Monday, November 05, 2012

Examining how Pennsylvania has responded legislatively to Miller

580719_190This local story out of Pennsylvania, headlined "New law gives Lancaster County judges discretion in sentencing juvenile killers," provides effective coverage on Pennsylvania's new sentencing laws for juvenile killers in response to the Supreme Court's Eighth Amendment ruling in Miller this past June.  Here are excerpts:

A newly-passed law could lead to lighter sentences for juvenile killers in Lancaster County and statewide, according to local experts.

Gov. Tom Corbett recently signed Senate Bill 850, making life behind bars no longer a mandatory sentence for juveniles convicted of first- or second-degree murder. In fact, a juvenile convicted of second-degree murder, under the law, can't be sentenced to life without parole.  The changes in sentencing statutes apply to those convicted after June 24....

In pending and future cases under the new law, judges still have the option of ordering a life-without-parole sentence to anyone convicted of 1st-degree murder, regardless of their age.  However, the new law give judges much discretion, and flexibility, in sentencing. "Like it or not, that is the role we entrust to judges," Lancaster County Judge Dennis Reinaker said.  "Nobody is going to agree with every decision we make.  As judges, we have different ideas about things.  And that's as it should be."...

Philadelphia-based Juvenile Law Center, an advocacy group for juvenile offenders, says Senate Bill 850 "misses the mark."  The group, a reputable source in the legal community, claims in an opinion piece that the new provisions "not only leave life without parole as an option for juveniles convicted of first-degree murder, but also impose severe mandatory minimum sentences as the only alternative option."

The bill applies many proposals from the state's District Attorneys Association. Lancaster County District Attorney Craig Stedman said those proposals involved some compromise. "We fought hard to preserve higher mandatory minimums and the life-without-parole option for first-degree murderers," he said on Thursday.  "And in exchange agreed to take the life-without-parole option off the table for second-degree murderers."...

Those convicted of first-degree murder, meaning an act that is pre-meditated with intention to kill, can still receive life-without-parole terms.  A person under age 15 convicted of first-degree murder faces a mandatory 25-year term; a person between 15 and 17 faces a mandatory 35-year term.  "It is critical for the protection of the public that Pennsylvania preserved the option to make sure that the worst of the worst have no possibility of ever being released to kill again," Stedman said.

Mandatory sentences are slightly less in second-degree cases, as locals say they should be. Second-degree murder is a killing that happens during the course of another felony, most commonly burglary or robbery.  The mandatory minimum sentence for a juvenile 15 to 17 convicted of second-degree murder shrinks to 30 years.  Convicted second-degree killers under age 15 face a mandatory minimum of 20 years....

Many lawyers that appeal second-degree cases here argue their client was merely a "lookout," and less culpable than the person who did the actual killing. "That's entirely different than someone who specifically intended to target someone," Lancaster County Judge David Ashworth said. "When I sentence anybody, I consider culpability."

Additional recent local coverage of this new juve sentencing law in the Keystone State can be found in the Reading Eagle via "Sentencing guidelines for juveniles revised" and in the Wilkes Barre Times-Leader via "Juvenile bill makes changes."

November 5, 2012 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 31, 2012

Federal district judge refuses to apply arson mandatory minimum (on constitutional grounds?)

This local article from Oregon reports on what appears to be a significant sentencing decision by a federal district judge concerning the application of a mandatory minimum provision.  Here are the details:

Rejecting mandatory minimum five-year sentences as “grossly disproportionate” to the crimes, a federal judge in Eugene on Tuesday sentenced an Eastern Oregon rancher to three months in prison and his adult son to one year and a day for deliberately setting fires on federal land.

A federal jury in June convicted the Harney County pair after a two-week trial in Pendleton. Jurors convicted Dwight Hammond Jr., 70, on a single count of arson for “intentionally and maliciously” setting the 2001 Hardie-Hammond Fire in the Steens Mountain federal management and protection area.  They convicted Steven Dwight Hammond, 43, of the same crime and of a second arson count for similarly setting the 2006 Krumbo Butte Fire.  It burned in the same area and in the Malheur National Wildlife Refuge.  The jury acquitted both men on arson charges in two 2006 fires.

U.S. Judge Michael Hogan agreed with the Hammonds’ defense lawyers that setting fire to juniper trees and sagebrush in the wilderness was not the type of crime that Congress had in mind when it set mandatory sentences of five to 20 years for anyone who “maliciously damages or destroys, or attempts to damage or destroy by means of fire” any federal property. The mandate was part of the Antiterrorism and Effective Death Penalty Act of 1996.

Prosecutors alleged that the father-son owners of Hammond Ranches Inc. set a series of fires on U.S. Bureau of Land Management land where the Hammonds had grazing rights. Prosecutors said the fires were set to reduce the growth of juniper trees and sagebrush, and to accelerate the growth of rangeland grasses for the Hammonds’ cattle....

In a sentencing memo, the defense lawyers noted that both men have served on the French Glen School Board, Community Club and Site Council, and were “instrumental” in founding and financing the French Glen Education Foundation, which funds extracurricular activities for area students.  The Hammonds also regularly host an annual science and careers fair for seven rural schools, contribute money and food to the Harney County 4-H and FFA clubs, and donate meat to the Harney County Senior Center, the memo said.

Assistant U.S. Attorney Frank Papagni acknowledged that the Hammonds, “both of them, have done many wonderful things for the community.”  But he urged Hogan to follow the law, noting that Steven Hammond’s nephew — Dwight Hammond’s grandson — testified that he “thought he was going to get burned up” when flames moved toward him as the then-13-year-old followed his uncle’s orders to light brush with matches.

The arsons also endangered the lives of BLM firefighters and hunters camping near one of the blazes, the government alleged.  “Congress decided that this particular offense should carry a mandatory, statutory minimum term of five years,” Papagni wrote in the government’s sentencing memo.  “The evidence of defendants’ guilt was substantial. The jury’s verdict of guilt for this particular offense mandates imposition of the required statutory minimum term, as the statute constrains this court’s discretion.”

Hogan disagreed, imposing the lesser terms. He also sentenced both Hammonds to three years of postprison supervision and required them to surrender their firearms. The judge also allowed the men to stagger their sentences in order to keep operating their ranch. He ordered Dwight Hammond to report to prison in January, with Steven Hammond to begin his sentence upon his father’s release.

As the title of this post indicates, it seems from the first sentence of this report that Judge Hogan concluded it would be unconstitutional based on the Eighth Amendment to apply a five-year mandatory minimum under the circumstances.  (Side notethis companion article reports that this sentencing took place on Judge Hogan's last day on the bench.) 

It will be interesting to follow if federal prosecutors seek to appeal this sentence to the Ninth Circuit.  I predict that the feds will fear a "bad panel" and thus a "bad ruling" from the Ninth Circuit and thus will decide not to appeal.

October 31, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (34) | TrackBack

Tuesday, October 30, 2012

Tenth Circuit continues to struggle through ACCA's ever-elusive residual clause

A helpful reader alerted me to a series of recent notable Tenth Circuit decisions regarding application of the Armed Career Criminal Act and sent along this detailed summary for posting (which probably only hard-core ACCA fans will enjoy, but they should enjoy it lots):

Federal practitioners know that the meaning of the ACCA/4B1.2(a)(2)’s residual clause is one of the most frequently occurring yet confusing issues in federal sentencing law. And the confusion does not seem to be subsiding. Perhaps best illustrating this are three cases issued by the Tenth Circuit within just a two-week time span.

First came US v. Sandoval, No. 11-1303 (10th Cir. Oct. 9, 2012) (available here). The issue there was whether a prior conviction for “heat-of-passion” assault should be classified as a violent felony under the ACCA’s residual clause.  The heat-of-passion offense read:  "If assault in the second degree is committed under circumstances where the act causing the injury is performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person."

The Sandoval court held that such a crime is an ACCA violent felony. But, in doing so, the opinion contained some telling language. The opinion began by explaining: “This is another of those cases, now becoming legion[FN1] where we must decide if a prior conviction constitutes a violent felony under the Armed Career Criminal Act (ACCA).” Footnote 1 then explained how courts continue to face this issue and yet “[t]he law is not well-settled.”  A few pages later, the opinion lamented how Sykes, the Supreme Court’s latest excursion into residual-clause land, is “not a model of clarity."  Footnote 8 then went on for four paragraphs about the confusion.

Sandoval raises a number of very interesting questions.  Among them:

1) What is the meaning of Begay post-Sykes?

2) Is a heat-of-passion offense akin to the type of mens rea crime at issue in Begay, or is Sykes the more analogous case?

3) Is a Begay analysis ever needed when the offense at issue is not one of strict liability, negligence, or recklessness?

4) If so, is a heat-of-passion offense “similar in kind” to the ACCA example crimes, none of which involve either the victim’s provocation or an irresistible passion of a reasonable person?

5) Is Begay's "in kind" analysis solely limited to an inquiry about being "purposeful, violent and aggressive," or can an offense be different from the example crimes "in kind" in a different way?

The first question is the big one, and questions two through five seem to inextricably follow from the first. Despite this confusion, the Tenth Circuit held that a heat-of-passion offense — where A) the victim provokes the offense, B) the offender is acting pursuant to an irresistible passion in a reasonable person, and C) there is no deliberation — is similar to the ACCA enumerated crimes. With so many important questions involved, this may be the perfect post-Sykes case to clarify the US Supreme Court’s residual clause precedents.

Nine days later, the Tenth Circuit returned to the uncertainty surrounding the residual clause in US v. Duran, No. 11-1308 (10th Cir. Oct. 18, 2012) (available here).  There, the Circuit held that aggravated assault by recklessly causing bodily injury does not satisfy the residual clause (this time under USSG § 4B1.2(a)(2)). Even though the prior offense required causing bodily injury to the victim, the Circuit reasoned that Begay prevents reckless conduct from satisfying the residual clause.  This certainly appears to be the correct outcome; Sykes itself implies that reckless crimes are outside of the residual clause.  Nevertheless, the Tenth Circuit panel still questioned its earlier precedent on that issue, and wondered aloud “if Begay is still good law.” See footnote 1.

Finally, four days after that, the Tenth Circuit again found itself in residual-clause land with US v. Maldonado, No. 11-2168 (10th Cir. Oct. 22, 2012) (available here). This time, the Tenth Circuit held that California’s first-degree burglary statute, although not constituting the generic, enumerated offense of burglary, did satisfy the ACCA’s residual clause.  The court reached this result by applying “a two-part test, asking first whether the offense poses a serious potential risk of physical injury to another and second, whether the offense is ‘roughly similar’ in kind and degree of risk as the enumerated crimes in the ACCA.” The Circuit stressed again — as it did in Sandoval and Duran — that part two of the test is “subject to some debate,” noting how the Supreme Court is “splintered” on part-two.  See footnote 6.  The Maldonado panel also felt it important to remind us of Sandoval’s commentary on this confusion. See footnote 7.

The Tenth Circuit is not alone in tiring of the “legion” of cases it must decide on the ever-elusive meaning of the residual clause.  And its frustration over this uncertain area of the law is warranted.  Tellingly, the three opinions are each authored by a different judge, and they constitute seven of the nine active Tenth Circuit judges and one Senior Judge. Ultimately, the Supreme Court should heed the Tenth Circuit’s frustration and clarify this “splintered” issue sooner rather than later.  (Or, for that matter, declare the clause void for its vagueness.)  The issue is too important and commonly occurring to continue leaving the lower courts without much-needed guidance.

October 30, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, October 26, 2012

"How Mandatory Minimums Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison"

The title of this post is the headline of this new commentary authored by US District Judge Mark Bennett and published in The Nation. Here are is how it gets going:

Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the “Greatest Generation,” I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA.  Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release.  The majority of these women, men and young adults are nonviolent drug addicts.  Methamphetamine is their drug of choice.  Crack cocaine is a distant second.  Drug kingpins? Oh yes, I’ve sentenced them, too.  But I can count them on one hand. While I’m extremely proud of my father’s service in World War II, I am greatly conflicted about my role in the “war on drugs.”

You might think the Northern District of Iowa — a bucolic area home to just one city with a population above 100,000 — is a sleepy place with few federal crimes.  You would be wrong. Of the ninety-four district courts across the United States, we have the sixth-heaviest criminal caseload per judge.  Here in the heartland, I sentence more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco — combined.  While drug cases nationally make up 29 percent of federal judges’ criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine.  More startling, while meth cases make up 18 percent of a judge’s drug docket nationally, they account for 78 percent of mine.  Add crack cocaine and together they account for 87 percent.

Crack defendants are almost always poor African-Americans.  Meth defendants are generally lower-income whites.  More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence.  These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights.  Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine.  They are the low-hanging fruit of the drug war.  Other than their crippling meth addiction, they are very much like the folks I grew up with.  Virtually all are charged with federal drug trafficking conspiracies — which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth.  They don’t even have to succeed.

I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges.  All of them pled guilty.  Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions.  Most were unemployed or underemployed.  Several were single mothers.  They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment.  Yet all of them faced mandatory minimum sentences of sixty or 120 months.  One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum.  She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for “good time.”

Several years ago, I started visiting inmates I had sentenced in prison.  It is deeply inspiring to see the positive changes most have made.  Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around.  They are shocked — and glad — to see me, and it’s important to them that people outside prison care about their progress.  For far too many, I am their only visitor.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do.  I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless.  They destroy families and mightily fuel the cycle of poverty and addiction.  In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

October 26, 2012 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack

Wednesday, October 03, 2012

Is SCOTUS gearing up to reconsider Harris and the Sixth Amendment's application to mandatory minimums?

The question in the title of this post is prompted by an exciting paragraph deep within John Elwood's exciting new SCOTUSblog post excitingly titled "Relist (and Hold) Watch." Here it is:

Unsurprisingly, the first real order list after the Long Conference left us with a boatload of relists.  Eleven, in fact.  Apprendi purists, ready the confetti:  Two of the relists, Alleyne v. United States, 11-9335, and Dotson v. United States, 11-9873 (which we first discussed in May), ask the Court to overrule Harris v. United States (2002).  You might recall that, in Harris, a plurality headed by Justice Kennedy plus Justice Breyer’s concurrence in the judgment held that facts that increased the mandatory minimum sentence need not be decided by the jury.  Two members of the Harris majority (Chief Justice Rehnquist and Justice O’Connor) are gone, as are two of the dissenters (Justices Stevens and Souter).  It would be a pretty big deal if the New ‘n’ Improved Court revisited Harris.  But I will try to curb my enthusiasm in case the Court is pulling its Lucy-and-the-football trick again, like it did both during OT2010 and last Term when it relisted cases seeking to revisit another sentencing rule in tension with Apprendi, Almendarez-Torres v. United States (holding that the fact of a prior conviction could be found by a judge rather than submitted to a jury) – only to deny those petitions without comment.

I have so much to say on this topic, but I need to first get my confetti ready and also put on my black-striped Charlie Brown yellow shirt.

October 3, 2012 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, September 28, 2012

Second Circuit reiterates that mandatory minimum statutes trump parsimony instruction of 3553(a)

The Second Circuit has a brief sentencing opinion this morning in US v. Carter, No. 11-3605 (2d Cir. Sept. 28, 2012) (available here), which would have been huge news had it come out the other way. As resolved, the decision still seemed blog-worthy and here is how it begins:

This case reminds us of the tension in federal criminal law between two competing but overlapping systems for imposing a sentence.  In most cases, a sentencing court computes the relevant range under the U.S. Sentencing Guidelines, now advisory under the teaching of United States v. Booker, 543 U.S. 220 (2005), before making its own determination of an appropriate punishment after considering the general sentencing factors in § 3553(a), including the “parsimony” provision that a sentence must not be “greater than necessary” to serve appropriate sentencing objectives. 18 U.S.C. § 3553(a).  For certain criminal offenses, however, Congress has created a “mandatory minimum” term of imprisonment — a blunt directive that may require judges to give sentences that they consider unduly punitive.  See Dorsey v. United States, 132 S. Ct. 2321, 2326–29 (2012) (describing the development of and relationship between these two sentencing regimes).

The question presented in this appeal is whether a statutory mandatory minimum provision binds a federal sentencing court when the relevant statute does not specify that it overrides the “parsimony” provision in § 3553(a).  For the reasons stated below, we hold that a statutory mandatory minimum binds a sentencing court by explicitly providing a sentencing floor.  The relevant statute need not specify that it overrides the “parsimony” provision or other general sentencing considerations in § 3553(a).  Therefore, we affirm the judgment of the District Court.

September 28, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Thursday, September 13, 2012

Latest California poll data showing DP repeal losing so far, while three-strike reform is winning big

Crime & Consequences has lots of good coverage here and here of the latest poll numbers from California concerning the initiative going before the voters to repeal the death penalty in the state.  Short story is that the polling numbers suggests those favoring abolition have a up hill battle over the next two months to convince voters to vote for repeal.

Not reported by C&C, but via the data linked in this report, are the remarkable poll numbers showing overwhelming support for reforming California's severe Three-Strikes mandatory sentencing law (this is Proposition 36). According to the data, there is more than 80% support for three-strikes reform, and of those who indicate a strong or somewhat solid opinion, more than 50% support reform and less than 10% are against reform. 

September 13, 2012 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, August 27, 2012

Second Circuit limits predicates triggerring 15-year child porn mandatory minimums

The Second Circuit has released today a lengthy and significant ruling concerning the application of mandatory minimum terms for those convicted of child pornography offenses. The panel opinion in US v. Beardsley, No. 11-2206 (2d Cir. Aug. 27, 2012) (available here) begins this way:

Defendant-appellant Wayne Beardsley appeals from a judgment of conviction entered in the Northern District of New York (Glenn T. Suddaby, Judge) following his plea of guilty to knowingly receiving and possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B).  The district court sentenced Beardsley to fifteen years in prison, the mandatory minimum sentence established by 18 U.S.C. § 2252A(b)(1), which applies to defendants convicted of certain federal child pornography offenses who have a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”  On appeal, Beardsley argues that the district court erred in employing the “modified categorical approach” to analyze the facts underlying his prior state conviction for endangering the welfare of a child, and that under the proper standard -- the “categorical approach” -- his prior state conviction does not qualify as a § 2252A(b)(1) predicate offense.  We agree, and therefore vacate his sentence and remand to the district court for resentencing.

August 27, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, August 22, 2012

Effective review of three-strikes initiative battle taking place in California

The Sacramento Bee has this lengthy new article providing an effective overview of the 2012 election season debate over an effort to reform California's three strikes law. The piece is headlined "'Three-strikes' battle returns to fall ballot in California," and here are excerpts:

Proposition 36 gives the state's electorate another opportunity to weigh in on California's 18-year-old "three-strikes" law, the toughest career-criminal sentencing statute in the nation.  Twice in as many decades, voters have sided in favor of a three-strikes law that allows judges to impose a life prison term for offenders who commit a third felony -- no matter how minor -- if they have two previous serious or violent criminal convictions on their records.

Proposition 36 proponents want to change the law to restrict the 25-years-to-life sentences, with some exceptions, to criminals whose third felony was serious or violent; nothing less than a residential burglary would qualify as a strike.

The measure would enable an estimated 3,000 of the 8,873 prisoners serving 25-years-to-life terms in the state as of June 30 to apply for resentencing hearings.  If their motions for new terms are granted, a good number of those 3,000 prisoners could go free.  The Legislative Analyst's Office estimates passage of Proposition 36 could save the state anywhere from $70 million to $90 million a year in reduced prison costs.

The initiative has had huge cash infusions from two sources.  Billionaire financier George Soros, the international hedge fund manager who has contributed millions over the years to change drug laws and other statutes he believes are too harsh, kicked in $500,000, according to the secretary of state's records. David W. Mills, a Stanford law professor and private investment manager, matched and raised the contribution.  Mills, a co-chair of the NAACP's Legal Defense Fund, put in $878,000.  The money Soros and Mills contributed paid for the $1.4 million signature-gathering effort that qualified Proposition 36 for the Nov. 6 ballot.

In an interview, Mills, 65, said his involvement in California's three-strikes law stems from his long-term interest in civil rights.  It is Mills' view that the sentencing measure's "dramatic effect on poor people and African Americans" makes it one of the leading civil rights issues of the day. "The notion I can live in a state in a country where we would send somebody to jail for 25-to-life for stealing a loaf of bread, a pair of gloves, a piece of pizza, for a gram of cocaine, or whatever, to me is incomprehensible," he said.

Opponents of the measure include the California Police Chiefs Association.  Sacramento Police Chief Rick Braziel signed the ballot rebuttal argument against Proposition 36 in his capacity as president of the California Peace Officers Association, arguing that thousands of criminals would be released from prison.  Top victims' rights organizations, such as Crime Victims United of California, also have lined up to fight the measure....

Mike Reynolds, the Fresno photographer whose daughter was murdered by a repeat offender, has served as guardian of the three-strikes law since its 1994 birth.  In an interview, Reynolds noted steep declines in the California crime rate in the 18 years that the law has been in effect.  He wonders why anyone would want to change it, and is angry at the thought of 3,000 career criminals getting out of prison.

"One hundred percent of them would have at least two prior serious or violent convictions," Reynolds said.  "Make no mistake.  We're talking about the bad boys.  These are the guys who are responsible for the worst of our crimes, the most active by definition.  And you want to put them back on the streets and not expect them to come back with new convictions?"

Another Proposition 36 opponent, Sacramento County District Attorney Jan Scully, sneers at the suggestion that the three-strikes change would save taxpayers' money by releasing people from prison.  "This assumes they're not going to commit any more crimes," Scully said. "Trust me, they are.  Then we'll have to prosecute them again, so they'll be taking up just as many resources as before, except they'll have new victims in their path."

August 22, 2012 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, August 03, 2012

En banc DC Circuit splits over mens rea required for 30-year gun mandatory minimum

The Blog of Legal Times has this new post about this notable en banc ruling handed down by the DC Circuit. Because all the opinions in the ruling run over 100 pages, I will rely here on The BLT's post provide a summary of the two leading opinions:

Bryan Burwell maintains he didn't know the gun he was holding during a bank robbery was capable of automatic fire. The gun, an AK-47, cost him an extra 30 years in prison.

A divided federal appeals court in Washington ruled today that prosecutors were not required to prove at trial that Burwell knew the firearm was a machine gun.  The U.S. Court of Appeals for the D.C. Circuit, sitting in a rare session as a full court, upheld the 30-year mandatory prison term for possession of a machine gun.  The court ruled 5 to 3 in favor of the U.S. Justice Department.

Judge Janice Rogers Brown, writing for the majority, said there's nothing unfair in the statute. Burwell, the court said, knew he was committing a violent crime when he robbed two banks.  It's not unusual, Brown wrote, to punish defendants for unintended consequences of unlawful acts.  "The higher penalties attached to the use of the most dangerous kinds of firearms reflect Congress's desire to create a deterrent commensurate with the increased danger posed by these weapons," Brown said.

A jury in Washington's federal trial court convicted Burwell in 2005 for his role in a robbery conspiracy that Brown said employed "old school tactics," including pistol-whipping and subduing bystanders.  Burwell was sentenced to about 11 years for the robbery scheme. On top of that, the trial judge tacked on an additional 30 years for possession of a machine gun.

The National Association of Criminal Defense Lawyers and the Federal Public Defender's Office supported Burwell in the appeal, saying that prosecutors should have been required to prove Burwell's knowledge that he was brandishing a machine gun during a robbery spree in Washington in 2004....

Writing in dissent, Judge Brett Kavanaugh posed a hypothetical situation in which, under the majority decision, an altar boy can be found guilty both of theft and drug possession for stealing a collection plate that held cash and a bag of cocaine sewn into the lining. "The presumption of mens rea embodies deeply rooted principles of law and justice that the Supreme Court has emphasized time and again," Kavanaugh wrote in the dissent, joined by Judge David Tatel.  "The presumption of mens rea is no mere technicality, but rather implicates 'fundamental and far-reaching' issues, as this case well illustrates."

Kavanaugh wrote in his 51-page dissent — nearly twice as long as the majority opinion — that "the debate over mens rea is not some philosophical or academic exercise.  It has major real-world consequences for criminal defendants.  And it takes on added significance in an era of often lengthy mandatory minimum sentences."

August 3, 2012 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, July 31, 2012

Eleventh Circuit clarifies which defendants can benefit from new crack guidelines

The Eleventh Circuit issued a little, but still important, sentencing opinion in US v. Liberse, No. 12-10243 (11th Cir. July 30, 2012) (available here) to clarify just which defendants can now benefit from the new reduced crack guidelines. Here is how the opinion starts:

This is the third decision we have issued in the past month concerning the application of Amendments 750 and 759 to the sentencing guidelines and the scope of a district court’s authority to reduce a defendant’s sentence under 18 U.S.C. § 3582(c)(2).  In the first two decisions, we held that those amendments did not authorize a court to reduce a sentence under § 3582(c)(2) if the defendant’s guidelines range remained the statutory mandatory minimum after the amendments or if the guidelines range was otherwise not affected by the amendments.  See United States v. Glover, — F.3d —, No. 12-10580, 2012 WL 2814303, at *3–4 (11th Cir. July 11, 2012) (statutory mandatory minimum); United States v. Lawson, — F.3d —, No. 11-15912, 2012 WL 2866265, at *2–3 (11th Cir. July 13, 2012) (otherwise unchanged guidelines range).  Our decisions in Glover and Lawson establish that “a court cannot use an amendment to reduce a sentence in a particular case unless that amendment actually lowers the guidelines range in that case.” Glover, 2012 WL 2814303, at *3.

This appeal raises a different issue because the pro se appellant’s original guidelines range of 121 to 151 months was above, and thus not affected by, the applicable statutory mandatory minimum of 120 months.  As a result, Amendments 750 and 759 would reduce his guidelines range.  For those reasons, § 3582(c)(2) gives the district court authority to reduce the sentence in its discretion.  Because the court believed it lacked that authority, we vacate its order denying the motion for resentencing and remand for the court to determine whether to exercise its discretion to reduce the sentence.

July 31, 2012 in Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Friday, July 27, 2012

Fascinating deal cut in federal habeas action brought by California pot dispensary owner

A helpful reader alerted me to this Sacramento Bee story from earlier this week, headlined "Plea cuts prison term for medical pot seller Bryan Epis," which reports on a remarkable resolution to a remarkable federal criminal justice matter in California. Here are the highlights:

Bryan James Epis, the first person associated with a California cannabis dispensary to duke it out at trial with federal prosecutors over medical marijuana, has had 2 1/2 years whacked off his mandatory 10-year prison term.

Epis, who has been locked in a pitched battle with law enforcement over his cultivation and use of marijuana for almost 20 years, is an inmate at the Terminal Island Federal Correctional Institution in Southern California.  He now should be released in early 2014 instead of September 2016, and will be supervised by probation officers for 10 more years.

The 45-year-old Epis established a cannabis club in Chico, one of the first in the state after passage in 1996 of a California ballot initiative permitting medicinal use of marijuana with a doctor's recommendation.  At the conclusion of a highly publicized trial a decade ago in Sacramento federal court, he was found guilty of conspiring to produce 1,000 or more plants at his home within 1,000 feet of Chico High School.  The crime carries a mandatory minimum 10 years behind bars.  He was free for much of the intervening time pending efforts to overturn the conviction.

The rare agreement, which was approved Tuesday by U.S. District Judge Garland E. Burrell Jr., is surprising on multiple levels:

• Federal prosecutors signed off on it, yet they have zero tolerance for defendants who do what they say Epis did -- grow pot out of a greedy hunger for huge profits.

• The government had argued for years that Epis deserved no reduction because he was less than forthcoming at a debriefing by prosecutors and agents.

• The original sentence is statutorily mandated and had been upheld on appeal.

• The trial prosecutor, Samuel Wong, is known as one of the toughest in the business on pot growers, yet he agreed to the reduction....

A common thread that has run throughout the case, starting with the trial, is Epis' claim that Wong relied heavily on false and misleading evidence, and arguments regarding a spreadsheet seized during a search of his home that the prosecutor knew had nothing to do with the charges in the indictment.  Wong heatedly denies the accusation, arguing an appeals panel rejected the claim.

In April, Hollows scheduled an evidentiary hearing on the issue for June 13. At a pre-hearing conference on June 4, Epis attorney John Balazs and Wong informed Hollows they had reached an agreement....

U.S. Attorney Benjamin Wagner said Tuesday a recent U.S. Supreme Court opinion may have made Epis' challenge more viable.   "As set forth in the settlement agreement, Bryan Epis claimed that his trial attorneys rendered ineffective assistance to him with respect to their advice concerning the United States' pretrial plea offer," Wagner said in a prepared statement. "As also detailed in the agreement, his trial attorneys did not refute that claim, and under recent Supreme Court precedent, Epis therefore might have been entitled to some relief."...

Epis, who has a law degree, said Monday that, "given the risks involved in further litigation and the low track record of success in habeas cases in general, I accepted the government's offer despite all its conditions."

One of the conditions Wong insisted on was that Epis give up his constitutional right to speak out in favor of medical marijuana and across-the-board legalization through the end of his supervised release. Epis stands as a symbol among marijuana advocates of the sacrifices they feel have been made in the face of an intractable federal stance on the drug.

"Although we had strong claims, I understand and concur in Bryan's decision to accept the government's offer … in order to get back to his family as soon as possible," Balazs said Monday.  "At the same time, it seems un-American for the government to insist … that Bryan give up his First Amendment right to advocate for the reform of our country's marijuana laws."

The helpful reader who alerted me to this story was Epis attorney John Balazs, who has also told me that Bryan Epis has given him permission to share info and comments about his case and that he may provide some additional "blog copy" about this fascinating case in the near future.

July 27, 2012 in Mandatory minimum sentencing statutes, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, July 25, 2012

Massachusetts Gov asked to sign mixed sentencing reform bill

As reported in this local article, headlined "While called ‘balanced,’ sentencing bill lacks provisions sought by Gov. Patrick," the governor of Massachusetts now has on his desk a dynamic state sentencing reform bill.   Here are the details:

Advocates on all sides of the crime and sentencing debate continue to speak out about the habitual offender and sentencing reform bill on Gov. Deval Patrick’s desk, urging him to sign it, veto it or send it back to the Legislature with amendments.

In a WBZ-AM radio interview Monday night, Les Gosule, an activist who has pressed for a habitual offender law for about a decade following the rape and murder of his daughter Melissa, said parties disgruntled over issues left unaddressed by the legislation can pursue those initiatives anew in the next session beginning in January.  “I want the pen,” Gosule said, urging Patrick to put his signature on the bill.

Patrick has until Sunday to act on the legislation and proponents and opponents of the bill are mindful that formal legislative sessions end for the year at midnight next Tuesday. Patrick can sign the bill, veto it, or send it back with amendments.  An eleventh hour amendment from Patrick would force lawmakers to either deal immediately with the amendment or risk seeing their work on the bill go for naught....

While the bill last week cleared the House 139-14 and the Senate 31-7, its supporters and opponents since then have raised concerns about it, with some arguing it lacks crime-fighting tools sought by law enforcement and others arguing that it takes discretionary power in sentencing away from judges and would lead to prison overcrowding.

Among other provisions, the bill reduces mandatory minimum sentences for non-violent drug offenders and eliminates parole eligibility for certain violent offenders upon their third conviction.

While supporters say the bill represents the “balanced” approach Patrick called for, the legislation appears to lack key policies Patrick highlighted in his State of the State speech in January, giving extra weight to the idea that the bill might be returned with amendments....

The lack of judicial discretion in the bill’s habitual offender initiative drew criticism outside the capital Tuesday. “Who has discretionary power? The prosecutor,” said Rev. George Walters-Sleyon, who was joined by other Boston clergy and Boston City Councilor Charles Yancey in front of the Shaw Memorial on Boston Common Tuesday morning.  He said black people and Latinos comprise less than 17 percent of the state’s population but more than 55 percent of those serving time behind bars....

Criticism has also been levied from state prosecutors.  Six of the state’s 11 district attorneys signed onto a letter Friday criticizing the bill for leaving out provisions that would strengthen gun laws, and for including “no supervision” of drug traffickers released into the community.

July 25, 2012 in Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, July 21, 2012

"The Mandatory Meaning of Miller"

The title of this post is the title of this new piece by Professor William W. Berry III. Here is the abstract:

In June 2012, the United States Supreme Court held in Miller v. Alabama that the Eighth Amendment’s ban on 'cruel and unusual' punishment prohibited the imposition of mandatory life-without-parole sentences on juveniles.  This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade.

In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Woodson and Miller to other contexts provides, at the very least, a basis to remedy some of the injustices created by mandatory sentences.

This article, then, argues that the “mandatory” meaning of Miller is that the Eighth Amendment requires consideration of mitigating evidence by courts in all cases involving “death-in-custody” sentences. In light of this mandatory” meaning, the article then considers several important normative consequences.

Specifically, application of this 'mandatory' meaning would result in the Eighth Amendment barring imposition of a 'death-in-custody' sentence in capital cases where life with parole is not a sentencing option, cases involving a mandatory sentence of life without parole, and cases where the term of the sentence approaches the life expectancy of the offender. As explained below, the key principle here is that the Eighth Amendment requires courts to examine mitigating evidence in any case where the duration mandated legislative sentence exceeds the life expectancy of the offender.

Part I of this article explains the meaning of 'mandatory' as developed by Miller. In Part II, the article describes the normative consequences of adopting the 'mandatory' meaning of Miller -- when 'mandatory' matters -- in applying the Eighth Amendment to 'death-in-custody' cases. In Part III, the article then makes the case -- why 'mandatory' matters -- for adopting this approach in Eighth Amendment cases.

July 21, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Saturday, July 07, 2012

Documenting the extremes of stacked federal gun mandatory sentences

This recent Reuters article, headlined "Florida man sees 'cruel' face of U.S. justice," details an extreme (but not all that uncommon) federal sentencing story resulting from stacked mandatory gun minimums. Here is how it starts:

Quartavious Davis is still shocked by what happened to him in federal court two months ago.  "My first offense, and they gave me all this time," said Davis, a pudgy African American with dreadlocks who spoke with Reuters at the Federal Detention Center in Miami.  "Might just as well say I'm dead."

Davis was convicted of participating in a string of armed robberies in the Miami area in 2010.  His accomplices testified against him, saying he carried a gun during their crimes and discharged it at a dog that chased them after one of their burglaries.  But Davis was not convicted of hurting anyone physically, including the dog.

Davis would occupy no place at all in the annals of crime if not for his sentence.  Now 20 years old, he was sentenced to 1,941 months -- almost 162 years -- in prison without the possibility of parole.

On the day of Davis's interview with Reuters, the U.S. Supreme Court decided that life sentences without parole for defendants under the age of 18 constituted "cruel and unusual punishment" even in cases of murder.  Unfortunately for Davis, he was 18 at the time of his crimes.

Nonetheless, Davis's attorney will argue that Davis's sentence to die in prison also constitutes "cruel and unusual punishment" on the grounds that Davis is a "first offender," having never before been charged with a crime.

"Just as the Supreme Court recently held that the Constitution bars taking away all discretion from judges in sentencing juveniles to life imprisonment for committing murder," said the attorney, Jacqueline Shapiro, "so also is it cruel and extreme to allow unfettered prosecutorial discretion to force a sentencing judge to impose a life sentence on a teenage first offender convicted of lesser charges."

Davis's unusually long sentence results from a controversial practice known as "stacking," in which each count of an indictment is counted as a separate crime, thus transforming a first-time defendant into a "habitual criminal" subject to multiple sentences and mandatory sentencing guidelines.

"Any law that provides for a mandatory term of imprisonment for a 19-year-old first offender that exceeds a century has got to be unconstitutional," said Michael Zelman, the court-appointed attorney who represented Davis at his trial.  Zelman resigned from Davis's case after filing a notice of appeal.  If Davis's new lawyer, Shapiro, has her way, the Supreme Court may ultimately decide the issue.  The case will be appealed first to the Eleventh Circuit Court of Appeals in Atlanta.

Until then, Davis's story will be a prominent case in point for both sides in an increasingly heated debate, pitting those who would protect society from the prospective dangers posed by serial criminals against those who see the United States -- whose overcrowded prisons house fully one-quarter of all the prisoners in the world, most of them black -- as a bastion of injustice.

July 7, 2012 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (38) | TrackBack

Wednesday, July 04, 2012

Judge down under laments mandatory 20 years (with parole) for brutal contract killer

The debates on this blog over the Supreme Court's recent work in Miller finding unconstitutional a mandatory LWOP sentence for a juvenile killer (see comments to posts here and here) have been robust and at times (over)heated.  With the Miller case and controversy fresh in mind, I found this new local story from Australia quite interesting and comparatively telling.  The story is headlined "Judge slams mandatory sentencing laws as 'unjust'," and here are excerpts:

A Supreme Court judge has criticised the Northern Territory sentencing regime as "unjust and unfair".  Justice Dean Mildren made the comment after sentencing Darren Jason Halfpenny to 20 years in jail for the contract killing of a man in Katherine.

Justice Mildren said he was required to impose a minimum 20 year prison term because of the mandatory sentencing regime in the Territory.   "It is unjust and unfair, and contrary to the public interest, that prisoners who plead guilty ... and are remorseful ... are left in a situation where their earlier release is left in the hands of the executive (government)," he said.

Russell Golflam of the Criminal Lawyers Association of the Northern Territory agrees. "Mandatory sentencing is, in principle, obnoxious," he said.  Mr Golflam says judges should be given the power to do the job that they're paid to do; impose appropriate penalties according to the circumstances of the case.  "Parliament and governments should not take that job away from judges," he said. He is calling for the Sentencing Act to be amended.

Justice Mildren recommended that Halfpenny be released on parole after 14 years because he will testify against his co-accused in the murder....

During the trial, the court heard Darren Halfpenny and two friends, Christopher Malyschko and Zac Grieve, donned shower caps and gloves before entering the Katherine house where Ray Niceforo lived.  The court was told Mr Niceforo, 41, was struck in the head with a blunt object seven times, then had a rope tied around his neck.

His body was wrapped in a tarpaulin and put into a van before being dumped in bushland. The body was found the following day and an autopsy found Mr Niceforo died from a blunt force head injury or asphyxiation.

Halfpenny was questioned by police a few days later and confessed.  He later agreed to testify against his co-accused, Malyschko and Grieve, who have been charged with murder.

The court was told the three men carried out the killing for a payment of $5,000 each. Crown prosecutor Jack Karzevski, QC, said the contract killing was commissioned by Bronwyn Buttery, the ex-partner of Mr Niceforo, who has also been charged with murder.

So, let's do a little compare/contrast concerning judicial sentencing attitudes in the land down under and in the land of the free: 

--- in Australia, a sentencing judge is bemoaning as "unjust and unfair" a legislative requirement to impose a 20-year prison term with parole on an adult who intentionally committed a brutal contract murder.  This kind of homicide in the US would clearly qualify as first-degree murder in just about every US state and in most would make the defendant eligible for the death penalty.  The defendant's decision to plead guilty and cooperate would likely prompt most US prosecutors to take the death penalty off the table but likely still would make a (perhaps mandatory) LWOP sentence still possible (even probably) for the premeditated and henious crime.

--- in the United States, four Justices of our Supreme Court in Miller have bemoaned the majority's ruling that the US Constitutional prohibits a legislative requirement to impos a life prison term without parole on a 14-year-old who unexpectedly had a role in the another's lethal shooting of a store clerk during an intentional robbery.  This kind of homicide in Australia, I suspect based on this somewhat dated report on homicide sentencing patterns, would likely result in the offender getting a prison sentence of just over 10 years with the possibility of parole a few years soon.

For a host of reasons, I am strongly disinclined to assert that Australia's sentencing approach to murder offenses is to preferred to the US system, and that kind of claim is not the point of this post.  Rather, my goal here is just to highlight (especially on July 4th, the day we most celebrate America as the land of the free and the home of the brave) the reality that a judge in Australia is quick to lament having to impose a 20-year prison term with parole on a brutal adult contract killer, while in Miller we see four Justices being quick to lament our Constitution being interpretted to giving a 14-year-old convicted of felony murder just the chance to seek a sentence less than life prison term without parole.

July 4, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentencing around the world, Who Sentences? | Permalink | Comments (25) | TrackBack

Tuesday, July 03, 2012

Los Angeles DA's long history with California three-strikes reform efforts

This great new piece at The Crime Report, which is headlined "Three Strikes: the California Challenge," details the unique role of the DA of Los Angeles in efforts to reform the state's broad three-strikes law. Here are excepts:

On June 20, The Three Strikes Reform Act officially qualified for the upcoming California ballot. Come November, voters will have the chance to amend the 1994 law that has condemned approximately 3,600 inmates to a 25-to-life sentence for nonviolent, non-serious crimes.

The law was intended to take serious repeat offenders who pick up a third felony charge off the streets for good — the idea being to protect the public from career super-criminals who would likely offend again if allowed to go free.

But more than a third of all Three Strikes lifers in the state system fit the definition of “non-violent” or “non-serious” — some of whom have infamously been put away for life for crimes as trivial as stealing a slice of pepperoni pizza.  California taxpayers spend more than $100 million annually to house these inmates. When the nonviolent lifers get older and start to need more medical care, the tab goes much higher.

The last time voters had the chance to vote to reform the law — the harshest 3-strikes statute in the nation — was in 2004 with Prop 66.  That initiative was on its way to sailing through the ballot process, until a last-minute offensive from Los Angeles District Attorney Steve Cooley, along with then-Governor Arnold Schwarzenegger and others, turned the tide against the initiative in the waning hours of the campaign.

Ironically, despite his role in the death of Prop 66, no California politician is more closely associated with Three Strikes reform than Steve Cooley.  Certainly no one in public office has a more complicated relationship with the statute.

In a conversation with WitnessLA, Cooley maintains that he won his first Los Angeles District Attorney race in 2000, largely thanks to his support of relaxed Three Strikes sentencing guidelines. “It was the defining issue in the race,” he says.

Within two weeks of taking office, Cooley stayed good to his campaign promise, crafting a policy that allowed his attorneys to use discretion in pursuing 25-to-life sentences for non-violent third strikers — the first DA in the state to do so. “It was a very modest reform,” he says. “It was not sweeping.”

According to Cooley, the two most important ethical considerations when it comes to sentencing are evenhanded application and proportionality. “Two-bit forgery and drug possession could be the predicate for 25 to life—the same sentence we often reserve for murderers,” he explains. “People will only respect the laws when they feel punishment is handed out fairly and proportionally. We’ve had a great deal of success with this policy in LA.”

But when Cooley had the chance to back sweeping statewide reform of Three Strikes in 2004 — via Prop 66 — he balked. In May of 2004, polls showed that voters favored Prop 66 by a margin of 76 percent to 14 percent. And then came the 11th hour Cooley, Schwarzenegger and company scare campaign.  Practically overnight, the polls did a 180. Prop 66 went down in flames, by a 53-47 percent margin.

“I don’t think Cooley being against the bill was a deciding factor,” says journalist and author Joe Domanick, whose book Cruel Justice is considered the authoritative work on the history of Three Strikes laws in California.  “The entire law enforcement establishment was against the bill.”...

Cooley is unapologetic about the role he may have played in Prop 66’s demise. “From a public safety standpoint, 66 was scary,” he says. “Once I crunched the numbers and saw how many people would be released and how quickly, I was strongly, openly, publicly against it. In Los Angeles County alone, 12,000-14,000 would have been released within a year.”...

Two years after Prop 66’s demise, the Republican DA teamed with Democrat State Senator Gloria Romero to craft a more modest Three Strikes reform measure — S.B. 1642 — based on the relaxed Three Strikes guidelines he’d developed in the LA DA’s office. “Three Strikes is a powerful tool for prosecutors if used properly,” Cooley explains.  “Prop 66 was a wake-up call: ‘OK, these folks have some arguments that appeal to the public.  Let’s take those arguments away.’ In order to avoid a future Prop 66, we had to make people feel good about how Three Strikes was being applied.”

S.B. 1642, however, died in committee. “The only reason it failed is because five Democrats didn’t vote for it,” Cooley says. “They made a political decision based on their own political careers. It absolutely would have passed otherwise.

The bill’s defeat marked the end of Cooley’s public activism on the issue of Three Strikes. But his positions have followed him throughout his political career....  “During the Attorney General race, both of my Republican opponents made my Three Strikes views an issue. I won the primary by a landslide. My adversary tried the same tact in 2000 and I won by something like 28 points.”

Although an ameliorating law has yet to make it to the books, Three Strikes reform is exceedingly popular in California. A June 2011 Field Poll revealed that nearly 75 percent of California voters favor reform. Field director Mark DiCamillo says his organization won’t take a poll on the initiative itself until the Secretary of State certifies the ballot language sometime next month....

When WitnessLA spoke to him last week, [Cooley] played coy about his support for the current initiative. “I have not taken an official public position yet,” he says. “I do like the concept. I’ve read a number of analyses [of the proposed measure] but I need time to study. I plan on taking a public position soon.”

Cooley readily concedes that the current initiative is based on the policies he implemented in Los Angeles in 2000. He also admits that some of his main deputies were an active part of the conversation when the initiative was being drafted. “People in my office were involved,” he says. “I think this particular product is better than what was proposed in 2006. It’s workable. And I think it will prevent Three Strikes from being attacked by another 66-type effort.

July 3, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, June 30, 2012

Criticism of Justice Alito's one-size-fits-all dissent in Miller

As regular readers know and as previously explained here, in a series of posts I am taking on a claim at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basics here).  In the first post here, I questioned number-crunching in the Roberts/textualism dissent.  In this second post here, I questioned claims about LWOP as a method of punishment in the Thomas/originalism dissent. 

Coming soon will be my final post in ths series in which I examine a key claim in Justice Alito's dissent.  But, before I that post is finished, I see that Wendy Kaminar has this potent criticism in The Atlantic of Justice Alito's work in Miller which carries this sub-headlined: "Conservatives are supposed to embrace individualism. So why did the Court's conservative wing defend a one-size-fits-all approach to juvenile justice?"  Here are snippets from the piece:

Individualized justice is supposed to be a conservative ideal. Liberals are supposed to embrace collectivism, while conservatives promote individualism and oppose regulatory schemes, like affirmative action, which treat people categorically as fungible members of groups. A collective or categorical approach to law is, from this perspective, an assault on liberty and the integrity of the individual -- except when it's not....

Justice Alito objected strongly to this individualized approach to sentencing. The "category of murderers" under 18 consists mostly of older teenagers who engage in "brutal thrill-killing," Alito declared in dissent. The offenders in the cases before the Court in Miller were "very young"; they were "anamolies," for whom it was "hard not to feel sympathy," he acknowledged. But if some members of the juvenile murderer category are atypical and inappropriate candidates for LWOP, that, Alito suggested, is their misfortune. In his view, 8th Amendment strictures against cruel and unusual punishment do not bar states from imposing excessively harsh sentences on a few juveniles who may not deserve them in order to facilitate their imposition on many teenagers who do.

"No one should be confused by the particulars of the two cases before us," Alito admonished, in a remarkable rejection of individualized justice when it arguably matters most, in the imposition of criminal sentences. Should Alito ever be arrested, I imagine he'll expect and demand to be treated as an individual -- not as a Catholic, or an Italian-American of a certain age, or a member of a conservative Supreme Court bloc, who might be sentenced for the sins of Justice Scalia (whatever they may be). I suspect he'll want to be treated as Samuel Alito, a particular person alleged to have committed a particular crime. Should he ever be arrested, Justice Alito will probably want police, prosecutors, jurors and judges to pay close attention to his particulars, which I doubt he'll condemn as "confusing."

Particularized, individualized justice is precisely what mandatory sentences deny. The Court has declined to strike them down under the 8th Amendment in cases involving adults, although they often dictate excessively, disproportionately harsh sentences, and their role in filling our prisons with non-violent drug offenders is a decades old scandal. Long promoted as a means of eliminated discretion in sentencing, mandatory minimums merely transfer discretion from judges to prosecutors. They ensure that prosecutors decide how defendants will be sentenced when they choose the crimes with which defendants will be charged.  In juvenile cases, prosecutors may sometimes choose lengthy, mandatory sentences when they choose to transfer juveniles to adult court.

Now, under Miller, prosecutors may still transfer juvenile homicide suspects, who may still face LWOP for "brutal thrill-killings."  But their sentences will no longer be determined by generally unaccountable prosecutors or by the crimes of other juveniles in their "category." This is not an obscure principle, difficult to comprehend.  Juvenile offenders are individuals too, not interchangeable members of a class.

Amen!

Some related Miller posts:

June 30, 2012 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, June 28, 2012

What is the real national sentencing "mood" in our new era of budget-cut reforms?

The question in the title of this post is prompted in part by what seems to be a somewhat muted political reaction to the Supreme Court's Eighth Amendment decision in Miller, and in part by this effective new article at The Crime Report.  The piece is headlined "Rethinking ‘Tough on Crime’," and it has a particular focus on this November's ballot initiative in California to reform that state's broad three-strikes law.  Here are excerpts:

[S]everal thousand prisoners ... could be eligible to petition for early release if California voters this November pass a proposed initiative to reform the state’s three-strikes law, the toughest in the country.  The proposed law would reserve 25-to-life sentences mostly to those who commit serious or violent crimes on their third offense.  It would also allow some current inmates, who committed a third strike that was not violent or serious, to petition for early release.

California is not alone.  States across the country are revisiting three-strikes laws and other tough mandatory minimum sentencing laws, particularly for low-level drug crimes.  Of the 24 states that passed three-strikes laws in the early 1990s, at least 16 have since modified them to give judges more discretion in sentencing or narrow the types of crimes that count as a “strike,” according to the National Conference of State Legislatures (NCSL).  At least 14 states in recent years also either eliminated mandatory minimum sentencing for low-level drug offenders, or gave judges more discretion to consider alternatives to incarceration, according to the NCSL.

The U.S. Sentencing Commission in October 2011 also recommended changes to federal mandatory minimum sentencing laws, saying that some penalties “apply too broadly, are set too high,” and are applied inconsistently across the country.

“Compared to the ‘80s and ‘90s when the push was to adopt more mandatory sentencing policies, the tide is beginning to move in the other direction,” said Marc Mauer, the director of The Sentencing Project.  “We’re seeing a better climate for sentencing and corrections reform.”

The changes are part of a broader rethinking of many of the “tough on crime” sentencing policies that dominated the country for decades.  Driven largely by the flagging economy, states have embraced a variety of reforms to rein in the cost of high prison populations, including diverting low-level drug offenders into treatment; reforming the parole system; and granting early release to certain inmates....

Though criminal justice reform was once thought of as a purely liberal issue, many of the most dramatic changes have come in traditionally conservative states, such as Texas, South Carolina, and Georgia, which have passed comprehensive reform packages.

Louisiana, which has the highest incarceration rate in the country, recently gave prosecutors and judges sentencing discretion for some crimes that normally carry mandatory minimum penalties and will allow early release for some non-violent offenders sentenced to life without parole.  Prominent conservatives, such as former House Speaker Newt Gingrich and former Attorney General Edwin Meese, have also spoken out in favor of reform, including eliminating mandatory minimum sentences for non-violent offenses.

Rather than a wholesale rejection of long prison terms, though, many of the mandatory minimum and repeat offender sentencing changes are refining laws to reserve the harshest punishment for violent or repeat criminals....

Not every state is moving towards sentencing reform.  In Florida, which has a three-strikes law and a mandatory sentencing scheme for gun crimes, Gov. Rick Scott earlier this year vetoed a bill that would have diverted some nonviolent drug offenders into treatment.  The legislature in Massachusetts is also considering enacting a new three-strikes law.

And, other than reevaluating mandatory sentences for drug crimes, most states still favor long prison terms, said Barry Krisberg, Director of Research and Policy at the Chief Justice Earl Warren Institute on Law and Social Policy at the University of California, Berkeley School of Law. “No one wants to fundamentally change sentencing laws, so we’re not,” he said. “We’re just working around them.”

June 28, 2012 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, June 27, 2012

"Cracking the Disparities: The Ongoing Battle for Fairness in Crack Sentencing"

The title of this post is the headline of this effective new commentary by Nkechi Taifa at the Huffington Post. The piece highlights that the passage of the FSA and the subsequent ruling for defendants in Dorsey hardly makes all well in the federal sentencing world, and it urges President Obama to get in the game.  Here are excerpts:

Last week's Supreme Court ruling in Dorsey v. United States represents another victory in the ongoing battle for fairness in cocaine sentencing. The Court correctly ruled that the 2010 Fair Sentencing Act (FSA), which increased fairness in cocaine penalties, was not limited to newly committed crimes but applied also to offenses committed prior to passage of the Act where the defendant had not yet been sentenced....

The ruling comes in the wake of advances that have successfully chipped away disparities between crack and powder cocaine sentencing.  First, Congress passed the FSA, reducing the egregious 100-to-1 sentencing ratio to a more reasonable, albeit still insufficient, 18-to-1.  Second, the U.S. Sentencing Commission amended its guideline ranges to be consistent with the new Act.  Third, the Commission unanimously agreed to make these changes retroactive....

None of these necessary improvements, however, benefit those whose offenses and harsh, discriminatory mandatory minimum sentences occurred prior to the Fair Sentencing Act's passage. Ironically, these are the very cases that originally inspired reform.

The process for relief for this remaining category of cases can be swiftly initiated with the stroke of the executive pen, moving the nation closer to concluding a shameful chapter in the chronicles of federal drug sentencing policy.  There is wide support for fairness and consistency in cocaine sentencing, and utilizing presidential clemency power is the most practical option to ensure immediate reform.  Commutation of the sentences of the identifiable class of people currently incarcerated for crack cocaine offenses under the old sentencing regime -- that all three branches of government agree is unjust, inconsistent, unfair, and biased -- is timely and can be readily accomplished.

Professor Mark Osler and former prosecutor Matthew Fass in a recent article [here from the Federal Sentencing Reporter], highlighted Gerald Ford's 1974 strategic use of the presidential pardon power to impanel an ad hoc executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War. Within a year, President Ford granted 90 percent of the petitions.  On balance, the approach by Ford to establish a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial....

Similarly, adoption of an individualized review process for pre-FSA cases would not be burdensome or a "get out of jail free card."  Cases could simply be recalculated according to the new 18-to-1 ratio, under already existing parameters established by the Sentencing Commission that result in gradual releases in appropriate cases over the course of several decades.  The president would be free to use his constitutional pardon power unrestricted by the 18-to-1 ratio should he so choose.

Moreover, the creation of a transparent process by which to review and remedy these discredited sentences would correct an injustice that has resulted in egregiously severe and racially discriminatory sentences for a quarter of a century.  And establishment of a clemency board independent of the Office of the Pardon Attorney and the Department of Justice could shield the review process from scandals of past administrations and current allegations of discriminatory treatment of clemency applications unveiled by the investigative journalism website Pro Publica....

Despite improvements by Congress, the Sentencing Commission, the Department of Justice and the Supreme Court, the fight for fairness and justice in crack cocaine sentencing is not over.  The president could bring closure to this injustice through his constitutional executive power of clemency, creating a review board to reevaluate old crack cocaine sentences so they are consistent with the new law.

Regular readers should not be surprised to hear that I think this is a great idea, nor should they be surprised to see this great idea get completely ignored by the powers-that-be in the White House (at least until after this November's election).

June 27, 2012 in Clemency and Pardons, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack