot determine from the judge’s comments at sentencing how much weight was given to the permissible and relevant sentencing factors compared to the impermissible and irrelevant factors. We note, however, the court’s final comments before imposing sentence that Welty was getting the benefit of the court’s desire to “find some way of bringing some balance back into the system, given the nature of what’s been occurring in this community.”
Because it appears that the trial court’s reliance upon the impermissible and irrelevant sentence factors largely influenced his decision to impose probation, we find it necessary to vacate the sentence imposed and remand for resentencing before a different judge.
"The Unconstitutionality of Criminal Jury Selection"
The title of this post is the title of this notable new paper authored by Brittany Deitch and available via SSRN. Though focused on jury rights rather than sentencing, the ideas here might be especially significant and impactful in jury sentencing arenas (both capital and non-capital). Here is the abstract:
The criminal defendant’s right to a jury trial is enshrined within the U.S. Constitution as a protection for the defendant against arbitrary and harsh convictions and punishments. The jury trial has been praised throughout U.S. history for allowing the community to democratically participate in the criminal justice system and for insulating criminal defendants from government oppression. This Article asks whether the jury selection process is consistent with the defendant-protection justification for the Sixth Amendment right to a trial by jury. Currently, the prosecution and defense share equal control over jury selection. Looking to the literal text of the Sixth Amendment, the landmark case on the right to a jury trial, and the Federal Rules of Criminal Procedure for guidance, this Article explains that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial. Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power. After concluding that symmetrical power in jury selection undermines the constitutional purpose of the jury trial, this Article proposes two possible remedies.
Notable account of notable application of death penalty in China
This article from The Guardian, headlined "Thousands in China watch as 10 people sentenced to death in sport stadium," highlights that criminal procedure and drug enforcement in another large nation can look a lot different than they do in the United States. Here are the details:
A court in China has sentenced 10 people to death, mostly for drug-related crimes, in front of thousands of onlookers before taking them away for execution.
The 10 people were executed immediately after the sentencing in Lufeng in southern Guangdong province, just 160km (100 miles) from Hong Kong, according to state-run media. Seven of the 10 executed were convicted of drug-related crimes, while others were found guilty of murder and robbery.
Four days before the event, local residents were invited to attend the sentencing in an official notice circulated on social media. The accused were brought to the stadium on the back of police trucks with their sirens blaring, each person flanked by four officers wearing sunglasses.
They were brought one by one to a small platform set up on what is usually a running track to have their sentences read, according to video of the trial. Thousands watched the spectacle, with some reports saying students in their school uniforms attended. People stood on their seats while others crowded onto the centre of the field, some with their mobile phones raised to record the event, others chatting or smoking.
China executes more people every year than the rest of the world combined, although the exact figure is not published and considered a state secret. Last year the country carried out about 2,000 death sentences, according to estimates by the Dui Hua Foundation, a human rights NGO based in the United States. China maintains the death penalty for a host of non-violent offences, such as drug trafficking and economic crimes.
However, public trials in China are rare. The country’s justice system notoriously favours prosecutors and Chinese courts have a 99.9% conviction rate. The trend to reintroduce open-air sentencing trials is reminiscent of the early days of the People’s Republic, when capitalists and landowners were publicly denounced.
The most recent public sentencing and subsequent executions were not a first for Lufeng. Eight people were sentenced to death for drug crimes and summarily executed five months ago in a similar public trial, according to state media.
The town was the site of a large drug bust in 2014, when 3,000 police descended on Lufeng and arrested 182 people. Police confiscated three tonnes of crystal meth, and authorities at the time said the area was responsible for producing a third of China’s meth.
December 18, 2017
Remarkable Utah Supreme Court opinions debating due process rights (and originalism) in parole decision-making
Via a colleague's tweet, I just learned about a remarkable sent of opinions handed down late last week by the Utah Supreme Court in Neese v. Utah Board of Pardons & Parole, 2017 UT 89 (Utah Dec. 14, 2017) (available here). The start of the majority opinion in Neese provides just a hint on the remarkable 40+ page discussion that follows:
Michael Neese, a Utah prison inmate, has never been convicted of a sex offense, subjected to prison discipline for sexual misconduct, or otherwise adjudicated a sexual offender. Yet the Board of Pardons and Parole (Parole Board) has denied him an original release date for parole largely based on its determination that he’s a sex offender and his refusal to participate in sex offender treatment. Applying the principles we articulated in Labrum v. Utah State Board of Pardons, 870 P.2d 902 (Utah 1993), we hold today that the district court erred in granting summary judgment to the Parole Board on the question of whether it violated Mr. Neese’s due process rights under article I, section 7 of the Utah Constitution. Before the Parole Board may take the refusal of inmates in Mr. Neese’s shoes to participate in sex offender treatment into consideration in deciding whether to grant them parole, it owes them (1) timely, particularized written notice that allegations they committed unconvicted sexual offenses will be decided; (2) the opportunity to call witnesses; and (3) a written decision adequately explaining its basis for determining that they’re sex offenders and asking them to participate in sex offender treatment.
Much of the discussion of the majority opinion is in response to the claims of the lone dissent authored by Associate Chief Justice Thomas Lee, which gets started this way:
I share some of the majority’s concerns about the fairness of the procedures afforded to Neese by the Parole Board. The Board’s refusal to allow Neese to call and question his accuser made it difficult for him to persuasively refute the sex-offense charge against him. And without a persuasive means of rebuttal, Neese is likely to face substantially more prison time than most other inmates serving time for his crime of conviction (obstruction of justice). He would also serve that time without a trial-like adjudication of the sex-offense charge in question.
For these and other reasons I might endorse the procedures set forth in the majority opinion if I were in a position to make policy in this field — to promulgate administrative rules governing the Parole Board. I hedge—saying only that I might—because I am certain that my understanding of the Board’s decisionmaking process is incomplete. And I frame this conclusion in the subjunctive — speaking of what I might do if I were in a position to promulgate rules for the Board — to underscore the limited scope of our authority in a case like this one. In deciding this case we are deciding only on the demands of the Utah constitution. We are not deciding what set of procedural rules strike us as ideal under these circumstances.
The line between those two concepts is too often blurred in modern judicial thinking. And the blurriness is perhaps at its height when we speak of the requirements of “due process.” Here, perhaps more than in other constitutional fields, it is tempting to think of the constitutional requirement of due process as a general charter for assuring a vague ideal of fairness — an ideal that will ebb and flow or evolve over time. But that is not what is enshrined in the due process clause. “[T]he Due Process Clause is not a free-wheeling constitutional license for courts to assure fairness on a case-by-case basis.” In re Discipline of Steffensen, 2016 UT 18, ¶ 7, 373 P.3d 186. “[I]t is a constitutional standard” with a specific, if somewhat flexible, meaning. Id.
I hope to find some time to read and comment on these remarkable opinions in the days ahead, and in the meantime I welcome reader perspectives on the philosophies and particulars reflected in this case.
"The Myth of the Playground Pusher: In Tennessee and around the country, 'drug-free school zones' are little more than excuses for harsher drug sentencing."
The title of this post is the headline of this extended article authored by C.J. Ciaramella and Lauren Krisai published in the January 2018 issue of Reason magazine. The full article merits a full read, and here is just a snippet of the important work in this piece:
Drug-free school zone laws are rarely if ever used to prosecute sales of drugs to minors. Such cases are largely a figment of our popular imagination — a lingering hangover from the drug war hysteria of the 1980s. Yet state legislatures have made the designated zones both larger and more numerous, to the point where they can blanket whole towns. In the process, they have turned minor drug offenses into lengthy prison sentences almost anywhere they occur.
In some cases, police have set up controlled drug buys inside school zones to secure harsher sentences. That gives prosecutors immense leverage to squeeze plea deals out of defendants with the threat of long mandatory minimum sentences.
In recent years, this approach has begun to trouble some state lawmakers, and even some prosecutors are growing uncomfortable with the enormous power — and in some cases, the obligation — they have been handed to lock away minor drug offenders. Nashville District Attorney Glenn Funk ran for office in 2014 on a platform that included not prosecuting school zone violations except in cases that actually involve children. He says almost every single drug case referred to his office falls within a drug-free zone.
He's right. Data obtained from the Tennessee government show there are 8,544 separate drug-free school zones covering roughly 5.5 percent of the state's total land area. Within cities, however, the figures are much higher. More than 27 percent in Nashville and more than 38 percent in Memphis are covered by such zones. They apply day and night, whether or not children are present, and it's often impossible to know you're in one.
For a drug offender charged with possession of under half a gram of cocaine with intent to distribute, a few hundred feet can mean the difference between probation vs. eight years of hard time behind bars. "In places like Nashville, almost the entire city is a drug-free zone," Funk says. "Every church has day care, and they are a part of drug-free zones. Also, public parks and seven or eight other places are included in this classification. And almost everybody who has driven a car has driven through a school zone. What we had essentially done, unwittingly, was increased drug penalties to equal murder penalties without having any real basis for protecting kids while they're in school."...
States created drug-free school zones thinking that the threat of draconian prison sentences would keep dealers away from schools. But the very size of these zones undercuts that premise. If a whole city is a drug-free zone, then the designation has no targeted deterrent effect. In practice, it exists to put more people in prison for longer periods of time, not to keep children safe.
"Drug-free school zone laws show how good intentions can go horribly wrong," says Kevin Ring, president of the advocacy group Families Against Mandatory Minimums. "Adult offenders who aren't selling drugs to or even near kids are getting hammered with long sentences. Most don't even know they are in a school zone. These laws aren't tough on crime. They're just dumb."
By covering wide swaths of densely populated areas in drug-free zones, states end up hitting low-level and first-time drug offenders with sentences usually reserved for violent crimes. Tennessee's drug-free school zone laws bump up drug felonies by a level and eliminate the possibility of an early release. For example, a first-time drug offender found guilty of a Class C felony for possession with intent to distribute of less than half a gram of cocaine — which carries a maximum six-year sentence — instead receives a Class B felony with a mandatory minimum sentence of eight years.
These penalties are zealously applied. Knoxville criminal defense attorney Forrest Wallace says that one of his clients received an enhanced drug sentence for merely walking through a school zone that bisected the parking lot of his apartment complex on his way to meet the informant who had set him up. The client received a normal sentence for the sale of the cocaine, but an enhanced charge of possession with intent to distribute for passing through the school zone. "If they can prove it's in a zone, you know they're going to charge it," Wallace says. "That's just the way it is."
Undercover cops and confidential informants sometimes go to extra lengths to get these enhanced sentences. David Raybin, a Nashville criminal defense attorney, says that police informants often purposely set up deals in school zones, a practice that has led to accusations of entrapment from defendants and rebukes from judges dismayed by the practice. "The police will frequently have people sell drugs in a school zone so they can enhance them," Raybin says. "The only cases that I'm aware of involving dealing drugs on or in a school are always kids selling to other kids. Usually in those cases, you don't want them getting a two-year mandatory minimum. It's just totally in appropriate."
Another look at trend to prosecute some opioid overdose deaths as homicides
This morning's Wall Street Journal has this new article on the (not-all-that) new trend of considering homicide charges in response to drug-overdose deaths. The full lengthy headline of the lengthy article is "Prosecutors Treat Opioid Overdoses as Homicides, Snagging Friends, Relatives As U.S. drug deaths hit record levels, prosecutors and police are trying a tactic that echoes tough-on-crime theories of the 1990s." Here are excerpts (with a few lines emphasized for follow-up commentary):
After Daniel Eckhardt’s corpse was found on the side of a road in Hamilton County, Ohio, last year, police determined he died of a heroin overdose. Not long ago, law enforcement’s involvement would have ended there. But amid a national opioid-addiction crisis fueling an unprecedented wave of overdose deaths, the investigation was just beginning.
Detectives interrogated witnesses and obtained search warrants in an effort to hold someone accountable for Mr. Eckhardt’s death. The prosecutor for Hamilton County, which includes Cincinnati and its suburbs, charged three of Mr. Eckhardt’s companions, including his ex-wife and her boyfriend, with crimes including involuntary manslaughter, an offense carrying a maximum prison sentence of 11 years.
Mr. Eckhardt voluntarily took the heroin that killed him, but prosecutors alleged the trio were culpable because they bought and used heroin with him that they knew could result in death. The indictments were part of a nationwide push to investigate overdose deaths as homicides and seek tough prison sentences against drug dealers and others deemed responsible. It’s an aggressive tactic law-enforcement officials say they’re using in a desperate attempt to stanch the rising tide of overdose deaths.
Fueled by a flood of heroin laced with fentanyl and other powerful synthetic opioids, the overdose death rate in Hamilton County more than tripled between 2006 and 2016 to 50 per 100,000 people, or four times as many as those killed in traffic accidents. Nationally, some 64,000 Americans died from overdoses last year, up 86% from 2006, according to the Centers for Disease Control and Prevention.
A newly created heroin task force in Hamilton County has investigated hundreds of deaths in the past two years, resulting in a dozen involuntary manslaughter indictments in state court and 13 federal indictments for distribution of controlled substances resulting in death. “The deaths—that’s why. All the people dying,” Cmdr. Thomas Fallon, who leads the Hamilton County task force, says of the prosecution push. “Even in the cocaine and crack days, people didn’t die like this.”
At least 86 people nationwide received federal prison sentences last year for distributing drugs resulting in death or serious injury, up 16% from 2012, according to the U.S. Sentencing Commission, a federal agency that determines sentencing guidelines for judges. An analysis of news reports found 1,200 mentions nationally about drug-death prosecutions in 2016, three times the number in 2011, according to a recent report by the Drug Policy Alliance, a nonprofit group that supports decriminalizing drug use.
The prosecutions often employ tough-on-crime legislation born of the crack-cocaine epidemic of the 1980s and 1990s. These state and federal laws hold drug distributors liable for overdose deaths. Selling even small amounts can result in decades or even life in prison.
In some states, such laws were rarely enforced until recently. Benjamin J. Agati, a veteran prosecutor in the New Hampshire Attorney General’s office, has helped train police departments throughout the state in how to build cases under the state’s drug-induced homicide law, which carries a maximum penalty of life in prison. The law was enacted in the late 1980s but was rarely applied before the surge in opioid deaths, Mr. Agati says....
The prosecutions sometimes nab members of drug-distribution gangs like that of Navarius Westberry. Last year, Mr. Westberry pleaded guilty in federal court in Kentucky to operating a drug-trafficking ring that distributed up to a kilogram of heroin and 50 grams of fentanyl over an 18-month period that killed at least one person. He was sentenced to life in prison. But in courtrooms around the country, prosecutors are also sweeping up low-level dealers who are addicts trying to support their habit, as well as friends and family members of overdose victims who bought or shared drugs with the deceased. Some critics of the prosecution tactic say these users need treatment, not harsh prison sentences.
Critics see the prosecutions as more of the same drug-war tactics that have filled America’s prisons with nonviolent criminals but done little to stop illicit drug use. There’s scant evidence that fear of prison deters addicts from using, and for every dealer put behind bars, another is ready to take his place, says Lindsay LaSalle, an attorney with the Drug Policy Alliance.
Law-enforcement officials say they’ve seen some signs the prosecutions may be deterring dealers, including jailhouse phone calls they say they’ve overheard in which inmates warn associates that police are pressing homicide charges against drug traffickers. They say drug-death prosecutions are just one piece of a broader strategy to combat the crisis, including urging addicts into rehab and taking down large-scale traffickers....
A two-hour drive south from Hamilton County, Kerry B. Harvey, the mustachioed U.S. attorney for eastern Kentucky from 2010 to early 2017, made prosecuting drug-deaths a priority around 2015. He used a 1986 federal law that had rarely been applied in the district, which established a mandatory 20-years-to-life sentence for distributing drugs that resulted in death or serious injury. The penalty grew to life in prison for defendants with prior felony drug convictions.
He saw the approach as a way to bring solace to families devastated by the increasing number of heroin-related deaths in the area. Plus, the law’s stiff penalties helped persuade dealers to cooperate against bigger suppliers, he said. “When someone is looking at 20 years to life, they’re gonna tell you whatever they know to save themselves,” he said.
Mr. Harvey assigned three prosecutors to work on the cases and began working with local police to investigate overdose deaths as homicides. Since 2015 one of the prosecutors, Todd Bradbury, has convicted 16 people for selling drugs that resulted in death, two of whom received life sentences. One of those convicted was Fred Rebmann, who in 2016 sold $60 of fentanyl to Kathleen Cassity. Ms. Cassity was six months pregnant and died within hours of buying the drugs. Doctors performed an emergency C-section, but failed to save the life of her unborn child.
At the time, Mr. Rebmann was 31 and spent his days scheming to obtain enough heroin to avoid withdrawal. “I would work odd jobs…steal…hold up signs for money,” he said in an email from prison. He also dealt drugs. “There were days I’d sell heroin to get my own, and there were days I sold scrap metal,” he said in a telephone interview. Addiction doesn’t “disqualify” small-time dealers like Mr. Rebmann from prosecution, says Mr. Bradbury, the prosecutor. “He knew he was selling something extremely dangerous to a pregnant woman,” he says. Mr. Rebmann says he didn’t know Ms. Cassity was pregnant.
Mr. Bradbury offered him a deal. If Mr. Rebmann pleaded guilty, prosecutors would recommend a 20-year sentence that, with credit for good behavior, could be reduced by three years. If he went to trial and lost, Mr. Rebmann faced mandatory life in prison because of a 2012 heroin-possession conviction.
Mr. Rebmann took the deal and pleaded guilty in August 2016, but U.S. District Judge Joseph M. Hood, a Vietnam War veteran appointed to the bench in 1990, rejected Mr. Bradbury’s sentencing recommendation. Ms. Cassity died “because you wanted to stick a needle in your arm,” Judge Hood told Mr. Rebmann, according to a transcript of the hearing. He sentenced Mr. Rebmann to 30 years in prison. “I want it to be known here in Lexington… if you get convicted of dealing in heroin and a death results, 20 years isn’t enough,” Judge Hood said. “Time for coddling is over.”
The lines I have put in bold in the excerpts above are intended to highlight that, as I have sought to make in some prior blogging on this topic, that whether a drug defendant is prosecuted in federal or state court may ultimately matter a whole lot more than whether a defendant actually faces a formal homicide charge (or even whether the defendant can be linked to an overdose death). As noted at the outset of this article, the maximum state prison sentence an Ohio defendant can face for involuntary manslaughter is 11 years, but that same defendant can be looking at a mandatory minimum federal prison sentence of 20 years or even LWOP just based on the quantity of drugs even without a direct connection to an overdose death. Moreover, a defendant facing homicide charges in state court can perhaps hope that a prosecutor will not be able to prove to a jury a sufficient causal link with a drug death beyond a reasonable doubt; a defendant facing a mere allegation of causing a death in federal court has no right to a jury finding or to demand proof beyond a preponderance of the evidence unless that particular finding directly impacts the statutory sentencing range.
These realities serve to inform and underline the importance and significance of an (Obama-appointed) US Attorney like Kerry Harvey deciding to make these cases a federal priority. This federal prosecutor's stated belief that federal intervention with extreme federal mandatory minimums brings solace to families and enables going after bigger suppliers ultimately likely results in far more prison for far more defendants than any decision by any state prosecutor to start leveraging state homicide laws.
Some prior related posts:
- "An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"
- Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death
- Distinct approaches to the opioid epidemic
- Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
- "Heroin, Murder, and the New Front in the War on Drugs"
December 17, 2017
Lawyer asks law profs: "Looking for a chance to persuade the courts that man-mins are unconstitutional?"
Earlier this year I started to correspond with Caleb Mason concerning his effort to preserve a sentence imposed below a federal mandatory minimum in the face of a government appeal. I suggested to Caleb that he write up an account of the case and his pitch for amicus help. Here is the pitch:
Join my case as amici! I was appointed by the Ninth Circuit in a CJA (Criminal Justice Act) case to defend a below-man-min sentence against the Government's appeal. I argued in my brief that man-mins are straight-up unconstitutional under Booker. The vast majority of man-min cases out there involve a district judge reluctantly imposing the sentence with an opinion saying how much he or she hates doing so. The defendant appeals, but there's not much for the Court of Appeals to do. My case is the opposite -- it's the rare one in which the judge actually imposed a sentence below the man-min, and we're asking the Court of Appeals to affirm it. Judge Manuel Real, who at age 95 is on full active status (he won't even take senior status), has the courage of his convictions when it comes to man-mins.
In this case (a CP case with a small number of images, no other bad conduct, a very sympathetic defendant history, and a demonstrated commitment to rehabilitation), Judge Real explained that 48 months was enough custody time, despite the 60-month man-min, because of lifetime s/r. My brief (which can be downloaded below) argues that mandatory minimums are unconstitutional under Booker. Here is the main issue statement:
Issue 1: Statutory mandatory minimum sentences are unconstitutional.
Caselaw of this Court is to the contrary, but Mr. Lavinsky preserves his arguments for review by an en banc panel of this Court and by the Supreme Court. Statutory mandatory minimum sentences are unconstitutional because they violate the constitutional imperative of separation of powers. Fashioning an individual sentence based on the facts of an individual case is a quintessential judicial power. The Court's decision in United States v. Booker, 543 U.S. 220 (2005), should apply equally to statutory mandatory minimums as to mandatory Sentencing Guidelines, because the animating principle in Booker is separation of powers, and the mandatory guidelines that Booker rendered advisory had, per Mistretta v. United States, 488 U.S. 361 (1989), the same legislative authority as statutory provisions in the United States Code. Additionally, the history of sentencing practices in the United States shows that the proliferation of statutory mandatory minimum sentences is an anomaly, and is inconsistent with both historical practice and historical understanding of the separation of powers.
For Booker fans (I should note that I went to the Booker oral argument; I wasn't yet a member of the Supreme Court bar, so I arrived at 11 p.m. the night before and waited on the sidewalk all night like an animal...), this case is a nice, clean opportunity to make the argument that Doug made immediately after Booker, and that has long been apparent to those of us who have been trying to understand what's happening in federal sentencing over the last decade: Booker is about preserving the inherent constitutional power of judges. It's not about juries. It's never been about juries. It could have been about juries, if Justice Ginsburg had stuck with the merits majority for the remedial opinion. But she didn't, and we have a remedial majority that rejects out of hand the "jury factfinding" option for sentencing -- which would have been not just the right answer but arguably the only answer if the merits opinion were really animated by the jury trial right. (And of course, Booker applies to defendants pleading guilty as well, which it wouldn't if it was a purely jury-trial right.)
Anyway, my argument is simple. Booker held mandatory guidelines to be unconstitutional. Under Mistretta, each mandatory guideline was nothing more or less than a little man-min, with the same force of law as a statutory man-min written directly in Title 18. Thus, if the guidelines had to be made advisory to preserve their constitutionality, then so should man-mins. Read the brief (available below) -- I think this is a decent and reasonably original argument.
Second, I argue that to the extent that Booker invalidating the SRA (in particular its mandatory aspects), it restored judicial power to the pre-SRA status quo which, I argue, included an understood background power (whether inherent or under pre-SRA statutory law) to sentence below a specified minimum.
I was thinking that we'd get a quick memorandum from the panel, and then gear up for an en banc petition and cert petition. But the panel just set the case for argument on February 16. So that'll be fun. And it'd be great if one or more of the judges indicated that he or she thinks the full court ought to consider this issue.
I've been bugging Doug about putting together an academic amicus brief on the legal reasons why courts should hold man-mins unconstitutional. I know there are a hundred people out there who can articulate the arguments better than me, and who probably have clever arguments I haven't thought of. So to you eggheads that think you have opinions about sentencing but never set foot in a courtroom: This is your chance! Do it! Write something someone will read! And a court, no less.
Someone besides me needs to organize and write the amicus brief. If anyone is willing to do that, I'll help with contacting signers, and finding counsel for amici in the Ninth Circuit and Supreme Court. Please contact me [cmason @ brownwhitelaw.com] with any questions.
Looking at latest notable Texas death penalty realities
This new NBC News article, headlined "Why Texas’ ‘death penalty capital of the world’ stopped executing people," reviews how Texas has become fairly representative of the entire United States with a more limited use of capital punishment. Here are excerpts:
Since the Supreme Court legalized capital punishment in 1976, Harris County, Texas, has executed 126 people. That's more executions than every individual state in the union, barring Texas itself. Harris County's executions account for 23 percent of the 545 people Texas has executed. On the national level, the state alone is responsible for more than a third of the 1,465 people put to death in the United States since 1976.
In 2017, however, the county known as the "death penalty capital of the world" and the "buckle of the American death belt" executed and sentenced to death an astonishing number of people: zero. This is the first time since 1985 that Harris County did not execute any of its death row inmates, and the third year in a row it did not sentence anyone to capital punishment either.
The remarkable statistic reflects a shift the nation is seeing as a whole. The number of executions has been trending downward across the United States, but it's particularly noticeable in Texas and Harris County.
“The practices that the Harris County District Attorney’s Office is following are also significant because they reflect the growing movement in the United States toward reform prosecutors who have pledged to use the death penalty more sparingly if at all,” said Robert Dunham, the director of the Death Penalty Information Center.
The city of Houston lies within the confines of Harris County, making it one of the most populous counties in the country — and recently it became one of the most diverse, with a 2012 Rice University report concluded that Houston has become the most diverse city in the country. Under these new conditions, Kim Ogg ran in 2016 to become the county’s district attorney as a reformist candidate who pledged to use the death penalty in a more judicious manner than her predecessors, though the longtime prosecutor didn’t say she would abandon it altogether. Rather, Ogg said she would save it for the “worst of the worst” — such as serial killer Anthony Shore, who was rescheduled for execution next month.
But this year, Ogg appears to have held true to her promise of only pursuing the death penalty in what she deems the most extreme cases. It represents a break from a long pattern of Harris County prosecutors who pushed for the death penalty in nearly all capital cases. “The overall idea of what makes us safer is changing,” Ogg said. “We’re reframing the issues. It’s no longer the number of convictions or scalps on the wall. It’s making sure the punishment meets the crime....”
But Ogg said she cannot alone take credit for the recent drop in executions. The trend precedes her slightly and can also be connected to better educated and more diverse jury pools, as well as Texas’ new sentencing option of life without parole. The state also has a more skilled group of indigent defense lawyers who build up mitigating circumstances — such as an abusive childhood or mental illness — for an alleged murderer’s crime.
Even a state like Texas might stop sentencing alleged killers to death in the near future. And that trend could well extend nationwide. “We’ve seen a deepening decline in the death penalty since the year 2000, and some states fell faster than others,” said University of Virginia law professor Brandon Garrett, who wrote “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.” He added that the declines are steepest in counties that had sentenced the most people to death.
A light dusting of holiday season highlights from Marijuana Law, Policy & Reform
It has been almost two months since I have done a round-up of posts of note from all the blogging I now do over at Marijuana Law, Policy & Reform. Here are just some (of many) legal and policy highlights from just the last few weeks at MLP&R that sentencing fans might find worth checking out: