Friday, March 07, 2014
"Criminal Records, Race and Redemption"
The title of this post is the title of this notable paper I just noticed via SSRN authored by Michael Pinard. Here is the abstract:
Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records.
To address these issues, this article proposes a redemption-focused approach to criminal records. This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records. Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.
Wednesday, March 05, 2014
Michigan enacts Miller fix for current and future cases, just as its Justices are to consider past cases
As reported in this local article, headlined "Gov. Rick Snyder signs 'juvenile lifer' update as old cases head to Michigan Supreme Court," the Great Lakes State is busy this week working through all the fall-out from the U.S. Supreme Court's Miller Eighth Amendment ruling. Here are some of the details:
Michigan Gov. Rick Snyder on Tuesday signed legislation updating state sentencing guidelines in the wake of a 2012 U.S. Supreme Court decision that outlawed mandatory life terms without the possibility of parole for minors....
Senate Bill 319, sponsored by state Sen. Rick Jones (R-Grand Ledge), changes Michigan law for all pending and future cases involving juvenile defendants convicted of first-degree murder, felony murder or certain repeat sexual assault offenses. Instead of handing down mandatory life sentences in those cases, judges can also consider a term of between 25 and 60 years. Prosecutors may still file a request for a natural life sentence, but judges now have new authority to consider other options....
Michigan is home to some 360 juvenile lifers -- more than all but one other state -- but the new law will not have an immediate impact on most inmates already behind bars. The U.S. Supreme Court, in banning mandatory life sentences for minors, did not indicate whether the ruling should apply retroactively. The new law contains a "trigger" for resentencing hearings in case of a future court ruling.
The Michigan Supreme Court is set to consider the "retroactivity" question on Thursday, when justices are scheduled to hear oral arguments in three juvenile lifer cases. Two of the offenders, Raymond Carp and Cortez Davis, have exhausted the traditional appeals process but are seeking resentencing.
The third, Dakotah Eliason, is entitled to resentencing because his case is still on appeal, but his attorneys disputed the limited relief offered by the Michigan Court of Appeals, which told a sentencing judge to consider only two options: life with or without the possibility of parole. Michigan's new law, which also allows for a term of years less than life, makes that particular issue moot. The Eliason case asks the Michigan Supreme Court to consider other issues as well, however, so it's unclear how oral arguments will proceed.
It may be just coincidence that the Michigan legislature got a Miller fix enacted into law just before the Michigan Supreme Court considers retroactive application of Miller to past cases. But I have to think the Michigan Supreme Court might feel (consciously or unconsciously) at least a bit more comfortable concluding that Miller applies retroactively now that the state has a new sentencing scheme for juve murderers on the books.
Michigan media has been covering the Miller application/litigation story quite effectively in the run up to the state's Supreme Court hearing, and here are the headline links to some of the coverage in the last few weeks:
March 5, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
Tuesday, March 04, 2014
Might Obamacare end up reducing prison populations "more than any reform in a generation"?
The question in the title of this post is drawn from the headline of this new Newsweek article that purports to explain "How Obamacare May Lower the Prison Population More Than Any Reform in a Generation." Here are a few highlights:
[The] the Patient Protection and Affordable Care Act (ACA) ... may be the biggest piece of prison reform the U.S. will see in this generation.
On the face of it, there’s no direct connection between the ACA and what experts refer to as the “justice-involved population.” There’s no mention of prisons or jails or even crime in the language of the law. However, in what proponents of the act are considering a happy public policy accident, the ACA may inadvertently change the makeup of the U.S. prison population by getting early help to those with mental health and drug abuse issues, ultimately reducing recidivism rates and saving states millions, if not billions, of dollars annually....
The last major study on mental health in prisons, conducted by the Bureau of Justice Statistics, found that 64 percent of inmates in state and federal prisons met the criteria for mental illness at the time of their booking or during the twelve months leading up to their arrest. For comparison, the rate of mental disorders among U.S. citizens stands at around 25 percent, according to the NIH. Sixty-nine percent of the country’s prison population was addicted to drugs or alcohol prior to incarceration....
Health and crime have become inextricable in the U.S. Health issues such as drug addiction and severe mental health disorders directly lead to illegal activities and eventual imprisonment. A high percentage of those incarcerated are guilty of crimes directly related to medical issues, such as illegal drug use or theft to support an addiction.
This population — the poor, homeless, addicted, and mentally ill — has never had any health safety net. With no jobs or income, they are highly unlikely to have private insurance, and Medicaid — the federally-funded health coverage option meant to protect the poorest Americans — is actually only available to a select group of individuals. Though it varies state by state, eligibility is always categorical, which means besides having a low income, Medicaid is only available to five types of people: pregnant women, children below a certain age, parents of Medicaid-eligible children, the disabled, and seniors.
Essentially, Medicaid left out poor, single, male adults without dependant children – the same demographic most likely to end up arrested and incarcerated. Starting in January 2014, however, the categories have been eliminated (at least in the states that have chosen to take the medicaid expansion — it is an optional aspect of the ACA). “That means that a lot of people who are going to jail for mental illness or substance abuse related crimes could potentially avoid jail,” says Marsha Regenstein, a professor of health policy at George Washington University.
Of course, these people are hard to reach, and eligibility doesn’t ensure coverage or healthier behavior. That’s why the bigger opportunity, according to many health and justice policy experts, is to reach and help this population at the points where they do become involved with the justice system....
[T]he right to health care only applies to the length of a person’s sentence.... [A] 2013 report in California, for example, found that 90 percent of prisoners had no health care upon release. Once released, prisoners are likely to discontinue their meds, delay seeing primary care doctors (out of concern for costs), and, as a result, end up in emergency rooms — where high treatment costs are passed on to everyone else via insurance premiums.
This is not just a public health issue; it’s a public safety concern. Lack of care for chronic conditions creates additional long-term problems, like being physically or mentally unfit for employment. In conjunction with a lack of appropriate care for their drug problems and an inability to effectively medicate their mental health disorders, the formerly incarcerated are likely to return to a life of crime.
Many hope and believe that change is on its way. The Justice Department estimates suggest that with the expansion of Medicaid, 5.4 million ex-offenders currently on parole or probation could get the health care they need. (It’s important to note that 25 states plus Washington, D.C. have implemented the Medicaid expansion as of 2014. However, many policy experts expect the remaining states to fall in line, citing the historical example of how CHIP was initially rejected by many states when it rolled out in 1997, but is now utilized in every state in the country.)
Even with coverage, those ex-offenders will still need to actually utilize those health, and the key will be making the connection at the time of release. The biggest challenge will be getting state justice systems and health systems — not exactly happy bedfellows in past years — to work together to create coordinated discharge planning between jails and community healthcare....
The cost savings associated with keeping former prisoners out of the ER and out of prisons will likely lead leadership at the highest levels — state governors, for example — to push for the types of collaboration that will keep ex-offenders healthy and out of trouble....
Ultimately, because there is no precise directive in the ACA, the choice on how to handle these issues will be made independently in every state, and in every county. In some cases, reform will be swift; in others, life may go on as though Obamacare never happened.
Why the #@$%! are IQ tests, but not burdens of proof, the key issue in Hall?
The question in the title of this post is my basic reaction to what struck me as a very annoying SCOTUS oral argument yesterday in Hall v. Florida concerning how states must deal with the Atkins categroical Eighth Amendment constitutional bar on executing defendants who are mentlly retarded. The transcript of the argument is available at this link, and Lyle Denniston has this SCOTUSblog summary of what transpired. Here is the start of Lyle's recap:
If a state, trying to make it simple to decide who can be given a death sentence, opts for a choice that looks arbitrary, it is likely to have a difficult time in a Supreme Court that worries about the chances of error. That was demonstrated anew on Monday, when Florida found itself in deep Eighth Amendment trouble with a rule that anyone with an IQ above 70 can be executed if convicted of murder.
A quite definite majority of the Justices — perhaps, notably, including Justice Anthony M. Kennedy — left little doubt that Florida and six other states will not be allowed to maintain an automatic test-score-based cutoff for those who could qualify as mentally retarded and thus can escape the death penalty.
Kennedy’s role is central because he has most often led the Court in narrowing the category of those eligible to be executed, to take account of reduced capacity to be held responsible for their criminal behavior. He was among the most active in questioning Florida’s approach to mental retardation among those on death row. And, on Monday, he added in some strongly implied criticism of a system that allows some inmates to remain on death row for decades — an issue that is not directly involved in the new case of Hall v. Florida.
Justice Antonin Scalia expended considerable effort to buttress Florida’s basic argument that the scientific community cannot be trusted to make the rules for eligibility for capital punishment, but except for some supportive hints from Justice Samuel A. Alito, Jr., this seemed to be a largely forlorn endeavor.
Most of the other Justices joined in the pursuit of an Eighth Amendment rule that would assure that the mental retardation inquiry was sophisticated and nuanced, so that the risk of error was taken fully into account. While such a rule might not definitely hand over the details to the judgment of scientists and doctors, it apparently would not tolerate an approach designed simply to assure that fewer death-row inmates get off with a claim of mental disability. That appeared to be Florida’s main objective.
This account of the tenor of the Hall oral argument seems right, and yesterday's SCOTUS discussion reinforces the all-too-usual modern death penalty dynamic of Justice Kennedy seemingly being the swing vote so that whatever he may think about hard capital issues becomes Eighth Amendment jurisprudence. But beyond my standard annoyance with modern constitutional death penalty law now being all about what Justice Kennedy thinks, the Hall oral argument has me extra annoyed because the Court seems intent on focusing application of Atkins on the narrow medical issue of how exactly IQ tests can be used when assessing mental disability rather than on the critical legal/constitutional issue of how burdens of proof can be allocated when deciding who is exempt from the death penalty.
I suppose I should not be too surprised, based both on the cert grant and the approach taken by the advocates in Hall, that Florida's IQ line-drawing approach to Atkins took center stage during yesterday's SCOTUS argument. But as Kent highlights in this effective post at Crime & Consequences, the discussion of statistics and IQ measurement error among the Justices was garbled at best, and really more an example of junk science on display rather than a serious exploration of whether and when an inexact measurement device (an IQ test) can itself establish at the margins placement of a defendant in an inexact medical category (mentally retarded/disabled) which SCOTUS has given legal significance via its Eighth Amendment jurisprudence.
That IQ is, at best, an inexact measurement device is amply proved by the Brief of petitioner Freddie Lee Hall: that brief indicates that IQ measurements for Hall have ranged from 60 to 80 and that various doctors at various times have scored his IQ at 71, 72, 73, 74, 76, and 79. This reality suggests that IQ tests can only provide a general fuzzy picture of a person's mental abilities and that it would be foolish and misguided for anyone to use IQ scores alone as dispostive "scientific" or "objective" evidence of whether a murderer is or is not mentally retarded/disabled. In this sense, I suppose, Florida does look bad having a bright-line IQ line for administering Atkins. But given that IQ tests will always scatter in these kinds of cases, I think the legal issue of who bears the burden of proof and at what level as to Atkins claims is what ultimately determines the reach of Atkins in any state.
If SCOTUS strikes down the current Florida approach to Atkins without speaking to burdens of proof, Florida could then just employ Gerogia's approach to "assure that fewer death-row inmates get off with a claim of mental disability" by requiring defendants to prove they have MR beyond a reasonable doubt (or perhaps even say beyond all doubt). Already, Florida requires a defendant to prove his disability by clear and convincing evidence, and that standard (with or without an IQ requirement) necessarily entails that Florida will be able to execute murderers whom judges reasonably think, but are not clearly convinced, are mentally retarded/disabled. The experience in since Atkins makes clear that states eager to limit who gets off death row can do so using legal standards like proof burdens rather than relying just on IQ numbers. Thus if (and when?) SCOTUS only addresses how IQ tests are used in Hall and dodges any discussion of burdens of proof, Atkins application issues (and interstate Atkins disparity) will persist.
I suppose I am frustrated here in large part because SCOTUS has long been eager to avoid, in all sorts of settings, establishing any clear and predicatble constitutional rules for burdens of proof concerning facts or factors that impact only sentencing determinations and not guilt. These burden-of-proof issues, which may be viewed as a Fifth Amendment due process concern and/or an Eighth Amendment concern depending on the setting, can be found lurking in the Apprendi-Blakely Sixth Amendment line of cases, but they have never gotten the independent treatment that I think they merit and needs I have long been hoping Hall might finally lead to some useful burden-of-proof constitutional jurisprudence, but after the oral argument I am no longer hopeful on this front.
Monday, March 03, 2014
SCOTUS finally to grapple with how states are applying Atkins
I helped represent a Texas death-row defendant with a very low IQ in habeas appeals years before the 2002 SCOTUS ruling in Atkins v. Virginia decided the Eighth Amendment precludes execution of murderers who are mental retarded. As a result of that work two decades ago, I have long been interested in the question the Supreme Court will this morning finally confront at oral argument in Hall v. Florida: how can (or must) states define and apply mental retardation for purposes of determining who is excluded from execution due to Atkins.
For a variety of reasons, Hall could end up being a huge case about constitutionally required sentencing procedures that could impact lots of cases outside the context of the death penalty. I suspect, however, that some Justices will be eager to ensure the Court's work in Hall ends up modest and limited. For this reason, I think today's oral argument may provide an interesting window into how certain Justices are approaching Hall and this broader issues of procedure and federalism that it raises.
I expect to post on the substance of the Hall oral argument later this week. But for more pre-game analysis, here are a few media reports and commentaries on Hall:
From the ABA Journal here, "Chemerinsky: Who is mentally disabled when it comes to the death penalty?"
From NPR here, "With Death Penalty, How Should States Define Mental Disability?"
- From SCOTUSblog here, "Argument preview: Measuring mental handicap"
Thursday, February 27, 2014
Federal judge rejects as too lenient plea deal for Illinois state judge guilty of drug and gun charges
This local sentencing story from Illinois is notable both for its participants and as a rare example of a federal judge rejecting a plea deal in a drug case for calling for a sentence deemed too low. The article is headlined "Judge rejects plea deal for former St. Clair County judge in drug case," and here are just some of the interesting particulars:
A federal judge refused Wednesday to accept terms of a plea agreement that would have sent former St. Clair County judge Michael N. Cook to prison for 18 months on drug-related charges. U.S. District Judge Joe Billy McDade called the sentence “not sufficient” and said the facts of the case supported a longer sentence. But McDade also said that he would not “throw the book at him” just because Cook was a judge. He did not suggest what an appropriate sentence would be.
McDade gave Cook and prosecutors until March 19 to try to strike a new deal. On March 28, Cook is again scheduled to be in court — either to be sentenced on a new agreement or have a date set for trial....
Cook’s plea deal Nov. 8 to a misdemeanor charge of heroin possession and a felony charge of being a drug user in possession of a firearm was made under an unusual provision. It carried an agreed-upon penalty that took the sentencing discretion away from McDade. His only option was to accept or reject the deal. In January, McDade filed an order warning both sides that he disagreed with a pre-sentence report that said there were no reasons to go above sentencing guidelines, which called for six months or less behind bars.
McDade wrote that Cook’s status as a judge, his longtime drug use and the disruption of governmental functions were reasons to go higher. He also ordered a supplemental report on how Cook’s actions may have affected cases in front of him, and whether it had affected public confidence in the judicial system.
Cook resigned after exposure of a drug scandal that cost the life of Associate Judge Joseph Christ, who died of a cocaine overdose March 10 in the Cook family hunting lodge in Pike County, Ill., about 65 miles northwest of St. Louis. The scandal also ensnared former probation worker James K. Fogarty and others. Cook, of Belleville, admitted at his guilty plea that he was a heroin addict. After his arrest in May outside of the house of his heroin dealer, Sean McGilvery, he entered an intensive in-patient treatment facility.
But authorities were investigating rumors of Cook’s drug use long before Christ’s death. Search warrant affidavits released since the guilty pleas accuse Cook of abusing a variety of illegal and prescription drugs. One confidential informer claimed in 2012 that Cook had used drugs for a decade. The affidavits also show frequent and familiar contact between McGilvery and both Cook and Christ....
Cook and McGilvery were arrested May 22. Fogarty was charged May 24. McGilvery is serving a 10-year prison term on charges of conspiracy to distribute, and possession with intent to distribute, more than a kilogram of heroin. Fogarty is scheduled to be sentenced Thursday and faces a five-year term on charges of intent to distribute cocaine and being a drug user in possession of a firearm. He admitted selling drugs to both Cook and Christ. His sentence could be affected if he can be explicitly linked to Christ’s death.
Cook is the son of Bruce Cook, of Belleville, a well-known personal injury lawyer and major behind-the-scenes player in local and national Democratic Party politics. Cook was an assistant public defender and former member of his father’s practice. He was selected as an associate judge in 2007, appointed to a vacancy to be a circuit judge in 2010 and elected to a six-year term, as a Democrat, later that year.
Two men convicted in front of Cook of murder have won retrials after raising concerns about the judge’s drug connections, and some other criminal defendants who appeared before him have been allowed to withdraw guilty pleas.
Monday, February 24, 2014
You be the federal sentencing judge: "tough call" in sentencing former police chief
The title of this post is drawn from the headline of this notable local story about tomorrow's scheduled federal sentencing for Pittsburgh's former police chief. The piece is headlined "Former Pittsburgh police chief's sentencing a tough call for judge Ex-chief Nate Harper's sentencing 'difficult'." Because I am never quite sure whether I think a law-enforcement background justifies a harsher or lighter sentence, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this former cop. Here are some of the details the federal judge must consider in this case:
When former New York City police commissioner Bernard Kerik -- who once ran the Big Apple lockup Rikers Island -- walked into a federal penitentiary as a prisoner in 2010, it was, he said, like "dying with your eyes open."...
At the Federal Correctional Institution Cumberland, in Maryland, where he served his sentence, he lived among the kinds of people he spent his life locking up. That's what former Pittsburgh police chief Nate Harper could face following his sentencing, set for Tuesday.
Mr. Harper's fate is in the hands of U.S. District Judge Cathy Bissoon, who rose to that post in late 2011 after three years as a magistrate judge. She faces a decision in which she must weigh Mr. Harper's history, his precise role in the conspiracy to commit theft and the importance of deterring others from similar dips into the public cookie jar.
Though federal guidelines suggest a sentence of 1.5 to two years, she can go as low as probation or as high as five years. "It comes down to a very difficult call for a judge," said Bruce Antkowiak, a former federal prosecutor and now a law professor at Saint Vincent College in Latrobe. "The strongest cards [Mr. Harper's attorneys] have to play are his history with the department, the decades of work he has put in, the numbers of other people from law enforcement who evidently respect him."
Those same factors, though, could count against him. "Either you think this is a fundamentally decent guy who did something wrong, or you think this is a public official who should be held to another standard," said Wesley Oliver, the Criminal Justice Program director at the Duquesne University School of Law.
Mr. Harper could argue that his lawman background puts him at risk in prison. The U.S. Supreme Court found in the case of police sergeant Stacey Koon, sentenced to prison in the beating of Los Angeles motorist Rodney King, that judges can give lighter sentences to defendants who are "unusually susceptible to prison abuse."
In the recent case of former corrections officer Arii Metz, though, prosecutors countered that argument by showing that the federal prisons already house many former police in relative security. As of last month, there were 1,269 former law enforcement officials in federal custody, according to the Bureau of Prisons. "There are guys who are going to hate him because he was a cop," Mr. Kerik said. "There are going to be guys who are going to respect him because he was a cop."
Mr. Harper pleaded guilty in October, confirming that he failed to file tax returns for four years and diverted $70,629 in public funds into an unauthorized credit union account and spending $31,987 on himself. The prosecution has maintained that Mr. Harper told two civilian subordinates to open and handle the account, making him a supervisor in the conspiracy, and subject to a harsher sentence.
The defense has countered that Mr. Harper had no co-conspirators, but also that the unauthorized account wasn't his idea. They haven't yet named the alleged mastermind. "The government's response is going to be: Who cares?" Mr. Antkowiak said. "When you admit that you told two city employees to open these accounts and draw the Visa cards on them, you're a supervisor" of the crime....
Two defendants -- both of whom were given credit for cooperation -- publicly blamed Mr. Harper for a separate bid-rigging scheme in hearings before Judge Bissoon. The former chief has never been charged in relation to the incident, a contract won by Alpha Outfitters -- a company controlled by the chief's long-time friend -- to install and maintain computers and radios in police cars.
The judge shouldn't give much weight to their accusations, Mr. Oliver said, though he noted that the charge "tends to tear down the narrative that the defendant is trying to tell" about a good man with a bad debit card.
With the eyes of the public, and especially of law enforcement, on the case, the judge may carefully weigh the deterrent effect of the sentence. "Look, one of the things a judge always considers is what kind of message [she's] sending with this sentence," said John Burkoff, a law professor at the University of Pittsburgh. " 'What's the message I'll be sending to police officers who may be tempted to do something bad if I'm lenient?' "
Mr. Kerik, now an advocate for sentencing reform, suggested that the message has already been sent. It could be amplified, he said, if the judge gives Mr. Harper probation but orders him to speak to police recruit classes about his crime and punishment. "They're going to take his pension," Mr. Kerik said. "You've taken his reputation. He's now a convicted felon. He's going to have legal fees he'll have to pay for. That guy has been destroyed."
UPDATE: This local report details the sentencing outcome in its headline: "Former Pittsburgh chief Harper gets 18-month prison sentence."
February 24, 2014 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack
Wednesday, February 19, 2014
After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage
As reported in this local piece, an "84-year-old Catholic nun will spend nearly three years in federal prison for breaking into one of the U.S. government's most secure facilities and helping deface a uranium-processing building with human blood, a federal judge ruled Tuesday." Here is more about the fascinating sentencing conclusion to a high-profile case of law-breaking civil disobedience:
Megan Rice, who turned 84 on Jan. 31, and fellow anti-nuclear activists Michael Walli, 64, and Greg Boertje-Obed, 58, were convicted in May of sabotaging the plant in Oak Ridge, Tenn. All three are members of the Plowshares movement of Christian pacifists.
U.S. District Judge Amul Thapar in Knoxville, Tenn., sentenced Rice to 35 months in prison for her role in the July 28, 2012, break-in and protest. The judge sentenced Walli and Boertje-Obed both to five years and two months in prison. Previously, Thapar had ordered the trio to pay nearly $53,000 in restitution for damaging U.S. government property. In addition, Walli and Boertje-Obed will have three years of supervised release after their prison terms. The two men received longer sentences based on their past criminal history.
During a four-hour hearing Tuesday, Rice pleaded with the judge not to grant her leniency. "Please have no leniency on me," she said. "To remain in prison for the rest of my life would be the greatest honor you could give me."
Thapar didn't oblige but did say that breaking the law isn't the right way to pursue political goals. He said he hoped that a significant prison sentence would deter others from following the same path and bring them "back to the political system I fear that they have given up on."
The protesters picked late July 2012 to break in to the Y-12 National Security Complex because it was close to the dates when the United States dropped atomic bombs on Hiroshima and Nagasaki, Japan, during World War II. The three cut through fences and made it through multiple layers of security. They spent more than two hours in a restricted area and had time to splash blood on the outside of the building where the government processes weapons-grade uranium before security personnel apprehended them....
The three have garnered worldwide attention. Thousands of letters of support have poured into the court from around the world. Those include letters from groups such as the Union for Concerned Scientists. While acknowledging the three were convicted of a federal crime, they exposed serious security weaknesses at Y-12, the group said.
Edwin Lyman, a nuclear security expert at the Union of Concerned Scientists, said in January that the protesters did the nation a public service. "We think, even though they were convicted of a federal crime, there are mitigating circumstances and they made the country safer," Lyman said.
The government has taken the case seriously. The three have been in custody since their conviction, and prosecutors recommended sentences of six to nine years.
A key issue Tuesday was how the judge should follow federal sentencing guidelines. Lawyers for the activists that argued the time they already have served is sufficient punishment.... During the hearing, the judge struggled with how to handle the guidelines. "At some point, the law has to command respect, and there is a lawful way to change it," Thapar said. But he also suggested that Rice's past good works should play a role and wasn't sure how to fit those into the guidelines. He called a recommended sentence of 6½ years for Rice "overkill."
Assistant U.S. Attorney Jeffrey Theodore ... contended the trio's actions were "serious offenses that have caused real harm to the Y-12 National Security Complex." [And] "they have shown no remorse for their criminal conduct," he said.
Recent related posts:
- You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?
- Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility
February 19, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
NY Times debates "Sentencing and the 'Affluenza' Factor"
This month a judge in Texas ordered a 16-year-old boy who killed four people in a drunken-driving crash to enter rehabilitation as part of 10 years of probation she imposed without a jail sentence. A defense psychologist had said the teenager suffered from ”affluenza,” his judgement stunted by his pampered, privileged upbringing.
The case has angered many who have said that a poor person would have been imprisoned, without the same considerations. To what extent should life circumstances affect sentencing?
Here are the contributions, with links via the commentary titles:
"All Circumstances Are Not Created Equal" by Alan M. Dershowitz
"Judicial Discretion Can Help the Poor" by Timothy K. Lewis
"Systemic Changes Are Necessary" by Preeti Chauhan
"Life Circumstances Level the Sentencing Field" by Marc Mauer
"Consider the Crime’s Root Causes" by Aundrea Brown
"Money Can Open Up Options" by Jenna Finklestein
"Utilitarianism vs. Retributivism" by Alan M. Gershel
"Will There Be a Neurolaw Revolution?"
The question in the title of this post is the title of this new paper by Adam Kolber now available via SSRN. Here is the abstract:
The central debate in the field of neurolaw has focused on two claims. Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions. Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law. I argue that neither side has persuasively made the case for or against a revolution in the way the law treats responsibility.
There will, however, be a neurolaw revolution of a different sort. It will not necessarily arise from radical changes in our beliefs about criminal responsibility but from a wave of new brain technologies that will change society and the law in many ways, three of which I describe here: First, as new methods of brain imaging improve our ability to measure distress, the law will ease limitations on recoveries for emotional injuries. Second, as neuroimaging gives us better methods of inferring people’s thoughts, we will have more laws to protect thought privacy but less actual thought privacy. Finally, improvements in artificial intelligence will systematically change how law is written and interpreted.
Monday, February 17, 2014
Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility
This new report from The Guardian, headlined "84-year-old nun who broke into Tennessee weapons plant awaits fate," spotlights a high-profile federal sentencing case (previously discussed in this post) that is scheduled for final sentencing tomorrow morning. Here are excerpts:
An 84-year-old nun who broke into a Tennessee weapons plant and daubed it with biblical references, will learn on Tuesday whether she will spend what could be the rest of her life in prison.
Two weeks ago, at a sentencing hearing, a judge ordered Sister Megan Rice and her co-defendants, two other Catholic anti-nuclear activists, Greg Boertje-Obed, 58, and Michael Walli, 64, to pay $53,000 for what the government estimated was damage done to the plant by their actions.
All three defendants were convicted of sabotage after the break-in at the Y-12 nuclear weapons plant at Oak Ridge, Tennessee, on 28 July 2012. The charge, under a statute of the US criminal code used against international and domestic terrorism, carries a maximum sentence of up to 30 years. The government have asked for the trio to be given prison sentences of between five and nine years. They would have learned their fate in the January hearing, but it was cut short due to bad weather and rescheduled for Tuesday.
In an interview with the Guardian from Knox county jail as she awaited her fate, Rice said she hoped US district judge Amul Thapar would seize the opportunity to “take his place in history” and sentence them in a way that would reflect their symbolic, non-violent actions – actions she said that were intended to highlight the US stockpile of nuclear weapons they believe is immoral and illegal.
“I hope he will answer his conscience,” said Rice, in an interview 24 hours before the last sentencing hearing. “He knows what to do.” She and her co-defendants have been in prison, mostly in Ocilla, Georgia, for eight months, a period of time her lawyers say is sufficient punishment for the break-in.
Thapar has received hundreds of letters and a 14,000 signature petition pleading for leniency in this case, including from Rice’s religious order, the Society for the Holy Jesus, which asked for a reduced or suspended sentence given “her age, her health and her ministry”. Lawyers for Rice, Boertje-Obed, a Vietnam veteran from Washington DC and Walli, a painter from Duluth, Minnesota, have asked for leniency and say the trio admitted have what they did.
The US government contends that none of the defendants arguments merit leniency. At the hearing on 28 January, it said they did not accept they had committed crimes, took no responsibility for them, showed no contrition and, then, during the trial, proceeded to argue against the laws they had broken. It has described the three, who have previous convictions related to their protest activities, as “recidivists and habitual offenders”.
Jeffery Theodore, assistant US attorney general for the eastern district of Tennessee, told the court that the three “pretty much celebrated their acts”. At the January hearing, he described their argument that they were trying to uphold international law as “specious and disingenuous” and said there had been no single case where international law has been seen as justification for breaking US laws. The judge agreed with Theodore that the defendants were not remorseful and that they didn’t accept any responsibilities for their crimes, and said they would not be given downward departures for admitting responsibility.
At the January hearing, four character witnesses for the defendants gave powerful testimony about their strong Christian and pacifist principles, their commitment to helping others and their dedication to their cause. They, and the scores of supporters crowded into the courtroom, also provided an insight into the close-knit nature of the anti-nuclear faith community.
Regular readers are surely not surprised to hear that I find this federal sentencing case very interesting for a number of reasons. But they may be surprised to learn that US District Judge Amul Thapar used the sentencing break/delay as an opportunity to request that I submit a "friend-of-the-court brief" to assist the Court as it tackled some challenging issues concerning the departure requests made by one of the defendants. I was honored and grateful to be able to provide such assistance directly to the court, and below I have uploaded Judge Thapar's order (which requests my submission at the end) and my submission in response:
Order in US v. Walli: Download MEO in CR-12-107 with Friend Brief Request
My submission in US v. Walli: Download Berman Friend Brief for Judge Thapar
Recent related post:
- You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?
February 17, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Saturday, February 15, 2014
"Healthcare Not Handcuffs": Will ACA help end the drug war?
The title and question of this post is my take on this notable recent report from the ACLU and the Drug Policy Alliance titled "Healthcare Not Handcuffs: Putting the Affordable Care Act to Work for Criminal Justice and Drug Policy Reform." Here is an excerpt from the report's introduction:
The Affordable Care Act (ACA) is the most significant expansion of healthcare coverage in generations, and there is almost no area of the U.S. healthcare system that is not impacted by the reform in some way. Even as debate about the ACA continues, it is now the law of the land, and implementation is fully under way. For criminal justice reform and drug policy reform advocates, the ACA represents a remarkable opportunity to advance efforts to end both mass incarceration and the criminalization-based approach to drug policy often known as the War on Drugs.
Under the ACA, tens of millions of people in the United States will gain healthcare coverage for a broad array of health services and conditions, including, for the first time, substance use and mental health disorders. Of course, there are also problems with the ACA and its implementation, not the least of which is that millions of people will remain uninsured even after the law is fully operational. Yet even with these challenges, the ACA sets the stage for a new health-oriented policy framework to address substance use and mental health disorders -- health problems that have been largely relegated to the criminal justice system for more than 40 years.
This is an enormous paradigm shift that has yet to fully register with criminal justice and drug policy reform advocates, let alone with health policy advocates and the general public. The financial benefits of providing substance use disorder treatment instead of incarceration are well established. But by fully incorporating substance use and mental health disorders into healthcare -- by truly treating them as health issues and requiring public and private insurance plans to cover their treatment -- the ACA creates an opening and financial incentives to shift drug policy into a public health framework, undermining the rationale for a criminal justice approach....
The passage and implementation of the ACA coincides with the growing momentum across the political spectrum to end the War on Drugs, reverse the incarceration boom, and abandon criminal justice policies that have resulted in the criminalization of whole communities. But the paradigmatic shift from criminalization to health will not occur unless criminal justice and drug policy reform advocates seize the moment and leverage the ACA to realize its full transformative potential.
To assist advocates in navigating this new terrain, this paper outlines some of the major provisions of the ACA immediately relevant to criminal justice and drug policy reform (Part One), and then explores specific applications of those provisions, including program and policy examples and suggested action steps (Part Two)....
This is a unique, perhaps even once-in-a-lifetime scenario for criminal justice and drug policy reform advocates: with the ACA, we can start to build true alternatives to the criminal justice response to substance use, the enforcement of which has fundamentally undermined community health and safety. Addressing substance use as a health condition has the potential to lower health costs, dramatically reduce the number of people involved in the criminal justice system, and improve health outcomes and overall wellbeing for millions of people.
Thursday, February 13, 2014
Feds to appeal probation sentence given to tax-dodging Beanie Babies billionaire
As reported in this new AP article, the "U.S. attorney's office in Chicago said Thursday that it's appealing a sentence that included no prison time for the billionaire creator of Beanie Babies for hiding at least $25 million from U.S. tax authorities in Swiss bank accounts." Here is more:
At H. Ty Warner's sentencing last month, Judge Charles Kocoras heaped praise on the toymaker for his charitable giving, declaring society was better served by letting him go free and giving him two years' probation instead of sending him to prison. Warner had faced up to five years in prison.
Warner, 69, of Oak Brook, Ill., was one of the highest profile figures snared in a long-running investigation of Americans concealing funds in Swiss bank accounts. Others convicted of squirreling away less money in Switzerland than Warner have done prison time. Warner, who grew up poor, created the animal-shaped Beanie Babies in the mid-'90s, triggering a craze that made Warner spectacularly rich. Forbes recently estimated his net worth at $2.6 billion.
A one-page notice of appeal signed by U.S. Attorney Zachary Fardon was filed with the U.S. 7th Circuit Court of Appeals, and a full brief will be submitted later. Justice officials in Washington still must OK the appeal, but that's usually considered a formality.
At a Jan. 14 sentencing hearing, Kocoras spent most of his 20-minute explanation of the sentence expressing admiration for Warner. He also said the businessman had already paid a price in "public humiliation." In addition to probation, Kocoras ordered Warner to do 500 hours of community service at Chicago high schools. Earlier, Warner agreed to pay $27 million in back taxes and interest, and a civil penalty of more than $53 million....
During sentencing, assistant government attorney Michelle Petersen urged Kocoras to put Warner behind bars for at least a year. "(Without prison time), tax evasion becomes little more than a bad investment," she told him. "The perception cannot be that a wealthy felon can just write a check and not face further punishment."
This should be a VERY interesting sentencing appeal to watch in the months ahead, and I am already super stoked to read the coming Seventh Circuit briefs from the parties concerning what will surely be differing views on what federal sentencing law demands in a case of this nature.
Prior related post:
February 13, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, February 12, 2014
Will (and should) former mayor Ray Nagin get a sentence making it likely he dies in federal prison after his corruption convictions?
The question in the title of this post is the first sentencing question that came to mind upon hearing this criminal justice news from a Louisiana federal court this afternoon:
Ray Nagin, the former two-term mayor of New Orleans indicted after he left office, was convicted Wednesday of 20 federal corruption charges for illegal dealings with city vendors, dating back to 2004. A jury delivered its verdict just before 1 p.m., after six hours of deliberations that followed a nine-day trial.
Nagin, 57, joins a list of Louisiana elected officials convicted of misdeeds while in office, but he is New Orleans' first mayor to be convicted of public corruption. Under federal sentencing guidelines, he could face a 20-year prison term, possibly more, lawyers have said.
In a case that relied heavily on the testimony of businessmen-turned-convicts -- and a paper trail that showed money changing hands and lucrative city contracts doled out -- prosecutors described a public official "on the take." Nagin was an opportunist who pursued businessmen under pressure to get government work, targeting them to line his own pockets, prosecutors said....
Nagin was somber and silent as he made his way through a crush of reporters outside of the courthouse -- a far cry from the confidence he showed when he first arrived more than two weeks ago at the start of his trial. Addressing the press, Jenkins said, "Obviously, I'm surprised. Now we're moving on to the appeal process."
Assistant U.S. Attorney Matt Coman, the lead prosecutor on the case, gave a brief statement. "We are pleased with the verdict and obviously we are very thankful to the jury and the court," he said....
Nagin, a Democrat, was the public face of the city during Hurricane Katrina, making national headlines as he lambasted the federal government for its response to the storm and subsequent flood.
He lives in Frisco, Texas, where he has avoided the spotlight, staying quiet save for an occasional tweet, since his indictment a year ago. Sentencing is set for June 11 before U.S. District Judge Ginger Berrigan.
As the title of this post suggests, I would urge now-convicted Nagin to urge his lawyers to get very focused on the federal sentencing process before they start "moving on to the appeal process." As the article above notes, federal prosecutors are likely to argue that the guidelines applicable here recommend a sentence of decades for Nagin, and judges within the Fifth Circuit tend to be drawn toward imposing within guidelines sentences. Ergo, unless and until Nagin's lawyers start developing some strong sentencing arguments on his behalf, the former mayor of New Orleans may be looking at the real possibility that he gets a federal prison sentence later this year that amounts to a functional life sentence.
Monday, February 10, 2014
"'Furiosus Solo Furore Punitur': Should Mentally Ill Capital Offenders Be Categorically Exempt from the Death Penalty?"
The title of this post is the title of this new Note by Emily Randolph now available via SSRN. Here is the abstract:
Rather than continuing to use mental illness as a mitigating factor in determining sentencing of the capital offender, this paper argues that the Eighth Amendment’s protection from cruel and unusual punishments should be extended to cover capital offenders who suffer from debilitating mental illness. More specifically, if a convicted offender has a medically diagnosed mental disorder as outlined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition or other similar standard for psychological evaluation, he or she should be exempt from the possibility of the imposition of death as a punishment. This paper discusses the Supreme Court cases of Atkins v. Virginia, 536 U.S. 304 (2004), Ford v. Wainwright, 477 U.S. 399 (1986), Panetti v. Quarterman, 551 U.S. 930 (2007) and Roper v. Simmons, 543 U.S. 551 (2005), and how to extend the Court's reasoning in those cases to cover mentally ill capital offenders.
Sunday, February 09, 2014
Nebraska Supreme Court gives Miller retroactive impact with new statutory law
As reported in this local article, headlined "Nebraska Supreme Court ruling could affect 27 teen murder cases," late last week the Nebraska Supreme Court resolved how the SCOTUS Eighth Amendment ruling in Miller concerning juve LWOP sentences would be applied in the Cornhusker State. Here are the details:
The Nebraska Supreme Court issued precedent-setting decisions Friday that gave hope to 27 prison inmates serving life terms for murders they committed as juveniles. Nebraska's high court ruled that three Omaha men who were convicted when teenagers were unconstitutionally sentenced to life in prison without the possibility of parole. While the Supreme Court upheld their murder convictions, it ordered that all three be given new sentences....
The three inmates will return to Douglas County District Court to be resentenced under a law passed last year that allows sentences from 40 years to life. The new law also requires judges to consider factors that could mitigate the youth's responsibility....
Although the Nebraska court ruled largely in favor of the inmates on the constitutional issues, it rejected arguments that sought to remove life as an option during resentencing. Nor was the court in unanimous agreement on all of the issues involving juvenile killers. In a dissent, two of the judges said the U.S. Supreme Court's decision should not apply to inmates who long ago lost their direct appeals....
Nebraska has 27 inmates serving life for homicides committed when they were younger than 18. The oldest is Luigi Grayer, 58, who was 15 in 1970 when he killed an Omaha woman....
Assistant Attorney General James Smith argued that Nebraska's sentencing law didn't violate the Miller ruling because the juveniles were sentenced to life in prison, not life “without parole.” Under Nebraska's system, such inmates would have to get their sentences reduced to a term of years by the Nebraska Board of Pardons before earning parole. Having to first win executive clemency is not the same as parole, the high court ruled, rejecting the state's argument. In other words, a life sentence effectively means life without parole....
The second pivotal question before the court was whether the Miller decision applied to inmates whose convictions had already been upheld on appeal. Because the high court found that the Miller ruling resulted in a “substantive” change to how juvenile killers must be sentenced, it found that the ruling applied retroactively to Mantich. The Nebraska judges quoted from an opinion of the Iowa Supreme Court, which also determined that juvenile killers should get new hearings.
Via How Appealing, here is additional coverage of these rulings and links to the decisions:
The Lincoln Journal Star reports that "Nebraska high court vacates life sentences of 3 men" [and] the Supreme Court of Nebraska three decisions applying the U.S. Supreme Court's 2012 ruling in Miller v. Alabama [are] here, here, and here.
Recognizing the modern mental health realities of modern punishment
In today's New York Times, Nicholas Kristof has this poignant discussion of the mental health issues that are often a central aspect of modern crime and punishment matters. The piece is headlined "Inside a Mental Hospital Called Jail," and here are excerpts:
The largest mental health center in America is a huge compound here in Chicago, with thousands of people suffering from manias, psychoses and other disorders, all surrounded by high fences and barbed wire.
Just one thing: It’s a jail. The only way to get treatment is to be arrested.
Psychiatric disorders are the only kind of sickness that we as a society regularly respond to not with sympathy but with handcuffs and incarceration. And as more humane and cost-effective ways of treating mental illness have been cut back, we increasingly resort to the law-enforcement toolbox: jails and prisons.
More than half of prisoners in the United States have a mental health problem, according to a 2006 Justice Department study. Among female inmates, almost three-quarters have a mental disorder.
In the jail here, some prisoners sit on their beds all day long, lost in their delusions, oblivious to their surroundings, hearing voices, sometimes talking back to them. The first person to say that this system is barbaric is their jailer.
“It’s criminalizing mental illness,” the Cook County sheriff, Thomas Dart, told me as he showed me the jail, on a day when 60 percent of the jail’s intake reported that they had been diagnosed with mental illness. Dart says the system is abhorrent and senseless, as well as an astronomically expensive way to treat mental illness — but that he has no choice but to accept schizophrenic, bipolar, depressive and psychotic prisoners delivered by local police forces.
People are not officially incarcerated because of psychiatric ailments, but that’s the unintended effect. Sheriff Dart says that although some mentally ill people commit serious crimes, the great majority are brought in for offenses that flow from mental illness....
A few data snapshots:
• Nationwide in America, more than three times as many mentally ill people are housed in prisons and jails as in hospitals, according to a 2010 study by the National Sheriffs’ Association and the Treatment Advocacy Center.
• Mentally ill inmates are often preyed upon while incarcerated, or disciplined because of trouble following rules. They are much more likely than other prisoners, for example, to be injured in a fight in jail, the Justice Department says.
• Some 40 percent of people with serious mental illnesses have been arrested at some point in their lives.
In the 1800s, Dorothea Dix led a campaign against the imprisonment of the mentally ill, leading to far-reaching reforms and the establishment of mental hospitals. Now we as a society have, in effect, returned to the 1800s....
In 1955, there was one bed in a psychiatric ward for every 300 Americans; now there is one for every 3,000 Americans, the 2010 study said. So while more effective pharmacological treatments are theoretically available, they are often very difficult to access for people who are only borderline functional....
Taxpayers spend as much as $300 or $400 a day supporting patients with psychiatric disorders while they are in jail, partly because the mentally ill require medication and extra supervision and care. “Fiscally, this is the stupidest thing I’ve seen government do,” Dart says. It would be far cheaper, he adds, to manage the mentally ill with a case worker on the outside than to spend such sums incarcerating them.
"Can Deserts Be Just in an Unjust World?"
The title of this post is the title of this interesting new essay now available via SSRN authored by the always interesting Michael Tonry. Here is the abstract:
The problems of “just deserts in an unjust world” received little attention before the widespread revival of support in the 1970s for retributivist theories of punishments. The problems are two: whether deep social disadvantage should be recognized as an excusing or mitigating defence in the criminal law, and whether it should be recognized as an appropriate basis for mitigating the severity of punishment. Most legal analysts oppose recognition of social disadvantage defences. Most retributivist philosophers recognize the difficulty of the problem but waffle about appropriate responses. The few who write about it oppose mitigation of sentences.
Those views fail to acknowledge the existence of social science evidence on human development that makes clear that many offenders offend for reasons for which no plausible case can be made that they are morally responsible. Formal excusing and mitigating defences, and the appropriateness of deep disadvantage as a justification for mitigation of punishment, should be recognised.
Thursday, February 06, 2014
Another round of "affluenza" discourse as juve judge order rehab for teen DUI that killed four
As reported here via this CNN piece, headlined "Judge orders Texas teen Ethan Couch to rehab for driving drunk, killing 4," the Texas juvenile case which brought the term "affluenza" into the sentencing lexicon was formally completed yesterday. Here are some of the latest details:
A judge on Wednesday ordered that Ethan Couch -- who drove drunk and caused a crash, killing four people and injuring two -- go to a lock-down residential treatment facility. State District Judge Jean Boyd had already decided the Texas teenager would serve no jail time. He was sentenced last year to 10 years' probation.
His story made national headlines after a witness claimed Couch was a victim of "affluenza" -- the product of wealthy, privileged parents who never set limits for the boy. That particular defense, however, played no part in the judge's decision, Couch's lawyer told reporters on Wednesday. Court proceedings were closed to the public.
"She (Boyd) said it (affluenza), and specifically mentioned that that was not a basis for her decision," said attorney Reagan Wynn. "She heard all the evidence and she made what she thought was the appropriate disposition." The judge ordered that Couch's parents pay for the treatment facility, which was not identified. It was also unclear how long Couch might stay there.
As part of his probation, the teen must refrain from using drugs or alcohol. He will also not be allowed to drive. If Couch violates the terms of his probation, he could face up to 10 years behind bars. "I think he can be rehabilitated given intensive therapy and I hope that he gets it," Wynn said about the teen. "The juvenile system is about rehabilitation and if it's going to be about rehabilitation, she (Boyd) absolutely made the right decision."
Eric Boyles, who lost his wife and daughter in the crash, disagrees. He told reporters he has no doubt that money played a role in the case. "Had he (Couch) not had money to have the defense there, to also have the experts testify, and also offer to pay for the treatment, I think the results would have been different," he said Wednesday after the proceedings....
Prosecutors were similarly disappointed with the judge's decision. They had asked for the maximum of 20 years behind bars. "This has been a very frustrating experience for me," said prosecutor Richard Alpert. "I'm used to a system where the victims have a voice and their needs are strongly considered. The way the system down here is currently handled, the way the law is, almost all the focus is on the offender."
Prior related post:
"Justices Asked to Define 'Mentally Retarded' in Death Cases"
The title of this post is the headline of this new article by Marcia Coyle in The National Law Journal previewing the biggest SCOTUS capital case of the current Term. Oral argument in the case is less than a month away, and here is how this article begins to set the table in a very interesting and important procedural Eighth Amendment case:
Freddie Lee Hall sits on Florida's death row for the 1978 abduction and murder of a 21-year-old woman who was seven months pregnant. He should not be executed because, he claims, he is "mentally retarded."
Twelve years after the U.S. Supreme Court held in Atkins v. Virginia that execution of mentally retarded persons violates the Eighth Amendment, the justices will use Hall's case to examine how states determine who is "intellectually disabled" (now the preferred term for mentally retarded) and whether Florida's test is too narrow. The court will hear arguments in Hall v. Florida on March 3.
Florida and its supporters want the court to hold fast to its language in Atkins giving states "the task of developing appropriate ways to enforce the constitutional restriction."
"This case turns on whether Atkins truly left any determination to the states or whether, as Hall contends, states are constitutionally bound to vague, constantly evolving — and sometimes contradictory — diagnostic criteria established by organizations committed to expanding Atkins’s reach," Florida solicitor general Allen Winsor wrote.
Most states have developed appropriate standards, according to death penalty scholars and some national psychological and disability organizations. However, they and Hall argue the justices need to tell Florida and some other states that their tests ignore generally accepted clinical definitions of mental retardation.
Nothing in Atkins "authorizes the states to narrow the substantive scope of the constitutional right itself by defining mental retardation in a way that excludes defendants who qualify for a diagnosis of mental retardation under accepted clinical standards," said Hall's counsel, Eric Pinkard of the Capital Collateral Regional Counsel in Tampa. "Yet that is precisely what Florida has done here."