« February 11, 2018 - February 17, 2018 | Main | February 25, 2018 - March 3, 2018 »

February 24, 2018

Notable video from American Conservative Union: "Unshackled - America's Broken Justice System"

Speakers such as Prez Trump and the head of the NRA got the most attention at this year's annual Conservative Political Action Conference (CPAC) received the most attention, but Friday's CPAC agenda included a General Session panel titled "Second Chance: The Conservative Stance on Criminal Justice Reform" as well as a breakout sessions titled "Dignity for Incarcerated Women: Is it Really Necessary to Shackle Women in Labor?." I have been noting in recent years the intriguing criminal justice reform programming appearing on the CPAC agenda, and now I see that the Center for Criminal Justice Reform of the American Conservative Union Foundation has a notable new video with conservative leaders discussing why modern criminal justice reform is a core conservative concern:

February 24, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

February 23, 2018

Interesting sentencing details as former Trump campaign official Rick Gates pleads guilty and faces significant prison time

In this post from October following their indictment, I highlighted that former campaign officials for Prez Trump, Paul Manifort and Rick Gates, could be facing very significant prison terms in light of the charges and potentially applicable sentencing guidelines. Today, as reported here by BuzzFeed News, "Rick Gates, a former Trump campaign aide and longtime associate of former Trump campaign chair Paul Manafort, pleaded guilty on Friday in the criminal case brought by special counsel Robert Mueller's office." And the BuzzFeed News report includes these interesting legal and practical sentencing particulars:

The two counts in the new criminal information each have a maximum penalty of five years in jail. According to Gates' plea agreement with the special counsel's office, he faces an estimated sentencing guidelines range of between 57 and 71 months in jail and a fine between $20,000 and $200,000; those numbers could change when the guidelines range is ultimately calculated, the judge noted.

Gates' lawyer Thomas Green told the judge that he reserved the right to argue for a lower sentence based on Gates' "disproportionate conduct" as compared to Manafort. Gates has agreed to cooperate with the special counsel's office. If prosecutors determine he has "provided substantial assistance," they have agreed to file a motion asking for a downward departure from the sentencing guidelines range. When Gates is sentenced, the government will dismiss the remaining counts in the original indictment as well as the new charges filed in Virginia.

As part of the plea deal, Gates agreed to delay his sentencing to give him time to cooperate. Asked how far out into the future the judge should set a deadline for the government to update the court on the status of the case, special counsel prosecutor Andrew Weissmann suggested three to four months. US District Judge Amy Berman Jackson set a deadline for a status report for May 14.

Gates spoke little during the plea hearing. He and Green declined to speak with reporters after the hearing as he exited the courthouse and got into a car.  He'll remain free pending sentencing, albeit subject to continued GPS monitoring and certain limits on his ability to travel beyond his home city of Richmond, Virginia.  He also had to agree to forfeit certain assets if he fled or failed to show up to court.

The folks at Lawfare have Gates's superseding criminal information and plea agreement now posted at this link. That agreement explains the ways in which the parties determine that "the applicable Guidelines Offense Level will be at least 25" which means the "estimated Sentencing Guidelines range is 57 months to 71." The plea agreement also speaks to potential departure arguments this way:

Your client agrees that, solely for the purposes of calculating the applicable range under the Sentencing Guidelines, a downward departure from the Estimated Guidelines Range set forth above is not warranted, subject to the paragraphs regarding cooperation below and the argument that the Guidelines do not adequately reflect the defendant's role in the offense.  Accordingly, you will not seek any departure or adjustment to the Estimated Guidelines Range set forth above, nor suggest that the Court consider such a departure or adjustment for any other reason other than those Specified above.  Your client also reserves the right to disagree with the Estimated Guideline Range calculated by the Office.  However, your client understands and acknowledges that the Estimated Guidelines Range agreed to by the Office is not binding on the Probation Office or the Court.  Should the Court or Probation Office determine that a different guidelines range is applicable, your client will not be permitted to withdraw his guilty plea on that basis, and the Government and your client will still be bound by this Agreement.

February 23, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (12)

Only one of three planned executions completed: Florida carries out death sentence, Texas Gov commutes at last minute, and Alabama misses deadline

As noted in this prior post, yesterday there were executions scheduled in Alabama, Florida and Texas. If all three had been carried out, it would have marked first time in eight years that three killers were all executed on the same day. But, and the press stories below detail, only Florida completed its planned execution:

Texas: "Gov. Greg Abbott commutes death sentence minutes before Bart Whitaker's scheduled execution":

Kent Whitaker was praying when he got the news: The governor had spared his son. In an unexpected last-minute decision, Gov. Greg Abbott granted clemency to the Sugar Land man slated for execution Thursday, just minutes before he was to be strapped to the gurney in Huntsville.

Thomas "Bart" Whitaker was sent to death row for targeting his own family in a 2003 murder-for-hire plot aimed at landing a hefty $1 million inheritance.

Florida: "Eric Branch's last words target governor, AG: 'Let them come down here and do it'":

Convicted murderer Eric Branch used his final moments before he was executed to make a political statement, falling into unconsciousness as he shouted "murderers" between blood-curdling screams on the execution gurney.

The state of Florida carried out the execution of Branch, 47, on Thursday evening at the Florida State Prison in Raiford — roughly 335 miles from where he abducted, sexually assaulted and killed University of West Florida student Susan Morris as she was leaving a night class in January 1993.

Branch, who was on death row for nearly 25 years, was pronounced dead of a lethal injection at 6:05 p.m. Central Standard Time.

Alabama: "Execution of Alabama inmate Doyle Lee Hamm called off"

Doyle Lee Hamm survived his date with the executioner Thursday, as Alabama was unable to begin the procedure before the death warrant expired at midnight.

It was after 11:30 p.m. when word came that the execution had been called off. Alabama Department of Corrections Commissioner Jeff Dunn said medical personnel had advised officials that there wasn't enough time to ensure that the execution could be conducted in a humane manner. However, Dunn declined to detail the exact medical factors behind the decision, and said he didn't want to characterize them as a problem.

Hamm, 61, was convicted of killing Cullman hotel clerk Patrick Cunningham in January 1987. Recent appeals in his case involved the question of whether cancer had left him healthy enough to be executed without excessive suffering. His advocates had argued that his veins were in such bad shape that it wouldn't be possible for the state to carry out its lethal injection protocol cleanly.

One of Hamm's attorneys, Bernard Harcourt, was among those waiting outside death row at Holman Correctional Facility near Atmore. Afterward, via Twitter, he speculated that "they probably couldn't find a vein and had been poking him for over 2 1/2 hours."

Also worth noting is that the Alabama inmate's appeals to the Supreme Court generated some comments from some Justices detailed in this order: Justice Breyer issued a short statement respecting the denial of a stay which spoke to the defendant's lengthy time on death row; Justice Ginsburg issued a dissent, which Justice Sotomayor joined, expressing concerns "about how Hamm’s execution would be carried out."  Since the execution was not carried out, it will be interesting to see now if and when courts get asked again to scrutinize Alabama's execution plans and protocols.

February 23, 2018 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (2)

February 22, 2018

"A Pound of Flesh: The Criminalization of Private Debt"

The title of this post is the title of this notable new big ACLU report. Here part of its executive summary:

An estimated 77 million Americans — one in three adults — have a debt that has been turned over to a private collection agency. Thousands of these debtors are arrested and jailed each year because they owe money. Millions more are threatened with jail. The debts owed can be as small as a few dollars and can involve every kind of consumer debt, from car payments to utility bills to student loans to medical fees.  These trends devastate communities across the country as unmanageable debt and household financial crisis become ubiquitous, and they impact Black and Latino communities most harshly due to longstanding racial and ethnic gaps in poverty and wealth.

Debtors’ prisons were abolished by Congress in 1833 and are thought to be a relic of the Dickensian past.  In reality, private debt collectors — empowered by the courts and prosecutors’ offices — are using the criminal justice system to punish debtors and terrorize them into paying even when a debt is in dispute or when a debtor has no ability to pay.

The criminalization of private debt happens when judges, at the request of collection agencies, issue arrest warrants for people who failed to appear in court to deal with unpaid civil debt judgments. In many cases, the debtors were unaware they were sued or had not received notice to show up in court.  Tens of thousands of these warrants are issued annually, but the total number is unknown because states and local courts do not typically track these orders as a category of arrest warrants.

In a review of court records, the ACLU examined more than 1,000 cases in which civil court judges issued arrest warrants for debtors, sometimes to collect amounts as small as $28.  These cases took place in 26 states — Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Washington, and Wisconsin — and Puerto Rico and the Northern Mariana Islands.

Even without arrest warrants, the mere threat of jail can be effective in extracting payment — even if that threat is legally unfounded. In the case of debts involving bounced checks, private collection companies now have contracts with more than 200 district attorneys’ offices that allow them to use the prosecutor’s seal and signature on repayment demand letters.  It’s estimated that more than 1 million consumers each year receive such letters threatening criminal prosecution and jail time if they do not pay up.  But review of company practices has documented that letters often falsely misrepresent the threat of prosecution as a means of coercing payments from unknowing consumers.

February 22, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Florida Supreme Court finds that state's Miller fix statute to death with Eighth Amendment problems has Alleyne Sixth Amendment problem

The Florida Supreme Court issues an interesting ruling today dealing with juvenile sentencing in Williams v. Florida, No. SC17-506 (Fla. Feb 22, 2018) (available here). Here are the basics from the start of the ruling: 

This case is before the Court for review of the decision of the Fifth District Court of Appeal in Williams v. State (Williams II), 211 So. 3d 1070 (Fla. 5th DCA 2017).  In its decision, the Fifth District ruled upon the following question certified to be of great public importance:

DOES ALLEYNE V. UNITED STATES, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), REQUIRE THE JURY AND NOT THE TRIAL COURT TO MAKE THE FACTUAL FINDING UNDER SECTION 775.082(1)(b), FLORIDA STATUTES (2016), AS TO WHETHER A JUVENILE OFFENDER ACTUALLY KILLED, INTENDED TO KILL, OR ATTEMPTED TO KILL THE VICTIM?

Id. at 1073. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we hold that Alleyne requires a jury to make the factual finding, but conclude that Alleyne violations are subject to harmless error review. Where the error cannot be deemed harmless, the proper remedy is to resentence the juvenile offender pursuant to section 775.082(1)(b)2., Florida Statutes (2016).

As the opinion goes on to explain, the statute here was passed when Florida had to comply with the Supreme Court's Eighth Amendment Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The statute provides that a finding that "a juvenile offender actually killed, intended to kill, or attempted to kill the victim leads to a minimum forty-year sentence with a sentence review after twenty-five years — whereas a finding that the offender did not actually kill, intend to kill, or attempt to kill the victim results in there being no minimum sentence and a sentence review after fifteen years."

The Florida Supreme Court was unanimous here in concluding that this statute has to comply with Alleyne's Sixth Amendment ruling that jury trial rights extend to any fact that raises a binding minimum sentence.  Hard-core sentencing proceduralists might still want to check out the Court's discussion, especially because there is an interesting partial dissent that starts this way:

I agree with the majority that under Alleyne v. United States, 570 U.S. 99 (2013), the factual findings provided for in section 775.082(1)(b), Florida Statutes (2016), must be made by the jury and that the absence of such jury findings in this case requires reversal of the sentence imposed under section 775.082(1)(b)1. and resentencing in the trial court.  But I dissent from the majority’s direction regarding the remand, which requires imposition of the less severe sanction available under the statute.  Because the issue of the remedy on remand has not been briefed in this case, I would simply direct remand for resentencing rather than preclude jury proceedings that might result in imposition of the more severe sentence under the statute.

February 22, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

How many of the executions scheduled today in Alabama, Florida and Texas will be completed?

The question in the title of this post is prompted by this Reuters article which begins, "Alabama, Florida and Texas plan to execute inmates on Thursday and if carried out, it would be the first time in eight years that three people on death row have been executed on the same day."  Here is more about what could be a busy day in both courts and execution chambers:

But in each state there are reasons why the executions could be halted, including an unprecedented clemency recommendation in Texas, where all three of this year’s U.S. executions have been carried out.

In Florida, questions were raised about holding an execution based on a majority, not unanimous, jury decision. In Alabama, lawyers have said the death row inmate is too ill to be executed.

Alabama plans to execute Doyle Hamm, 61, at 6 p.m. local time for the 1987 murder of motel clerk Patrick Cunningham.

Hamm’s lawyers have said he has terminal cancer, adding years of intravenous drug use, hepatitis C, and untreated lymphoma have made his veins unstable for a lethal injection. However, a court-appointed doctor examined Hamm on Feb. 15 and found he had “numerous accessible and usable veins in both his upper and lower extremities,” according to court filings.

Texas plans to execute Thomas Whitaker, 38, for masterminding a 2003 plot against his family in which his mother Tricia, 51, and brother Kevin, 19, were killed.  His father Kent Whitaker was shot in the chest and survived.  The father, 69, a devout Christian and retired executive, has said he forgives his son and his family does not want him to be executed. In a clemency petition, he said if the death penalty is implemented, it would make his pain worse.

On Tuesday, the Texas paroles board in a unanimous decision recommended clemency, largely based on the request of a victim’s forgiving family.  Republican Governor Greg Abbott has final say, and has not yet announced if he plans to halt the execution.

Florida plans to execute Eric Branch, 47, for the 1993 murder of University of West Florida student Susan Morris. Lawyers for Branch appealed to the U.S. Supreme Court on arguments including that the court has previously blocked a Florida provision that allows executions for a non-unanimous jury decision and it should do so again in this case.

February 22, 2018 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

"These guidelines exist in some kind of middle universe that I don't understand..."

1204504745fullresThe title of this post is one of my (many) favorite lines appearing in this Supreme Court oral argument transcript from yesterday's proceedings in Rosales-Mireles v. United States.  The case addresses whether a (small) guideline error will usually satisfy the plain error standard for correction of an error raised only on appeal, and I highly recommend that sentencing fans read the entire transcript.  There are too many amusing and interesting flourishes throughout the transcript to cover them all here, but this one little passage from early in the second part of the argument that provides a flavor of the overall direction of Justices' approach to this case:

JUSTICE KAGAN:  Mr. Ellis [Assistant to the Solicitor General arguing for the prosecution], Justice Gorsuch, when he was a judge, wrote this opinion which I'm sure you've read many times, and I just want to quote one sentence from it and then ask you what you think about it because he basically, you know, suggests why you maybe lose.

This rev up to a question from Justice Kagan is only one of many part of the transcript that leads me to think basically, you know, the government is going to lose this case. Evan Lee in his SCOTUSblog preview of the Rosales-Mireles argument highlighted effectively why this case is sure to be an up hill climb for the government, and little in this transcript suggests otherwise.

I have not yet noted who spoke the line I have used in this title of this post, and I suppose at this point it would be fun to encourage readers to guess.  I suspect hard-core Court watchers with sentencing affinity may readily be able to figure out who said this, but arguably any and every Justice (and any and every judges and any and every practitioner) sometimes feels that, post-Booker, the guidelines exist in some kind of "middle universe." 

At the risk of making inappropriate suggestions, I do think the Justice who spoke this particular line might be able to engender a special kind of new fandom if in the future he were to suggest that the federal sentencing guidelines "exist in some kind of Middle Earth." With a single line, J.R.R. Tolkien fans might start showing up at US Sentencing Commission hearings as well as giving this Justice the kinds of adoration some colleagues get. And then my students will finally understand why I often walk around clutching the US Sentencing Guidelines Manual saying "My Precious."

UPDATE: I see that Evan Lee now has this "Argument analysis" up at SCOTUSblog under the heading "Justices hint at categorical approach to correcting forfeited Sentencing Guidelines errors." Here is how it starts:

Sometimes, an appellate court uses oral argument to help it decide who ought to win.  Other times, the justices know who will win, and oral argument becomes an opportunity for the judges to use counsel as a sounding board as to how the opinion should be written. W ednesday’s Supreme Court oral argument in Rosales-Mireles v. United States had the earmarks of the latter.

February 22, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

February 21, 2018

Former federal judge explains how severe sentencing and mandatory minimums prompted his resignation

Last year I remember reading this local article about former US District Judge Kevin Sharp leaving the federal bench after only six years.  The former judge's complaints about mandatory minimum sentencing realities were partially spelled out in that article, but now I see this notable new Cato piece titled "Powerless on the Bench" which reprints Sharp's accounting for his decision.  I recommend the piece in full, and here are excerpts:

Like a lot of judges who take the bench, I had limited experience in criminal law.  Criminal law is fairly simple — much simpler than the tax code or some of the other things that I had done.  But it soon became the hardest thing I did on the bench.  In civil cases, my rulings generally concerned money.  But in criminal cases, when I said the “sentence is imposed as stated,” somebody was placed in handcuffs and led away by a U.S. marshal.

Early on, I sentenced a young man, Antonio, who was 27.  He was charged as a felon in possession of a firearm.  He had been convicted of two armed robberies at 17 years old.  At 27, Antonio is doing what we all hope a criminal defendant does after being convicted: he gets a job.  He is in contact with his family.  He does not do drugs . He does not drink.  But Antonio had been doing one thing that he should not have been.

Antonio was driving down the street and, without being too graphic, he and his girlfriend were engaged in an activity that caused him to cross slightly over the double-yellow line. The police saw it and pulled him over.  The police suspected his girlfriend was a prostitute, so they split Antonio and his girlfriend up and asked them questions. The police realized based on her answers that she in fact was Antonio’s girlfriend. Then, the police said, “OK, we are going to let you go.  Oh, by the way, do you mind if we search your car?” Antonio, forgetting that he had an unloaded pistol under the front seat of his car, responded, “No, go ahead.”

Antonio was charged with being a felon in possession of a firearm.  Because he was convicted as an adult in his prior crimes, his mandatory minimum sentence was 15 years.  I read his case and thought this could not be right.  Fifteen years? What are “mandatory minimums”?  I did not fully understand what they were at the time.  I spent the next several days trying to figure out how to get around the minimum sentence — it cannot be done.

Regrettably, I did what I had to do.  I sentenced Antonio to 15 years.  I thought to myself, “What in the world are we doing?  Why would the government take away my ability to fashion a fair sentence?  I know what a judge is supposed to consider in determining how to fashion a sufficient sentence.  What I have done is in no way, shape, or form an appropriate sentence.”

Several years later, I had the same conversation with myself.  This time, the case involved a 22-year-old kid, Chris Young.  He was caught up with a group of members of the Vice Lords, a gang known for running cocaine and crack through middle Tennessee.  Chris was not a member of this gang.  He was an aspiring rapper who would hang out with members of the Vice Lords because one of the gang members had a studio. He was occasionally asked to make crack, but he did not know how.

Chris was arrested as part of a 30-person indictment for drug conspiracy.  Chris was such a minor player in the drug conspiracy — he did not even know how to make crack.  I think the only reason the DEA arrested him was because he happened to be at a gas station when they took down the Vice Lords’ leader.  He was at the wrong place with the wrong group at the wrong time.  The only evidence showing Chris’s connection to the gang were tapes from their wiretaps where Chris is talking to the gang’s leader about how he cannot figure out why the crack he has cooked did not turn out right.  The leader gets frustrated and finally says, “I’ll just come over and do it myself.”  That was basically the extent of it.

The prosecutor told Chris, “You can plead guilty, and we will give you twelve years.”  Chris is 22 and thinks, “12 years, no! I’m so minor in all of this, I will go to and win at trial.”  His lawyer convinces him that he should not go to trial, given his two prior drug convictions (one for less than half a gram of crack, which is about a sugar packet of crack) and the penalty he could face if convicted again — a mandatory life sentence.  At this point, the prosecutor changes his mind and says, “12 years was last week’s price — this week’s price is 22 years, and if you turn this down, next week’s price may be higher.”  A 22-year-old, Chris thought, “22 years is life! I’ll take my chances at trial.” Only three people of this 30-person group arrested, by the way, went to trial.  Everybody else pled guilty.  At trial, these three people, who happened to also be the lowest members of this conspiracy, all got life in prison.  Every single one of them.  Yes, the Vice Lords were selling a lot of drugs, but not Chris, and not the other two defendants who also decided to go to trial.  They all are behind bars for life.

Chris Young grew up in the projects, did not know his father, and saw his mother in and out of jail for her drug addiction.  When his mother had been sent to jail, Chris and his brother would stay in the house without electricity, water, or money for food.  They would eat out of garbage cans or ask neighbors to give them food.  When they were tired of the way that they smelled, they asked neighbors if they could take a shower.  This is how Chris grew up.  His brother eventually died.  It is unclear as to whether he committed suicide or was murdered.  I could not consider any of his hardships.  I could only look at how he was charged, and his charges led to his mandatory life sentence....

Members of Congress, in their desire to be elected and reelected, often show how tough on crime they can be, and they say, “Look, mandatory minimums are necessary so that we can take discretion away from the judges.”  But these legislators have not taken away discretion, they have just moved it to the prosecutor, who has a dog in the hunt.  If somebody said, “Well wait a minute, let’s not allow the prosecutor to do it but the defense counsel,” they would say “You’re insane!  Why would you do that?”  My position, then, is why would you give discretion to the prosecutor?

Because of the way that I grew up, as I saw criminal defendants come through my court, I would think about how I may have gone to high school or have worked at an oil refinery with these people.  These were real people who faced real consequences.  And, despite my position, I was told what to say.  I was just a messenger.  And I thought to myself, “Somebody else can be a messenger.  If real change is going to be made, then I need to do that on the other side of the bench.  Sure, I am giving up a lifetime appointment, but am I going to walk in here every day and do things that I do not think are just? The government can pay me for life to do that, but that is not enough for me.  The government does not pay me enough for this — I cannot be paid enough to do this.”

February 21, 2018 in Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (7)

SCOTUS issues opinions on fees for prisoner suits and the impact of guilty pleas

The Supreme Court this morning handed down four new opinions in argued cases, and these two should be of interest to criminal justice fans:

Murphy v. Smith: "GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, THOMAS, and ALITO, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined." From the start and end of the opinion for the Court:

This is a case about how much prevailing prisoners must pay their lawyers. When a prisoner wins a civil rights suit and the district court awards fees to the prisoner’s attorney, a federal statute says that “a portion of the [prisoner’s] judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.” 42 U. S. C. §1997e(d)(2). Whatever else you might make of this, the first sentence pretty clearly tells us that the prisoner has to pay some part of the attorney’s fee award before financial responsibility shifts to the defendant. But how much is enough? Does the first sentence allow the district court discretion to take any amount it wishes from the plaintiff ’s judgment to pay the attorney, from 25% down to a penny? Or does the first sentence instead mean that the court must pay the attorney’s entire fee award from the plaintiff ’s judgment until it reaches the 25% cap and only then turn to the defendant? ....

At the end of the day, what may have begun as a close race turns out to have a clear winner. Now with a view of the full field of textual, contextual, and precedential evidence, we think the interpretation the court of appeals adopted prevails. In cases governed by §1997e(d), we hold that district courts must apply as much of the judgment as necessary, up to 25%, to satisfy an award of attorney’s fees.

Class v. United States: "BREYER, J., delivered the opinion of the Court, in which ROBERTS, C.J., and GINSBURG, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. ALITO, J., filed a dissenting opinion, in which KENNEDY and THOMAS, JJ., joined."  From the start of the opinion for the Court:

Does a guilty plea bar a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates the Constitution?  In our view, a guilty plea by itself does not bar that appeal.

For a host of reasons, Class is much more consequential, and I hope to find some time to blog more about the opinion in the days ahead. In the meantime, I welcome comments on both the substance and division of the Justices in this latest SCOTUS activity.

February 21, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Texas board recommends clemency for condemned killer for first time in over a decade

As reported in this local article, headlined "In rare move, Texas parole board recommends clemency for death row inmate Thomas Whitaker," the state which executes the most murderers in modern times is the locale for a rare clemency recommendation for the next scheduled to die. Here are the details:

In an exceedingly rare move, the Texas Board of Pardons and Paroles voted Tuesday to recommend a lesser sentence for a death row inmate facing execution.

The board voted unanimously in favor of clemency for Thomas Bartlett Whitaker, a man who is set to die on Thursday evening. The decision now falls on Gov. Greg Abbott, a Republican who can approve or deny the recommendation to change Whitaker’s death sentence to life in prison. The last time the board recommended clemency for a death row inmate was in 2007.

Abbott said at a political rally Tuesday night that he and his staff would base his decision on the facts, circumstances and law. “Any time anybody's life is at stake, that's a very serious matter,” Abbott said. “And it deserves very serious consideration on my part.”

Whitaker, 38, was convicted in the 2003 murders of his mother and 19-year-old brother as part of a plot to get inheritance money. His father, Kent Whitaker, was also shot in the attack but survived and has consistently begged for a life sentence for his son.

“Victims’ rights should mean something in this state, even when the victim is asking for mercy and not vengeance,” Kent Whitaker said at a press conference at the Texas Capitol just before the board’s vote came in.

Keith Hampton, Thomas Whitaker's lawyer, choked up when announcing to the family and the press that the board had recommended clemency. Kent Whitaker's wife cried out and grabbed Whitaker, who let out a sob and held his head in his hands. “Well, we’re going to the governor’s office right now,” Hampton said.

In December 2003, Thomas Whitaker, then 23, came home from dinner with his family knowing that his roommate Chris Brashear was waiting there to kill them, according to court documents. When they entered the house, Brashear shot and wounded Thomas’ father and killed his mother, Patricia, and 19-year-old brother, Kevin. Suspicion turned toward Whitaker in the murder investigation the next June, and he fled to Mexico, according to court documents. He was arrested more than a year later, and his father begged the Fort Bend County District Attorney’s Office not to seek the death penalty.

Whitaker offered to plead guilty to two life sentences, but the prosecution rejected the offer, saying Whitaker wasn’t remorseful and was being manipulative, court records show. They sought the death penalty, and in March 2007, they got it. Brashear was given a life sentence.

Fred Felcman, the original prosecutor in the case, said Tuesday that the parole board made its decision only because of the father’s forgiveness and seemingly didn't take into account the large number of other people affected by the murders, including the victims, the county, the jury and Patricia’s family. He said the board also disregarded testimony from psychiatrists and their own investigators who said Whitaker was manipulative. “I’m trying to figure out why [the board members] think they should commute this, and why the governor should even give it a second thought,” said Felcman, who is first assistant district attorney at Fort Bend County....

Attached to Whitaker’s petition to the board were letters from former prison guards and at least seven death row inmates who thought the condemned man deserved the lesser sentence of life in prison. Kent Whitaker said Tuesday that the guards said he was never a threat, and one said he’d be an asset in general population.

Death row inmates attested to Whitaker’s helpful presence in a prison environment, saying he encouraged them to better themselves, helped those with mental illness and could easily calm inmates down. William Speer, who has been on death row since 2001 for a prison murder, wrote in 2011 that the prison system needs more men like Whitaker to keep other inmates calm. “Of all the people I have met over the years Thomas Whitaker is the person I believe deserves clemency the most,” Speer wrote, according to the petition. “He is one of the best liked inmates on this farm by the guards and other inmates, and he has worked the hardest to rehabilitate himself.”...

Despite the board’s surprise recommendation on Tuesday afternoon, Whitaker was still scheduled for execution on Thursday after 6 p.m. If Abbott rejects the recommendation and the Supreme Court justices dismiss his appeals, he will become the fourth man executed in Texas — and the nation — in 2018. There are three other executions scheduled in Texas through May.

Prior related post:

February 21, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

February 20, 2018

Split en banc Fifth Circuit holds that Texas burglary convictions do not serve as predicates for federal Armed Career Criminal Act

I long ago gave up trying to keep up with all the intricate litigation and jurisprudence in circuit courts dealing with predicate offenses that can trigger the severe mandatory minimum sentences of the Armed Career Criminal Act.  But every so often, a big ACCA ruling comes down the pike, and today is one of those days as an en banc Fifth Circuit, splitting 8-7, has decided Texas burglary convictions cannot serve as an ACCA predicate.  The majority ruling by Judge Higginbotham in US v. Herrold, No. 14-11317 (5th Cir. Feb. 20, 2018)  (available for download below), gets off to this interesting start and then summarizes its holding 30+ pages later:

Three decades ago, Congress set the courts upon a new course for the sentencing of federal defendants, moving away from a long-in-place system that gave wide discretion to federal judges to impose sentences from nigh no prison time to effective life sentences.

But this discretion was not so wide in practice as in appearance — the judge’s sentence gave way when the prisoner left the court for prison.  The total time served by the prisoner was on his arrival determined in the main by a parole commission.  The commission determined release dates, and in a rough and crude way — relative to the work of the Sentencing Commission — anticipated the system now in place by using a scoring system that looked in part to a defendant’s criminal history.  In response to charges from the Left of disparate and from the Right of anemic sentencing, and thus with the support of both ends of the political spectrum, Congress shifted the focus to a defendant’s individual circumstances on the one hand and mandatory minimum sentences tailored to particular crimes on the other.  With much work from its newly erected Sentencing Commission, nourished by reflection, essential empirical study, and judges tasked with applying its regulations, this reform effort appears to now be understood by bench and bar, enjoying a measure of well-earned credibility.  Yet its relatively calibrated system of adjustments struggles with rifle-shot statutory efforts deploying an indeterminate calculus for identification of repetitive, sentence-enhancing conduct that add on to the sentence produced by the guidelines, such as the Armed Career Criminal Act. In setting a federal criminal sentence the district judge looks, in part, to both the number and type of a defendant’s prior convictions, a task complicated by the statute’s effort to draw on criminal conduct bearing differing labels and boundaries set by the various states.  Today, we continue to refine our efforts....

To summarize, the burglary provisions encoded in Texas Penal Code §§ 30.02(a)(1) and (3) are indivisible. Texas Penal Code § 30.02(a)(3) is nongeneric because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.  For these reasons, Herrold’s ACCA sentence enhancement cannot stand. We VACATE and REMAND to the district court to resentence him in accordance with our decision today. 

A lengthy dissent authored by Judge Haynes provides a succinct account of why this ruling is a big deal (and could be SCOTUS bound):

The majority opinion upends years of well-settled law. Just over a year ago, this court confirmed that Texas Penal Code § 30.02(a) is a divisible statute, and the Supreme Court denied certiorari.  United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017). The effect of the majority opinion, in addition to unsettling established precedent, is to render all burglary convictions in the second-most populous state in the country nullities as far as the ACCA is concerned.  That is no small thing. In just a single year, Texans reported 152,444 burglaries, all of which now escape the ACCA’s reach. See TEX. DEP’T PUB. SAFETY, CRIME IN TEXAS 2015 6 (2015), http://www.dps.texas.gov/crimereports/15/citCh2.pdf.  From this misguided determination, I respectfully dissent.

Download Herrold slip op

February 20, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Notable account of a notable juror whose note had a notable impact on a scheduled Ohio execution

Prior posts here and here discussed a letter from a former juror in an Ohio capital case that prompted Governor John Kasich to grant a reprieve based on mitigating evidence that the juror said would have changed his vote at the penalty phase.  This story is told in full form in this new local article, headlined "This man stopped a Cincinnati killer's execution. Here's why he did it." Here are excerpts:

Ross Geiger isn’t some kind of activist when it comes to the death penalty. He’s never organized a candlelight vigil or stood outside a prison protesting an execution. He wants to be clear about that. “Everybody thinks I’m a crusader or something,” Geiger said. “They think I have no sympathy for the victims. That’s just not true.”

Yet Geiger did something last week that anti-death penalty activists rarely do. He stopped an execution. Earlier this year, the Loveland man wrote a letter to Gov. John Kasich because he was worried about the case of Raymond Tibbetts, a Cincinnati man who beat to death his wife, Sue Crawford, and stabbed to death his landlord, Fred Hicks, on the same day in 1997.

Geiger’s letter carried weight with Kasich, who delayed Tibbetts’ Feb. 13 execution until at least October, because Geiger served on the jury that convicted Tibbetts and recommended his death sentence....

Records related to Tibbetts’ clemency case with the parole board showed far more detail about Tibbetts’ background than was presented at the trial, Geiger said. He’d been abused as a child, put into foster care as a toddler and endured years of abuse and neglect, along with his siblings, the records showed.

At the trial, the jurors heard from a psychiatrist who’d examined Tibbetts, but no other witnesses. No family members. No other mental health professionals. None of the people Geiger found in the clemency paperwork. “I was astounded by the amount of material that was available (for the trial) that I never saw,” Geiger said. “There was an obvious breakdown in the system.”

The more he thought about it, Geiger said, the more upset he got. “The state had a duty to give me access to the information I needed to make the best decision I could,” he said. “It’s like if you have to take a big test, but you were deprived of the textbook.”

Geiger thought a long time about what he should do. He’s not a rabble rouser by nature. He’s raised two kids in suburban Cincinnati and works in the financial world. He considers himself a libertarian and said he was a rock-solid Republican at the time of the trial. He said he’s not opposed to the death penalty and he doesn’t believe he’s second-guessing the decision he made as Juror No. 2 in Tibbetts’ case. Given what he knew at the time, he said, the decision he made was correct.

But now he believes there is more he should have known. “I don’t really view it as changing my mind because the information wasn’t available at the time I was asked to make the decision,” Geiger said. “Based on the information available now, I don’t think justice was served in the case of Tibbetts.”

The appeals courts did not agree. A divided U.S. 6th Circuit panel ruled against Tibbetts, concluding any evidence the jurors didn’t hear would have been insufficient to change their minds about Tibbetts’ “moral culpability for such a brutal and horrific crime.” Prosecutors also have dismissed Geiger’s concerns. They say trials can’t be retried over and over every time a juror has second thoughts about a decision.

Kasich isn’t necessarily convinced, either. His reprieve gives the parole board time to reconsider clemency, but guarantees nothing. The execution still is set for Oct. 17.

Asked how he’d feel if Tibbetts died on that day, Geiger struggled to answer. He said he believes he did his job 20 years ago at the trial, and he believes he’s doing the right thing now by speaking up. “My motivation in writing that letter wasn’t to save an individual’s life,” Geiger said. “My prime motivation was to point out the errors.

“If we are going to trust the state to be our agents to execute people, then the state has a duty to get it right.”

Prior related posts:

February 20, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Special counsel Mueller subjects yet another low-level, non-violent offender to federal sentencing

The slightly cheeky title for this post is my gut reaction to the latest news emerging from the latest work by federal prosecutors working with special counsel Robert Mueller.  This BuzzFeed News piece, headlined "The Special Counsel's Office Has Charged A Lawyer Working For The Ukrainian Government With Lying To The FBI," reports the following (with links from original):

The special counsel's office has charged a lawyer who did work for the Ukrainian Ministry of Justice with lying to the FBI, according to court filings unsealed on Tuesday.

Alex van der Zwaan, an attorney, is accused of lying to investigators about his interactions with Rick Gates — the former Donald Trump campaign official and longtime associate of Paul Manafort who is also facing criminal charges in the special counsel's investigation — and an unidentified individual referred to in charging papers as "Person A."

Van der Zwaan is due in court on Tuesday afternoon for a plea hearing.  He is expected to plead guilty.

According to the criminal information filed by special counsel Robert Mueller's office, which is dated Feb. 16, investigators asked van der Zwaan in November about his work in 2012 for the Ukraine Ministry of Justice preparing a report on the trial on Yulia Tymoshenko, the former Ukrainian prime minister.

Van der Zwaan is accused of falsely telling investigators that his last communication with Gates was an "innocuous text message" in mid-August 2016, when he had spoken with Gates in September 2016 about the Tymoshenko report.

Prosecutors alleged that van der Zwaan falsely said that his last communication with Person A was a conversation in 2014 when they "discussed Person A's family," when he spoke with Person A in September 2016 about the Tymoshenko report.

Van der Zwaan is also accused of deleting and failing to produce emails to the special counsel's office and a law firm referred to as "Law Firm A," including email between him and Person A in September 2016.

Van der Zwaan's case is the sixth criminal matter made public by the special counsel's office. Prosecutors on Friday announced that a federal grand jury had indicted the Russian-based Internet Research Agency (IRA), two other Russian entities, and 13 Russian individuals, accusing them of interfering with the 2016 election. The special counsel's office also unsealed a criminal case against a California man who pleaded guilty to identity fraud.

The criminal information unsealed on Tuesday does not specify what law firm van der Zwaan worked for when he prepared the Tymoshenko report, but earlier news articles identified an Alex van der Zwaan as being part of a team from the law firm Skadden, Arps, Slate, Meagher & Flom that prepared a report about Tymoshenko for the Ministry of Justice in 2012.  Skadden released a statement Tuesday morning saying that the "firm terminated its employment of Alex van der Zwaan in 2017 and has been cooperating with authorities in connection with this matter."

Van der Zwaan's firm biography is no longer on Skadden's website, but the Internet Archive's Wayback Machine archived a version of it. The page stated that he served "as rule-of-law consultant to the Ministry of Justice of Ukraine" and wrote "a report on due process issues associated with a high-profile prosecution."

Van der Zwaan did not have a lawyer listed on the public court docket. Van der Zwaan is the son-in-law of German Khan, a Russian bank owner who is suing BuzzFeed News over the publication of an unverified dossier of information concerning President Donald Trump.

February 20, 2018 in Offense Characteristics, White-collar sentencing | Permalink | Comments (9)

Dissenting from denial of cert, Justice Thomas complains Second Amendment has become "constitutional orphan"

The Supreme Court this morning issued this order list which is mostly full of denials of cert, but this lengthy opinion by Justice Thomas dissenting from the denial of certiorari in a case challenging California’s 10-day waiting period for firearms seems likely to garner plenty of attention.  Justice Thomas's dissent covers a lot of ground; I will leave it to others to dissect the Second Amendment particulars and be content here to quote from his closing complaints about Second Amendment jurisprudence since Heller:

The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising. Its dismissive treatment of petitioners’ challenge is emblematic of a larger trend.  As I have previously explained, the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment to the same extent that they protect other constitutional rights.  See Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1); Jackson v. City and County of San Francisco, 576 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1).

This double standard is apparent from other cases where the Ninth Circuit applies heightened scrutiny. The Ninth Circuit invalidated an Arizona law, for example, partly because it “delayed” women seeking an abortion.  Planned Parenthood Arizona, Inc. v. Humble, 753 F. 3d 905, 917 (2014).  The court found it important there, but not here, that the State “presented no evidence whatsoever that the law furthers [its] interest” and “no evidence that [its alleged danger] exists or has ever [occurred].” Id., at 914–915.  Similarly, the Ninth Circuit struck down a county’s 5-day waiting period for nude-dancing licenses because it “unreasonably prevent[ed] a dancer from exercising first amendment rights while an application [was] pending.” Kev, Inc. v. Kitsap County, 793 F. 2d 1053, 1060 (1986).  The Ninth Circuit found it dispositive there, but not here, that the county “failed to demonstrate a need for [the] five-day delay period.” Ibid. In another case, the Ninth Circuit held that laws embracing traditional marriage failed heightened scrutiny because the States presented “no evidence” other than “speculation and conclusory assertions” to support them. Latta v. Otter, 771 F. 3d 456, 476 (2014).  While those laws reflected the wisdom of “thousands of years of human history in every society known to have populated the planet,” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (ROBERTS, C. J., dissenting) (slip op., at 25), they faced a much tougher time in the Ninth Circuit than California’s new and unusual waiting period for firearms.  In the Ninth Circuit, it seems, rights that have no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in the text.

Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. Peruta v. California, 582 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 7).  And we have not clarified the standard for assessing Second Amendment claims for almost 10.  Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment—even though our jurisprudence is much more developed for those rights.

If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari.... The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights.  The right to keep and bear arms is apparently this Court’s constitutional orphan.  And the lower courts seem to have gotten the message.

Nearly eight years ago, this Court declared that the Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). By refusing to review decisions like the one below, we undermine that declaration. Because I still believe that the Second Amendment cannot be “singled out for special — and specially unfavorable — treatment,” id., at 778–779 (majority opinion), I respectfully dissent from the denial of certiorari.

Even absent last week's horrific mass shooting in Florida, this opinion by Justice Thomas would be sure to get plenty of attention. And with debates over gun control seemingly now reaching a new pitch, this opinion adds an extra notable dimension to the developing discourse.

Though obviously not a sentencing case, I wanted to flag this dissent to (1) highlight the significant fact that Justice Thomas did not convince any of his colleagues to join his dissent, and thus (2) suggest this analogy: Justice Thomas is to constitutional limits on gun control laws as Justice Breyer is to constitutional limits on death penalty laws.

Justice Breyer has explained in various dissents why he thinks the Supreme Court should take up and consider further limits on capital punishment, but he has not succeeded over time to get additional Justices to join his campaign. Similarly, Justice Thomas is starting to make a habit of explaining why he thinks the Supreme Court should take up and consider further limits on gun control, but he has not succeeded over time to get additional Justices to join his campaign.

February 20, 2018 in Second Amendment issues, Who Sentences | Permalink | Comments (11)

February 19, 2018

SCOTUS back in action with a number of criminal cases up for oral argument

Thanks to the holiday weekend, the Supreme Court returns to action this week with only two days of oral argument.  But for fans of the SCOTUS criminal docket and intricate issues, it should be a glorious two days with this schedule (with compliments to SCOTUSblog for links/content):

Tuesday Feb 20 arguments:

Currier v. Virginia   Issue: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.  Argument preview: Revisiting the double jeopardy conundrum (Corrected)

City of Hays v. Vogt  Issue: Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.  Argument preview: A deceptively complex Fifth Amendment question -- use of compelled statements at a preliminary hearing

 

Wednesday Feb 21 arguments:

Rosales-Mireles v. United States  Issue: Whether, in order to meet the standard for plain error review set forth by the Supreme Court in United States v. Olano that "[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,’” it is necessary, as the U.S. Court of Appeals for the 5th Circuit required, that the error be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.”  Argument preview: Should forfeited Sentencing Guidelines errors normally be corrected?

Dahda v. United States.  Issue: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge's territorial jurisdiction.  Argument preview: Should courts read statutory exclusionary rules broadly? 

February 19, 2018 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Conservatives urge Trump to grant pardons in Russia probe"

The title of this post is the headline of this lengthy new Politico article.  Here are excerpts:

After months of criticizing special counsel Robert Mueller’s Russia probe, President Donald Trump’s supporters are issuing increasingly bold calls for presidential pardons to limit the investigation’s impact.  “I think he should be pardoning anybody who’s been indicted and make it clear that anybody else who gets indicted would be pardoned immediately,” said Frederick Fleitz, a former CIA analyst and senior vice president at the conservative Center for Security Policy.

The pleas for mercy mainly extend to the four former Trump aides who have already been swept up in the Russia probe: former campaign manager Paul Manafort, former deputy campaign manager Rick Gates, former national security adviser Michael Flynn and former campaign foreign policy adviser George Papadopoulos.  But they don’t stop there.

“It’s kind of cruel what’s going on right now and the president should put these defendants out of their misery,” said Larry Klayman, a conservative legal activist. “I think he should pardon everybody — and pardon himself.”

Klayman and Fleitz spoke before Mueller indicted thirteen Russian nationals on Friday for staging an elaborate 2016 election interference operation in the United States. Democratic leaders said the hard evidence of Russian meddling underscores the importance of letting Mueller’s investigation run its course....

Trump’s lawyers and aides insist it’s premature to discuss even the possibility of pardons. “There have been no pardon discussions at the White House,” Ty Cobb, the White House attorney who leads the president’s official response to the Russia investigation, told POLITICO on Friday just hours before Mueller’s latest indictment was released.

After the Washington Post reported in July that Trump had tasked his aides with researching his pardon powers, Trump dismissed the story — while also making clear his view of the law. “While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us. FAKE NEWS,” Trump tweeted....

Trump has issued one pardon since taking office, to the controversial Arizona Sheriff Joe Arpaio, who was facing criminal contempt of court charges for defying a court order to stop profiling Latinos.  That August action, in the face of strong political opposition, makes some conservatives think that Trump would be willing to defy his critics again. “He did it for Sheriff Joe, so I’m thinking he would do it for other circumstances as well,” [Tom] Fitton said.

There has been little sign of Congressional Republican support for the idea of pardons. In the days after Flynn pleaded guilty, South Carolina Senators Lindsey Graham and Tim Scott both urged Trump not to pardon Flynn. Scott said it is important to have accountability and “a process that is clear and transparent.”

Pardons would also come at a high political cost, former George W. Bush White House spokesman Ari Fleischer said. “It’d just raise even more questions about Donald Trump if he pardons those closest to him because people will think he’s trying to protect himself.”

“You should let justice run its course,” he added.

Even some conservatives who support pardons in principle are wary of the severe political backlash they are certain to trigger.  Mike Cernovich, a conservative activist who has been affiliated with the alt-right but rejects that label, said he believes the moment for pardons has passed and that Trump needs to wait until after the November mid-term elections.  “If the Democrats take over, pardon everyone,” Cernovich said.  “They’re coming for you anyway.  They have their nuke with impeachment. You have your nuke with pardons.  And then settle in for an interesting two years.”

February 19, 2018 in Clemency and Pardons, Who Sentences | Permalink | Comments (7)

Spotlighting disparities in jail stays over unpaid court fines in Pennsylvania

A helpful reader made sure I saw this impressive piece of reporting from the Pittsburgh Post-Gazette under the headline "Modern-day debtors’ prisons? The system that sends Pennsylvanians to jail over unpaid court costs and fines."  I have probably not given as much attention here as I should to reporting and complaints about persons being incarcerated for failure to pay certain fines and fees, and this story caught my attention in its discussion of disparities in how judges justify sending folks to jail for failures to pay.  Here is an excerpt for that discussion:

U.S. Supreme Court and state court precedents forbid the government from locking up defendants too poor to pay.  District judges are supposed to jail only defendants who can afford to pay but “willfully” do not.  “The Constitution is very clear, the law is very clear, you cannot be jailed for failing to pay when you can’t pay,” said David Harris, a professor at the University of Pittsburgh School of Law.

But data show that is not always what happens.

People picked up on warrants for not paying court fees are brought before a district judge, who can hold an immediate payment determination hearing or postpone the proceeding. If the hearing is delayed, the district judge can set an amount that must be paid as collateral in order to allow the defendant to go free; that is supposed to ensure that the defendant will return for the hearing.  In many cases, that collateral equals the total payments owed.  Defendants who do not pay can be jailed until the first business day after 72 hours have passed.

District judges must fill out a Determination of Collateral form indicating why collateral is necessary and why the defendant can afford to pay it.

A Pittsburgh Post-Gazette review of more than 4,500 cases covering everyone jailed in 2016 in Pennsylvania for failure to post collateral (about 2,500 individuals) shows that in fewer than one in five cases, district judges appear to meet the standard in explaining why payment can be made.  They use statements such as “defendant has bank account” or “defendant has been working” or “gainfully employed.”

But in over 10 percent of cases involving more than 200 people, the district judges’ explanations for why a defendant can pay collateral seem to indicate just the opposite — that they don’t have the wherewithal.  Among the rationales: “defendant has no income; “defendant is homeless unable to pay; and “defendant has been evicted.”

The data show the system for meting out jail stays over unpaid court fines is wildly inconsistent among the state’s 67 counties and varies from one district judge to another....

The ACLU has been taking up cases around the state where it believes the law is not being followed in regard to payment determination hearings. It also has reached out to judges and district judges in an effort to make systemic changes.  “[M]any judges on both the courts of Common Pleas and magisterial district courts fundamentally misunderstand what constitutes a defendant’s ability to pay,” Andrew Christy, an ACLU of Pennsylvania attorney wrote regarding payment determination hearings last year for a legal publication.  A “lack of clear and uniform standards on what constitutes ability to pay” has been problematic and has driven the system to be unconstitutional, he wrote.

In many cases, the district judge offers rationales that the ACLU claims do not pass legal muster as to why a defendant should be able to post collateral.  The explanations include that the defendant’s family can pay; that the defendant receives public benefits; or that they have spent money on other expenses, such as tattoos.  “Has money for cigarettes, cell phone and to drink in bars,” read one form.  “Has cell phone, smokes cigarettes and has an I pad [sic],” read another.

February 19, 2018 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

February 18, 2018

Is Henry Montgomery of Montgomery v. Louisiana perhaps on the verge of a parole grant? UPDATE: NO by 2-1 vote by parole board

The question in the title of this post is prompted by this new commentary by Jody Kent Lavy, executive director of the Campaign for the Fair Sentencing of Youth, who write about a high-profile defendant soon to be considered for parole at age 71. Here are excerpts:

Henry Montgomery has been incarcerated in Louisiana prisons since he was 17 years old, and today he is 71.   He was sentenced to life without the possibility of parole when he was only a child, for the impulsive shooting of a sheriff's deputy decades ago.

As a result, he has missed a lifetime’s worth of events, learning, and relationships.  The United States Supreme Court ruled two years ago in his case, Montgomery v. Louisiana, that it is unconstitutional to impose a life-without-parole sentence on the vast majority of youth — a sentence the United States alone imposes on its children.  Still, Montgomery remains incarcerated, and will finally see the parole board just days from now....

And although Montgomery’s case has become emblematic of the fight to end the brutal practice of sentencing children to life without parole (and to other extreme sentences), Montgomery is not yet free.  Prosecutors in Louisiana are fighting his freedom, despite the U.S. Supreme Court ruling his sentence unconstitutional, along with such sentences for all youth whose crimes reflect “transient immaturity” rather than “irreparable corruption” — a trait I cannot imagine any child possessing, given where they are developmentally.  But it certainly isn’t true of Montgomery, whom I was fortunate to meet last year.  He is a soft-spoken, gentle man who has tried to make the most of his time in prison by coaching boxing, silk-screening, and serving as a mentor.

While Montgomery and his supporters look forward to his hearing Monday, there is a sea change afoot, just about everywhere but Louisiana, where prosecutors are seeking to reimpose life-without-parole sentences on approximately one-third of those given relief by Montgomery.  Meanwhile, in the rest of the country, hundreds of individuals like Henry Montgomery have come home over the past two years because of the court’s ruling and over a thousand have been resentenced to lesser terms.  States across the nation are abandoning life without parole at a remarkable rate.  And the sky has not fallen.

Few of us make decisions today like we did when we were 15, 16, or 17.  Our brains, not just our bodies, matured.  A growing number of courts, legislatures, prosecutors, and parole boards understand this.  And still, Montgomery — a gentle man, guilty of a crime for which he deserved to be held accountable in ways which reflected his age and life experiences — sits in prison.

UPDATE: This local article, headlined "Board denies parole to man who served 50 plus years after killing deputy when he was juvenile," reports the results of Henry Montgomery's parole hearing this morning. It starts this way:

The Louisiana parole board on Monday morning denied freedom to 71-year-old Henry Montgomery, whose case was central in a Supreme Court decision about juvenile offenders sentenced to life in prison without parole.

The three-member Louisiana Board of Pardons and Committee on Parole voted 2 to 1 to deny parole to Montgomery, who was convicted of first-degree murder in the 1963 shooting of an East Baton Rouge Sheriff's deputy.

"This is a parole hearing, it's not a sentencing hearing," said James Kuhn, the chairman of the parole panel. "I don't know what the victim would want, but he's a law enforcement officer. ... One of the things that society demands is that everyone abide by the rule of law and when you don't, there are consequences."

Kuhn and parole board member Kenneth Loftin, who both voted against Montgomery's parole, primarily cited the fact that Montgomery only completed two classes during his 54 years in prison.

However, Montgomery's lawyer, Keith Nordyke, argued that his client had received a waiver saying he could not complete his GED, and many classes were not available to inmates serving life during the first few decades of his time in prison.

February 18, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7)

Report that Mueller probe will soon produce another notable conviction and federal sentencing

A couple of month ago, as reported in this post, the investigation by special counsel Robert Mueller produced its first federal conviction when Michael Flynn pleaded guilty to lying to the FBI.   Now the Los Angeles Times is reporting here that another plea and another notable plea deal is in the works for another figure indicted by Mueller's team. Here are some of the basics (along with some sentencing details and a reminder of how economic issues can impact a defendant's decision-making):

A former top aide to Donald Trump's presidential campaign will plead guilty to fraud-related charges within days — and has made clear to prosecutors that he would testify against Paul Manafort, the lawyer-lobbyist who once managed the campaign.

The change of heart by Trump's former deputy campaign manager Richard Gates, who had pleaded not guilty after being indicted in October on charges similar to Manafort's, was described in interviews by people familiar with the case. "Rick Gates is going to change his plea to guilty," said a person with direct knowledge of the new developments, adding that the revised plea will be presented in federal court in Washington "within the next few days."

That individual and others who discussed the matter spoke on condition of anonymity, citing a judge's gag order restricting comments about the case to the news media or public. Gates' defense lawyer, Thomas C. Green, did not respond to messages left by phone and email. Peter Carr, a spokesman for special counsel Robert S. Mueller III, declined on Saturday to comment....

The imminent change of Gates' plea follows negotiations over the last several weeks between Green and two of Mueller's prosecutors – senior assistant special counsels Andrew Weissmann and Greg D. Andres.

According to a person familiar with those talks, Gates, a longtime political consultant, can expect "a substantial reduction in his sentence'' if he fully cooperates with the investigation. He said Gates is likely to serve about 18 months in prison.

The delicate terms reached by the opposing lawyers, he said, will not be specified in writing: Gates "understands that the government may move to reduce his sentence if he substantially cooperates, but it won't be spelled out."

One of the final discussion points has centered on exactly how much cash or other valuables — derived from Gates' allegedly illegal activity — that the government will require him to forfeit as part of the guilty plea.

Gates, 45, who is married with four children, does not appear to be well positioned financially to sustain a high-powered legal defense. "He can't afford to pay it," said one lawyer who is involved with the investigation. "If you go to trial on this, that's $1 million to $1.5 million. Maybe more, if you need experts" to appear as witnesses.

The Oct. 27 indictment showed that prosecutors had amassed substantial documentation to buttress their charges that Manafort and Gates — who were colleagues in political consulting for about a decade — had engaged in a complex series of allegedly illegal transactions rooted in Ukraine. The indictment alleged that both men, who for years were unregistered agents of the Ukrainian government, hid millions of dollars of Ukraine-based payments from U.S. authorities.

In this post after the Rick Gates was indicted along with Paul Manifort, I briefly sketched how guideline calculations could push their possible benchmark sentencing ranges into many years and even decades. Given these realities, I will be very interested to see if and how a plea deal for Gates might set out guideline calculations. As the press report suggests, Gates could and seemingly will be getting his sentence significantly reduced via 5K1.1 of the federal sentencing guidelines by providing "substantial assistance in the investigation or prosecution of another person who has committed an offense."   One cannot help but wonder is any person other than Manifort could be the subject of Gates' assistance to federal authorities.

February 18, 2018 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (6)

"Donald Trump and the Undoing of Justice Reform"

The title of this post is the headline of this lengthy New York Times editorial.  Here are excerpts:

In the decade or so before Donald Trump became president, America’s approach to criminal justice was changing fast — reckoning with decades of destructive and ineffective policies that had ballooned the prison population and destroyed countless lives.  Red and blue states were putting in place smart, sensible reforms like reducing harsh sentencing laws, slashing prison populations and crime rates, and providing more resources for the thousands of people who are released every week.

President Obama’s record on the issue was far from perfect, but he and his first attorney general, Eric Holder Jr., took several key steps: weakening racially discriminatory sentencing laws, shortening thousands of absurdly long drug sentences, and pulling back on the prosecution of low-level drug offenders and of federal marijuana offenses in states that have legalized it.  This approach reflected state-level efforts and sent a message of encouragement to those still leery of reform.

Within minutes of taking office, Mr. Trump turned back the dial, warning darkly in his Inaugural Address of “American carnage,” of cities and towns gutted by crime — even though crime rates are at their lowest in decades. Things only got worse with the confirmation of Attorney General Jeff Sessions, who, along with Mr. Trump, appears to be stuck in the 1980s, when politicians exploited the public’s fear of rising crime to sell absurdly harsh laws and win themselves re-election.  Perhaps that’s why both men seem happy to distort, if not outright lie about, crime statistics that no longer support their narrative....

Under Mr. Trump, the Justice Department has pulled back from his predecessor’s investigations of police abuse and misconduct; resumed the use of private, for-profit prisons; and stopped granting commutations to low-level drug offenders who have spent years or decades behind bars.

Meanwhile, Mr. Sessions, who as a senator was one of the most reliable roadblocks to long-overdue federal sentencing reform, is still throwing wrenches into the works as Congress inches toward a bipartisan deal.  Mr. Sessions called the Sentencing Reform and Corrections Act, a sweeping bill that would reduce some mandatory-minimum sentences, and that cleared the Senate Judiciary Committee on Thursday, a “grave error.”  That earned him a rebuke from the committee’s chairman, Senator Charles Grassley, who pointed out that the attorney general is tasked with enforcing the laws, not writing them.  “If General Sessions wanted to be involved in marking up this legislation, maybe he should have quit his job and run for the Republican Senate seat in Alabama,” Mr. Grassley said.

Mr. Grassley is no one’s idea of a justice reformer, but he supports the bill because, he said, it “strikes the right balance of improving public safety and ensuring fairness in the criminal justice system.”

So what has this administration done right?  The list is short and uninspiring.  In October, Mr. Trump declared the epidemic of opioid abuse a national emergency, which could be a good step toward addressing it — but he’s since done almost nothing to combat a crisis that killed more than 64,000 Americans in 2016.

In his State of the Union address last month, Mr. Trump promised to “embark on reforming our prisons to help former inmates who have served their time get a second chance.”  It’s great if he really means that, but it’s hard to square his assurance with his own attorney general’s opposition to a bill that includes recidivism-reduction programs intended to achieve precisely this goal....

The rhetoric from the White House and the Justice Department has emboldened some state and local officials to talk tougher, even if just as ignorantly, about crime.  The good news is that it’s not working as well anymore. In Virginia’s race for governor last fall, the Republican candidate, Ed Gillespie, attacked his opponent, Ralph Northam, with ads blaming him for violence by the MS-13 gang.

It was a despicable stunt, its fearmongering recalling the racist but effective Willie Horton ad that George H. W. Bush ran on in his successful 1988 presidential campaign.  Thankfully, Virginia’s voters overwhelmingly rejected Mr. Gillespie, another sign that criminal justice reform is an issue with strong support across the political spectrum.  In the era of Donald Trump, candidates of both parties should be proud to run as reformers — but particularly Democrats, who can cast the issue not only as a central component of a broader progressive agenda, but as yet another example of just how out of touch with the country Mr. Trump and his administration are.

February 18, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Notable White House personnel development that should help the cause of criminal justice reform

This recent press article about a new person joining the White House staff should hearten those hoping to see some form of federal criminal justice reform become a reality.  Here are the details:

Brooke Rollins is headed to Washington to join a new White House office run by President Donald Trump’s son-in-law, Jared Kushner.  Rollins, 45, is a former aide to Texas Gov. Rick Perry and a member of Trump’s economic advisory committee.  Since 2002, she’s run the influential think tank Texas Public Policy Foundation, which lobbies on a host of conservative issues in Austin.

Rollins has been working closely with the office she’ll join, Trump’s Office of American Innovation.  The office’s mission is to apply ideas from corporate America to solve the nation’s problems.  Kushner said in a statement he’s “grateful” to have Rollins join his team, where she’ll “continue executing on our key initiatives.”

Rollins already works closely with Kushner and his office on criminal justice reform, an issue she added to TPPF’s policy priorities and championed for more than a decade in Texas. Rollins recently paired with the Koch network on a $4 million, multi-state criminal justice reform project.

Trump campaigned promising to take a tough-on-crime approach. Rollins said the White House has been receptive to TPPF’s ideas on the issue, and the think tank recently added staff in D.C. to work specifically on criminal justice.  “They’re business oriented people and they want results fast,” Rollins said of the Office of American Innovation last year. “They see an organization like ours… and we’ve been able to implement that in Texas, and they want to understand how to do that here.”

Here are snippets of an op-ed piece that Rollins co-authored that was published just last week:

Far too many inmates are incarcerated when they could instead be rehabilitated. Of the 1.3 million people held in state prisons at the end of 2015, 197,200 had as their most serious offense a drug charge; 44,700 of those were for simple possession....

The emphasis on punishment rather than rehabilitation has a high dollar cost — $80 billion a year for incarceration, and an even higher cost in the diminution of the human spirit.

The system traps individuals in a soul-crushing cycle of poverty and prison, while doing next to nothing to make our streets safer or change the behavior of those who are going to be living among us when their time is served.

Proposals to address these challenges are not pie-in-sky do-gooderism; they are a clear-eyed assessment based on evidence and experience. We must ensure that individuals coming out of prison are better people than when they entered. Preparations for re-entry and reintegration into communities must begin on the first day of incarceration, not 90 days before they are released, as often happens now....

[S]tates have seen the results and are instituting programs focusing on education and training that are showing success in rehabilitating individuals and reducing recidivism. Everyone deserves a second chance.

Rollins will not be able to ensure federal criminal justice reforms become a reality ASAP, but her very hire suggests to me continuing commitment from at least some persons to have effective advocates for reform working within the White House.

February 18, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (3)