Monday, February 09, 2015
Briefs seeking SCOTUS review of 15-year mandatory federal sentence for possessing shotgun shells
As regular readers may recall from this post, a few months ago a Sixth Circuit panel rejected an Eighth Amendment challenge brought by Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer." I helped file an amicus brief on in support of Mr. Young's claim in the Sixth Circuit, and now I have helped put together another amicus brief in support of his SCOTUS cert petition.
The SCOTUS cert amicus, which can be downloaded below, makes a number of distinct points based in part on the (little-known) fact that the Supreme Court has never reviewed on the merits a federal term-of-years sentences under modern Eighth Amendment doctrines. Writing along with Prof Michael J. Zydney Mannheimer, this brief starts and ends this way:
This Court has never addressed how the Eighth Amendment’s proportionality and procedural safeguards for defendants facing the most serious penalties are to be applied when federal courts consider a challenge to a federal sentence. Both the original meaning of the Cruel and Unusual Punishments Clause and modern Eighth Amendment jurisprudence reasonably suggest that the proportionality and procedural safeguards in the Eighth Amendment should have a more robust application when federal courts are reviewing federal sentences, especially when a severe sentence significantly conflicts with state punishment norms.
These realities call for this Court to take up Mr. Young’s petition for certiorari and declare unconstitutional his fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells in violation of 18 U.S.C. § 922(g)(1). The vast majority of U.S. States do not even criminalize possession of shotgun shells by a convicted felon (surely because mere passive possession of ammunition alone is neither inherently dangerous nor a ready instrument of crime absent possession of a firearm). The handful of States that do criminalize this possession offense treat the crime as a misdemeanor or set a statutory maximum prison sentence for the offense well below the 15- year mandatory minimum federal term Mr. Young received. Moreover, Amici are unaware of any case from any State or locality in which a defendant received any prison sentence of any duration for offense conduct that involved only the harmless possession of a small number of shotgun shells. Legislative enactments and state practices thus provide in this case potent objective evidence of a national consensus against Mr. Young’s federal punishment....
Perhaps a majority of this Court has come now to the view that the Eighth Amendment functionally and formally provides no restrictions whatsoever on how severe Congress may punish adults through prison terms for conduct it deems criminal, and that only structural provisions like the Commerce Clause “impose real limits on federal power” and establish “boundaries to what the Federal Government may do” in the exercise of its police powers through the federal criminal justice system. Alderman v. United States, 562 U.S. ___ (2011) (Thomas, J., dissenting from the denial of certiorari). But, as explained above, a sounder originalist and modern understanding of the Cruel and Unusual Punishments Clause is as a constitutional provision that can operate to protect individual Americans from the most extreme application of severe mandatory prison terms for the most minor transgression of federal law. Indeed, if Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).
Prior related posts:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
- Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
Tuesday, February 03, 2015
A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos
If the wealthy truly have extraordinary influence on modern federal politics and policies, a notable defendant serving a mandatory 55-year sentence as a result of a few small marijuana sales ought to be getting out of prison before too long. I say this because, according to this Daily Beast piece, my former client Weldon Angelos is now a "poster boy" for the latest Koch-brothers-backed political effort. This piece is headlined "The New Face of the Koch Campaign" and here is its subheading: "A father of two was sentenced to 55 years in jail for selling pot. The Koch brothers want to help set him free and make him the face of their new campaign for criminal justice reform." Here are excerpts:
Weldon Angelos could have hijacked a plane and spent less time in jail. But due to mandatory sentencing laws, the father of two was sentenced to 55 years in jail for selling pot — a term so long even the judge who gave it to him protested its injustice. A group backed by the Koch brothers agrees, and is now fighting to get him out of prison.
Angelos is an extreme case: even though the crime was considered non-violent, Angelos carried a firearm during a series of marijuana sales to a Salt Lake City police informant — so federal mandatory minimums required that he be put in jail until he’s 80 years old. Judge Paul Cassell protested the sentence when he was forced to make it in 2004, a move he told The Daily Beast he considers “the most unjust, lengthy sentence that I had to hand down.”...
Angelos is now 35 years old and has spent some 11 years behind bars. He has more than 40 years left to go. Even though his crime was non-violent, parole is not an option at the federal level. His only hope for relief from his sentence is an order by the president.
“If we’re going to deprive someone of liberty, and deal with the high cost of incarceration, it better solve a problem. And in this case, it doesn’t solve any problem,” argued Mark Osler, Angelos’ lawyer, who filed a clemency petition on his behalf in 2012.
This is where the Koch brothers come in. The case is being highlighted by Koch-backed group Generation Opportunity, which targets millenials, in a broader campaign to press for criminal justice reforms this year. They will kick off the campaign with a documentary highlighting Angelos’ predicament, premiering at Washington, D.C.’s Newseum next week. “[This year] offers a unique moment in history in which people of different backgrounds and political leanings are coming together to facilitate a substantive dialogue on how to fix [the criminal justice system],” said Evan Feinberg, the group’s president. “We can work towards a more just system that reflects the rule of law without overcriminalizing non-violent offenses.”
The new campaign will target the overcriminalization of non-violent crime, mandatory minimum laws, and helping criminals who have served their sentences reintegrate into society. The demilitarization of police and the excesses of civil asset forfeiture will also be addressed.
Generation Opportunity worked with Families Against Mandatory Minimums on the documentary. FAMM founder Julie Stewart was in the room during Angelos’ first sentencing hearing. It was, she said, a severe example of a worrisome trend in the criminal justice system....
“A lot of people just thought that because of the amount of time my brother was [sentenced to], he had done something terrible, just because of the ignorance that is out there about mandatory sentencing,” said Lisa Angelos, Weldon’s older sister and advocate. “Before the case, I had no idea that this was possible in America.” The judge who was forced to hand down the sentence, Paul Cassell, said the Angelos case is an example of “clear injustice marring the public perception” of the federal courts — and victimizing taxpayers who have to pay to keep him locked up.
“We have in place in our country today some very draconian penalties that distort our whole federal sentencing scheme,” Cassell said. “When people look at a case like Weldon Angelos and see that he got 55 years, and they see other cases where victims have gotten direct physical or psychological injuries and don’t see a similar [result] from the system, they start to wonder if the system is irrational.”
When he was sent to prison, Angelos’ children were small, now both are in their teens. Without their father, the family fell on hard financial times. His children rarely talk to him, Weldon’s sister says, because they can’t afford a cell phone on which they can be reached. “When I tell him stories about his kids, you can tell how very hard it is for him to hear it… to know that he can’t be here,” Lisa Angelos said. “It’s destroyed him in many ways.”
The Angelos’ have waited for more than two years for word on their executive clemency request. The average successful clemency request takes approximately four years, according to his lawyer. Weldon Angelos deserves clemency, Osler said, because his sentencing “doesn’t correlate in this country with what’s wrong, and what those wrongs deserve.”
Long-time readers are likely familiar with the Angelos case, which came to my attention on a few months after I started this blog 11 years ago. I litigated pro bono, unsuccessfully, Weldon's 2255 motion with claims (that I still find compelling) that his prosecution and sentencing involved violations of the Second, Fifth, Sixth and Eighth Amendments. I continue to hope Weldon will receive clemency or some other form of relief soon not merely to remedy the injustice of his extreme prosecution and sentencing, but to vindicate critical constitutional principles.
Related prior posts providing some Angelos case history:
- Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos
- Cert denied in Angelos mandatory minimum case
- NYU Center files amicus in Angelos case
- An argument that the Second Amendment and Heller should help Weldon Angelos
- Weldon Angelos files 2255 motion
- A request for a commutation for Weldon Angelos
- "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
February 3, 2015 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack
Monday, September 15, 2014
Effective commentary on Sixth Circuit panel upholding 15-year ACCA sentence for possession of shotgun shells
I am pleased to see that by LawProf Richard M. Re now has posted on his (wonderfully titled) Re's Judicata blog some new critical thoughts about the Sixth Circuit panel ruling late last week in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here). Young rejected an Eighth Amendment claim by the defendant by ruling that a mandatory 15-year federal imprisonment term was not grossly disproportionate for a felon's possession of shotgun shells. I first blogged about the Young ruling here, and I have not (yet) commented further because I was involved in the briefing and argument to the Sixth Circuit as an amicus representing NACDL.
Helpfully, Prof Re's extended post on Young, which is titled "A 'Shell' Game in the Sixth Circuit?", highlights some of my own deep concerns about the ruling. I recommend everyone check out the full post, which gets started this way:
In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note. As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.” The case might go to the Supreme Court on the Eighth Amendment question it raises.
Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency. First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about. A robust clemency tradition would bring those factors to light. Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it — and, in doing so, the court relied on allegations and innuendo instead of judicial findings.
Prior related posts on Young case:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
- Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
September 15, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Thursday, September 11, 2014
Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
Because I filled an amicus brief on behalf of defendant Edward Young and participated in oral argument as well, I am much too close to the Eighth Amendment issue resolved against the defendant today in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here), to provide any objective analysis and perspective. And rather than provide my biased analysis in this post, let me for now be content to reprint the start the Sixth Circuit panel's per curiam ruling:
Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer. He came into possession of the shells while helping a neighbor sell her late husband’s possessions. When he eventually discovered them, he did not realize that his legal disability against possessing firearms — resulting from felonies committed some twenty years earlier — extended to ammunition. See 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (ACCA), Young received a mandatory fifteen-year sentence.
Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice. Our precedent compels us to reject these claims and to affirm Young’s sentence.
To its credit, the per curiam decision in Young engages somewhat with some Eighth Amendment principles I sought to stress in my amicus efforts in this case, and Judge Stranch authored an extended concurrence discussing the policy arguments against mandatory minimums. But these aspects of the Young opinion do very little to salve my seething aggravation and frustration with this ruling.
A number of judges on the Sixth Circuit have a (somewhat justified) reputation for going to great lengths to bend and extend Eighth Amendment jurisprudence to block state efforts to execute brutal murderers after a state sentencing jury imposed the death penalty. Consequently, I was hopeful (though not optimistic) that at least one member of a Sixth Circuit panel could and would conclude the modern Eighth Amendment places some substantive and judicially enforceable limits on extreme application of extreme federal mandatory minimum prison terms. Apparently not. Though surely not the intent of this ruling, I think the practical message is that one needs to murder someone with ammunition rather than just possess it illegally for the Sixth Circuit to be moved by an Eighth Amendment claim. (I was hoping to save a screed about this ruling for a future post, but obviously this is already a bit too raw for me to be able to hold my blog tongue.)
I am hopeful that the defendant will be interested in seeking en banc review and/or SCOTUS review, and thus I suspect the (obviously uphill) legal fight against this extreme sentence will continue. I plan to continue helping with that fight, and I would be eager to hear from others eager to help as well.
Prior related posts:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
September 11, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (25) | TrackBack
Wednesday, September 03, 2014
"Life sentence for buying marijuana?"
The question and title of this post comes from the headline of this new CNN commentary by Vanita Gupta, who is deputy legal director at the ACLU. An editorial note at the start of this piece provides this background: "CNN's David Mattingly reports on the case of a Missouri man sentenced to life in prison for purchasing marijuana Wednesday at 7 p.m. on Erin Burnett OutFront." And this companion piece, headlined "The price of pot," provides this additional preview:
Penalties for the personal use of marijuana vary across the country, the most severe standing in stark contrast as more states legalize medical and even recreational use. Possession of an ounce of pot in Colorado is penalty-free, but if you’re in Kansas, that same ounce could land you a year in jail and a $2,500 fine.
This week on "Erin Burnett OutFront," CNN's David Mattingly investigates two marijuana cases involving stiff penalties, including one man spending life in prison on pot charges. "OutFront" asks: Does the punishment fit the crime? Watch the two-part "OutFront" investigation Wednesday and Thursday, September 3-4 at 7 p.m. ET.
And now here are now excerpts from the commentary by Vanita Gupta:
Clearly something is broken when a Missouri man named Jeff Mizanskey can be sentenced to die in prison for purchasing seven pounds of marijuana. With two nonviolent marijuana convictions already on his record, Jeff received life without parole under Missouri's three strikes law.
The punishment of growing old and dying behind bars for offenses like Mizanskey's is extreme, tragic, and inhumane. This should outrage us, but it should not surprise us. This country has spent 40 years relentlessly ratcheting up the number of people going to prison and dramatically expanding the time we hold them there. We've spent decades criminalizing people with drug dependency, passing extreme sentencing laws, and waging a war on drugs that has not diminished drug use. Small wonder, then, that even less serious crimes like Mizanskey's marijuana purchase result in costly and cruel sentences....
While many of the lawmakers who passed harsh sentencing laws thought they were doing the right thing, the results are now in: This approach has devastated families and communities, generated high recidivism rates, drained state budgets from more productive investments, and has reinforced generations of poverty and disadvantage that disproportionately fall on communities of color. There were ways to hold Mizanskey and others like him accountable for their actions short of sentencing them to die in prison.
We can and must do better. It's time for states to end the costly criminalization of marijuana and recalibrate sentencing laws so that the punishment actually fits the crime as opposed to a politician's reelection agenda. Public attitudes toward marijuana are rapidly evolving, and a Gallup poll last year found for the first time that a majority of Americans now favor legalization as a better course than criminalization.
Unfortunately, laws and police practices that enforce them are out of step with public opinion. Nationally, nearly half of all drug arrests are for marijuana offenses. At least one person is arrested for marijuana possession every hour in Mizanskey's home state of Missouri, which also wasted nearly $50 million on marijuana enforcement in 2010. Although black people and white people use marijuana at about the same rate, a black person in Missouri was 2.6 times more likely to be arrested for having marijuana than a white person.
The solution is clear. Instead of taxpayers spending millions of dollars on this unnecessary enforcement and keeping folks like Mizanskey in prison for the rest of their lives, states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.
But even if states are not ready to expand their tax base in this manner, state lawmakers need to take a good, hard look at their sentencing laws and eliminate penalties that far outweigh the crimes they seek to punish. It is tempting to think that Mizanskey's case is an anomaly, but that is not the case.
According to a report released by the American Civil Liberties Union last year, there are currently 3,278 people serving life sentences without parole for nonviolent crimes, including marijuana offenses. Many of them, like Mizanskey, are there because of three-strikes laws and mandatory sentencing regimes. These policies force judges to impose excessively cruel sentences and forbid corrections officials from granting early release or parole, even despite exemplary records in prison.
The good news is that there is a growing bipartisan consensus all over the country that our criminal justice system has gone too far and that we can and must safely downsize our prison population. Missouri recently reformed the three strikes law that sentenced Jeff to prison for life. If he were sentenced today, he could have received a significantly shorter sentence and be eligible for parole.
As states like Missouri make these kinds of reforms, we must not forget the people who languish behind bars because of old sentencing laws now thought to be excessive. Smart reforms that correct past injustice should be made retroactive, and governors must use their clemency powers more frequently. Missouri Gov. Jay Nixon should grant clemency to Jeff Mizanskey. Public safety is not served by having him die in prison.
September 3, 2014 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Pot Prohibition Issues, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Wednesday, March 12, 2014
Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
A number of months ago in this post, titled "A few shotgun shells landed a man 15 years in federal prison," I reported on a remarkable federal sentencing story out of Tennessee involving an extreme application of the 15-year mandatory minimum federal sentencing term set out in the Armed Career Criminal Act. I am now excited that tomorrow morning, a Sixth Circuit panel is scheduled to hear oral argument in this matter, US v. Young. I am excited in part because I authored a brief on behalf of the National Association of Criminal Defense Attorneys (NACDL) setting out why this sentencing should be deemed unconstitutional under a proper application/interpretation of the Eighth Amendment. And the Sixth Circuit has afforded me five minutes of argument time (taken from the Appellant's alloted time).
Notably, counsel for Mr. Young has on appeal has developed a Fifth Amendment challenge to the conviction as well as making Eighth Amendment arguments against the sentence. And the feds, not surprisingly, contend there is no constitutional problem with the conviction and sentence in this case. Readers interested in this case and the legal issues on appeal can review the briefs, which I am uploading here:
Related prior posts:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
Wednesday, November 13, 2013
New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms
The ACLU has released a huge new report giving focused attention to the thousands of prisoners serving life without parole sentences in the United States for nonviolent drug and property crimes. This massive new report, which can be accessed at this link, is titled "A Living Death: Life without Parole for Nonviolent Offenses." This related webpage highlights some specific defendants and cases with this introduction:
For 3,278 people, it was nonviolent offenses like stealing a $159 jacket or serving as a middleman in the sale of $10 of marijuana. An estimated 65% of them are Black. Many of them were struggling with mental illness, drug dependency or financial desperation when they committed their crimes. None of them will ever come home to their parents and children. And taxpayers are spending billions to keep them behind bars.
Here is an excerpt from the 200+ page report's executive summary:
Using data obtained from the Bureau of Prisons and state Departments of Corrections, the ACLU calculates that as of 2012, there were 3,278 prisoners serving LWOP for nonviolent drug and property crimes in the federal system and in nine states that provided such statistics (there may well be more such prisoners in other states). About 79 percent of these 3,278 prisoners are serving LWOP for nonviolent drug crimes. Nearly two-thirds of prisoners serving LWOP for nonviolent offenses nationwide are in the federal system; of these, 96 percent are serving LWOP for drug crimes. More than 18 percent of federal prisoners surveyed by the ACLU are serving LWOP for their first offenses. Of the states that sentence nonviolent offenders to LWOP, Louisiana, Florida, Alabama, Mississippi, South Carolina, and Oklahoma have the highest numbers of prisoners serving LWOP for nonviolent crimes, largely due to three-strikes and other kinds of habitual offender laws that mandate an LWOP sentence for the commission of a nonviolent crime. The overwhelming majority (83.4 percent) of the LWOP sentences for nonviolent crimes surveyed by the ACLU were mandatory. In these cases, the sentencing judges had no choice in sentencing due to laws requiring mandatory minimum periods of imprisonment, habitual offender laws, statutory penalty enhancements, or other sentencing rules that mandated LWOP. Prosecutors, on the other hand, have immense power over defendants’ fates: whether or not to charge a defendant with a sentencing enhancement triggering an LWOP sentence is within their discretion. In case after case reviewed by the ACLU, the sentencing judge said on the record that he or she opposed the mandatory LWOP sentence as too severe but had no discretion to take individual circumstances into account or override the prosecutor’s charging decision.
As striking as they are, the numbers documented in this report underrepresent the true number of people who will die in prison after being convicted of a nonviolent crime in this country. The thousands of people noted above do not include the substantial number of prisoners who will die behind bars after being convicted of a crime classified as “violent” (such as a conviction for assault after a bar fight), nor do the numbers include “de facto” LWOP sentences that exceed the convicted person’s natural lifespan, such as a sentence of 350 years for a series of nonviolent drug sales. Although less-violent and de facto LWOP cases fall outside of the scope of this report, they remain a troubling manifestation of extreme sentencing policies in this country.
November 13, 2013 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (19) | TrackBack
Tuesday, October 15, 2013
Fascination and frustration with "finality fixation" in en banc Sixth Circuit Blewett argumentsAs mentioned in this recent post, I have so far resisted writing up my thoughts concerning last week's remarkable Sixth Circuit en banc Blewett oral argument on crack sentencing modifications. I have done so in part because I wanted to be able to devote a block of time to the task, and in part because via the Sixth Circuit website folks can (and should) listen for themselves to the audio recording of the hour-long argument via this link.
Now that I have had more time to think about last week's oral argument and the broader issues in Blewett, I continue to find myself (as the title of this post suggests) fascinated and frustrated by what I will call a "finality fixation" in the context of sentencing issues. A variation of this fixation made me a bit batty in the FSA pipeline debate that culminated in the Supreme Court's Dorsey ruling, and it also comes to play in the on-going dispute over whether the Supreme Court's Miller ruling will apply retroactively to final juve murder sentences. I am likely fixated on this notion of a "finality fixation" because I am currently working on a symposium article on this topic. Still, the tenor of much of the Blewett oral argument, and other arenas where concerns about sentencing finality seem often now to trump interests in sentencing fitness and fairness, have a way of driving me to fits of fascination and frustration.
At the risk of repeating parts of the brief on Eighth Amendment issues which I helped file on behalf of the NACDL (and which is discussed and linked via this prior post), let me try here to explain what still makes me a bit nutty about cases like Blewett.
Point 1: Each and every federal criminal justice policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive and ineffectual, AND Congress enacted the "Fair Sentencing Act" to lower all federal crack sentences by raising the trigger quantity for mandatory minimum prison terms and by mandated that the US Sentencing Commission significantly lower all crack guideline prison ranges.
Point 2: When it reformed modern sentencing rules and eliminated parole release, Congress created a express statutory sentencing modification mechanism — in 18 U.S.C. § 3582(c)(2) — through which offenders still in prison who were "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission [can move for a court to] reduce the term of imprisonment," AND thousands of the most serious crack offenders sentenced before the FSA have had their prison sentences reduced through this stautory mechanism. (This latest USSC report indicates not only that 7,300+ pre-FSA crack offenders have had their prison terms reduced by an average of 29 months, but also that thousands of these crack offenders got reduced sentences despite having extensives criminal histories and/or having used a weapon in their offense and/or having a leadership role in the offense. See Table 6 of USSC report.)
Point 3: Congress, the Prez and his Justice Department, and the US Sentencing Commission have all ordered, authorized and/or not objected to thousands of more serious pre-FSA crack offenders being eligble for (and regularly receiving) reduced prison terms via the statutory sentencing modification mechanism of 3582(c)(2). The Blewetts and other less serious pre-FSA crack offenders whose sentences were impacted by the 100-1 mandatory minimum terms and who are still in federal prison serving (now-repealed) pre-FSA crack sentences that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual are now simply arguing that they, too, should be eligible to use the same statutory sentence modification mechanism that thousands of the most serious crack offenders have already benefitted from.
Point 4: Nobody has, to my knowledge, even tried to offer a substantive defense or penological justification as to why the Blewetts and only those less serious pre-FSA crack offenders should not even be eligible for the statutory sentencing modification mechanism of 3582(c)(2) and thus must serve the full duration of (now-repealed) pre-FSA crack sentences. Indeed, it seem to me at least that it is not just unjust, but irrational and cruel and unusual, to require only the least serious pre-FSA crack offenders to serve out prison terms that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual, especially given that thousands of the most serious pre-FSA crack offenders can and have already benefitted from the statutory sentencing modification mechanism of 3582(c)(2). (Critically, Congress has never stated nor even suggested, either expressly or implicitly, that it wanted the Blewetts and only those less serious pre-FSA crack offenders to be catergorically ineligible for sentence modification. Indeed, I think the fair implication of the express provisions of the FSA is that all pre-FSA crack offenders should at least have a chance for sentence modification pursuant to 3582(c)(2).)
In light of all these points, in my view the only plausible rationale for denying the Blewetts and other less serious pre-FSA crack offenders a chance for sentence modification is the oft-stated, but rarely thought-through, idea of "finality." And though I think finality is an important policy concern when defendants are attacking long-final convictions, I do not think this concept of finality historically has or now should be given great weight when a defendant is only seeking to modestly modify a sentence. Further, when a federal defendant is seeking only a modest prison sentence modification under an express statutory provision created by Congress, the comity and separation of powers concerns that might also give finality interests extra heft are not present.
Thus my contention that only a "finality fixation" fully accounts for why so many judges seem resistant to the various legal arguments that the Blewetts and other less serious crack offenders are making in these FSA cases. As I see it, given the text and purposes of the FSA and the text and purposes of 3852(c)(2), the eagerness of judges to deny relief to the Blewetts and other less serious crack offenders reflects a fixation on the notion that, even in this remarkable and unique setting, concerns about sentencing finality should still consistently and conclusively trump the need to achieving sentencing fitness and fairness. And that reality fascinates and frustrates me.
Am I silly, dear readers, to be so fascinated and frustrated by all this? I am hoping, especially from those eager to see the Blewett panel decision undone (which I now fear a majority of the Sixth Circuit is planning to do), for responses in the comments that might help me better see what my analysis above is missing and/or why I should not be so nutty about these "finality fixation" matters.Related posts on Blewett:
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
- "Crackheaded Ruling by Sixth Circuit"
- How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
- Two weeks later, has there been any significant and noteworthy Blewett blowback?
- As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling
- Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case
- My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett
- Full Sixth Circuit grants en banc review in Blewett
- Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)
October 15, 2013 in Examples of "over-punishment", Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Sunday, August 11, 2013
New York Times column spotlights extreme application of ACCA in US v. YoungA few weeks ago in this post, titled "A few shotgun shells landed a man 15 years in federal prison," I reported on a remarkable federal sentencing story out of Tennessee involving an extreme application of the 15-year mandatory minimum federal sentencing term in the Armed Career Criminal Act. I am now pleased to see Nicholas Kristof giving this case some attention via this new op-ed column headlined "Help Thy Neighbor and Go Straight to Prison." Here are excerpts of a piece about a case that I hope gets lots and lots of attention as it makes its way up to the Sixth Circuit:
If you want to understand all that is wrong with America’s criminal justice system, take a look at the nightmare experienced by Edward Young.
Young, now 43, was convicted of several burglaries as a young man but then resolved that he would turn his life around. Released from prison in 1996, he married, worked six days a week, and raised four children in Hixson, Tenn.
Then a neighbor died, and his widow, Neva Mumpower, asked Young to help sell her husband’s belongings. He later found, mixed in among them, seven shotgun shells, and he put them aside so that his children wouldn’t find them. “He was trying to help me out,” Mumpower told me. “My husband was a pack rat, and I was trying to clear things out.”
Then Young became a suspect in burglaries at storage facilities and vehicles in the area, and the police searched his home and found the forgotten shotgun shells as well as some stolen goods. The United States attorney in Chattanooga prosecuted Young under a federal law that bars ex-felons from possessing guns or ammunition. In this case, under the Armed Career Criminal Act, that meant a 15-year minimum sentence.
The United States attorney, William Killian, went after Young — even though none of Young’s past crimes involved a gun, even though Young had no shotgun or other weapon to go with the seven shells, and even though, by all accounts, he had no idea that he was violating the law when he helped Mrs. Mumpower sell her husband’s belongings.
In May, a federal judge, acknowledging that the case was Dickensian but saying that he had no leeway under the law, sentenced Young to serve a minimum of 15 years in federal prison. It didn’t matter that the local authorities eventually dismissed the burglary charges.
So the federal government, at a time when it is cutting education spending, is preparing to spend $415,000 over the next 15 years to imprison a man for innocently possessing seven shotgun shells while trying to help a widow in the neighborhood. And, under the law, there is no early release: Young will spend the full 15 years in prison.
This case captures what is wrong with our “justice” system: We have invested in mass incarceration in ways that are crushingly expensive, break up families and are often simply cruel. With less than 5 percent of the world’s population, the United States has almost one-quarter of the world’s prisoners.
This hasn’t always been the case, but it is the result of policies such as mandatory minimum sentences since the 1970s. In 1978, the United States had 307,000 inmates in state and federal prisons. That soared to a peak of more than 1.6 million in 2009. Since then, the number of inmates has declined for three consecutive years to 1.57 million in 2012. The number of juveniles detained has also begun to drop since peaking in 2000, although the U.S. still detains children at a rate five times that of the next highest country.
In short, there’s some hope that this American experiment in mass incarceration has been recognized as a failure and will be gradually unwound. Among the leaders in moving away from the old policies are blue states and red states alike, including New York and Texas. But America still has twice as many prisoners today as under President Ronald Reagan.
Almost everyone seems to acknowledge that locking up vast numbers of nonviolent offenders is a waste of money. California devotes $179,400 to keep a juvenile in detention for a year, and spends less than $10,000 per student in its schools. Granted, mass incarceration may have been one factor in reduced crime in the last couple of decades; there’s mixed evidence. But, if so, the economic and social cost has been enormous — including the breakup of families and the increased risk that children of those families will become criminals a generation later....
When almost 1 percent of Americans are imprisoned (and a far higher percentage of men of color in low-income neighborhoods), our criminal justice system becomes a cause of family breakdown and contributes to the delinquency of a generation of children. And mass incarceration interacts with other government policies, such as the way the drug war is implemented, to have a disproportionate effect on African-Americans. Black men use marijuana at roughly the same rate as white men but are more than three times as likely to be arrested over it.
Young is particularly close to his children, ages 6 to 16. After back problems and rheumatoid arthritis left him disabled, he was a stay-at-home dad while his wife worked in a doctor’s office. When the judge announced the sentence, the children all burst into tears. “I can’t believe my kids lose their daddy for the next 15 years,” his wife, Stacy, told me. “He never tried to get a firearm in the 16 years I was with him. It’s crazy. He’s getting a longer sentence than people who’ve killed or raped.”...
I asked Killian, the United States attorney, why on earth he would want to send a man to prison for 15 years for innocently possessing seven shotgun shells. “The case raised serious public safety concerns,” Killian said. Oh.
The classic caricature of justice run amok is Inspector Javert in Victor Hugo’s novel “Les Misérables,” pursuing Jean Valjean for stealing bread for hungry children. In that case, Valjean knew that he was breaking the law; Edward Young had no idea.
Some day, Americans will look back and wonder at how we as a society could be much more willing to invest in prisons than in schools. They will be astonished that we sent a man to federal prison for 15 years for trying to help a widow.
Recent related post:
August 11, 2013 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (18) | TrackBack
Monday, July 22, 2013
"A few shotgun shells landed a man 15 years in federal prison"The title of this post is the headline of this remarkable federal sentencing story out of Tennessee. Here are the details:
In some cases, old mistakes echo across the years. New sins carry the crushing weight of an old life. In some cases, a criminal past is not forgiven.
Months before he left state prison on burglary convictions in 1996, Edward Lamar Young told his grandmother he was going to be a different man. He would get work, get married and have a family. The 26-year-old wouldn't steal to get what he needed or wanted. And soon after he left prison bars behind he fulfilled that promise. He met and married a woman named Stacy. The couple had four children.
But in late September 2011, he went off track. He stole tools, tires and weightlifting equipment from vehicles and a business warehouse. He even had his son with him on one trip, which added a separate charge. A video camera recorded the burglaries. Less than a week later police knocked on the door of his Hixson home. He let them in. They found the tools, but they found something else too, small items inside a drawer that would escalate his punishment far beyond burglary.
Young admits he's done bad things, but he says he's never carried a weapon, never shed another person's blood. But because of what police found at his house that day -- seven shotgun shells -- his 15-year prison sentence now places him alongside lifelong killers, movie-style gangsters and drug kingpins. There are homicide convictions that carry sentences half as long in Tennessee state courts.
Laws designed for the worst of the worst, but written broadly enough to ensnare the less dangerous, subject Young to what even his sentencing judge called a Dickensian penalty. There is a bill in Congress that would give federal judges discretion, untie their hands to ensure punishments fit the crimes. But that bill is far from passage and would have to apply retroactively, a rarity in many criminal laws, to help Young.
Weeks, maybe months before police came to his home Young had helped a neighbor, a woman named Neva Mumpower. Her husband had died and she wanted to sell some of their older furniture. She told Young if he hauled it to the flea market she'd split whatever it sold for. He did, but kept a chest of drawers at his place.
A short time later he went through it and found the shells. Young didn't think much of them. He put them away so the kids wouldn't come upon them and went on with his day. He'd get them back to Mumpower later or just throw them away. Except he didn't.
Young confessed to the burglaries and faced state prison time, probably a few years with the likelihood of parole and probation. Not a proud moment but recoverable. The 43-year-old man soon discovered that the shotgun shells carried a heavier burden -- a 15-year mandatory federal prison sentence with no possibility of parole.
Standing inside the wood-paneled courtroom in the downtown federal building May 9, Stacy Young knew what was coming but held out a strand of hope. Mercy, maybe. She listened as the lawyers droned on about legal definitions, criminal histories and what was right, what was fair. Then the judge told her husband he could speak.
"I just ... I mean, it wasn't ... it wasn't my intent," Ed Young told the judge. "I did find them in the box, and I put them up until I could give them back to her, so my kids wouldn't find them. I don't think I deserve to grow up without my family, and I don't think my family deserves to grow up without me." The Youngs' oldest son, who is 16, ran out of the courtroom in tears. The crying family huddled in the hallway after the sentencing. The youngest son is 6 years old. He'll be 20 when Ed Young leaves federal prison, a 62-year-old man....
Convicted felons are told they no longer can possess firearms. Having a gun, even if the felony was a white-collar crime such as wire fraud, means prison time. What some may know but Young swears he did not, is that possessing ammunition, say seven shotgun shells, is just as bad.
There's nothing in Young's criminal record to show he's ever been accused of carrying a weapon, even in the 20-year-old burglary convictions. But those burglaries are counted as "violent crimes." And language is important. Young's criminal past classified him as an armed career criminal under federal law. That classification means he faces severe penalties for the rest of his life if he breaks any of the rules.
Young's attorney is flabbergasted. "I don't think there's anything like it at all," said Chris Varner. "Everything went wrong here." As far as his legal research shows, it is only under the Armed Career Criminal Act that Young's distant convictions can count against him, Varner said. Other federal sentencing guidelines would not have considered the past convictions because they were so long ago.
Once the charges were filed and the federal grand jury indicted Young, nothing could stop the machine that is federal law. Prosecutor Chris Poole worked the case. He declined to comment under U.S. Attorney's Office policy not to speak about active cases. Young's case is on appeal to the U.S. 6th Circuit Court of Appeals. But in court documents, Poole explains to U.S. District Judge Curtis Collier that by definition Young's crimes fit the career criminal law and the minimum sentence is 15 years. The maximum was life.
During the May 9 hearing Collier hinted at his thoughts on the Draconian sentence. "Mr. Young, I don't know if you read a lot, but there was an author who has written a lot of books, and has some overtones here. His name is Charles Dickens," Collier said.
The judge went on to explain the situation and his own lack of power. "This is a case where the Congress of the United States has instructed federal district judges like myself to impose a sentence of at least 180 months, that is, 15 years," Collier said. "... This sentence is not so much a punishment for the present crime as it is a punishment for your history of crimes."
The week after the federal sentencing, prosecutors in state court dismissed the burglary and related charges....
Stacy Young is now a single working mother with a house full of children. She'll haul them down to Atlanta every other week. Two of the children will visit the first day, then they'll stay overnight for the other two to see their father the second day. Ed Young writes letters nearly every day and says he'll keep writing.
Varner, his attorney, sees the sentence far outweighing the crime and worries what it says about justice. "This is not who we are, we do not do this as a nation," he said. Stacy, devastated by the outcome, living with the consequences, sees it much more personally. "I don't think he should have 15 years for seven shotgun shells," she said. "I think it's crazy."
July 22, 2013 in Examples of "over-punishment", Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (26) | TrackBack
Thursday, January 10, 2013
"Why Has Obama Pardoned So Few Prisoners?"The title of this post is the headline of this new commentary by Sasha Abramsky which will appear in the January 28, 2013 issue of The Nation. (Hat tip: How Appealing.) The piece gives particular attention to the sad case of my former habeas client Weldon Angelos, and here are excerpts:
Six and a half years ago, I drove out to Lompoc federal penitentiary in the hills outside Santa Barbara to interview Weldon Angelos, a young man who had received the improbable sentence of fifty-five years without parole for selling marijuana, ostensibly while carrying a small pistol in an ankle holster.
A rap artist from Salt Lake City and friend to Napoleon and other eminences of the hip-hop world, Angelos had been ensnared by an informant in a series of undercover marijuana purchases that reeked of entrapment. What might have been a two-bit state pot case became a high-stakes federal case. When Angelos — who denied carrying a gun when dealing — refused to enter a guilty plea, the feds played hardball, piling more indictments onto the original charge. In December 2003, more than a year after he had been arrested, Angelos was found guilty on several counts, though he was acquitted on others. Because of mandatory minimum statutes linked to the firearms charges, the presiding judge — a George W. Bush appointee named Paul Cassell — was left with no discretion at sentencing. After asking the prosecuting and defense attorneys to advise him on the constitutionality of the sentence, a distraught Cassell handed down the fifty-five-year term, a punishment he called “unjust, cruel and even irrational.” In his opinion, he urged then-President Bush to pardon the young father of three and right a clear judicial wrong.
Angelos was 23 when he was arrested. He was in his mid-20s when I met him. It was such an obvious injustice that I thought the odds were pretty good he’d be out of prison by the time he was 30. Surely one or another president would pardon him or commute his sentence, either reducing it or allowing him to be released on time served.
But today Angelos is in his early 30s and fast approaching his ten-year anniversary behind bars. Bush didn’t pardon him. Neither has President Obama — despite earlier pleas on Angelos’s behalf from several ex-governors, dozens of ex–federal prosecutors and judges, and four US attorneys general; despite growing concerns over mandatory minimum sentences from members of Congress; despite the pledge by onetime Salt Lake City mayor and civil rights lawyer Rocky Anderson to “do anything I can to remedy this unbelievable injustice”; despite The Washington Post and other leading publications urging clemency; despite the fact that, at least rhetorically, the Obama administration has moved away from the sensational, fearmongering tactics of the drug war, and that drug czar Gil Kerlikowske doesn’t even like to talk about a “war on drugs”; despite the fact that in late 2012 Obama said the feds had “bigger fish to fry” than prosecuting marijuana users in states moving toward legalization; despite the fact that one state after another has rolled back its most draconian mandatory minimum sentences for small-time drug users and dealers....
So why hasn’t Obama done the right thing? Could it be that Angelos has just gotten lost in the shuffle? Possibly — but if that’s the reason, there would be evidence that Obama has used his pardon and commutation powers wisely in other cases. Unfortunately, that’s not true....
A president who talks the talk about more sensible, nuanced drug policy, and whose oratory frequently invokes what is best in the American political imagination, has shown himself remarkably reluctant to use one of the most important of presidential prerogatives—the power to right judicial wrongs. “This president,” says Anderson, “has been unbelievably timid and disinclined to do justice in cases that scream out for commutation. There’s not a lot of moral or political fortitude in play.”...
In the long run, when it comes to preventing future unjust sentences like the one given Angelos, Congress and state legislatures should be the ones to roll back the excesses of the drug war. And there’s no doubt that Obama, a constitutional law scholar, understands how much more powerful legislation is than the willful, even capricious, pardon function of the president. (After all, Clinton was excoriated for what appeared to be pardons issued in exchange for campaign and other contributions. And Bush was heavily criticized for commuting the prison term of his disgraced adviser Lewis Libby.) But when there’s a massive miscarriage of justice — as has happened all too often during the forty years of the “war on drugs” — the president’s ability to pardon or commute sentences is vital.
How does one tell Weldon Angelos’s kids that their father will not only never walk them to school but that he will never walk their children to school? That if he survives fifty-five years in prison, he might get out just in time to walk his great-grandchildren to school. It’s unconscionable that such a sentence should stand. If Angelos and other drug war prisoners with absurd sentences remain in prison through Obama’s second term, it will be a stain on the president’s legacy.
January 10, 2013 in Clemency and Pardons, Drug Offense Sentencing, Examples of "over-punishment", Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, January 02, 2013
"Plead Guilty or Go to Prison for Life"The title of this post is the headline of this new commentary concerning the Chris Williams' case and authored by Jacob Sollum over at Reason.com. The sub-headline is "The stark choice given a medical marijuana grower highlights the injustice of mandatory minimums," and here are excerpts:
Chris Williams, a Montana medical marijuana grower, faces at least five years in federal prison when he is sentenced on February 1. The penalty seems unduly severe, especially because his business openly supplied marijuana to patients who were allowed to use it under state law.
Yet five years is a cakewalk compared to the sentence Williams originally faced, which would have kept the 38-year-old father behind bars for the rest of his life. The difference is due to an extremely unusual post-conviction agreement that highlights the enormous power prosecutors wield as a result of mandatory minimum sentences so grotesquely unjust that in this case even they had to admit it....
For a while it seemed that Williams, who rejected a plea deal because he did not think he had done anything wrong and because he wanted to challenge federal interference with Montana's medical marijuana law, also was destined to die in prison. Since marijuana is prohibited for all purposes under federal law, he was not allowed even to discuss the nature of his business in front of the jury, so his conviction on the four drug charges he faced, two of which carried five-year mandatory minimums, was more or less inevitable.
Stretching Williams' sentence from mindlessly harsh to mind-bogglingly draconian, each of those marijuana counts was tied to a charge of possessing a firearm during a drug trafficking offense, based on guns at the Helena grow operation that Williams supervised and at Flor's home in Miles City, which doubled as a dispensary. Federal law prescribes a five-year mandatory minimum for the first such offense and 25 years for each subsequent offense, with the sentences to run consecutively.
Consequently, when Williams was convicted on all eight counts, he faced a mandatory minimum sentence of 80 years for the gun charges alone, even though he never handled the firearms cited in his indictment, let alone hurt anyone with them. This result, which federal prosecutors easily could have avoided by bringing different charges, was so absurdly disproportionate that U.S. Attorney Michael Cotter offered Williams a deal.
Drop your appeal, Cotter said, and we'll drop enough charges so that you might serve "as little as 10 years." No dice, said Williams, still determined to challenge the Obama administration's assault on medical marijuana providers. But when Cotter came back with a better offer, involving a five-year mandatory minimum, Williams took it, having recognized the toll his legal struggle was taking on his 16-year-old son, a freshman at Montana State University.
"I think everyone in the federal system realizes that these mandatory minimum sentences are unjust," Williams tells me during a call from the Missoula County Detention Facility. But for prosecutors they serve an important function: "They were basically leveraging this really extreme sentence against something that was so light because they wanted to force me into taking a plea deal." Nine out of 10 federal criminal cases end in guilty pleas.
The efficient transformation of defendants into prisoners cannot be the standard by which we assess our criminal justice system. If the possibility of sending someone like Chris Williams to prison for the rest of his life is so obviously unfair, why does the law allow it, let alone mandate it?
I am glad to see the Williams' case continuing to get attention and criticism, but this commentary overlooks what strikes me as one of the worst parts of the deal with federal devil that Williams was forced to accept: in the deal, Williams waived all of his appeal rights to challenge his convictions so that he would not be able to continue with his lawful and courageous challenge to the federal laws with which he was prosecuted.
Prior posts on Williams case and related prosecutions:
- Novel post-trial federal "sentencing settlement" for Montana medical marijuana provider
- Montana medicial marijuana activist gets (way-below-guideline?) probation sentence
January 2, 2013 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack
Monday, November 26, 2012
Spotlighting connection between mental illness and extreme three-strike sentencesYesterday's New York Times ran this interesting editorial by Brent Staples concerning the impact and import of the recent reform of California's three-strikes law. The piece has a particular focus on the role mental illness may play in many of the most troubling sentencing outcomes resulting from extra tough recidivism sentencing enhancements. The piece is headlined "California Horror Stories and the 3-Strikes Law," and here are excerpts:
Californians brought a close to a shameful period in the state’s history when they voted this month to soften the infamous “three strikes” sentencing law. The original law was approved by ballot initiative in 1994, not long after a parolee kidnapped and murdered a 12-year-old girl. It was sold to voters as a way of getting killers, rapists and child molesters off the streets for good.
As it turned out, three strikes created a cruel, Kafkaesque criminal justice system that lost all sense of proportion, doling out life sentences disproportionately to black defendants. Under the statute, the third offense that could result in a life sentence could be any number of low-level felony convictions, like stealing a jack from the back of a tow truck, shoplifting a pair of work gloves from a department store, pilfering small change from a parked car or passing a bad check. In addition to being unfairly punitive, the law drove up prison costs.
The revised law preserves the three-strikes concept, but it imposes a life sentence only when the third felony offense is serious or violent, as defined in state law. It also authorizes the courts to resentence thousands of people who were sent away for low-level third offenses and who present no danger to the public.
The resentencing process is shaping up as a kind of referendum on the state’s barbaric treatment of mentally ill defendants, who make up a substantial number of those with life sentences under the three-strikes rule. It is likely that many were too mentally impaired to assist their lawyers at the time of trial.
Mentally ill inmates are nearly always jailed for behaviors related to their illness. Nationally, they account for about one-sixth of the prison population. The ratio appears to be higher among three-strike lifers in California. According to a 2011 analysis of state data by Stanford Law School’s Three Strikes Project, nearly 40 percent of these inmates qualify as mentally ill and are receiving psychiatric services behind bars....
Asked about the relationship of mental illness and three-strikes prosecutions, Michael Romano, director of the Stanford project, responded, “In my experience, every person who has been sentenced to life in prison for a nonserious, nonviolent crime like petty theft suffers from some kind of mental illness or impairment — from organic brain disorders, to schizophrenia, to mental retardation, to severe P.T.S.D.,” or post-traumatic stress disorder. Nearly all had been abused as children, he pointed out. All had been homeless for extended periods, and many were illiterate. None had graduated from high school.
In other words, these were discarded people who could be made to bear the brunt of this brutal law without risk of public backlash.... And as more cases unfold in court, judges, lawyers and Californians should look back with shame at the injustice the state inflicted on a vulnerable population that often presented little or no danger to the public.
Some recent related posts:
- California voters appear to be approving three-strikes reform, rejecting death penalty repeal
- Intriguing accounts of how California's three-strikes reform will be implemented
- Effective report on three-strikes reform implementation in San Diego
- First California prisoner released under reformed three-strikes has lots of voters to thank
November 26, 2012 in Campaign 2012 and sentencing issues , Examples of "over-punishment", Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Saturday, May 12, 2012
Another obvious mandatory sentencing injustice in Florida "warning shot" case
As reported in this CNN story, headlined "Florida woman sentenced to 20 years in controversial warning shot case," another high-profile shooting case in Florida has produced a different kind of criminal justice controversy. Here are the details:
Saying he had no discretion under state law, a judge sentenced a Jacksonville, Florida, woman to 20 years in prison Friday for firing a warning shot in an effort to scare off her abusive husband.
Marissa Alexander unsuccessfully tried to use Florida's controversial "stand your ground" law to derail the prosecution, but a jury in March convicted her of aggravated assault after just 12 minutes of deliberation.
The case, which was prosecuted by the same state attorney who is handling the Trayvon Martin case, has gained the attention of civil rights leaders who say the African-American woman was persecuted because of her race.
After the sentencing, Rep. Corrine Brown confronted State Attorney Angela Corey in the hallway, accusing her of being overzealous, according to video from CNN affiliate WJXT. "There is no justification for 20 years," Brown told Corey during an exchange frequently interrupted by onlookers. "All the community was asking for was mercy and justice," she said.
Corey said she had offered Alexander a plea bargain that would have resulted in a three-year prison sentence, but Alexander chose to take the case to a jury trial, where a conviction would carry a mandatory sentence under a Florida law known as "10-20-life." The law mandates increased penalties for some felonies, including aggravated assault, in which a gun is carried or used.
Corey said the case deserved to be prosecuted because Alexander fired in the direction of a room where two children were standing. Alexander said she was attempting to flee her husband, Rico Gray, on August 1, 2010, when she picked up a handgun and fired a shot into a wall. She said her husband had read cell phone text messages that she had written to her ex-husband, got angry and tried to strangle her.
She said she escaped and ran to the garage, intending to drive away. But, she said, she forgot her keys, so she picked up her gun and went back into the house. She said her husband threatened to kill her, so she fired one shot. "I believe when he threatened to kill me, that's what he was absolutely going to do," she said. "That's what he intended to do. Had I not discharged my weapon at that point, I would not be here."...
A jury convicted Alexander in March and Judge James Daniel denied her request for a new trial in April. Daniel handed down the sentence Friday after an emotional sentencing hearing during which Alexander's parents, 11-year-old daughter and pastor spoke on her behalf.
Several people had to be escorted from the courtroom after breaking out singing and chanting about a perceived lack of justice in the case, but Daniel made a point to say that he had no choice under state law. "Under the state's 10-20-life law, a conviction for aggravated assault where a firearm has been discharged carries a minimum and maximum sentence of 20 years without regarding to any extenuating or mitigating circumstances that may be present, such as those in this case," Daniel said.
Brown, the Jacksonville congresswoman, told reporters after the sentencing that the case was a product of "institutional racism."
"She was overcharged by the prosecutor. Period," Brown said. "She never should have been charged." Brown has been more complimentary about Corey's work in the Trayvon Martin case, where her office filed second degree murder charges against neighborhood watch volunteer George Zimmerman in the February 26 death of the unarmed African-American teen-ager.
It is sad, very disappointing and ultimately quite harmful that Rep. Corrine Brown is apparently so eager to assert that the injustice in this case reflects "institutional racism" and misuse of prosecutorial discretion. It seems far more appropriate to complain that the injustice in this case reflects structural flaws in Florida's sentencing laws and mistakes by the state legislature to fail to provide a safety-valve from the application of broad mandatory sentencing provisions.
As the CNN story reveals, the prosecutor apparently had the ability and authority to prevent application of Florida's "10-20-life" sentencing law if Marissa Alexander had been wiling to forgo her constitutional right to trial to have the judicial system consider her self-defense claims. But after Alexander decided to exercise her trial rights, then her conviction apparently deprived a judge or any other authority the ability and authority to sentence her to anything less than 20 years in prison. Without knowing more about the case, I am not sure if the three-year term offered in the plea or even a lesser sentence would have been appropriate, but it seem obvious to me that a 20-year term is grossly excessive for Alexander's offense conduct.
Bemoaning this case as a reflection of "institutional racism" brings far more heat than light to this dark (but not uncommon) example of mandatory sentencing injustice. A focus instead on the problems with letting only prosecutors and not judges decide if a case merits an exception to strict sentencing rules could help this case engender needed structural reforms rather than more racial polarization. Helpfully, the folks at FAMM are effectively using this case to bring attention to these critical sentencing matters, but I fear that the eagerness of Rep. Corrine Brown to play the race card will eclipse FAMM's efforts to use this kind of case to foster sober and needed sentencing reforms.
Though I am not certain of the sentencing commutation authority of Florida's Governor, this case seems to cry out for executive clemency. Though involving a very offense environments, I am reminded of the high-profile "border agent" case from a few years ago in which two federal border agents got saddled with a sentences of more than a decade after failed self-defenses claims due mandatory federal gun sentencing provisions. On his last day in office, as detailed here, President George W. Bush justifably commuted the sentences of these border agents. I hope Florida's Governor has both the power and the wisdom to use the same means to undue an obvious sentencing injustice in this case.
May 12, 2012 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (33) | TrackBack
Wednesday, February 01, 2012
Notable recent state child porn sentencing developments in South Dakota
Thanks to this brief new AP article, which is headlined "South Dakota child pornography convict gets 100-year prison sentence cut about in half," I learned about a fascinating ruling from last year by the South Dakota Supreme Court in South Dakota v. Bruce, 2011 S.D. 14 (SD April 6, 2011) (available here).
Working backwards, here is the latest sentencing news in this notable case:
A 100-year prison sentence handed down to a Pierre man convicted of possessing child pornography has been cut about in half. The South Dakota Supreme Court last year ruled that the initial sentence for 48-year-old Troy Bruce was excessive and ordered a new sentencing.
KCCR radio reports that Judge Mark Barnett on Tuesday sentenced Bruce to a total of 55 years in prison. Bruce will be eligible for parole after serving one-fourth of the sentence. He also was given credit for about two years he already has served behind bars.
This report prompted me to wonder if the South Dakota Supreme Court had actually deemed a child porn sentence to be unconstitutional, and the Bruce ruling nearly does. Here are notable snippets from the majority opinion in Bruce:
Bruce was convicted of possessing one DVD containing fifty-five videos of child pornography. He received the ten-year maximum sentence on all fifty-five counts. Forty-five of the sentences were suspended, but the sentences on the remaining ten counts were to be served consecutively resulting in a total sentence of 100 years. Bruce contends that this sentence was cruel and unusual punishment under the Eighth Amendment....
When such statutory ranges are established, the legislative intent is that "the more serious commissions of [the] crime . . . deserve sentences at the harsher end of the spectrum.... Imposing the maximum possible term where the circumstances of the crime only justify a sentence at a lower range violates legislative intent to reserve the most severe sanctions for the most serious combinations of the offense and the background of the offender.” Bonner, 1998 S.D. 30, ¶ 25. Further, we now adopt Justice Konenkamp’s recommendation “that courts look at two additional determinants when assessing the seriousness of a child pornography offense: (1) the specific nature of the material and (2) the extent to which the offender is involved with that material.” Blair, 2006 S.D. 75, ¶ 83....
With respect to the seriousness of this offense, the pornography involved much more than lewd images but less than the worst possible material covered by the statute....
With respect to Bruce’s involvement, he was convicted of possessing the one DVD containing fifty-five images. Although thirty other discs containing child pornography images were found, the court “consider[ed] Counts 1 through 10 as one act” for the purpose of determining parole eligibility. Additionally, there was no evidence that Bruce manufactured or distributed child pornography. Finally, there was no evidence suggesting that Bruce had ever sexually abused a child, had sexual contact with a child, or solicited a child for sexual images. This was a case of simple possession of images.
Bruce’s character and history reflect that he was a divorced forty-eight year old with three children, one who was still a minor. Other than a careless driving offense, Bruce had no prior criminal history. He was a former member of the National Guard and a veteran who had served in Saudi Arabia and Iraq during Operation Desert Storm....
Bruce’s maximum sentences were not reserved for the most serious combination of criminal conduct and background of the offender. We therefore conclude that this is the exceedingly rare case in which Bruce’s sentence was grossly disproportionate to the “particulars of the offense and the offender.” See Bonner, 1998 S.D. 30, ¶ 25. Because Bruce did not present comparative information with which to conduct an intra- and interjurisdictional analysis, we reverse and remand to the circuit court to consider that evidence on resentencing.
A concurring opinion in Bruce adds these notable observations:
In South Dakota, gross disparity in the sentence length for possession of child pornography exists. For example, in State v. Martin, 2003 S.D. 153, 674 N.W.2d 291, the defendant’s sentence for possession of child pornography was a term of two years in the penitentiary with all but forty-five days in jail suspended subject to additional conditions. In the present case, the aggregate sentence is a term of 100 years in the penitentiary. Yet the facts of the two cases are similar: both involve the possession but not the manufacture or distribution of multiple computer-based images of child pornography. The difference in the length of the sentences for these similar crimes is shocking.
I think it is safe to assert that, not just in South Dakota, but all across this great nation, "gross disparity in the sentence length for possession of child pornography exists." I have seen and heard of many state (and few federal cases) in which a child porn possession conviction results in only months in prison, and yet a few months ago in Florida (as reported here) Daniel Enrique Guevara Vilca received a sentence of life without the possibility of parole for mere child porn possession! What a sad and disturbing mess.
Monday, December 26, 2011
"Mom of 4 reflects on first year in prison for $31 pot sale"
The title of this post is the headline of this new article in the Tusla World, which provides an update on a state drug sentencing story that I have previously covered. Here are excerpts from the interesting piece:
[Patricia] Spottedcrow, 26, was arrested and charged for selling $31 in marijuana to a police informant in December 2009 and January 2010. [Her mother, Delita] Starr, 51, was also charged. Because children were in the home, a charge of possession of a dangerous substance in the presence of a minor was added.
In blind pleas before a judge, Spottedcrow received a 12-year sentence and her mother received a 30-year suspended sentence. Neither had prior criminal convictions. The judge sentencing the two said she allowed Starr to avoid prison so she could care for Spottedcrow's children.
When Spottedcrow was booked, after her sentence was handed down, marijuana was found in the jacket she was wearing. She pleaded guilty to that additional charge and was sentenced to two years running concurrent with the previous sentence.
After her story was published in the Tulsa World, a groundswell of support grew. Supporters expressed concern with possible racial bias, unequal punishment among crimes, women in prison, effects on children of incarcerated parents and extreme sentences for drug offenses.
Oklahoma City attorney Josh Welch has been donating his services to fight what he calls an inequitable punishment. In October, a Kingfisher County judge took four years off her sentence. The judge issued an order rather than allow her an appearance in court. Her attorney and supporters believe it was to avoid the crowd expected to be at the courthouse that day.
Welch said he plans to file for post-conviction relief, alleging the original attorney was ineffective and had a conflict in representing Spottedcrow and her mother. He plans to make the filing in early January and submit an early parole packet at the same time. "We are grateful to get four years taken off her sentence but still believe the sentence is unjust and excessive," Welch said....
"The first eight months were a blur," Spottedcrow said. "I just cried a lot. It's like I woke up a couple of months ago." Her daily schedule starts with breakfast at 5:30 a.m., followed by her job in the laundry. At 4:30 p.m., she is released and goes to the gym, followed by dinner and then church at 7 p.m. "You have to try and keep your mind busy," she said. "It's easy to get sad, depressed and stuck in your own head in here."
Prison is no picnic, even at a minimum-security campus like Eddie Warrior, she said. "I took for granted using the bathroom by myself, what clothes you can wear and being able to pick up and go to the store when you want," Spottedcrow said. "I hate not being able to use your own shampoo and you are limited to spending $10 a month (in the commissary)."
But it's her kids taking up most of her thoughts. "I was there every day taking of care of them before this," she said. "I did everything from going to football games and PTA."
While in prison, Spottedcrow has taken parenting classes, finished her GED and participates in a grief/loss recovery program, a behavior course, Alcoholics Anonymous/Narcotics Anonymous and a faith-based program. She is on a waiting list to begin higher education and Career Tech classes. "The life I was living before, that's over," Spottedcrow said. "I'm not playing with my life anymore. I would never chance this again for my children."
Spottedcrow never denied she smoked pot but said she was never a drug dealer or ever used or sold marijuana in front of her children. "I got myself in this situation, and I'm not saying I shouldn't be punished," she said. "But I think this is a little excessive, especially looking at other cases from my county. And I'm sleeping next to people who have killed people, and they have less time than me. There are days I really can't believe I'm in prison."
In prison, she has had three misconducts: one for bartering when she gave an inmate cigarettes, one for having contraband when cookies were found in her locker without a receipt and another for aiding and abetting when she did not tell authorities a woman put bleach in the laundry area. "I have a big heart," she said. "When I see someone in need, like for food, I want to help if I can. But you can get a misconduct in here for the littlest things."...
At the Kingfisher home, it's been a tough existence and one that is relying on the generosity and help of others. Spottedcrow's oldest child has been acting out since her incarceration.
"He's in trouble for stealing, and his mouth is real swift and sharp," Starr said. "He blames me a lot for what happened to his mother. The girls want to cry a lot. They don't like to listen to me, saying, 'You're not my mother.' We struggle every day."
Related prior posts on Spottedcrow's crime and punishment:
- "How $31 of pot gave mom a 10-year-prison sentence"
- "Mom who sold $31 in pot seeks reduction to 12-year sentence"
Friday, September 16, 2011
Eighth Circuit panel unanimously affirms Rubashkin federal convictions and lengthy prison sentence
The Eighth Circuit has handed down an opinion today in US v. Rubashkin, No. 10-2487 (8th Cir. Sept. 16, 2011) (available here), a high-profile white-collar case out of the heartland involving financial frauds at a kosher meat-packing plant. The panel has unanimously affirmed the Sholom Rubashkin's conviction and sentence; I have followed this case closely, in part because I helped file an amicus brief complaining about what I considered to be an unreasonable of 27-year (within-guideline) federal prison sentence for the defendant's offense conduct.
Though disappointed with the ruling here, I am not especially surprised given the Eighth Circuit's history in sentencing appeals. (That history, along with the frequency with which the Supreme Court has reviewed and reversed the Eighth Circuit's work since Booker, might well mean this case will get more appellate attention in the future). Here is an excerpt of the Rubashkin panel's sentencing discussion:
Rubashkin argues that his 324 month sentence was substantively unreasonable given his age, nonviolence, lack of criminal history, unlikelihood of recidivism, family obligations, and the principal motives for his acts,. We review the imposition of a sentence under "a deferential abuse-of-discretion standard." United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (quoting Gall, 552 U.S. at 41). Sentences within the guideline range are presumed to be substantively reasonable. United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008).
Not only was Rubashkin's sentence of 324 months within the guideline range, it was at the low end of it. Rubashkin argues that because of his past charitable acts and his family obligations he should have been granted a downward departure. These are the very characteristics that the district court properly took into account when considering the § 3353(a) factors. The court weighed Rubashkin's past charitable acts, nonviolence, and the needs of his family against his involvement in multiple fraudulent schemes and the millions of dollars in damage they caused. The cases Rubashkin cites in favor of his unreasonableness argument illustrate instances where downward departures based on charity or family needs have been affirmed. Nothing requires a sentencing court to depart on such grounds. Under all the circumstances the district court did not abuse its considerable discretion in imposing a 324 month sentence.
Related 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
Thursday, December 02, 2010
"'Perfect Storm of Injustice'? N.J. Man Serving 7 Years for Guns He Legally Owned"
The title of this post is the headline of this notable story via ABC News. Here are some of the details, which appears to involve yet another example of mandatory minimum sentencing terms producing another example of excessive over-punishment:
Brian Aitken, 25, a successful media consultant, had been in the process of selling his home in Colorado and moving to a suburban New Jersey apartment to be closer to his son, 2. But on the afternoon of Jan. 3, 2009, the stress of a recent divorce and messy cross-country move caused him to crack. Aitken stormed out of his parent's suburban home in Mount Laurel, N.J., hopped into his car filled with belongings and set out on a drive to cool off.
Aitken's mother, a social worker trained to be sensitive to suicidal indicators, instinctively dialed 911 but abruptly hung up, second-guessing her reaction. But police tracked the call, came to the Aitken's home and greeted Brian when he returned to make sure he was OK. Then, they asked to search his car.
Buried in the trunk, beneath piles of clothes and boxes of dishes, was a black duffle bag holding a boot box containing two handguns; "unloaded, disassembled, cleaned and wrapped in a cloth," his father said. There were also several large-capacity magazines and cartons of hollow-point bullets.
Aitken had legally purchased the guns at a Denver sporting goods store two years earlier, he said. But transporting a gun without a special permit or in a handful of exempt situations is illegal in New Jersey, giving officers no choice but to arrest Aitken and charge him with a crime. The magazines and bullets are also illegal in the state, experts said....
"For quite some time I was pretty confident as soon as intelligent people with logical minds took a look at what happened they might slap him with a fine or something," Aitken's father Larry said. "When the prosecutor came down with an indictment, I was dumbfounded."
But after a two and a half day trial in August, a jury convicted Aitken of the charges and a judge sentenced him to 7 years in prison. So family and friends have launched a grassroots campaign to set him free, even appealing to New Jersey Gov. Chris Christie for a pardon or reprieve....
[T]he judge in the case did not allow the jury to consider the moving exemption during the trail, ruling that no evidence was presented that Aitken was actually moving at the time the guns were found. Aitken did not testify in the trial.
"The defendant's attorneys presented evidence that his house was for sale and that at the time of arrest he was travelling from one residence in New Jersey to another," Joel Bewley, a spokesman for the Burlington County Prosecutor's Office, told ABC News.... "This sentence was entirely and statutorily mandated upon this conviction," Bewley said.
Tuesday, October 12, 2010
NY Times op-ed spotlights extreme jury sentences in Mississippi
Today's New York Times includes this remarkable op-ed by Bob Herbert concerning a pair of extreme sentences in Mississippi. The piece is headlined "So Utterly Inhumane, and here are excerpts:
You have to believe that somebody really had it in for the Scott sisters, Jamie and Gladys. They have always insisted that they had nothing to do with a robbery that occurred near the small town of Forest, Miss., on Christmas Eve in 1993. It was not the kind of crime to cause a stir. No one was hurt and perhaps $11 was taken.
Jamie was 21 at the time and Gladys just 19. But what has happened to them takes your breath away. They were convicted by a jury and handed the most draconian sentences imaginable — short of the death penalty. Each was sentenced to two consecutive life terms in state prison, and they have been imprisoned ever since. Jamie is now 38 and seriously ill. Both of her kidneys have failed. Gladys is 36....
The authorities did not even argue that the Scott sisters had committed the robbery. They were accused of luring two men into a trap, in which the men had their wallets taken by acquaintances of the sisters, one of whom had a shotgun.
It was a serious crime. But the case against the sisters was extremely shaky. In any event, even if they were guilty, the punishment is so wildly out of proportion to the offense that it should not be allowed to stand.
Three teenagers pleaded guilty to robbing the men. They ranged in age from 14 to 18. And in their initial statements to investigators, they did not implicate the Scott sisters. But a plea deal was arranged in which the teens were required to swear that the women were involved, and two of the teens were obliged, as part of the deal, to testify against the sisters in court.... The teens were sentenced to eight years in prison each, and they were released after serving just two years.
This is a case that should be repugnant to anyone with the slightest interest in justice. The right thing to do at this point is to get the sisters out of prison as quickly as possible and ensure that Jamie gets proper medical treatment.
A number of people have taken up the sisters’ cause, including Ben Jealous, the president of the N.A.A.C.P., who is trying to help secure a pardon from Gov. Haley Barbour of Mississippi. “It makes you sick to think that this sort of thing can happen,” he said. “That these women should be kept in prison until they die — well, that’s just so utterly inhumane.”
I have no idea why the authorities were so dead set on implicating the Scott sisters in the crime and sending them away for life, while letting the teens who unquestionably committed the robbery get off with much lighter sentences.
Life sentences for robbery can only be imposed by juries in Mississippi, but it is extremely rare for that sentencing option to even be included in the instructions given to jurors. It’s fair to think, in other words, that there would have to be some extraordinary reason for prosecutors and the court to offer such a draconian possibility to a jury....
The reason for giving the jury the option of imposing life sentences in this case escapes me. Even the original prosecutor, Ken Turner, who is now retired and who believes the sisters were guilty, has said that he thinks it would be “appropriate” to offer them relief from their extreme sentences. He told The Clarion-Ledger in Jackson, Miss., “It was not a particularly egregious case.”
The appeals process for the women has long since been exhausted. It is up to Governor Barbour, who is considering petitions on the sisters’ behalf, to do the humane thing. A pardon or commutation of sentence — some form of relief that would release Jamie and Gladys Scott from the hideous shackles of a lifetime in prison — is not just desirable, it’s absolutely essential.
Sunday, May 23, 2010
Terrific examination of prosecutorial discretion, politics and other three-strikes realities in CaliforniaToday's New York Times magazine has this must-read article by Emily Bazelon headlined "Arguing Three Strikes." Here are just a few extended excerpts that make the piece so very interesting and effective and telling:
In 2000, ... Steve Cooley became the district attorney for Los Angeles County. Cooley is a Republican career prosecutor, but he campaigned against the excesses of three strikes. “Fix it or lose it,” he says of the law. In 2005, Cooley ordered a review of cases, to identify three-strikes inmates who had not committed violent crimes and whose life sentences a judge might deem worthy of second looks. His staff came up with a list of more than 60 names....
Twenty-five other states have passed three-strikes laws, but only California punishes minor crimes with the penalty of a life sentence. About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early....
Now California is in the midst of fiscal calamity. Supreme Court Justice Anthony Kennedy, who had been a judge in California, recently bemoaned state sentencing and spending on prisons. In an address at Pepperdine University, he said that “the three-strikes law sponsor is the correctional officers’ union, and that is sick!” And yet Schwarzenegger has vowed not to touch the law. Meg Whitman and Jerry Brown, the leading Republican and Democratic contenders to succeed him in November, are just as unbending....
Cooley ran for D.A. on a platform of restrained three-strikes enforcement, calling the law “a necessary weapon, one that must be used with precision and not in a scatter-gun fashion.” In office, he turned his critique into policy.... The presumption is that prosecutors ask for a life sentence only if a third-strike crime is violent or serious. Petty thieves and most drug offenders are presumed to merit a double sentence, the penalty for a second strike, unless their previous record includes a hard-core crime like murder, armed robbery, sexual assault or possession of large quantities of drugs. During Cooley’s first year in office, three-strikes convictions in Los Angeles County triggering life sentences dropped 39 percent. No other prosecutor’s office in California has a written policy like Cooley’s, though a couple of D.A.’s informally exercise similar discretion....
[I]n 2006, he offered up his own bill, which tracked his policy as D.A., taking minor drug crimes and petty theft off the list of three-strikes offenses unless one of the first two strikes involved a crime that Cooley considers hard-core. For staking out even this middle ground, Cooley became prosecutor non grata among his fellow D.A.’s. No district attorney, not even the most liberal, supported his bill, and it died in Senate committee.
Cooley could once again pay a price for his three-strikes record. This spring, he announced his candidacy for California attorney general. His Republican rivals have hammered him for his moderate stance. “He’s acting as an enabler for habitual offenders,” State Senator Tom Harman told me. “I think that’s wrong. I want to put them in prison.” The race has developed into a litmus test: for 15 years, no serious candidate for major statewide office has dared to criticize three strikes. If Cooley makes it through his party’s primary on June 8 — and especially if he goes on to win in November — the law will no longer seem untouchable. If he loses, three strikes will be all the more difficult to dislodge....
While 694 convicted murderers sit on the state’s death row, only 13 have been executed since the Supreme Court allowed for reinstatement of the death penalty in 1976. The 3,700 nonviolent, nonserious three-strikers serving life in California outnumber the 3,263 death-row inmates nationwide.
By working with three-strikers, [lawyer Michael] Romano is trying to highlight the plight of criminals he sees as more pathetic than heinous. “I think about explaining to my kids what I do, and I see no moral ambiguity,” Romano says about his work. Capital defendants, of course, deserve representation, he explains. “But there are other lives to be saved, of people who haven’t done horrible things, who haven’t actually hurt anyone.”
In practical terms, Romano points out, the difference between being convicted of capital murder and a small-time third strike is this: a murderer is entitled to a far greater share of legal resources. California spends at least $300,000 on the defense side of a capital murder trial. The courts give extra scrutiny to each capital appeal that comes before them. And it’s only in death-penalty cases that the state pays lawyers to file a writ of habeas corpus, the route to challenging a conviction once direct appeal has been exhausted.
A three-strikes case, by contrast, is just one more file in the stack on a public defender’s desk and a judge’s docket. Romano has a client whose appellate lawyer cut and pasted into her brief for him the more serious criminal history of another man — incorrectly telling the judges that her client was far more violent when he actually was.
If Steve Cooley wins the Republican primary for attorney general, on almost every issue — most visibly the death penalty — he’ll run to the right of his probable Democratic opponent, the San Francisco district attorney Kamala Harris. But on three strikes, Cooley will run to Harris’s left. (She didn’t support his 2006 proposal, though she is one of the prosecutors who, on a case-by-case basis, refrains from seeking a life sentence for some nonviolent three-strikers.)...
Cooley is couching his support for amending three strikes statewide more carefully during campaign season. “Any changes to the three-strikes law will have to be in the context of overall prison reform,” he told me in March. At the same time, Romano and Families to Amend California’s Three Strikes, the group that fought for Proposition 66, are increasingly interested in using Cooley’s Los Angeles policy as the basis for a new statewide reform effort in 2012, because it suggests a way to reserve life sentences for the three-strikers who have committed crimes of violence.
The statistic I have highlighted above, and the astute subsequent discussion of how many more legal resources are devoted to the most heinous murderers in California and elsewhere, reinforces my own strong belief (which I have expressed in this Harvard Law & Policy Review article and elsewhere) that progressives seriously interested in serious sentencing reforms must stop obsessing about the death penalty and should start obsessing about life sentences.
Put simply, in California and throughout the nation, there are lots of legal and social and political forces that now help ensure that few "lesser" murderers ever end up on death row. Indeed, as the plea deals for the Green River Killer and repeat sex offender killer John Allen Gardner highlight, all but the most ardent death penalty abolitionists should probably be most concerned about the worst murderers often being able to avoid ending up on death row.
In sharp contrast, there are lots of legal and social and political forces that now help ensure that many "lesser" offenders end up facing actual or functional life sentences. Consider these examples from just the last few weeks: Michelle Lyn Taylor recently got a life sentence in Nevada for forcing a teenage boy to touch her breasts; Sholom Rubashkin had federal prosecutors urging a life sentence for various fraud offenses; Enrique Prieto got a life sentence in Texas for assaulting an elderly man.
As this great NYTimes article spotlights, prosecutors always can and often will mitigate the harshest realities of life sentencing statutes through the exercise of their charging and bargaining discretion. But, for many reasons, I do not think the Framers of our Constitution would have been too pleased with the notion that the only protection that many lesser offenders may have from a lifetime loss of human liberty is merely the unregulated and unexplained discretionary judgment of an executive branch prosecutor.