Saturday, June 13, 2015

Citing much research and data, Judge Posner rails against "the problem of the elderly prisoner"

The Seventh Circuit this past week issued an otherwise routine affirmance of a drug conviction in US v. Presley, No. 14-2704 (7th Cir. June 11, 2015) (available here), the opinion end up not at all routine because of Judge Posner's lengthy concluding (dicta?) about problems with exceedingly long federal sentences and the elderly prisoners these sentences create.  I would urge all federal sentencing fans to read Judge Posner's work in Presley in full, and these passages help highlight why (even with lots of Judge Posner's great cites and data left out):

The only questionable feature of the judgment is the length of the sentence — almost 37 years, though it is within the applicable guidelines range because of Presley’s very lengthy criminal history. Presley was 34 years old when sentenced... [and if he] earns the maximum possible good-time credit he’ll be almost 64 years old when released. If he earns no good time he’ll be almost 69.  And after release he’ll undergo five years of supervised release, which like parole is a form of custody because it imposes significant restrictions on the supervisee....

The judge pointed out that Presley is a career offender, that he began his criminal career when he was 16, that he was a large-scale heroin dealer, and that he had committed disciplinary violations in previous incarcerations.  What the judge failed to consider was the appropriateness of incarcerating Presley for so long that he would be elderly when released.  Criminals, especially ones engaged in dangerous activities such as heroin dealing, tend to have what economists call a “high discount rate” — that is, they weight future consequences less heavily than a normal, sensible, law-abiding person would....

The sentencing judge in this case ... gave no reason to think that imposing a 37-year sentence on Presley would have a greater deterrent effect on current or prospective heroin dealers than a 20-year or perhaps even a 10-year sentence, or that incapacitating him into his sixties is necessary to prevent his resuming his criminal activities at that advanced age.  Sentencing judges need to consider the phenomenon of aging out of risky occupations.  Violent crime, which can include trafficking in heroin, is generally a young man’s game.  Elderly people tend to be cautious, often indeed timid, and averse to physical danger.  Violent crime is far less common among persons over 40, let alone over 60, than among younger persons....

There needs finally to be considered the cost of imprisonment to the government, which is not trivial.  The U.S. prison population is enormous by world standards — about 1 percent of the nation’s entire population — and prisons are costly to operate because of their building materials (steel especially is very expensive) and large staffs.  If the deterrent or incapacitative effect on criminal propensities fades sharply with time, the expenses incurred in the incarceration of elderly persons may be a social waste....

We are not suggesting that sentencing judges (or counsel, or the probation service) should conduct a cost-benefit analysis to determine how long a prison sentence to give. But the considerations that we’ve listed should be part of the knowledge base that judges, lawyers, and probation officers consult in deciding on the length of sentences to recommend or impose.  There is no indication that these considerations received any attention in this case.  We do not criticize the district judge and the lawyers and probation officers for the oversight; recognition of the downside of long sentences is recent and is just beginning to dawn on the correctional authorities and criminal lawyers.  Neither the Justice Department nor the defendant’s lawyer (or the probation service) evinced awareness in this case of the problem of the elderly prison inmate....

There is much that federal sentencing judges are required to consider in deciding on a sentence to impose — maybe too much: the guidelines, the statutory sentencing factors, the statutory and regulatory provisions relating to conditions of supervised release, presentence reports, briefs and arguments of counsel, statements by defendants and others at sentencing hearings.  But in thinking about the optimal sentence in relation to the problem of the elderly prisoner, probably the judge’s primary focus should be on the traditional triad of sentencing considerations: incapacitation, which prevents the defendant from committing crimes (at least crimes against persons other than prison personnel and other prisoners) until he is released, general deterrence (the effect of the sentence in deterring other persons from committing crimes), and specific deterrence (its effect in deterring the defendant from committing crimes after he’s released).  A sentence long enough to keep the defendant in prison until he enters the age range at which the type of criminal activity in which he has engaged is rare should achieve the aims of incapacitation and specific deterrence, while lengthening the sentence is unlikely to increase general deterrence significantly if the persons engaged in the criminal activity for which the defendant is being sentenced have a high discount rate; for beyond a point reached by a not very long sentence, such persons tend not to react to increases in sentence length by abandoning their criminal careers.

June 13, 2015 in Booker in the Circuits, Drug Offense Sentencing, Examples of "over-punishment", Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (8)

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).

  Download Young v US Cert Amicus

Prior related posts:

February 9, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, February 03, 2015

A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos

Download (1)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:

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:

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:

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?"

CA6K4VHLThe 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:

Download Brief of Appellant in US v. Young

Download Young Amicus FILED

Download Appellee's Briefin US v. Young

Download Reply Brief of Appellant in Young

Related prior posts:

March 12, 2014 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (7) | TrackBack

Wednesday, November 13, 2013

New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms

Lwop-marquee-230x230-v01The 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 arguments

As 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:

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. Young

A 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"

Young photoThe 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:

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 sentences

Yesterday'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:

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 (34) | 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.

February 1, 2012 in Examples of "over-punishment", Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (28) | TrackBack

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:

December 26, 2011 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Race, Class, and Gender | Permalink | Comments (17) | TrackBack

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:

September 16, 2011 in Booker in the Circuits, Examples of "over-punishment", White-collar sentencing | Permalink | Comments (3) | TrackBack

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.

December 2, 2010 in Examples of "over-punishment", Mandatory minimum sentencing statutes | Permalink | Comments (8) | TrackBack

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.

October 12, 2010 in Clemency and Pardons, Examples of "over-punishment", Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Sunday, May 23, 2010

Terrific examination of prosecutorial discretion, politics and other three-strikes realities in California

Today'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.

May 23, 2010 in Death Penalty Reforms, Examples of "over-punishment", Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, April 27, 2010

"FAMM Condemns Mandatory Life Sentence for NV Woman"

The title of this post is the heading of this new press release from the folks at Families Against Mandatory Minimums in response the the remarkable Nevada sentencing story discussed in this prior post.  Here is an excerpt from the press release:

According to published news reports, a jury convicted Ms. Taylor, 34, of lewdness with a minor under 14 for forcing a 13-year-old boy to touch her breast through her clothing and soliciting him for sex.  Conviction for lewdness with a minor under 14 carries a mandatory life sentence in Nevada with parole eligibility after 10 years.

"Based on what we've learned so far, we believe the life sentence handed to Ms. Taylor is a total travesty of justice," said Julie Stewart, FAMM founder and president.  "FAMM does not condone criminal behavior, especially where a minor is the victim, but no reasonable person can believe that the punishment fits the crime in this case.  Life sentences are usually reserved for murderers and repeat violent offenders."

"FAMM opposes mandatory minimum sentencing laws that carry disproportionate one-size-fits-all sentences and enormously expensive penalties.  Keeping Ms. Taylor in jail for the rest of her life could cost Nevada taxpayers well over $1 million.  This seems like a terrible waste of a life, and limited taxpayer resources," concluded Stewart.

April 27, 2010 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Thursday, April 15, 2010

A life sentence for a woman who forces a teenage boy to touch her breasts!?!?!

The exclamation/question that titles this post is my initial response to this remarkable local press story that a helpful student sent my way.  This press report discussed a remarkable local sentence handed down earlier this week in Nevada under the headline "T.F. woman sentenced to life for lewdness charge." Here are the remarkable details:

A Twin Falls woman convicted of forcing a 13-year-old boy to touch her breasts was sentenced Monday to life in prison. Michelle Lyn Taylor, 34, was convicted of lewdness with a minor under 14 in November after a week-long trial in Elko County, Nev., District Judge Mike Memeo’s courtroom.

With the conviction, Taylor faced a mandatory life sentence, and Memeo set parole eligibility after 10 years, the minimum sentence. If released on parole she must register as a sex offender and will be under lifetime supervision.

The district attorney’s office did not offer a plea agreement in the case, said public defender Alina Kilpatrick, who argued the sentence is unconstitutional and doesn’t fit the crime. “The jury was not allowed to know the potential sentence in this case and the Legislature doesn’t know the facts,” she said, alluding to the minimum sentence set by the Legislature in Nevada Revised Statute.

Kilpatrick said despite the parole eligibility after 10 years, there should be no mistake that it’s a life sentence for Taylor.  “She is getting a greater penalty for having a boy touch her breast than if she killed him,” she said.

After he sentenced her, Memeo said he was bound by state statute to impose the life sentence, but said he isn’t sure why the prosecution chose to charge her under that statute. District Attorney Gary Woodbury could not be reached for comment.

Taylor, who lived in Jackpot, Nev., at the time of the crime, kissed a friend’s child, forced him to touch her breast and asked him to have sex with her in February 2008.  Taylor claimed she was intoxicated and doesn’t remember what happened that night.  She told jurors she roughhoused with the boy, but didn’t force him to touch her inappropriately.

Based on the facts stated here, this case sounds like a remarkable test case for the reach and limits of the Eighth Amendment in non-capital punishment settings.  But I cannot help but think there must be more, perhaps a lot more, to this story.

April 15, 2010 in Examples of "over-punishment", Graham and Sullivan Eighth Amendment cases, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (53) | TrackBack

Monday, March 08, 2010

New ACS issue brief making the case against juve LWOP

I just got word of this new issue brief from the folks at the American Constitution Society, which is titled "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole." This piece is authored by Jody Kent and Beth Colgan, and here is how ACS summarizes the work:

This Issue Brief is particularly timely in light of the Supreme Court’s consideration of the constitutionality of juvenile life sentences without the possibility of parole in two cases, Sullivan v. Florida and Graham v. Florida.  Ms. Kent and Ms. Colgan examine why, in their opinion, such sentencing practices represent deeply flawed public policy.  As the authors explain:

"Regardless of whether the Court extends [its precedent acknowledging that juveniles are different from adults] to find the sentencing of youth to life in prison without the possibility of parole unconstitutional, advocates for youth have called for reform of extreme sentencing policies, on the basis that they grossly undermine rational, fair, and age-appropriate treatment of youth."

Ms. Kent and Ms. Colgan discuss the well-established principle that youth are different from adults, and explain how this principle is reinforced by adolescent brain development research. The authors address and dismiss arguments that harsh sentencing is necessary to protect public safety, as well as highlight troubling racial disparities and inconsistent sentencing application.  In addition, they describe how such sentencing functions to undermine the United States’s moral standing, given that the United States is the only country in the world to sentence offenders under the age of eighteen to life without parole.  Finally, the Issue Brief concludes with Ms. Kent and Ms. Colgan proposing an alternative to the practice of sentencing youth to life in prison without the possibility of parole --- creation of a system allowing periodic review of sentences to determine whether individuals continue to pose a threat to society or may be returned to communities as productive citizens.  In the view of the authors, this approach balances the need to hold young offenders accountable, while still recognizing their inherent capacity for change and growth.

March 8, 2010 in Examples of "over-punishment", Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Wednesday, December 17, 2008

EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender

I just received a helpful e-mail from the folks at Equal Justice Initiative informing me of a recently filed cert petition challenging under the Eighth Amendment a sentence of life without parole given to an offender who was only 13 years old(!) at the time of his crime.  The full petition can be downloaded below, and here is additional information from this EJI link about this stunning case:

Joe Sullivan is one of only two 13-year-olds in the United States to be sentenced to die in prison for an offense in which no one was killed. Both of these sentences were imposed in Florida, making Florida the only state in the country to have sentenced a 13-year-old to die in prison for a non-homicide.

A severely mentally disabled boy, Joe was blamed by an older boy for a sexual battery that was allegedly committed when they broke into a home together.  The older boy received a short sentence in juvenile detention, but Joe was tried as an adult, convicted of sexual battery, and sentenced to life imprisonment without the possibility of parole.

Only eight people in the country are sentenced to die in prison for any offense committed at age 13.

The lawyer who represented Joe in his one-day trial has since been suspended from the practice of law, and the biological evidence that could have exonerated Joe was destroyed in 1993.  The lawyer appointed to represent Joe on appeal informed the court that there were no issues in his case worth appealing. Joe was unable to challenge his conviction and sentence earlier because he could not afford legal assistance.

Joe has spent 19 years in a Florida prison, where he has been assaulted and suffered deteriorating health. He is now confined to a wheelchair. 

When I learn about cases like this, I have a hard time believing that a country founded on the principles of liberty has become so willing to be so repressive through our criminal justice systems.  Regular readers will not be surprised to hear that I hope the US Supreme Court will take up this case.  And I am discouraged that this kind of case even exists and that officials in other branches of our government cannot bring themselves to address these kinds of sad cases and instead only will react if and when courts order them to be more just and sensible in their sentencing policies. 

Download Sullivan cert petition from EJI

December 17, 2008 in Examples of "over-punishment", Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Wednesday, November 26, 2008

Georgia high court finds mandatory life term for failure to register unconstitutionally excessive

The Atlanta Journal-Constitution has this article reporting on an important ruling yesterday in Georgia. The article is headlined "State Supreme Court: Sentence for sex offenders overruled; Life in prison breaks Eighth Amendment," and its provides an effective and detailed summary of the court's work:

The Georgia Supreme Court on Tuesday struck down another provision of the state’s tough sex-offender law, calling mandatory life sentences for offenders who fail to register a second time “grossly disproportionate” punishment.

In a 6-1 decision, written by Justice Robert Benham, the court said the life sentence imposed upon 26-year-old Cedric Bradshaw of Statesboro violates the Eighth Amendment’s guarantee against cruel and unusual punishment. “We conclude the imposition of a sentence of life imprisonment is so harsh in comparison to the crime for which it was imposed that it is unconstitutional,” Benham wrote....

On Tuesday, the court ordered Bradshaw, who tried repeatedly to find a place to live without breaking the law, to be re-sentenced. His lawyer, circuit public defender Robert Persse, applauded the ruling. “The state’s penalty provision was excessive and clearly disproportionate to the offense in question,” he said....

In his ruling, Benham noted that someone convicted of voluntary manslaughter or aggravated assault with the intent to murder, rob or rape can receive a sentence as lenient as one year.

Benham also compared Georgia’s mandatory life term with punishment called for in 23 other states.  Of the others, three states call for a maximum punishment of two years; 12 call for sentences of up to five years; six provide maximum terms of 10 years; two allow up to 20 years; and New Hampshire calls for a minimum seven-year sentence, Benham wrote. “Georgia’s mandatory punishment of life imprisonment is the clear outlier, providing the harshest penalty and providing no sentencing discretion,” Benham wrote.  “This gross disparity between Georgia’s sentencing scheme and those of the other states reinforces the inference that [Bradshaw’s] crime and sentence are grossly disproportionate.”

Chief Justice Leah Ward Sears, in a concurring opinion, said life sentences “should be reserved for society’s most serious criminal offenders … Bradshaw’s failure to register as a sex offender, when his underlying crime only landed him in jail for five years, is not the kind of crime a civilized society ought to require him to pay for with his life.”

Justice George Carley issued the lone dissent, calling the decision a “monumental abuse of this court’s authority to determine the constitutionality of legislation.” The Legislature’s amendment in 2006 calling for the mandatory life term “constitutes the clearest and most objective evidence of how society views a punishment,” he wrote.

The Supreme Court of Georgia's ruling in Bradshaw v. State is available at this link.  Writing at Sex Crimes, Corey Yung here asserts that "the majority is exactly right on this one."  I concur and I hope this ruling will embolden other courts to be more deliberative in discharging the constitutional duty to assess whether and when extreme terms of imprisonment are constitutionally excessive. 

November 26, 2008 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Friday, November 21, 2008

Members of Congress push for commutation of Border Agent sentences

This AP article details the latest effort to encourage President Bush to use his clemency power to do some sentencing justice for two notable federal defendants.  Here are the specifics:

A handful of lawmakers want President George W. Bush to commute the sentences of two Border Patrol agents convicted of shooting a now-convicted drug smuggler and covering it up. The House members said Thursday that Bush should commute the sentence of the two men before he leaves office to show his concern for law enforcement officers and the danger of their jobs. They asked the Justice Department to recommend the agents' cases to Bush....

The lawmakers pushing for the pardon attorney to at least commute the sentence of the Border Patrol agents or possibly pardon them say his action on their plea will be a barometer for other pardons. Ignacio Ramos and Jose Compean were sentenced to 11 years and 12 years, respectively, after being convicted in 2006 of shooting now-convicted drug smuggler Osvaldo Aldrete Davila of Mexico and trying to cover up the incident.... "If you can't do it for Ramos and Compean, how can you do it for anyone on that list?" said Rep. Steve King, R-Iowa....

Rep. John Culberson, R-Houston, said lawmakers will pressure President-elect Barack Obama to show leniency to the agents if Bush does not. Other lawmakers who had signed a letter to the Justice Department's pardon attorney by Thursday morning are Rep. William Delahunt, D-Mass. and Republican Reps. Ted Poe of Texas, Dana Rohrabacher, Howard McKeon and Ed Royce of California and Walter Jones and Sue Myrick of North Carolina.

Some prior posts about the Border Agents case:

November 21, 2008 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Sunday, November 09, 2008

A challenge to severe Oregon sex offense sentences worth watching

Late last year, I blogged here and here about a fascinating and sad Oregon case involving a long mandatory prison term imposed on an adult female counselor convicted of unlawful heavy petting of her underage ward.  A helpful reader sent me this local news report on the oral argument in this case that took place last week before the Oregon Supreme Court.  Here are some details:

An attorney for a former employee of the Hillsboro Boy's and Girl's Club told the Oregon Supreme Court Tuesday that six-plus years in prison for touching her clothed breasts to the back of a 12-year-old boy's head amounted to cruel and unusual punishment.

A Washington County jury found Veronica Rodriguez, now 28, guilty of sex abuse in the first degree after Hillsboro investigators saw her breasts touch the boy's head while she ran her fingers through his hair at the club in 2005.

At sentencing, now-retired Judge Nancy Campbell said the circumstances only merited one year and four months in prison instead of the prescribed sentence of six years and three months required by 1994's voter-approved Measure 11.

Rodriguez and attorney Peter Garlan concede that Measure 11 is constitutional, but claim its application against Rodriguez violates Article 1, Section 16 — the proportionality clause of the Oregon Constitution.

Rodriguez's case is combined with another appeal from Linn County, where 36-year-old Darryl Buck was convicted of first-degree sex abuse for touching a 13-year-old girl's clothed buttocks several times during a fishing trip.  Garlan said the girl overreacted to Buck's using his hands to help her remain upright, and her "histrionics" had an effect on the jury.The judge agreed, and handed down a 17-month sentence, appropriate for the action, Garlan said.

The state's Court of Appeals rejected both judge's decisions, and said both defendants should serve another five years....

Department of Justice spokesperson Jake Weigler said Wednesday voters passed the measure to eliminate judges' discretion in a range of crimes. Clearly, Rodriguez and Buck fell within that range, he said. If Measure 11 is to be changed, it should be by the will of the voters or the legislature, he said.... 

Justice Robert D. Durham asked both attorneys if it was the role of the court to make an evaluation of offenders, when the law only mentions "the offense."  Should the court treat each offense as if it were a videotape of the act that turns on when the abuse begins and turns off when it ends? "Does that imply there should be no investigation into the actor?" Durham asked. And did that also imply there should be no consideration of whether a defendant lied on the stand, or lied to the police?

Though this article does not make clear whether the defendants in this case have also presented a federal constitutional challenges as well as the state constitutional challenge.  If they have and if the defendants do not get any relief from the state supreme court, these cases could possibly present interesting and important vehicles for raising an array of constitutional issues in the Supreme Court. 

Some related posts:

UPDATE:  I found the defendant's brief to the Oregon Supreme Court at this link.  It is hard to tell from a quick scan of the brief whether a formal Eighth Amendment claim is pressed by the brief.  But one aspect of the brief that jumped out was this notable paragraph under the argument summary:

Victim’s Position at Sentencing.  Several statutory and constitutional enactments over the past several decades guarantee the victim a voice at sentencing proceedings.  The victim’s mother accepts defendant as a member of the family and supported defendant throughout the course of the prosecution, through and including the sentencing hearing.

This paragraphs confirms my long-held belief that giving all victims a more formal voice and role at sentencing could and would often prove to be catalyst for more sensible sentencing outcomes and reforms.  In extreme cases, extreme victims will sometimes be eager for extreme sentences.  But I think in most cases, many victims are often eager for moderate sentences.

November 9, 2008 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

Friday, September 19, 2008

Friday follies: "Woman Faces Federal Jail Time Over Spilled Soda"

Thanks to this story from FOXNews, we apparently need to thank federal prosecutors for trying to keep our country safe from radical soda-pop terrorists that have started to infiltrate parts of our military establishment:

An Idaho woman is facing federal charges and possible jail time after refusing to pay for a soda and then spilling it on a counter in a case she calls a waste of taxpayer's money.

U.S. Attorney Tom Moss plans to bring two charges against Natalie Walters, 39, stemming from an Aug. 20 incident at the Boise Veterans Affairs Medical Center, the Idaho Statesman reports.  If convicted, she could face up to six months in federal prison.

Walters, who routinely takes her father to the Boise hospital for treatment, said there is no posted price for soda refills at the center's cafeteria, and she's typically charged between $1 and $1.50 for filling her mug, according to the paper. On Aug. 20, she was charged $3.80, which lead to the dispute and Walters dumping the soda on the cafeteria counter.

Moss' office refused to speak to the Statesman about the case until after Walters' Oct. 8 arraignment. Walters didn't learn of the charges until she was contacted by a reporter for the story. "My father is a veteran. It is a federal facility for veterans. This should have been handled differently," she told the paper. "This is extreme. This is totally extreme. Well, if they have that much time on their hands, go for it."

The full story from the Idaho Statesman, which is headlined "Dumped diet pop lands Idaho woman in federal court," can be found at this link.

September 19, 2008 in Examples of "over-punishment" | Permalink | Comments (5) | TrackBack

Sunday, June 29, 2008

Doesn't Kennedy suggest life in prison for failing to register is unconstitutional?

This new Atlanta Journal-Constitution article highlights an appeal of an extreme state sentence that is another reflection of the modern sex offender panic.  The piece is entitled "Fairness of law to be judged -- Mandatory sentences: Georgia's Supreme Court will consider proportion."  Here are excerpts:

The judge had only one option when he sentenced Cedric Bradshaw: life in prison.  Bradshaw had not committed murder, rape or armed robbery.  His offense was failing to properly register as a convicted sex offender for a second time — even though he had repeatedly tried to follow the law....

On Monday, the state's highest court will consider whether the law is unconstitutional on grounds it is cruel and unusual punishment.

No other state calls for a life sentence for failing to register as a sex offender the second time, and even rape and armed robbery convictions in Georgia do not carry mandatory life terms, said Bradshaw's lawyer, Robert L. Persse, the circuit public defender in Statesboro. "The punishment for a second violation is grossly disproportionate to the offense," Persse said.  "That is particularly true when this is essentially a paperwork offense not accompanied by aggravating circumstances like violence, sexual deviance or being out in a schoolyard hunting for children."

The Bulloch DA's office is urging the state Supreme Court to uphold the life term. "The courts look at the Legislature's intent in determining the best evidence for the appropriateness of the sentence," Assistant District Attorney W. Scott Brannen said. "When they increase it [to a life term], that too is evidence of the intent and the will of the people."...

Brannen, the prosecutor, said the law is on the books and "it's not my place or the court's place to decide what we like and don't like and what we want to enforce or not enforce."  Bradshaw, Brannen said, broke the law by failing to give a valid address within the 72-hour reporting deadline.  "There are no exceptions in the law," he said.

I am not sure what I find more remarkable: the fact that Georgia punishes this regulatory offense with a mandatory life term, or the fact that in the wake of the Supreme Court's Kennedy ruling the defendant here could have sexually molested and beaten a dozen children without facing a harsher sentence.

As regular readers know, I have long been troubled that the U.S. Supreme Court's eagerness to hyper-regulate the reach of the death penalty through the Eighth Amendment has not extended to regulating extreme prison terms for relatively minor crimes.  The Georgia high court has previously shown the courage and wisdom to do something about a seemingly crazy prison sentence, and this would seem to be another case calling out for some remedy.

Further, as my post heading suggests, I think the recent Kennedy ruling from the Supreme Court provides some significant support for Bradshaw's constitutional challenge.  If life in prison is the harshest permissible sentence for the worst child rape, can the proportionality principle in the Eighth Amendment permit a regulatory offense to be subject to the same punishment?

June 29, 2008 in Examples of "over-punishment", Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Friday, May 02, 2008

Ohio getting tough on no-snack-sharing rules

I can sleep a little sounder after reading this local article about how tough my state is on its miscreants:

He slept through a fire drill, had loose tobacco in his possession and didn't show up for kitchen duty.  Then Timothy E. Caudill shared a Little Debbie snack cake with another inmate at a correctional facility in southeastern Ohio.  That was the last straw.

The 21-year-old was kicked out of the residential community corrections program that was a requirement of his probation.  And he could go to prison.  That is absurd, said Caudill's attorney, Claire "Buzz" Ball. "Everybody talks about prison overcrowding.  My God, you have to send some guy to prison for sharing a snack?" Ball said.

Vinton County Prosecutor Timothy P. Gleeson has asked Common Pleas Judge Jeffrey Simmons to revoke Caudill's probation and put him in prison.  Simmons is expected to rule soon on the request, which he considered at a hearing April 16.  The prosecutor wants Caudill put in prison for nine months.

With credit for 105 days served at the SEPTA Correctional Facility, he would serve nearly six more months.  Caudill's attorney has asked the judge to keep Caudill on probation or send him to the jail in Athens County, which costs $20 a day less than a state prison. Keeping Caudill out of prison would leave cell space for a more serious offender, Ball said. "My God, over a 50-cent cake, the state would spend $12,600 for six months," Ball said.

Caudill received a sentence of three years' probation Oct. 1, convicted last year of breaking and entering Krazy Katie's, a bar along Rt. 93 just south of McArthur, the Vinton County seat.  He was placed in SEPTA, a community corrections residential program in Nelsonville, on Oct. 10.  The 64-bed program, which offers drug treatment, work training and counseling, imposes strict rules.

Caudill bought the Little Debbie from the vending machine and then knowingly shared it with a fellow inmate who was on restriction and wasn't allowed access to the vending-machine snacks, said Bob Eaton, operations manager at SEPTA.

I wonder if Ohio parents and teachers realize that, when they encourage children to share at home and at school, they are preparing the kids for a life of crime.

May 2, 2008 in Examples of "over-punishment" | Permalink | Comments (26) | TrackBack

Monday, January 14, 2008

New HRW report assailing juve LWOP in California

As detailed in this press statement, today a new report was released by Human Rights Watch calling upon the California legislature to "pass a law this month to end the sentencing of children to prison for life with no possibility of parole."  The report is entitled "When I Die, They'll Send Me Home: Youth Sentenced to Life without Parole in California," and it can be accessed in various ways from this link.  Here is the start of the report's summary:

Approximately 227 youth have been sentenced to die in California's prisons. They have not been sentenced to death: the death penalty was found unconstitutional for juveniles by the United States Supreme Court in 2005. Instead, these young people have been sentenced to prison for the rest of their lives, with no opportunity for parole and no chance for release.  Their crimes were committed when they were teenagers, yet they will die in prison. Remarkably, many of the adults who were codefendants and took part in their crimes received lower sentences and will one day be released from prison.

In the United States at least 2,380 people are serving life without parole for crimes they committed when they were under the age of 18.  In the rest of the world, just seven people are known to be serving this sentence for crimes committed when they were juveniles.  Although ten other countries have laws permitting life without parole, in practice most do not use the sentence for those under age 18. International law prohibits the use of life without parole for those who are not yet 18 years old.  The United States is in violation of those laws and out of step with the rest of the world.

Some recent related posts on juve life sentences:

January 14, 2008 in Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Saturday, January 12, 2008

Genarlow Wilson headed to college

Genarlow I was pleased to see this news report from Atlanta providing an update on the state and fate of Genarlow Wilson.  Here are highlights:

In his two years in prison, Genarlow Wilson did a lot of reading. One of his favorite books: Rick Warren's "The Purpose Driven Life." The title could not be more appropriate for the next chapter in Wilson's highly publicized young life.

Nearly three months out of prison for committing a sex act with a teenager, Wilson, 21, plans to move into a dormitory at Morehouse College this weekend. He will live and study for free, thanks to the Tom Joyner Foundation, an educational nonprofit founded by the nationally syndicated radio personality. The foundation announced Thursday that it will cover the cost of tuition, room and board and books....

"I've been wanting to go to college for so long," said Wilson, who wants to major in sociology or education, with a minor in history. "I want to study and learn so I can be a mentor for others. It was very generous for [Joyner] to do that for me. I won't let him down."...

Wilson was released from prison Oct. 26 after the Georgia Supreme Court ruled that his 10-year sentence for having consensual oral sex with a 15-year-old girl was "cruel and unusual punishment." Wilson, who was 17 at the time of the incident, was convicted of felony aggravated child molestation. At the time, state law mandated a minimum 10-year sentence for the crime. The Legislature eventually changed the law to make such cases misdemeanors when they involved teenagers close in age....

Despite his ordeal, Wilson said he has no regrets. "I'm not mad about anything that happened, really," said Wilson, who now lives in Cobb County. "It helped me grow as a person, made me stronger, made me more ambitious. "I was at my lowest point in life. Now everything I wanted to do can finally happen."

I could not be happier that the Wilson story now has this happy ending; of course, there can be a lot more to the story in the years ahead.  I hope that Wilson might get seriously involved in sentencing reform movements because his name and his story alone can help a lot of politicians and voters understand the harms of — and the challenges to undo — extreme mandatory minimum sentencing provisions.

January 12, 2008 in Examples of "over-punishment" | Permalink | Comments (25) | TrackBack

Wednesday, December 26, 2007

Fascinating proportionality opinion from Oregon court

A helpful reader alerted me to a fascinating opinion from the Oregon Court of Appeals in Oregon v. Rodriguez, No. A131050 (Or. Ct. App. Dec. 26, 2007) (available here).  Both the underlying facts and the legal discussion in this case are noteworthy, and these lengthy excerpts provide only a small flavor of an opinion worth reading in full:

In early 2004, defendant [Victoria Rodriguez] was employed by the Hillsboro Boys and Girls Club to work with at-risk youths....  The victim was a member of the club....  On February 14, 2005, a staff member ... saw defendant and the victim in the game room at the club. There were approximately 30 to 50 youths and at least one other staff member in the room.  The victim, who had since turned 13, was sitting on a chair.  Defendant, who had since turned 25, was standing behind him, caressing his face and pulling his head back; the back of his head was pressed against her breasts.... The contact lasted approximately one minute....

Defendant was eventually charged with first-degree sexual abuse based on the incident.  A jury found defendant guilty....  At sentencing, the prosecutor asked the court to impose the 75-month sentence prescribed by ORS 137.700 (commonly referred to as "Measure 11").  Defendant objected, arguing that the Measure 11 sentence would be unconstitutionally excessive.  Numerous family members, friends, and coworkers testified in support of defendant.  The court agreed with defendant that a 75-month sentence would be cruel and unusual.  The court observed that defendant had no prior criminal record and that she had "lived an exemplary life" and had "really made a very positive impact into the lives of apparently many children * * *." It further noted that the touching occurred "in a crowded room, over clothing, [and was] not prolonged."  The court concluded that a 75-month sentence "just cries out" as being shocking to any reasonable person.  It imposed a 16-month sentence.  This appeal followed....

The state contends, among other things, that, given the nature of the relationship between defendant and the victim, the 75-month sentence mandated by Measure 11 would not shock the moral sense of all reasonable people....  We agree with the state that, given the nature of the relationship between defendant and the victim, there can be no doubt that the Measure 11 sentence would not shock the moral sense of all reasonable people.  It is undisputed that the victim was young and vulnerable, a prototypical "at-risk" youth. Defendant was in a position of trust and responsibility, akin to that of a teacher or youth counselor, charged with helping children make appropriate behavioral choices.  By engaging in sexual conduct with the victim, defendant seriously abused that trust.

In short, we cannot say that the 75-month sentence required under Measure 11 would shock the moral sense of all reasonable people as to what is right and proper under the circumstances.  It follows that the trial court erred in refusing to impose that sentence.

December 26, 2007 in Examples of "over-punishment", Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Monday, December 03, 2007

Weldon Angelos files 2255 motion

Regular readers will recall the name Weldon Angelos; Angelos faced a mandatory minimum sentencing term of 55 years following three small hand-to-hand marijuana sales.  Some months ago, Weldon's sister asked if I would help with his 2255 motion.  Aided by a great legal team working pro bono, this motion was completed and filed in federal district court today.  The full 50-page motion, which makes an array of constitutional arguments, can be downloaded here:

Download angelos_2255_motion.pdf

Because I am essentially counsel of record, I do not plan to discuss or debate the merits of the motion on this blog.  But I cannot help but use this forum to try to solicit amici support.  Persons concerned with any number of criminal justice issues — ranging from extreme mandatory minimum sentences, prosecutorial charging and bargaining practices, convictions based solely on informant testimony, the reach of the Second, Fifth, Sixth and Eighth Amendments and principles of equal justice — should find the Angelos case interesting and perhaps worthy of some "friendly" brief writing.

UPDATE:  The Salt Lake Tribune reports on the filing in this article.

December 3, 2007 in Examples of "over-punishment" | Permalink | Comments (10) | TrackBack

Former border agents Ramos and Compean having appeal heard today

As highlighted in media coverage linked here by How Appealing, a Fifth Circuit panel will hear today the appeal of former U.S. Border Patrol agents Ignacio Ramos and Jose Compean, who were sentenced to terms of 11 and 12 years of imprisonment for shooting an illegal alien drug smuggler.  As detailed in a series of prior posts, this case has generated lots of political controversy and the severity of the sentences are part of the reason for the case garnering so much attention.  I do not think the appeal is focused on the sentencing terms, but prominent Senators from both parties (Diane Feinstein and Jon Cornyn) have already formally requested that President Bush commute the sentences of Ramos and Compean.

Some prior posts about the Border Agents case:

December 3, 2007 in Examples of "over-punishment" | Permalink | Comments (4) | TrackBack

Friday, November 23, 2007

Judge Professor Paul Cassell still speaking out about unfair sentencing

This article from the Deseret Morning News, headlined "Former federal judge is striving for balance," catches up with former federal judge Paul Cassell now that he has been off the bench and back in the academy for a few weeks. Here are some snippets with a sentencing focus:

Sitting in his temporary office at the S.J. Quinney College of Law, Cassell told the Deseret Morning News that, as a federal judge, he felt there were several areas in federal law that were out of balance, particularly in the areas of minimum-mandatory sentencing and prosecution of some illegal immigrants. He saw some aspects of federal law caught in a vortex of political competitiveness for tougher sentences pushed by members of Congress....

"There's a kind of ratchet effect where the Republicans will say, 'We want a five-year mandatory minimum sentence,' and Democrats will say, 'We'll up you, we want a 10-year mandatory minimum sentence,' and you have people ratcheting up sentences to the point where any reasonable observer would think we've gone too high, but there's no political incentive to undo the mischief." Cassell said, in his mind, it takes political courage to step up and say the punishment does not fit the crime....

Cassell said he found himself questioning some laws at each turn. "I felt like it was proper judicial role to ask questions, even if we weren't necessarily charged with fixing the problem," he said. But he wanted to do more — he wanted to make a change. Being a federal judge, he couldn't do that. "One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that's reserved for the appellate courts. ... When I was there for 5 1/2 years, I began to think that maybe I would have more effect in moving the law in a way that I think is desirable by doing appellate litigation." Becoming a legal advocate is a better fit, he said. "I felt like for the rest of my life, I wasn't sure I could stay in one place doing one kind of thing. There were some issues I wanted to pursue, particularly working on crime victims' rights, which is an area that I felt very passionately about."

Traditionally, criminal cases involve two parties: the state and the defendant. But a growing trend in courts is to give the victims of crimes more of a voice in cases. In addition to teaching at the U., Cassell plans to work with a Washington, D.C., group that deals with crime victims' rights. It seems being a voice for balance is innate in Cassell.

One of the last things he did as a federal judge is speak out on the issue of sentencing guidelines for crack cocaine. As chairman of the Judicial Conference's Criminal Law Committee, Cassell said he spoke for the judiciary when he sent a letter to the president and Congress supporting the Federal Sentencing Commission's recommendation to reduce sentences for crack cocaine possession versus powder. Such sentences bear a 100-to-1 ratio to sentences for powder cocaine. "The differences between crack and powder cocaine penalties have been hurting the federal judiciary's credibility in minority communities, particularly in the African-American communities, who view the differences as racially motivated," Cassell said.

November 23, 2007 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

Friday, October 26, 2007

Why so much fear about a robust Eighth Amendment doctrine?

I am surprised and disappointed to see a few academic bloggers I respect expressing reservations about the Georgia Supreme Court's application of the cruel and unusual punishments clause in the Wilson case.  Specifically, Eugene Volokh has this to say:

I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment.

And Laura Appleman adds this:

If the claim of cruel and unusual punishment is used more frequently, and in less dire cases than it has traditionally been used (i.e., death penalty cases), are we weakening the doctrine?  I'm not arguing that Genarlow Wilson deserved to remain in jail -- his 10 year sentence was ridiculous on its face.  But I'm a little nervous about using the 8th Amendment as a tool to free him.  Wilson's case was arguably a problem of proportionality -- isn't using the 8th Amendment to free him like using a battering ram when a kick or two would do?

I just do not get these sorts of concerns.  Let's start with Eugene's points.  Why does he or others think the Eighth Amendment's prohibition on "cruel and unusual punishments" is any more "mushy" or less subject to sound judicial line-drawing than the Fourth Amendment's prohibition on "unreasonable searches and seizures" or the Fifth Amendments requirements of "due process" and "just compensation."  Of course, one might contend that all these vague standards defy effective constitutional line-drawing.  But, if one excepts the appropriateness of courts drawing hard lines when interpreting other vague Amendments, I do not quite understand why the protections of the Eighth Amendment should evaporate once a person gets sentenced to a term of confinement. 

Laura raises related issues that also make me scratch my head: for Genarlow Wilson, another 7 years in prison seems pretty dire.  I know everyone thinks "death is different," but many defendants on death row bringing Eighth Amendment claims are going to die in prison as old men before appeals are exhausted.  But, for Genarlow Wilson, this case essentially concerned whether he was going to get to be a free man in his 20s (which is a probably a decade that few adults would want to have spent locked up in a prison).  Though others may disagree, but I am much more eager to use a battering ram for the likes of Genarlow Wilson than for the likes of Ted Bundy.

Finally, Eugene suggests a focus on the text of the Eighth Amendment (which few really do).  As the Wilson majority adroitly notes, statistics suggest that 7.5 million teenagers are involed each year in the specific offense behavior that resulted in 10 years in prison.  Can anyone argue (without using legalese) that it is not "cruel and unusual punishment" for Genarlow Wilson to be only one of this massive population forced to serve 10 years locked in a small cage for this behavior?

October 26, 2007 in Examples of "over-punishment" | Permalink | Comments (30) | TrackBack

Split justice for Genarlow Wilson from the Georgia Supreme Court

As detailed in breaking news stories from the Atlanta Journal-Constitution and from the AP, theGeorgia Supreme Court this morning ordered the release of Genarlow Wilson, the young man who has been serving a 10-year sentence for consensual oral sex. The decision divided the state justices 4-3, but ultimately upholds county judge's ruling that the sentence constituted cruel and unusual punishment. The ruling is available at this link, and the court also has this news release summarizing the decision.  Here is how the opinion begins:

In Case No. S07A1481, the appellant, Warden Carl Humphrey, appeals from the grant of habeas corpus relief to the appellee, Genarlow Wilson, by the Superior Court of Monroe County (hereinafter referred to as the “habeas court”). For the reasons that follow, we conclude that the habeas court properly ruled that Wilson’s sentence of ten years in prison for having consensual oral sex with a fifteen-year-old girl when he was only seventeen years old constitutes cruel and unusual punishment, but erred in convicting and sentencing Wilson for a misdemeanor crime that did not exist when the conduct in question occurred. Because the minimum punishment for the crime for which Wilson was convicted constitutes cruel and unusual punishment, this case must be remanded to the habeas court for it to enter an order reversing Wilson’s conviction and sentence and discharging him from custody.  Accordingly, in Case No. S07A1481, we affirm the habeas court’s judgment in part and reverse it in part. 

In Case No. S07A1606, Wilson appeals the denial, by the Superior Court of Douglas County (hereinafter referred to as the “trial court”), of his motion for release on bail during the pendency of the warden’s appeal in Case No. S07A1481.  Because the trial court properly denied Wilson’s motion for bail, we affirm the trial court’s judgment.

October 26, 2007 in Examples of "over-punishment" | Permalink | Comments (19) | TrackBack

Wednesday, October 24, 2007

Spotting the many statutory errors in Peltier

Commentors here have done a great job highlighting the practical craziness of the Fifth Circuit's adoption of a  "plain error" approach to reasonableness review in US v. Peltier, No. 05-30440 (5th Cir. Oct. 23, 2007) (available here).  But the problems with Peltier run deeper: at the most fundamental level, the Fifth Circuit's approach seems to misunderstand that reasonableness review was embraced in the Booker remedy to "iron out sentencing differences," not simply to protect a defendant's rights.  The whole goal of reasonableness review emphasized by the Booker remedial opinion is undermined by affirming unreasonable sentences because errors are not plain enough. 

Moreover, spotting the many statutory errors in Peltier would make for a good exam in my sentencing classes.  Here are just a few I saw based on a quick read:

1.  Peltier asserts in a footnote that "reasonableness has become ... a substantive standard to be applied by the district court," but that claim transgresses the congressional directive in section 3553(a), which states clearly that a sentencing court "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in 3553(a)(2).

2.  Peltier affirms a statutory maximum sentence of 10 years for a defendant who pleaded guilty to a not-particularly-serious version of felon-in-possession (the defendant had a shotgun in his shed).  Given the requirement in 3553(a)(3) to consider "the kinds of sentences available" and in 3553(a)(6) to "avoid unwarranted sentence disparities," what is reasonable about the district court's determination that the defendant should get the highest legally available sentence for this type of crime (especially given that his guideline range was less than half as long)?

3.   Peltier makes much of the "weight given to the proper factor of need for treatment" to justify the district court's extra long prison term.  However, 18 USC 3582(a) plainly states that courts must "recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation."

I could go on, but perhaps I need to first re-read Peltier to make sure I'm not overlooking reasons it might not be as bad as it seems.

October 24, 2007 in Examples of "over-punishment" | Permalink | Comments (4) | TrackBack

Tuesday, October 23, 2007

Does Roper suggest young juve LWOP is unconstitutional?

The Baltimore Sun today has this effective editorial, entitled "Too young to die in prison," which builds off the Equal Justice Initiative's recent new report (available here, overviewed here) on life terms for offenses committed by young teenagers.  Here are snippets from the editorial:

Teenagers serving life sentences without the possibility of parole have been condemned to die in prison. It's a death sentence without an executioner, it's perilously close to cruel and usual punishment, and it simply shouldn't be allowed. 

States, such as Maryland, that let juveniles spend the rest of their lives behind bars ignore what researchers and others have shown to be true: These offenders lack the physical and emotional maturity to make rational decisions. A life sentence, with the appropriate parole eligibility requirements and restrictions, would keep these young criminals behind bars for a lengthy period and prevent their release until an appropriate time.

A report issued last week by the Alabama-based Equal Justice Initiative found that nationally, more than 2,225 juveniles, age 17 and younger, have received life without parole sentences. Of those, 73 were 13 or 14 — children by almost any measure — when they committed their crimes....

Their crimes may have been terrible, but there is a reason we have different systems for juvenile offenders: Society recognizes the differences between teenagers and adults; the key difference is that parts of their brains that control impulses, emotions and reasoning are less developed.

Juveniles are barred from buying cigarettes or beer; they can't enlist in the military and aren't supposed to watch R-rated movies unless accompanied by a parent or guardian.  And yet when they commit a serious crime, it's as if they have morphed into adults for purposes of their punishment....

The Supreme Court recognized all these differences when it barred the execution of juveniles, no matter the crime.  But a mandatory life sentence without possibility of parole is just as fatal in its way, and should be prohibited for the same reasons.

I share the editorial's instinct that a fair reading of Roper supports an argument that life without parole for young teenagers is constitutionally excessive under the Eighth Amendment.  I suspect others may agree.  But it is telling (and troubling) that these viable constitutional arguments on behalf of young offenders facing life terms have not gotten nearly the traction and attention — from courts, the media or academics — that has been given to older offenders facing lethal injections.

Some related posts:

October 23, 2007 in Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment | Permalink | Comments (26) | TrackBack

Monday, July 23, 2007

Commentaries and editorials on border agents case

A new week brings a new set of commentaries and editorials about the border agents case.  Interestingly, as the headlines below suggest, not everyone has the same perspective on this case:

Commentary here from Debra Saunders, "Where's George Bush: Free the Border Patrol Two"

Commentary here from Rick Lowry, "Justice demands sentence commutation for border agents"

Editorial here from the Houston Chronicle, "Border incident Inflexible sentencing law — not prosecutor — created long sentence for rogue border agents"

Editorial here from the Sacramento Bee, "Feinstein takes the low road with border agents: With a grandstanding hearing and a letter to Bush, senator stoops to tarnish -- herself"

Some prior posts about the Border Agents case:

July 23, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Friday, July 20, 2007

Report on Genarlow Wilson argument in Georgia

The AP has this article providing the basics of today's argument before the Georgia Supreme Court in the Genarlow Wilson case.  Here are a few snippets:

Attorney General Thurbert Baker argues that the order to free Wilson, if upheld, could be used to help free some 1,300 child molesters from Georgia prison.  "We urge you to look beyond the confines of this case," Senior Assistant Attorney General Paula Smith told the court's seven justices Friday.

Wilson's lawyer, B.J. Bernstein, said that Wilson's decade-long mandatory sentence violated the constitutional ban on cruel and unusual punishment.  "Every day that a defendant spends in jail is a precious day in their life," Bernstein said.

The justices seemed to be wrestling with how to provide Wilson relief under the law. "We have a responsibility to enforce the law," Justice Robert Benham asked.  "Should we do that at the expense of fairness?"

How Appealing has more coverage of the argument at this link.

July 20, 2007 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

Wednesday, July 18, 2007

Bipartisan call for commuting border agent sentences

Especially in these partisan times, it is encouraging to see bipartisanship on any issue.  And, as detailed in this Lou Dobbs commentary, the extreme sentences for former border agents Ignacio Ramos and Jose Compean has brought leading Senators from both sides of the aisle together:

There was an unusual spectacle in the nation's capital Tuesday, downright rare, in fact: U.S. Senators seeking truth, and justice, and taking action.  And they deserve great credit and thanks. The Senate Judiciary Committee hearing, led by Dianne Feinstein, focused on the reasons for the prosecution of two Border Patrol agents now serving long sentences in federal prison.  Border Patrol Agents Ignacio Ramos and Jose Compean were given terms of 11 and 12 years respectively on their convictions for shooting an illegal alien drug smuggler. Senator Feinstein, and Senators Jeff Sessions, John Cornyn, Jon Kyl and Tom Coburn demanded answers of U.S. Attorney Johnny Sutton, who chose to prosecute Compean and Ramos and give that illegal alien drug smuggler blanket immunity to testify against the men....

Senator Feinstein and Senator Cornyn announced Tuesday night on our broadcast that they have decided to request that President Bush commute the sentences of Ramos and Compean.

Some prior posts about the Border Agents case:

July 18, 2007 in Clemency and Pardons, Examples of "over-punishment", Scope of Imprisonment, Who Sentences? | Permalink | Comments (13) | TrackBack

Tuesday, July 17, 2007

Reports on Senate hearing on Border Agent case

Reports from the Houston Chronicle, from the AP, from The Hill and from The Corner at NRO provide some highlights from Tuesday's Senate Judiciary Committee hearing examining the prosecution and sentencing of former border agents Ignacio Ramos and Jose Compean.  Also available at this official site are links to the witnesses' written testimony and an archived webcast of the hearing.

Some prior posts about the Border Agents case:

July 17, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Sunday, July 15, 2007

Senate hearing on Border Agent prosecutions

As detailed at this official site, the Senate Committee on the Judiciary has scheduled a "Hearing to Examine the Prosecution of Ignacio Ramos and Jose Compean" for the morning of Tuesday, July 17, 2007.  Notably, Senator Dianne Feinstein is slated to preside. 

As I have explained in many prior posts (some of which are linked below), I think the prosecution and sentencing of these former border agents  spotlight the many flaws with mandatory sentencing provisions and the severe penalties that some defendants receive largely for exercising their right to go to trial rather than pleading guilty.  I am hopeful that these sentencing issues will be a big part of the Senate hearing.

Some prior posts about the Border Agents case:

July 15, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Thursday, July 12, 2007

Prosecutors gone wild

This AP story chronicles the latest saga in the sad tale that is the Genarlow Wilson case (details in this archive) out of Georgia.  Here are snippets:

David McDade has handed out some 35 copies of a video of teenagers having sex at a party.  McDade is no porno kingpin, but a district attorney.  And he says Georgia's open-records law leaves him no choice but to release the footage because it was evidence in one of the state's most turbulent cases — that of Genarlow Wilson, a young man serving 10 years in prison for having oral sex with a girl when they were teenagers.  McDade's actions have opened him up to accusations that he is vindictively misusing his authority to keep Wilson behind bars — and worse, distributing child pornography.

UPDATE:  I see two remarkable new posts at Above the Law suggesting that Mr. McDade has a track record that should make good prosecutors cringe:

The saddest part of all this, of course, is that McDade continues to wreck havoc on Georgia justice while Genarlow Wilson remains behind bars.  It is a sad shame that Georgia's Attorney General and Governor are far less concerned about the unjustifiable activities of rogue prosecutors than about teenagers' consensual sexual activities.

July 12, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

Wednesday, June 27, 2007

Genarlow Wilson to remain in prison, despite ruling that his sentence is unconstitutional

Howard Bashman notes reports from the AP and from the Atlanta Journal-Constitution that a state judge has now ruled that Genarlow Wilson is not eligible for bond pending the state's appeal of a ruling that his sentence is unconstitutional.  As previously detailed here and here, lower court has already ruled that Wilson's original sentence was unconstitutional, although that ruling due to be review by the Georgia Supreme COurt in the fall (details here).

I do not quite understand why executive officials in Georgia believe it is necessary and appropriate — or even lawful — to keep Wilson in prison when the last state judge to review this case has declared Wilson's sentence unconstitutional.  I understand that the Georgia Attorney General regards the lower court's ruling as problematic.  But given that the AG apparently recognizes that Wilson presents no risk of flight or dangerousness, shouldn't he agree to Wilson's release pending appeal.  Indeed, might one argue that it is unconstitutional for the Georgia AG to continued Wilson's imprisonment under these circumstances?

June 27, 2007 in Examples of "over-punishment" | Permalink | Comments (11) | TrackBack

Tuesday, June 26, 2007

Putting money where the sentencing injustice is

As detailed in articles appearing in USA Today and the Atlanta Journal-Constitution, a "New York investment manager and 10 of his friends have pledged $1 million in cash to try to win the release of a Georgia man imprisoned for a consensual sex act."  Here are more details from the USA Today article:

Genarlow Wilson, 21, is serving a 10-year sentence for receiving oral sex from a 15-year-old girl when he was 17.  He has been behind bars for more than 28 months.  Two weeks ago, a Monroe County judge ordered his release.  Because Georgia Attorney General Thurbert Baker appealed, however, Wilson remains in prison.

"A miscarriage of justice has occurred here, yet he's still in jail," says Whitney Tilson, a mutual and hedge fund manager who will commit $100,000 of his own money to a bond fund for Wilson.  Tilson, who is founder and managing partner of T2 Partners Management LP and Tilson Mutual Funds, read about Wilson's case in December and thought his punishment was excessive.

Related posts will background on the Genarlow Wilson case:

June 26, 2007 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Thursday, June 14, 2007

Notable coverage of Genarlow Wilson saga

Coverage of the Genarlow Wilson case continues to provide interesting food-for-thought.  Anyone following the Wilson case closely will definitely want to check out these two interesting articles:

Following up the AJC article, this AP article has now hit the wires, headlined "Prosecutor meddling in teen sex case?  Mother of girl changed statement to newspaper after visit by assistant DA."

UPDATE:  This AP story reports that "Georgia's Supreme Court agreed Thursday to hear the state's arguments for keeping in prison a man who had consensual sex with a 15-year-old girl when he was 17.  The story also provides more details about reactions to the case and the decision by the Georgia AG to appeal.

June 14, 2007 in Examples of "over-punishment" | Permalink | Comments (6) | TrackBack