Wednesday, July 19, 2017

Will (and should) OJ Simpson get paroled in Nevada this week?

This USA Today article, headlined "Why O.J. Simpson is expected to be paroled at July 20 hearing," reports on why an infamous state criminal defendant is expected to secure parole in Nevada after serving only about 30% of his imposed prison term. Here are excerpts:

O.J. Simpson, behind bars in a Nevada prison for almost nine years, is eligible for parole Thursday and one of his former attorneys thinks the matter is all but a foregone conclusion that the former football and TV star will be eligible for release on Oct. 1.

"He’s going to get parole," said Yale Galanter, who represented Simpson during the 2008 trial when Simpson was found guilty of 12 counts, including robbery and kidnapping, and sentenced to nine years minimum and 33 years maximum. "Parole in the state of Nevada is really based on how you behave in prison, and by all accounts he’s been a model prisoner. There are no absolutes anytime you’re dealing with administrative boards, but this is as close to a non-personal decision as you can get."

Four members from the Nevada Board of Parole Commissioners will consider parole for Simpson at the board offices in Carson City, Nev., with the proceedings set to begin Thursday at 1 p.m. ET. Simpson, 70, will participate by video conference from about 100 miles away at Lovelock Correctional Center, where he has been imprisoned since December 2008.

Parole is largely determined by a point system, and how the commissioners feel about Simpson — or his acquittal in the murder of his ex-wife, Nicole Brown Simpson, and Ron Goldman — can have no impact on parole, according to Galanter. "It really is based on points," he said. "How long have you served, what your disciplinary record is, what the likelihood of committing another crime is, their age, the facts and the circumstances of the case."

The parole board has rejected the idea that Simpson could be facing more conservative commissioners because he’s imprisoned in northern Nevada. In a statement published on its website, the parole board said all commissioners use the same risk assessment and guidelines, adding, "There is no evidence that the board is aware of that indicates that one location has panel members who are more conservative or liberal than the other location."... "Simpson, with the help of several other men, broke into a Las Vegas hotel room on Sept. 13, 2007, and stole at gunpoint sports memorabilia that he said belonged to him. More than a year later, on Oct. 8, 2008, he was found guilty by a jury on all 12 charges. He was granted parole in 2013 on the armed robbery convictions. Galanter called that "the clearest indicator" Simpson will be granted parole on the remaining counts Thursday.

Simpson is being considered for parole for kidnapping, robbery, assault with a deadly weapon and the use of a deadly weapon enhancement. "It’s a fairly routine administrative matter," the attorney said. "It’s more like, 'Mr. Simpson, you’ve been a model prisoner, you have the points, congratulations, do you have anything to say, thank you very much, granted, Oct. 1.' "

Yet, it won’t exactly be routine. The parole board, for example, has said it will issue a decision Thursday so to minimize distractions. The results of some hearings, by contrast, take three weeks to reach the inmate. "The media interest in this one case is a disruption to our operation," the parole board said in its statement. "A decision (on Simpson) is being made at the time of the hearing so that the board’s operation can return to normal as soon as possible after the hearing."...

Simpson will have an opportunity to address the board by video conference as he did during the 2013 hearing. More than 240 media credentials have been approved, according to Keast, who said a dozen satellite trucks are expected at the sites in both in Carson City and Lovelock. If Simpson is paroled, the media figure to return in droves in Oct. 1, when he will be eligible for release from prison.

Notably, Gregg Jarrett at FoxNews believes strongy that OJ shoud not get parole; he explains in this commentary, headlined "O.J. Simpson, up for parole, should never be set free," how the California civil suit finding OJ responsible for wrongful deaths should be sufficient for the Nevada parole board to conclude he presents a risk to public safety.

July 19, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Bipartisan discussion of female incarceration issues at "Women Unshackled" event

My twitter feed was full of reports and links to a big criminal justice reform event yesterday which was given the title "Women Unshackled."  This Washington Post article, headlined "Officials from both parties say too many women are incarcerated for low-level crimes," reports on the event, and its coverage starts this way:

Democratic and Republic officials at a conference Tuesday said too many women are being incarcerated for nonviolent offenses, a troubling trend both groups said they were committed to tackling.

From Democratic Sen. Kamala Harris (Calif.) and Rep. Sheila Jackson Lee (Tex.) to Republican Rep. Mia Love (Utah) and Oklahoma Gov. Mary Fallin, there was bipartisan agreement that most of the women in jails and prison would be better served by drug rehabilitation and mental health services, rather than harsher sentences. They noted that most women in the criminal-justice system are victims of domestic abuse or sexual violence. And because most incarcerated women have small children, locking them away can destroy an already fragile family.

The discussion came during a day-long conference called “Women Unshackled,” presented by the Justice Action Network and sponsored by the Brennan Center for Justice at the New York University School of Law, the Coalition for Public Safety and Google.

Some additional coverage of the issues and individuals involved in this event can be found in these recent press pieces:

July 19, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Tuesday, July 18, 2017

"Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity"

The title of this post is the title of this notable note by Jeremy Isard that was brought to my attention by a helpful reader. Here is the abstract:

This Note examines the adoption of two psychological risk assessment protocols used on “lifers” by the California Board of Parole Hearings in preparation for parole suitability hearings.  Probation and parole agencies employ risk assessment protocols across state and federal jurisdictions to measure the likelihood that an individual will pose a danger to society if released from prison.  By examining the adoption and recent reformulation of risk assessment protocols in California, this Note considers some of the myriad demands that courts and administrative agencies place on brain science.  Applying the California parole process as a parable of such pressures, this Note argues that brain science has a unique capacity to supersede legal inquiry itself, and thus should only be used in legal and administrative settings with extreme caution.  

July 18, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, July 12, 2017

Missouri Supreme Court extends Miller to juvenile sentenced to mandatory life without parole eligibility for 50 years

The Supreme Court of Missouri yesterday handed down a notable ruling in State ex rel. Carr v. Wallace, No. SC93487 (Mo. July 11, 2017) (available here), which extends the reach of the US Supreme Court Miller ruling beyond mandatory LWOP sentencing.  Here is how the majority opinion in Carr gets going: 

In 1983, Jason Carr was convicted of three counts of capital murder for killing his brother, stepmother, and stepsister when he was 16 years old.  He was sentenced to three concurrent terms of life in prison without the possibility of parole for 50 years.  His sentences were imposed without any consideration of his youth.  Mr. Carr filed a petition for a writ of habeas corpus in this Court. He contends his sentences violate the Eighth Amendment because, following the decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), juvenile offenders cannot be sentenced to life without parole pursuant to mandatory sentencing schemes that preclude consideration of the offender’s youth and attendant circumstances.

Mr. Carr was sentenced under a mandatory sentencing scheme that afforded the sentencer no opportunity to consider his age, maturity, limited control over his environment, the transient characteristics attendant to youth, or his capacity for rehabilitation.  As a result, Mr. Carr’s sentences were imposed in direct contravention of the foundational principle that imposition of a state’s most severe penalties on juvenile offenders cannot proceed as though they were not children.  Consequently, Mr. Carr’s sentences of life without the possibility of parole for 50 years violate the Eighth Amendment.  Mr. Carr must be resentenced so his youth and other attendant circumstances surrounding his offense can be taken into consideration to ensure he will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.  Habeas relief is granted.

Chief Justice Fischer dissenting from the decision, and here is the heart of his short opinion:

Carr's three concurrent terms of life in prison without the possibility of parole for 50 years do not run afoul of Miller. Miller only applies to cases in which a sentencing scheme "mandates life in prison without possibility of parole for juvenile offenders." 132 S. Ct. at 2469.  Therefore, Miller does not require vacating Carr's sentences.  Nor are Carr's sentences inconsistent with this Court's or any of the Supreme Court's current Eighth Amendment jurisprudence. Indeed, the principal opinion's holding that Miller applies to Carr's sentences is, undoubtedly, not just an extension of Miller, but also calls into question whether any mandatory minimum sentence for murder could be imposed on a juvenile offender.  Accordingly, I decline to concur with that implication and remain bound by this Court's unanimous decision in Hart to apply Miller only to cases involving a mandatory sentence of life in prison without the possibility of parole.

July 12, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Friday, July 07, 2017

Split Third Circuit panel finds numerous problems with short federal sentences for child-abusing Army couple

A remarkable and unusual federal sentencing involving a child-abusing couple led yesterday to a remarkable and unusual federal circuit sentencing opinion in US v. Jackson, No. 16-1200 (3d Cir. July 6, 2017) (available here). Here is how the 80-page(!) majority opinion by Judge Cowen gets started:

John and Carolyn Jackson (“John” and “Carolyn”) were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law— offenses that were “assimilated” into federal law pursuant to the Assimilative Crimes Act (“ACA”).  The United States District Court for the District of New Jersey sentenced Carolyn to 24 months of imprisonment (as well as three years of supervised release). John received a sentence of three years of probation (together with 400 hours of community service and a $15,000 fine). The government appeals from these sentences.

We will vacate the sentences and remand for resentencing.  Concluding that there is no “sufficiently analogous” offense guideline, the District Court declined to calculate Defendants’ applicable sentencing ranges under the Guidelines. Although we adopt an “elements-based” approach for this inquiry, we conclude that the assault guideline is “sufficiently analogous” to Defendants’ offenses of conviction. Furthermore, the District Court failed to make the requisite findings of fact — under the applicable preponderance of the evidence standard — with respect to this Guidelines calculation as well as the application of the statutory sentencing factors.  We also agree with the government that the District Court, while it could consider what would happen if Defendants had been prosecuted in state court, simply went too far in this case by focusing on state sentencing practices to the exclusion of federal sentencing principles. Finally, the sentences themselves were substantively unreasonable.

Here is how the dissenting opinion by Judge McKee gets started:

It is impossible for anyone with an ounce of compassion to read through this transcript without becoming extraordinarily moved by allegations about what these children had to endure. Had the defendants been convicted of assault, or crimes necessarily involving conduct that was in the same “ballpark” as assault as defined under New Jersey law, I would readily agree that this matter had to be remanded for resentencing using the federal guidelines that govern assault.  However, the district court held a ten and a half hour sentencing hearing in an extraordinarily difficult attempt to sort through the emotion and unproven allegations and sentence defendants for their crimes rather than the conduct the government alleged at trial and assumes in its brief. I believe the court appropriately did so pursuant to 18 U.S.C. §3553(a). Accordingly, I must respectfully dissent.

Before I begin my discussion, however, I must note that the defendants in this case were acquitted of the only federal offenses with which they were charged: assault with a dangerous weapon, with intent to do bodily harm, and assault resulting in serious bodily injury.  As I discuss more fully in Section II, these assault charges seem to drive the government’s argument and the Majority’s analysis.  In order to minimize confusion about the precise nature of the charges in this case and the conduct that was proven, a chart listing each of the charges and their outcomes is attached as an addendum to this dissent.

There are lots of lots of interesting elements to this unusual case, but the rarity of reversals of sentences as substantively unreasonable led me to read that part of the majority opinion most closely.  The majority here repeatedly finds flaws in how the district court weighed various permissible § 3553(a) considerations.  And the discussion begins by noting that the guidelines called for sentences of perhaps 20 or more years for these defendants so that "probation for John and 24 months’ imprisonment for Carolyn represented enormous downward variances, which require correspondingly robust explanations for why such lenience was warranted."

July 7, 2017 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, July 06, 2017

Virginia Gov decides claim of delusional disorder does not justify halting scheduled execution of double murderer

As noted in this prior post, tonight's planned execution in Virginia of William Morva has brought renewed attention to the intersection of mental illness and capital punishment. That attention likely played a role in this decision by Virginia Governor Terry McAuliffe to release this statement today explaining his decision not to prevent Morva's execution. Here is how the statement starts and ends:

Over the past several weeks, my staff and I have carefully considered the petition for clemency submitted by William Morva, who was tried, convicted, and sentenced to death for the murder of Montgomery County Deputy Sheriff Corporal Eric Sutphin and hospital security guard Derrick McFarland.  We have also reviewed extensive communications from family members of the victims, law enforcement officials, community leaders, and concerned observers from all over the world.

Consistent with the three previous petitions for commutation of a capital sentence that I have reviewed, I have evaluated Mr. Morva’s submission for evidence that he has been subjected to a miscarriage of justice at any phase of his trial that could have impacted the verdict or his sentence.  After extensive review and deliberation, I do not find sufficient cause in Mr. Morva’s petition or case records to justify overturning the will of the jury that convicted and sentenced him.

There is no question that, in a carefully orchestrated effort to escape custody while awaiting trial for burglary, robbery and firearms charges, Mr. Morva brutally attacked a deputy sheriff, stole his firearm and used it to murder Mr. McFarland, who was unarmed and had his hands raised as he was shot in the face from a distance of two feet.  The next day, Mr. Morva murdered Corporal Sutphin by shooting him in the back of the head.

Mr. Morva’s petition for clemency states that he suffers from a delusional disorder that rendered him unable to understand the consequences of his actions.

That diagnosis is inconsistent with the findings of the three licensed mental health professionals appointed by the trial court, including an expert psychiatrist who is Board-Certified in both Psychiatry and Forensic Psychiatry.  Two of these three experts were called by Mr. Morva’s own legal team.  These experts thoroughly evaluated Mr. Morva and testified to the jury that, while he may have personality disorders, he did not suffer from any condition that would have prevented him from committing these acts consciously and fully understanding their consequences....

I have determined that Mr. Morva was given a fair trial and that the jury heard substantial evidence about his mental health as they prepared to sentence him in accordance with the law of our Commonwealth.  In short, the record before me does not contain sufficient evidence to warrant the extraordinary step of overturning the decision of a lawfully empaneled jury following a properly conducted trial.

I personally oppose the death penalty; however, I took an oath to uphold the laws of this Commonwealth regardless of my personal views of those laws, as long as they are being fairly and justly applied. Thus, after extensive review and deliberation consistent with the process I have applied to previous requests for commutation, I have declined Mr. Morva’s petition. I have and will continue to pray for the families of the victims of these terrible crimes and for all of the people whose lives have been impacted.

UPDATE: This Reuters article suggests that Morva's execution was completed without difficulty Thursday night.

July 6, 2017 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (11)

An amusing shout-out for the US Sentencing Commission's guideline simplification efforts

I just noticed an blog-worthy little concurrence by Judge Owens at the end of a Ninth Circuit panel decision last week in US V. Perez-Silvan, No. 16-10177 (9th Cir. June 28, 2017) (available here). The case concerned application of the "crime of violence" sentencing enhancement to a sentence for illegal reentry after deportation based on a prior Tennessee conviction for aggravated assault, and Judge Owen wrote this short opinion to praise the work of both his court and the US Sentencing Commission:

I fully join Judge O’Scannlain’s opinion, which faithfully applies controlling law to the question at hand.  But what a bad hand it is -- requiring more than 16 pages to resolve an advisory question.  I applaud the United States Sentencing Commission for reworking U.S.S.G. § 2L1.2 to spare judges, lawyers, and defendants from the wasteland of DescampsSee U.S.S.G. supp. app. C, amend. 802 (2016); U.S.S.G. § 2L1.2(b) (2016).  I continue to urge the Commission to simplify the Guidelines to avoid the frequent sentencing adventures more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of the Souls.  Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 482–83 (9th Cir. 2016) (en banc) (Owens, J., concurring); Raiders of the Lost Ark (Paramount Pictures 1981).

July 6, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, June 29, 2017

Murderers admit they went on prison murder spree in order to get death sentences

Regular readers know that I think one of the hardest conceptual and practical issues for death penalty abolitionists is what to do about killers already serving life without parole sentences who go on to kill again while in prison. If the death penalty is completely eliminated, these offenders may conclude there is no real punishment if they kill again.  But this recent AP article, headlined "Inmate: I Strangled Prisoners to Try to Land on Death Row," reports on the awful reality that a pair of killers serving LWOP in a South Carolina prison apparently were inspired to go on a murder spree because of the presence of the death penalty. Here is the start of a horrible story:

One by one, Denver Simmons recalled, he and his partner lured inmates into his cell. William Scruggs was promised cookies in exchange for doing some laundry; Jimmy Ham thought he was coming to snort some crushed pills.  Over the course of about a half-hour, four men accepted Simmons' hospitality.  None of them made it out alive.

Calmly, matter-of-factly, the 35-year-old inmate told The Associated Press how he and Jacob Philip strangled and beat their blockmates to death and hid their bodies to avoid spooking the next victims. They had nothing against the men; one of them was even a friend, Simmons admitted.

Why did they do it? Convicted in the cold-blooded shootings of a mother and her teenage son, Simmons knew he would never leave prison alive.  Tired of life behind bars, a failure at suicide, he hoped killing these criminals would land him on death row.

Officials say Philip and Simmons have confessed to the April 7 slayings of Ham, 56; Jason Kelley, 35; John King, 52; and Scruggs, 44. But until Simmons talked to the AP, no motive had been made public. The South Carolina Department of Corrections doesn't allow in-person interviews with inmates.  So the AP wrote letters to the two men. Philip's attorney responded with an email: "Jacob is a severely mentally ill young man who has been so adjudicated by the court. Accordingly, I would ask that you make no further efforts to interview him or contact him."

Simmons, though, called the AP three times, once using another inmate's time slot. And he described a twisted compact between two men who had "a whole lot in common" from the moment they met — most important, both despair and a willingness to kill again.

"I'd always joke with him — from back in August and September and October of 2015 — that if we weren't going to kill ourselves, that we could make a name for ourselves, so to speak, and get the death penalty," Simmons, told the AP. "The end of March of this year, he was willing to do it. So, we just planned to do it. And we did it."

Each man was serving life without the possibility of parole for a double murder....  Both men were sent to Kirkland Correctional Institution, a maximum security facility a few miles from the state capitol in Columbia. They were being housed in a unit for inmates who need significant mental health help but whose conditions aren't serious enough to require hospitalization.

Simmons said spending the rest of his life in prison would be a meaningless life of fear and boredom. Inmates are always scheming to take advantage or hurt fellow prisoners and guards only see the men behind bars as numbers. "It's just not a good place to live, you know, day in and day out," Simmons said.

June 29, 2017 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Prisons and prisoners | Permalink | Comments (9)

Tuesday, June 27, 2017

Pennsylvania Supreme Court issues major Miller ruling declaring presumption against the imposition of LWOP on juvenile killers

The Pennsylvania Supreme Court yesterday handed down a major ruling on the application and implementation of the Supreme Court's modern Miller Eighth Amendment jurisprudence. The lengthy ruling in Pennsylvania v. Batts, No. 45 MAP 2016 (Pa. June 26, 2017 (available here), gets started this way:

Qu’eed Batts (“Batts”) was convicted of a first-degree murder that he committed when he was fourteen years old. His case returns for the second time on discretionary review for this Court to determine whether the sentencing court imposed an illegal sentence when it resentenced him to life in prison without the possibility of parole. After careful review, we conclude, based on the findings made by the sentencing court and the evidence upon which it relied, that the sentence is illegal in light of Miller v. Alabama, 567 U.S. 460 (2012) (holding that a mandatory sentence of life in prison without the possibility of parole, imposed upon a juvenile without consideration of the defendant’s age and the attendant characteristics of youth, is prohibited under the Eighth Amendment to the United States Constitution), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (holding that the Miller decision announced a new substantive rule of constitutional law that applies retroactively and clarifying the limited circumstances in which a life-without-parole sentence is permissible for a crime committed when the defendant was a juvenile).

Pursuant to our grant of allowance of appeal, we further conclude that to effectuate the mandate of Miller and Montgomery, procedural safeguards are required to ensure that life-without-parole sentences are meted out only to “the rarest of juvenile offenders” whose crimes reflect “permanent incorrigibility,” “irreparable corruption” and “irretrievable depravity,” as required by Miller and Montgomery.  Thus, as fully developed in this Opinion, we recognize a presumption against the imposition of a sentence of life without parole for a juvenile offender.  To rebut the presumption, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the juvenile offender is incapable of rehabilitation.

Because Pennsylvania has a large JLWOP population impacted by Miller and because proving rehabilitation incapacity beyond a reasonable doubt seem to be perhaps close to impossible, this Batts ruling strikes me as a  big deal jurisprudentially and practically.  (And, for any remaining Apprendi/Blakely fans, it bears noting that the Batts opinion expressly rejects the defendant's contention that a "jury must make the finding regarding a juvenile’s eligibility to be sentenced to life without parole.)

June 27, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, June 25, 2017

Could mental illness be the next big battle-front in debates over capital punishment?

The question in the title of this post is prompted by this lengthy Washington Post article headlined "He’s a killer set to die. But his mental illness has set off a new death penalty battle."  Here are excerpts:

Someone was trying to kill him. William C. Morva was certain of it.  He couldn’t breathe and he was withering away, he told his mother in a jailhouse call.

“Somebody wants me to die and I don’t know who it is,” he said.  “They know my health is dwindling, okay?” He sounded paranoid. His voice grew more frantic with each call over several months on the recorded lines.

“How much more time do you think my body has before it gives out?” he asked just months before he escaped from custody, killing an unarmed guard and later a sheriff’s deputy before his capture in woods near Virginia Tech’s campus.

Morva faces execution July 6 for the 2006 killings. With the date looming, Morva’s family, friends and lawyers are pressing for clemency from Virginia Gov. Terry McAuliffe (D) in what has become a broader national push to eliminate capital punishment for people with severe mental illnesses such as Morva’s delusional disorder....

The Supreme Court in recent years has ruled that juveniles, whose brains are not fully developed, and people with intellectual disabilities are not eligible for the death penalty.  Lawmakers in eight states, including Virginia, Tennessee and Indiana, have introduced bills that would expand the prohibition to people with severe mental illnesses.

A vote on an Ohio measure pending in the state legislature is expected this fall.  It is backed by a coalition of providers of mental-health services, social justice groups, religious leaders, former state Supreme Court justices and former Republican governor Bob Taft.  The bills address punishment, not guilt or innocence.  If lawmakers in Columbus sign off on the measure, Ohio would become the first state to pass an exclusion for severe mental illness among the 31 that retain the death penalty....

Advocates for reform say the penalty was not intended for people who are incapable of distinguishing between delusions and reality, and that jurors often misunderstand mental illness.  The reformers’ efforts have met with resistance mostly from prosecutors and law enforcement officials who say jurors already can factor in mental illness at sentencing and that the exemptions are too broad.

June 25, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (3)

Friday, June 23, 2017

US Sentencing Commission releases its proposed priorities for 2017-18 amendment cycle

Download (1)Because of reduced membership and election transitions, as reported here, the US Sentencing Commission decided not to promulgate guideline amendments in the 2016-17 amendment cycle.  (For a variety of reasons, I think this was a wise decision even though, as noted in this post from December 2016, just before a number of Commissioners' terms expired, the USSC unanimously voted to publish some ambitious proposed amendments for 2017.)  The USSC still has a reduced membership — it is supposed to have seven members and right now has only four — but that has not prevented it from now releasing an ambitious set of proposed priorities for 2017-18 amendment cycle.  Nearly a dozen priorities appear in this new federal register notice, and here area few that especially caught my eye (with some added emphasis in a few spots): 

[T]he Commission has identified the following tentative priorities:

(1) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(2) Continuation of its multi-year study of offenses involving MDMA/Ecstasy, tetrahydrocannabinol (THC), synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone)....

(3) Continuation of its work with Congress and other interested parties to implement the recommendations set forth in the Commission’s 2016 report to Congress, titled Career Offender Sentencing Enhancements, including its recommendations to revise the career offender directive at 28 U.S.C. § 994(h) to focus on offenders who have committed at least one “crime of violence” and to adopt a uniform definition of “crime of violence” applicable to the guidelines and other recidivist statutory provisions.

(4) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c). The Commission also intends to release a series of publications updating the data in the 2011 report.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate, including possibly amending Chapter Four and Chapter Five to provide lower guideline ranges for “first offenders” generally and to increase the availability of alternatives to incarceration for such offenders at the lower levels of the Sentencing Table....

(9) Continuation of its study of alternatives to incarceration, including (A) issuing a publication regarding the development of alternative to incarceration programs in federal district courts, and (B) possibly amending the Sentencing Table in Chapter 5, Part A to consolidate Zones B and C, and other relevant provisions in the Guidelines Manual....

(11) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

June 23, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, June 21, 2017

Close examination of some JLWOP girls who should benefit from Graham and Miller

The latest issue of The Nation has two lengthy articles examining the application and implementation of the Supreme Court's modern juvenile offender Eighth Amendment jurisprudence.  Both are good reads, but the second one listed below covers especially interesting ground I have not seen covered extensively before.  Here are their full headlines, with links, followed by an excerpt from the second of the pieces: 

"The Troubled Resentencing of America’s Juvenile Lifers: When SCOTUS outlawed mandatory juvenile life without parole, advocates celebrated — but the outcome has been anything but fair" by Jessica Pishko

"Lisa, Laquanda, Machelle, and Kenya Were Sentenced as Children to Die in Prison: Decades later, a Supreme Court ruling could give them their freedom" by Danielle Wolffe

The country’s approximately 50 female JLWOP inmates represent a small fraction of the juvenile-lifer population, but the number of women serving life sentences overall is growing more quickly than that of men, according to a study by Ashley Nellis, a senior research analyst at the Sentencing Project. The women interviewed for this article also told me that they felt less informed about what was going on with their cases legally than their male counterparts.

The culpability of girls in their commission of crimes is often entwined with their role as caretakers for younger siblings. They’re also more likely to suffer sexual abuse during childhood. A 2012 study found that 77 percent of JLWOP girls, but only 21 percent of juvenile lifers overall, experienced sexual abuse. Internalized shame made them easier targets for violence by male correctional officers. From my own conversations with these women, many were teenage mothers who were separated from their babies shortly after giving birth. Others were incarcerated throughout their viable childbearing years.

I have been traveling the country to interview female juvenile lifers. Every time I visited one of these women in prison, I was haunted by the things we had in common. We were all approaching middle age. As a young adult, I too had gone off the rails and done dangerous things—the sort of things that could easily have gotten me arrested, even killed. Yet unlike the women I was interviewing, I had the option of leaving those aspects of my past behind.

The women I spoke with represent a distinct minority among juvenile lifers. They do not fit a narrative that is often centered around young men. Their stories are rarely told, even when the law demands it. The Miller and Montgomery decisions call for consideration of a teenager’s upbringing and maturation in prison, but as these women describe it, their experiences are rarely explored in depth in the courtroom. Instead, women’s resentencing is all too often shaped by ignorance and sexism. By interviewing these women, I hoped to share their unheard stories with the public. I hoped, too, that their unconventional stories might help us to reconsider our attitudes toward juvenile crime and rehabilitation—attitudes that still pervade the resentencing process.

June 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, June 20, 2017

Seventh Circuit panel again finds below-guideline sentence for abusive police officer unreasonable

Especially because it can sometimes seem that post-Booker reasonableness review of sentences has little bite, it still seems blogworthy whenever a circuit court finds a federal sentence unreasonable.  The work of a Seventh Circuit panel yesterday in US v. Smith, No. 16-2035 (7th Cir. June 19, 2017) (available  here), struck me as doubly blogworthy because it represents the second time the same sentence has been reversed and because the defendant here is an abusive local police officer.  Here is how the opinion gets started:

A jury convicted Terry Joe Smith, a police officer, of violating 18 U.S.C. § 242, by subjecting two men to the intentional use of unreasonable and excessive force, and violating their civil right to be free of such abuse.  The district court sentenced Smith to fourteen months’ imprisonment, less than half the low end of the applicable guidelines range. In the first appeal of the case, we affirmed Smith’s conviction but vacated the sentence and remanded for full resentencing, concluding that the court had failed to justify the below-guidelines sentence. United States v. Smith, 811 F.3d 907 (7th Cir. 2016).  On remand, the court again sentenced Smith to fourteen months’ imprisonment and once more failed to adequately explain or justify the below-guidelines sentence. We again vacate and remand for a complete re-sentencing.

Here are the essential basics from the opinion of the defendant's crime and recommended guideline punishment:

Smith was a police officer employed by the Putnam County Sheriff’s Department.  In two separate incidents, Smith violently assaulted arrestees who were already under control and not actively resisting arrest. At trial, Smith’s fellow police officers testified against him, describing the unwarranted [and brutal] attacks....

Smith’s guidelines range was thirty-three to forty-one months’ imprisonment. Smith was in Criminal History Category I, based on one prior conviction for misdemeanor battery of a three-year-old child and the child’s mother, who was then Smith’s wife.

The lengthy Smith opinion follows with lots of notable and interesting discussion about how the sentencing court justified a sentence of 14 months and why the circuit panel believe this below-guideline sentence was unreasonable even at a second sentencing with additional evidence.  And, as sometimes happens in the post-Booker world, the circuit panel officially ruled the sentence procedurally unreasonable, but it seems pretty clear that the panel was troubled by what it perceived to be a substantively light sentence under these circumstances.

June 20, 2017 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Friday, June 16, 2017

You be the juvenile sentencing judge: what sentence for teen guilty of involuntary manslaughter for encouraging suicide?

A high-profile state (bench) trial culminated this morning in a notable involuntary manslaughter conviction in the so-called in texting suicide case.  This Boston Globe article provides the basic details to set up the question in the title of this post:

Michelle Carter, who repeatedly urged her boyfriend to kill himself, was found guilty of involuntary manslaughter Friday by a juvenile court judge, ending an extraordinary trial that explored a virtual relationship between teenagers that ended in a suicide.

Judge Lawrence Moniz delivered his verdict after deliberating for two days in the jury-waived trial in Bristol Juvenile Court where Carter [who was 17 at the time of the offense] was being tried as a youthful offender.  The trial riveted lawyers and the public alike as it delved into the painful interior lives of two teenagers who called themselves boyfriend and girlfriend though they had met in person only a few times....

Bristol prosecutors alleged Carter should still be held accountable for the death of Conrad Roy III even though she was not present when the 18-year-old with prior suicide attempts filled his truck with carbon monoxide on July 12, 2014.  Carter and Roy spoke for 47 minutes as he parked in the parking lot of a Kmart in Fairhaven.  When he told he was too scared and had left the truck, she ordered him to return, according to testimony at her trial. “Get back in,” she allegedly said.

Roy left a suicide note addressed to Carter that was made public during her trial.

Speaking from the bench, Moniz said that he concluded Carter was guilty of involuntary manslaughter, in part, for ordering Roy back into the truck in what she knew was a toxic environment where it would take him 15 minutes to die — and failed to notify anyone as required under Massachusetts law.  “Miss Carter had reason to know that Mr. Roy had followed her instruction and placed himself in the toxic environment of that truck,” Moniz said.  “Knowing that Mr. Roy is in the truck, knowing the condition of the truck. Knowing, or at least having the state of mind that 15 minutes must pass, Miss Carter took no actions … She called no one.  She did not issue a simple additional instruction: Get out of the truck.”

Moniz also said the case was not legally novel since 200 years ago, a state prison inmate was prosecuted for convincing a man facing the death sentence to hang himself in his cell six hours before he was to be executed.  Moniz also noted that Roy had a long and troubled psychiatric history that included multiple suicide attempts — but each time he stopped and sought out help from his family and friends.

Moniz set sentencing for Aug. 3.  She faces up to 20 years in prison if given the maximum sentence for involuntary manslaughter.

I would be shocking if the judge here decided to impose a sentence anywhere near the applicable 20-year max. I am inclined to guess a prison sentence in the range of a year or two will be what the juvenile judge here will be considering. But I have not followed this case and the evidence closely, so I am really judge guessing here based on the nature of the crime and the offender. And I am interested to hear if others have more informed (or uninformed) views on what a fair and effective sentences in this case would look like.

June 16, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (19)

Tuesday, June 13, 2017

Notable prisoner makes notable case for prison education and programming ... only for some

I have been following the work an writings of Jeremiah Bourgeois, a juvenile offender sentenced to LWOP (but now eligible for parole) in Washington State, since he authored this thoughtful and personal essay for the Ohio State Journal of Criminal Law a few years ago. His latest column for The Crime Report, headlined "Educate a Prisoner, Save a Life," begins by stressing that the reason for [his personal] change is not hard to find: the higher education courses [he has] been taking during my incarceration." As he goes on to put it: "It is amazing what an education can do. It can transform the violent and ignorant into the peaceful and intelligent."

But, intriguingly, while using his own story to make the case for "making higher education available in correctional facilities," his column also suggests that reform advocates and public officials need to urge "correctional systems [to] finally abandon[] efforts to change those who — quite simply — are content to continue the behavior which led them to prison in the first place." Here is part of his explanation for what he suggests should be a kind of modern prison programming triage:

I have never been able to wrap my mind around why correctional officials believe they can force change on those who are committed to wrongdoing. Nevertheless, they keep trying. One of the purposes of punishment in Washington State is to “offer the offender an opportunity to improve himself or herself.”  In practice, the state’s Department of Corrections (DOC) has transformed this legislative decree into a Don Corleone-esque offer that prisoners cannot easily refuse.

DOC uses a carrot and stick approach. Prisoners can earn a small reduction in their sentence for every month that they follow the dictates of the Facility Risk Management Team (FRMT), which is a group comprised of the prisoner’s counselor and other unit staff, and outlines the programs the prisoner must complete in order to receive this “earned time.” This is the carrot.  The stick involves disciplinary sanctions for refusing to abide by the expectations established by the FRMT. Enough of these, and the prisoner will be transferred to ever more secure facilities until, in the end, he is confined in long-term administrative segregation.

All of this is done in an effort to mitigate the risk that prisoners will commit crimes upon being freed.  The belief is that requiring prisoners to work or go to school or undergo treatment interventions will reduce their likelihood of re-offending. On its face, such policies are rational.  Nobody wants prisoners to rejoin society in the same sorry state they were in when removed from it.

But the fact remains that resources are often devoted toward recalcitrant prisoners whose words and deeds manifest their commitment to the criminal subculture.  Having watched the same people cycle through prison over and over again, it’s clear to me that this subset of individuals are a bad investment — with diminishing returns.  Moreover, history has demonstrated that even the rack-and-screw is no match against the conviction of true believers, and many prisoners are just stubbornly unwilling to repent for a life of crime.

You can spot them throughout the penitentiary, begrudging the policies that compel them to work or go to school or to participate in treatment programs meant to change them. He is the slacker in the dish tank talking about how much “paper” he used to make on the streets.  He is the 20-something in the Adult Basic Education classroom spending the school-day freestyle rapping and sleeping.  He is the man in chemical dependency treatment tweaking on methamphetamines....

The time has come for rehabilitative efforts to be devoted toward prisoners who have the most likelihood of being rehabilitated.  Once upon a time, correctional systems had the luxury of trying to change such men. But those days are over. There is no money left to continue such social experiments.

Arrogance and paternalism is a combination that is antithetical to fiscal responsibility and sound correctional policies.  The time has come for rehabilitative efforts to be devoted toward prisoners who have the most likelihood of being rehabilitated, rather than those who are most likely to re-offend.  Moreover, such programs should be made available to those who seek it rather than mandating prisoners to participate in them.

Take the University Beyond Bars (UBB) for example.  Every participant in the UBB is there because they want to be, for this higher education program at MCC is entirely voluntary. Even when college credit cannot be offered due to lack of funding, prisoners readily sign up simply for self-enrichment.  As a member of the Prisoner Advisory Committee for the UBB, I saw such men come to recognize their capacity to complete college studies; and, more importantly, conceive of living lives removed from criminality.

These are the prisoners worth saving.  It may seem cruel, but in an emergency, triage is about not wasting one’s time and efforts on the hopeless.  Correctional systems should adopt the same sense of mission and purpose.

The uniquely informed perspective behind this commentary makes me eager to endorse its notable message, and yet I wonder and worry about the ability of correction officials and other to fairly and effectively figure out which prisoners are "worth saving" and which are "hopeless."  Like so many sound and sensible suggestions in the arena of sentencing and corrections, the devil would seem to be in the details here if and when corrections officials only made prison education and programming available to those who appeared worthy of these resources.

June 13, 2017 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (6)

Monday, June 12, 2017

Swift and sensible sentencing justice for high-profile violent crime in Montana

As reported in this local article, headlined "Greg Gianforte gets anger management, community service after admitting he assaulted reporter," a high-profile crime and criminal got a non-prison sentence for a violent crime today.  Here are some of the particulars:

Republican congressman-elect Greg Gianforte will not spend any time in jail after he admitted a charge of misdemeanor assault Monday for “body slamming” a reporter on the eve of his election. “I just want to say I’m sorry,” Gianforte told Ben Jacobs, the reporter for the Guardian that he assaulted in Bozeman at a campaign event about 24 hours before polls closed on May 24.

Gallatin County Justice Court Judge Rick West ordered Gianforte to complete 20 hours of anger management counseling and 40 hours of community service. He was given a deferred six-month jail sentence.  If he does not violate the conditions of his sentence, the charge could be dismissed.

West initially tried to give Gianforte a sentence of four days in jail, converted to two days in a work program.  Work programs, which cut the time of a sentence in half, are not an option in assault cases, however. West said he felt anger management was necessary since Gianforte, who will go to Washington, D.C., under heavy scrutiny, could not handle questions from a single reporter.

Motioning around the courtroom, he said “It’s not a lot of cameras compared to what you’re going to see at the White House.”

"It is not my intent you spend four days in jail," West said to a small courtroom packed with journalists and some other members of the public. "I do not think that would serve the community or the taxpayers." West referenced Gianforte's charitable giving in the Bozeman community and around the state when deliberating the sentence, but also said Gianforte's unprovoked attack overshadowed that....

Jacobs, wearing a suit and new pair of glasses that replaced the ones broken in the attack, read to the court from a prepared statement. He spoke quietly enough the judge had to ask him to speak up. Jacobs described the day of the attack, saying he had entered a room to ask Gianforte a question.  "I was just doing my job," Jacobs said. "Mr. Gianforte's response was to slam me to the floor and start punching me." After the attack, Jacobs said Gianforte then sent an "inflammatory public statement in which he insisted this unprovoked ... attack was somehow my fault," Jacobs said.

When pressed by the judge, Gianforte at first did not give clear details on the assault but later said he grabbed for Jacobs' phone, ended up grabbing his wrists instead and a "scuffle" ensued where both men fell to the ground....  In his apology letter to Jacobs, Gianforte wrote “Notwithstanding anyone’s statement to the contrary, you did not initiate any physical contact with me, and I had no right to assault you.”  Neither Gianforte nor his staff have clarified why a false statement was sent out after the assault....

A handful of protesters were outside the Law and Justice Center after court ended.  They held up signs saying "Lock him up," "Shame" and "Justice vs. White Christian Privilege." Jackie Crandall drove up from Roberts that morning to protest. "I think Greg Gianforte got special treatment," she said.  "If he wasn't rich and powerful, he would be in jail. If he was black, he would be in jail."

As the title of this post suggests, I think a non-prison sentence for this violent crime seems quite sensible for a remorseful first offender who seems unlikely to be on a path to criminality (even though he is on a path to Congress).

June 12, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (9)

Sunday, June 11, 2017

"Are 18-year-olds too immature to face the death penalty?"

The question in the title of this post is part of a headline of this local Kentucky article describing an effort to extend the reach of the Supreme Court's Roper ruling. The article's headline continues with the phrase "Lexington attorney says yes." Here are excerpts from the article:

Fayette Circuit Judge Ernesto Scorsone will soon decide whether to exclude the death penalty for a murder defendant who was 18 when he was charged with murder and robbery.

In a 2005 decision, the U.S. Supreme Court ruled that the execution of people who were younger 18 at the time of their crimes violated the federal constitutional guarantee against cruel and unusual punishments. The defense team for Travis Bredhold wants Scorsone to extend that exclusion to people 21 and younger. Bredhold, 21, was 18 when he was charged Dec. 13 with murder and robbery in the fatal shooting of Marathon gas station attendant Mukheshbhai Patel.

Police said surveillance camera footage indicates that Patel, 51, was trying to comply with a robber’s demand for cash when he was shot. He died later at University of Kentucky Chandler Hospital.

Bredhold was “only five months and 13 days older than the limitation” established by the U.S. Supreme Court, public defender Joanne Lynch said. More importantly, Lynch said, research indicates that people’s brains don’t mature until they are in their mid-20s. The Supreme Court ruled that people who are young and immature and who are likely to be more impulsive are not as culpable as a group and shouldn’t be up for the death penalty.

Bredhold’s defense team is asking to extend the exclusion “because people under the age of 21 are almost completely like people under the age of 18. You really don’t mature until you are in your mid-20s,” Lynch said.

Fayette Commonwealth’s Attorney Lou Anna Red Corn argued during a hearing Friday that there isn’t a “national consensus” on whether to extend the death-penalty exclusion to defendants 21 and younger.

June 11, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (17)

Friday, June 09, 2017

"Measuring the Creative Plea Bargain"

The title of this post is the title of this interesting-looking paper authored by Thea Johnson available via SSRN. Here is the abstract:

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining.  But what is a good deal?  And how do defense attorneys secure such deals?  Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence.  Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea.  Through in-depth interviews with twenty-five public defenders in four states, I investigate the ways in which collateral consequences impact the negotiation of the plea.  What emerges is a picture of creative plea bargaining that takes into account a host of noncriminal sanctions that fall outside of the charge and sentence.  Public defenders assess the priorities of their clients — regarding both the direct and collateral consequences of the case — and piece together pleas that meet these varied needs.  The length of sentence after a plea does not tell the full story about whether a defendant got a good deal because a successful plea now encompasses much beyond the final sentence.

These findings have broad implications for the way we think about assessing public defense offices and individual defenders.  Much of what goes into a plea — particularly at the misdemeanor level — is a product of the client’s desire to avoid certain collateral consequences, and those desires generally do not enter the formal record or off-the-record negotiations with prosecutors.  As a result, pleas that look bad on paper may actually be meeting the needs of the client.  Therefore, in order to assess pleas and the defenders who negotiate them, we must understand the limits of publicly available data and focus on creating a more robust data set by which to judge public defenders.  Additionally, this Article provides a fuller picture of prevailing professional norms at the plea phase after Padilla, Lafler, and Frye.  As courts grapple with the role of the defense attorney during plea bargaining, it is critical that they understand that in many cases lawyers achieve optimal outcomes by providing advice and advocacy for their clients on concerns outside of the immediate criminal case.  Finally, this Article serves as a renewed call for attention and funding for the holistic model of public defense.

June 9, 2017 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, June 08, 2017

"Facial Profiling: Race, Physical Appearance, and Punishment"

The title of this post is the title of this notable new empirical paper authored by Brian Johnson and Ryan King.  Here is the abstract:

We investigate the associations among physical appearance, threat perceptions, and criminal punishment.  Psychological ideas about impression formation are integrated with criminological perspectives on sentencing to generate and test unique hypotheses about the associations among defendant facial characteristics, subjective evaluations of threatening appearance, and judicial imprisonment decisions.

We analyze newly collected data that link booking photos, criminal histories, and sentencing information for more than 1,100 convicted felony defendants.  Our findings indicate that Black defendants are perceived to be more threatening in appearance.  Other facial characteristics, such as physical attractiveness, baby-faced appearance, facial scars, and visible tattoos, also influence perceptions of threat, as do criminal history scores.  Furthermore, some physical appearance characteristics are significantly related to imprisonment decisions, even after controlling for other relevant case characteristics.  These and other findings are discussed as they relate to psychological research on impression formation, criminological theories of court actor decision-making, and sociological work on race and punishment.

June 8, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Judge Jack Weinstein talks through general deterrence and gang activity in federal gun sentencing

A helpful reader forwarded to me the latest interesting sentencing opinion authored by US District Judge Jack Weinstein. The full 25-page opinion in US v. Lawrence, No. 16-CR-243 (E.D.N.Y. May 23, 2017), is an interesting read for a lot of reasons, is not readily summarized and is available for download below. Here is how it gets started and ends to provide taste for the full opinion:

Defendant in the instant case pled guilty to a serious crime.  He is either a gang member or on the verge of becoming one.  He recklessly fired an illegally possessed handgun repeatedly down a public street, with the likelihood that a passing pedestrian might be hit: in fact he wounded his companion.

This case presents some of the critical difficulties in federal sentencing. It requires balancing general deterrence (and, relatedly, incapacitation) by a relatively long prison term with specific deterrence (and its other aspect, rehabilitation) by a relatively short term in prison. Both must be considered under section 3553(a)(2)(B) of section [1]8 of the United States Code.  By compromising, and reducing a somewhat draconian sentence (possibly less effective for general deterrence), or increasing the sentence (possibly less effective for rehabilitation), the sentence may risk frustrating either goal.

The subtle weighing of alternatives is made more difficult by the presence of numerous competing vectors (such as family or work or criminal history).  In the present case the court accepted, and acted on, testimony of an expert witness that increasing the length of incarceration does not proportionally increase general or specific deterrence....

The Guidelines do not consider gang membership as a factor in sentencing, except for defendants who are sentenced under 18 U.S.C. § 521 (pertaining to criminal street gangs), where the Guidelines provide for an upward departure. U.S.S.G. § 5K2.18.  Were gang membership a sentencing factor in cases other than those under 18 U.S.C. § 521, courts would give greater weight to this factor.  This court recommends that the Sentencing commission revisit the gang membership problem.

Download Lawrence - Judgment%2c Memo%2c and Order

June 8, 2017 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Wednesday, June 07, 2017

Spotlighting the continued challenges for juve lifers like Henry Montgomery even after SCOTUS victories in Miller and Montgomery

Mother Jones has this notable new article about Henry Montgomery and other juveniles who are still fighting to get relief after seemingly helpful recent Supreme Court Eighth Amendment rulings. The full headline of this piece is "The Supreme Court Said His Prison Sentence Was Unconstitutional. He’s Still Behind Bars. Despite a ruling in their favor, Henry Montgomery and other juvenile lifers are no closer to getting out."  Here are excerpts:

But although the Supreme Court often appears all-powerful, its clout is more limited than it seems. Nearly 18 months after his victory, Montgomery is still sitting in Angola, and there’s no guarantee that he — or many of the roughly 1,000 others serving similar sentences across the country — will ever get out....

Montgomery’s saga began in November 1963 in East Baton Rouge, Louisiana, during a turbulent time of racial tensions, Ku Klux Klan activity, and cross-burnings. Montgomery, who is African American, was in 10th grade and playing hooky when he encountered the local sheriff, Charles Hurt, who was white. In a panic at being caught out of school, Montgomery allegedly shot and killed Hurt with his grandfather’s gun, which he had stolen....

[If sentenced today], Montgomery would be allowed to present evidence of mitigating circumstances, and his lawyers could argue that his youth and mental disability — he had an IQ of around 70 — should be grounds for a reduced sentence. Instead, a state appellate court upheld his mandatory life sentence, and that was the end of his contact with a lawyer for decades to come....

In 2012, the US Supreme Court offered juvenile lifers such as Montgomery a glimmer of hope. In Miller v. Alabama, a case of two men who’d been sentenced to mandatory life without parole for crimes they committed at the age of 14, the court ruled 5-4 that such sentences were unconstitutional. Mandatory life without parole violated the Eighth Amendment prohibition on cruel and unusual punishment, the court said, because such sentences failed to recognize that adults differ from children, who have “diminished culpability and greater prospects for reform.” The court held that life-without-parole sentences should be used only for “the rare juvenile offender whose crime reflects irreparable corruption.”

The decision set off a flurry of litigation by inmates incarcerated as children who argued that the Miller decision should be applied retroactively. Montgomery filed a petition to have his sentence overturned without the help of a lawyer, but the Baton Rouge public defender’s office eventually took up his case. The local district attorney fought him every step of the way, and he lost in all the state appeals courts. But in 2015, the US Supreme Court agreed to hear his case.

In January 2016, the court ruled in Montgomery’s favor, with Kennedy writing that the decision, which gave juvenile lifers a shot at parole, “would afford someone like Montgomery, who submits that he has evolved from a troubled, misguided youth to a model member of the prison community, the opportunity to demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”

But the decision was only the beginning of Montgomery’s fight.  The Supreme Court decision gave states a lot of leeway in how they handle cases like Montgomery’s and punted the details to lower-court judges and state legislators.  In Louisiana, a judge could reduce Montgomery’s sentence to life with parole, but that would leave his fate to Louisiana’s notoriously stringent parole board, which could deny him release.  The Supreme Court also left room for judges to simply resentence eligible inmates to life without parole by declaring them irreparably corrupt. And that’s exactly what the Baton Rouge district attorney pushed for in Montgomery’s case....

Montgomery’s case has languished in part because the state didn’t know quite how to handle Louisiana’s 300 juvenile lifers who’d won the right to resentencing.  Should an inmate have a full-blown sentencing hearing that would resemble those used in capital cases?  And who should decide the outcome, a jury or a judge?  The courts put Montgomery’s case on hold while the state Legislature considered a bill that would automatically grant juvenile lifers a shot at parole after they’d served 30 years in prison.  But the bill died last summer, and although it’s been taken up again this year, the courts have decided to move forward without any new legislation.  Some juvenile lifers have been able to win plea bargains that freed them, but they aren’t the majority.

Working against Montgomery is the fact that the adult children and grandchildren of his victim have been involved in the process and are opposed to his release....

Montgomery is one of many juvenile lifers whose sentences remain in limbo after the Supreme Court decision. Michigan, for example, has about 350 juvenile lifers behind bars. Since the Supreme Court decision in Montgomery, the state has begun resentencing them.  [Juvenile Law Center's Marsha] Levick says that in about 85 percent of those cases, prosecutors are again seeking life without parole.  In one jurisdiction, the local prosecutor is the same former judge who sentenced many of the inmates to life in the first place. She has requested new life sentences for 44 of 49 inmates serving life without parole for murders they committed before the age of 18....

Jody Kent Lavy, executive director of the Campaign for Fair Sentencing of Youth, visited Montgomery in Angola earlier this year and says that because of the resistance of states like Louisiana and Michigan to implementing the Montgomery decision, the high court really “needs to take another step to bar life without parole [for juveniles] outright.”  She notes that local district attorneys are usually elected, and so the Montgomery decision “still leaves room for racially charged decisions, politically motivated decisions, as opposed to what is fair.  It keeps me up at night.”

A state court judge heard Montgomery’s case last month and promised a decision by late June.

June 7, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, June 02, 2017

Tracking state work on criminal justice and drug policy through Stateline

The Pew Charitable Trusts Stateline site does a great job tracking state-level developments on an array of criminal justice and drug policy issues. Here are some examples from recent weeks that caught my eye:

 

June 2, 2017 in Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Thursday, June 01, 2017

Lots of notable new reporting and commentary from The Marshall Project

The always terrific Marshall Project always has many great pieces that should be must-reads for sentencing fans.  Though I rarely have the time or ability to give shout-outs to all of the great work done there, the last few days have seen the posting of these pieces or reporting and commentary that all struck me as particularly blog-worthy:

Tuesday brought this Commentary, authored by Mark Osler, headlined "The Problem with the Justice Department: It’s a building full of prosecutors."

Wednesday brought this News piece, authored by Justin George, headlined "What Are Inmates Learning in Prison? Not Much: A new survey of 2,000 federal prisoners reveals big gaps in teaching reentry skills."

Thursday brought this Feature piece, authored by Anat Rubin, "Downloading a Nightmare: When autism, child pornography and the courts collide."

The last of these pieces is especially lengthy, but should be especially interesting for sentencing fans who think about when and how offender characteristics should or should not impact sentencing decisions. Here is a portion of the piece:

The “autism defense” was thrust into the spotlight by the case of Gary McKinnon, who, in 2002, from an apartment in London, broke into computers at the Army, Air Force, Navy, Department of Defense and NASA, searching for evidence of a UFO cover-up.  In fighting his extradition to the United States, McKinnon’s legal team argued that his crime was the result of his autistic compulsions.  “And then we started to see an increase in other individuals coming forth and claiming that Asperger's was causal in their need to — and their compulsion to — download child pornography,” said Chad Steel, who conducts digital forensics investigations for the federal government.

Steel, who also teaches digital forensics at George Mason University, wrote a paper to help forensic psychologists and others in law enforcement gather evidence to refute the central assumptions of the autism defense in child pornography investigations. “A frequent argument we get is that the person was unable to control their impulses, unable to know it was wrong.  There have been some cases where that’s absolutely been true,” he said.  “But when you read ‘this person has high-functioning autism, they didn’t know what they were doing’ — that’s not necessarily true.”  He said before the McKinnon case, he was seeing defendants who were likely autistic, even if they didn’t have an official diagnosis. But since McKinnon, the disability is more likely to take center stage.

The autism defense can be a double-edged sword in court.  Arguing that the defendant has the social and emotional maturity of a child can backfire.  Prosecutors can use that information to argue the defendant is likely to reoffend.  More often, parents whose lives have been defined by their child’s disability find that, in the eyes of the criminal justice system, their child doesn’t seem disabled enough.

The Marshall Project reached out to state and federal prosecutors with experience in child pornography cases.  With few exceptions they were unwilling to discuss cases involving autism.

For all child pornography defendants, outcomes depend largely on geography.  Some judges stick close to the federally-recommended sentences, while others have spoken out against the increased punishments. But for autistic defendants, the outcomes seem also to depend on how autism is explained to the court.  “In cases where judges and prosecutors have really been informed on all the dimensions in which Asperger’s applies, they got drastically reduced punishments,” [defense attorney Mark] Mahoney said. “If they get the right information, there’s a good chance — a much better chance than defense attorneys imagine — that prosecutors will understand that this is a population that just doesn’t have the dangerousness we associate with the behavior.”

In arguing for diversion, Mahoney focuses on what prison is like for an autistic person.  Many people with autism are unable to understand the hidden social structure of a prison environment.  They sometimes tell on others who break the rules.  They are eager to please and easily manipulated.  Their behavior can be misinterpreted by prison staff, and they are often placed in isolation, either as a form of punishment or for their own protection.

June 1, 2017 in Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, May 31, 2017

"Random If Not 'Rare'? The Eighth Amendment Weakness of Post-Miller Legislation"

The title of this post is the title of this new paper authored by Kimberly Thomas and available via SSRN. Here is the abstract:

First, this Article surveys the U.S. Supreme Court’s decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes.  Second, this Article examines the state legislative response to Miller v. Alabama, and scrutinizes it with the Court’s Eighth Amendment death penalty law — and the states’ responses to this case law — in mind.  This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of offenders to the most likely to have demonstrated “irreparable corruption,”; and 3) provide for meaningful appellate review, among other deficiencies. 

May 31, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, May 29, 2017

"Predicting Sex Offender Recidivism: Using the Federal Post-Conviction Risk Assessment Instrument to Assess the Likelihood of Recidivism Among Federal Sex Offenders"

The title of this post is the title of this new article available via SSRN authored by Thomas Cohen. Here is the abstract:

Sex offenses are among the crimes that provoke serious public concern.  The federal response to the problem of sex offending has resulted in an exponential increase in the number of sex offenders on federal post-conviction supervision; however, relatively few studies have explored whether and how well the actuarial risk instrument currently used by federal probation officers — the federal Post Conviction Risk Assessment instrument or PCRA for short — accurately predicts reoffending behavior among the federal sex offender population.

This study provided an exploration of the PCRA’s capacity to effectively predict subsequent recidivism activity for convicted federal sex offenders.  Results show that the PCRA accurately predicts recidivistic behavior involving the commission of any felony or misdemeanor offenses, violent offenses, and probation revocations for this population. However, the PCRA’s predicative capacities deteriorate when the instrument is used to assess the likelihood of sexual recidivism.  In addition, this study showed that offenders convicted of online child pornography offenses presented some challenges in terms of predicting their reoffending behavior because they manifested lower PCRA risk scores and recidivism rates compared to offenders convicted of other major federal sexual offenses that typically involve more hands-on behavior.

May 29, 2017 in Data on sentencing, Offender Characteristics, Offense Characteristics, Reentry and community supervision | Permalink | Comments (2)

Sunday, May 28, 2017

DC sniper Lee Malvo to get resentencing thanks to Miller Eighth Amendment rule

As reported in this AP piece, a "federal judge on Friday tossed out two life sentences for one of Virginia's most notorious criminals, sniper Lee Boyd Malvo, and ordered Virginia courts to hold new sentencing hearings."  Here is why:

In his ruling, U.S. District Judge Raymond Jackson in Norfolk said Malvo is entitled to new sentencing hearings after the U.S. Supreme Court ruled that mandatory life sentences for juveniles are unconstitutional.

Malvo was 17 when he was arrested in 2002 for a series of shootings that killed 10 people and wounded three over a three-week span in Virginia, Maryland and the District of Columbia, causing widespread fear throughout the region. His accomplice, John Allen Muhammad, was executed in 2009.

Malvo also was sentenced to life in prison in Maryland for the murders that occurred there. But his lawyers have made an appeal on similar grounds in that state.  A hearing is scheduled in June.

Fairfax County Commonwealth's Attorney Ray Morrogh, who helped prosecute Malvo in 2003, said the Virginia attorney general can appeal Jackson's ruling.  If not, Morrogh said he would pursue another life sentence, saying he believes Malvo meets the criteria for a harsh sentence....

Michael Kelly, spokesman for Virginia Attorney General Mark Herring, said Friday evening that the office is "reviewing the decision and will do everything possible, including a possible appeal, to make sure this convicted mass murderer serves the life sentences that were originally imposed."  He also noted that the convictions themselves stand and emphasized that, even if Malvo gets a new sentencing hearing, he could still be resentenced to a life term....

Jackson, in his ruling, wrote that Malvo was entitled to a new sentencing hearing because the Supreme Court's ruling grants new rights to juveniles that Malvo didn't know he had when he agreed to the plea bargain.

The full 25-page opinion resolving Malvo's habeas petition is available at this link.

May 28, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Friday, May 26, 2017

US Sentencing Commission releases report on "Youthful Offenders in the Federal System"

Cover_youthful-offendersThe US Sentencing Commission released this notable new report today titled simply "Youthful Offenders in the Federal System." Here is the report's introduction and "key findings" from its first two pages:

Introduction

Although youthful offenders account for about 18 percent of all federal offenders sentenced between fiscal years 2010 and 2015, there is little current information published about them.  In this publication, the United States Sentencing Commission (“the Commission”) presents information about youthful offenders, who for purposes of this report are defined as persons age 25 or younger at the time they are sentenced in the federal system.

Recent studies on brain development and age, coupled with recent Supreme Court decisions recognizing differences in offender culpability due to age, have led some policymakers to reconsider how youthful offenders should be punished.  This report reviews those studies and provides an overview of youthful federal offenders, including their demographic characteristics, what type of offenses they were sentenced for, how they were sentenced, and the extent of their criminal histories.

The report also discusses the intersection of neuroscience and law, and how this intersection has influenced the treatment of youthful offenders in the criminal justice system. The Commission is releasing this report as part of its review of the sentencing of youthful offenders.  In June 2016, the Commission’s Tribal Issues Advisory Group (TIAG) issued a report that proposed several guideline and policy changes relating to youthful offenders, including departure provisions and alternatives to incarceration.

Because many of the TIAG recommendations on this topic apply to all youthful offenders, and not just Native Americans, the Commission voted to study the treatment of youthful offenders as a policy priority for the 2016-2017 amendment cycle.

The key findings in this report are that:

• There were 86,309 offenders (18.0% of the federal offender population) age 25 or younger sentenced in the federal system between 2010 and 2015.

• The majority (57.8%) of youthful offenders are Hispanic.

• There were very few youthful offenders under the age of 18 sentenced in the federal system (52 between 2010 and 2015).

• Almost 92 percent of offenses committed by youthful offenders were nonviolent offenses.

• Similar to the overall federal offender population (or non-youthful offenders group) the most common offenses that youthful offenders committed were drug trafficking (30.9%), immigration (28.6%), and firearms offenses (13.7%).

• The average sentence for youthful offenders was 34.9 months.

• Youthful offenders were more likely to be sentenced within the guidelines range than non-youthful offenders (56.1% compared to 50.1%).

• Youthful offenders recidivated at a much higher rate than their older counterparts — about 67 percent versus 41 percent.

May 26, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (3)

Tuesday, May 23, 2017

Colorado Supreme Court rules Graham and Miller do not limit aggregate term-of-years sentence

Yesterday I noted in this post a Minnesota Supreme Court ruling from last week that resisted extending the Supreme Court's recent limits on LWOP sentences for juvenile offenders to aggregate lengthy sentences for multiple crimes.  Perhaps exactly as I was writing that post, the Colorado Supreme Court handed down a similar ruling in Lucero v. Colorado, No. 13SC624 (Colo. May 22, 2017) (available here). Here is a key passage from the start of the majority opinion in Lucero:

[W]e hold that neither Graham nor Miller applies to an aggregate term-of-years sentence, which is the sentence Lucero challenges. In Graham, the U.S. Supreme Court held unconstitutional a life without parole sentence imposed on a juvenile for a single nonhomicide offense. 560 U.S. at 57, 82. In Miller, the Court held that a sentence of “mandatory life without parole for those under the age of 18 at the time of their crimes” violates the Eighth Amendment. 132 S. Ct. at 2460. Life without parole is a specific sentence, distinct from sentences to terms of years. Lucero was not sentenced to life without parole.  Rather, he received multiple term-of-years sentences for multiple convictions.  Therefore, Graham and Miller are inapplicable to, and thus do not invalidate, Lucero’s aggregate sentence.

The concurring opinion in Lucero notes that a significant number of state supreme courts and other courts have held that the Eighth Amendment rule articulated in Graham "extends to cases in which a juvenile offender receives the functional equivalent of an LWOP sentence." At some point (though I have no idea when), the U.S Supreme Court will have to clarify whether and how Graham nor Miller limit the imposition of sentences other than LWOP.

May 23, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (7)

Friday, May 19, 2017

"An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases"

The title of this post is the title of this new paper authored by Lauren Sudeall Lucas now available via SSRN.  Here is the abstract:

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty.  More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability.  Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove their intellectual disability beyond a reasonable doubt at the guilt phase of the trial to be legally exempted from execution.

This article is the first to provide an empirical assessment of Georgia’s “guilty but mentally retarded” (GBMR) statute, including its beyond a reasonable doubt standard of proof.  In doing so, it fills a critical gap not only in the scholarly literature on the subject, but also for those who continue to litigate the issue.  Its analysis reveals that no defendant facing the death penalty in Georgia has ever received a GBMR verdict for malice murder from a jury in the statute’s nearly thirty-year existence.  Prior to Atkins, only one capital defendant had ever received a GBMR jury verdict at trial, in a felony-murder case, by meeting this extremely high standard of proof, thus exempting herself from the death penalty.

The absence of any successful GBMR jury verdict in a malice murder case and the absence of any successful GBMR verdict in any capital case post-Atkins, in combination with Georgia’s lone status in imposing such a procedure, all contribute to the argument that the beyond a reasonable doubt standard, and the jury’s decision regarding intellectual disability in the guilt phase create, in the words of the Court, an “unacceptable risk” that capital defendants with intellectual disability will be executed in violation of the Eighth Amendment.

May 19, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, May 16, 2017

In last-minute appeal, condemned Georgia inmate urges extension of bar on juve capital punishment to those under 21

As reported here, "a Georgia inmate scheduled to be executed Tuesday has filed an appeal with the U.S. Supreme Court arguing that it is wrong to sentence an offender less than 21 years old to death."  Here is more on the effort to halt an execution scheduled to take place a quarter century after the crime:

J.W. "Boy" Ledford Jr., now 45, was 20 years old when he was sentenced to death after being convicted of killing a doctor who had given him a ride in Georgia in 1992. Ledford is scheduled to be the first Georgia inmate executed in that state this year. The Georgia Supreme Court earlier Tuesday declined to halt the execution.

"Intelligence testing shows Ledford to have, at best, borderline intellectual functioning," attorneys for Ledfrod wrote in their petition to the U.S. Supreme Court. It argues that the execution violates would violate Eight Amendment protections against cruel and unusual punishment and 14th Amendment guarantees of due process.

The petition argues that other rulings barring the death penalty for juvenile offenders apply to those who commit crimes from the ages of 18 to 21 — "a period in life during which, new scientific investigation forcefully shows, individuals suffer from the same impairments in judgment and self-control that prompted this Court to ban the application of capital punishment to juvenile offenders."

Ledford killed Dr. Harry Johnston after the physician gave him a ride, leaving the victim nearly decapitated. He then went to the doctor's home and tied up and robbed his wife. She has since died.

Lawyers for the state said the argument that Ledford was too young to be sentenced to death had not been raised before. The state said arguments of "evolving standards of decency" about the age of sentenced offenders are vague, and laws about juveniles don't apply to Ledford's case.

Ledford had previously argued that a firing squad would be a more humane way to die than the lethal injection planned by the state. A federal appeals court on Monday denied a request for a stay of execution.

UPDATE: As reported here, "Georgia carried out its first execution of the year early on Wednesday, putting to death a man convicted of killing a 73-year-old neighbor in 1992. J.W. Ledford Jr., 45, was pronounced dead at 1:17 a.m. at the state prison in Jackson, more than six hours after his initial execution time. The delay was waiting for a ruling from the U.S. Supreme Court, which denied his request for a stay."

May 16, 2017 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (10)

Is it unconstitutional for a state to allow judges to increase sentences because a felony was committed by someone illegally present in the US who had been previously deported?

The question in the title of this post could be an issue before state (and federal?) judges in Tennessee shortly, because a new state sentencing provision to this effect is on the desk of the Governor of the Volunteer State.   This local article, headlined "Bill gives TN judges more power in sentencing, experts say law is unconstitutional," explains:

State lawmakers are keeping an eye on the clock as time ticks down for Gov. Bill Haslam to act on a bill granting state judges new sentencing authority. The bill allows judges to add more time to a felony sentence if a defendant is in the country illegally. Right now the state of Arizona is involved in a legal battle over a similar issue.

Tennessee lawmakers say this bill would be a hard deterrent against crime. Immigration advocates say it's a burden on local governments that will drive a wedge between the community and the legal system. Haslam has three options when it comes to the sentencing enhancement bill before his desk. He can sign it, veto the bill or allow it to pass into law without his signature.

Lincoln Memorial University Duncan School of Law professor Stewart Harris believes whether it's signed or not, this bill might not be around for long. "My initial reaction is that it's probably unconstitutional,” said Harris.

According to Harris, the U.S. Constitution governs America's immigration laws, not states. That's one reason states don't typically pass immigration laws. "Should California have one set of rules and Massachusetts another? What about all the landlocked states, should they have their own rules as well? That’s why Congress has authority over immigration,” explained Harris.

State Sen. Becky Duncan Massey of Knoxville believes this bill isn't an immigration issue. "The courts are going to decide if something is constitutional or not if it's challenged. I don't believe this really has to do with immigration, it has to do with crime,” said Massey.

Massey says residence is already a factor when considering a person's bond. She believes judges should have all the information about a defendant available to them before sentencing. "They’re already going to jail, they have committed a crime, they've been convicted of a crime and this is just a factor along with another factor determining how long the sentence is,” she said....

This bill passed the House and Senate on May 9. The governor has 10 working days to take action or allow it to pass without his signature.

Though I am not an expert on immigration law or preemption, I am inclined to believe this kind of law is constitutional. I can see a range of reasonable constitutional and policy arguments against this proposed amendment of Tennessee's sentencing laws, but the fact that the provision appear to apply to those in the country illegally AFTER a previous deportation would seem to foster an argument that the law is more like punishing someone based on a certain type of prior criminal history rather than just based on alienage.  But nobody should hold me to that too-quick and relatively uniformed assessment, and everybody should use the comments to help be get better informed on the question in the title of this post.

May 16, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

"The Problem with Inference for Juvenile Defendants"

The title of this post is the title of this notable new article by Jenny Carroll recently posted to SSRN.  Here is the abstract:

Much of criminal law relies on proof by inference.  In criminal law, fact finders untangle not only what happened, but why it happened.  It is answering the “why” question that places an act and its result on the legal spectrum of liability. To reach that answer, the fact finder must engage in an interpretive act, considering not only what can be seen or heard, but the significance of that testimony or physical evidence in real world contexts — the world in which they occurred but also the fact finder’s own world.

Recent developments in neuroscience suggest that in the context of juvenile defendants, this moment of interpretation is fraught with particular risks. The emergence of fMRI technology has provided significant insights into adolescent brain development and its effect on adolescent thought processes.  As a result, scientists (and courts) recognize that adolescent actors are more likely to engage in risky behavior, fail to properly comprehend long term consequences and over value reward. In short, science has proven what most long suspected: kids think and react differently than do adults.

Although criminal law has long accounted for this difference procedurally — most evidently in the creation of an independent juvenile justice system – there has been little exploration of its significance in the realm of substantive criminal law.  This Article argues that what is known of adolescent brain development suggests that adult fact finders are poorly positioned to accurately assess a juvenile defendant’s state of mind, because adults lack the perspective of those whose actions and words they seek to interpret — juvenile defendants.  Rather than asking fact finders to perform the impossible task of placing themselves in the adolescent’s mind, substantive criminal law should instead acknowledge the difference in perspective and permit evidentiary presentation and jury instructions akin to defenses that rely on the defendant’s actual, as opposed to imagined, perspective.

May 16, 2017 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Saturday, May 13, 2017

Former LA Sheriff gets three years in federal prison after obstruction convictions connected to corruption scandal involving county jails

This Los Angeles Times article, headlined "Ex-L.A. County Sheriff Lee Baca sentenced to three years in prison in jail corruption scandal," effectively reports on the final federal sentence handed down late yesterday to a high-profile former law enforcement official. Notably, as discussed below, the defendant here had a much more lenient plea deal rejected, was nearly acquitted at a trial, and ultimately got a prison term 50% longer than what prosecutors recommended.  Here are the details:

Former Los Angeles County Sheriff Lee Baca, once a towering, respected figure in policing, was sentenced Friday to three years in federal prison for his role in a scheme to obstruct an FBI investigation of abuses in county jails, marking an end to a corruption scandal that has roiled the Sheriff’s Department for several years.

U.S. District Judge Percy Anderson announced Baca’s fate in a downtown courtroom filled with loyal supporters on one side and the FBI agents and prosecutors who ensnared him on the other. Baca, 74 and suffering from the early stages of Alzheimer’s disease, showed no emotion as the decision was read. Before issuing the sentence, Anderson, who has dealt unsparingly with the former sheriff throughout his legal battle and last year threw out a plea deal that would have sent Baca to prison for no more than six months, unleashed a scathing rebuke of the man who ran one of the nation’s largest law enforcement agencies for 15 years.

Excoriating Baca’s refusal to accept responsibility for having overseen and condoned the obstruction ploy carried out by subordinates, the judge portrayed him as a man driven by his desire to protect his own reputation and maintain control over the Sheriff’s Department. “Your actions embarrass the thousands of men and women [in the department] who put their lives on the line every day,” Anderson said to Baca. “They were a gross abuse of the trust the public placed in you.”

The prison term, Anderson added, should serve as a deterrent to other public servants. “Blind obedience to a corrupt culture has serious consequences,” he said. “No person, no matter how powerful, no matter his or her title, is above the law.”

Baca was ordered to surrender to federal prison officials by July 25. Although he is expected to ask to remain free on bail while he pursues an appeal, it is an open question whether he will be allowed to do so. Anderson denied the same request from Baca’s second in command, former Undersheriff Paul Tanaka, who was forced to begin his five-year sentence....

In going after Baca, a team of prosecutors headed by Assistant U.S. Atty. Brandon Fox meticulously worked its way up the department’s ranks, charging lower-level figures and members of Baca’s command staff before bringing charges of obstruction of justice, conspiracy and lying against the sheriff himself.

He is the ninth person to be convicted and sentenced to prison as part of what Fox convinced several juries was a cunning conspiracy to interfere with FBI agents as they worked to gather evidence for a grand jury investigation into allegations of widespread abuse by deputies working in county jails run by the sheriff’s department. A 10th conspirator, former sheriff’s Capt. William “Tom” Carey, pleaded guilty in a deal with prosecutors and testified against Baca. Carey is scheduled to be sentenced later this month. Several other deputies were convicted in a series of trials for beating inmates or helping to cover up the abuse....

Baca’s attorney, Nathan Hochman, nearly won Baca an acquittal at a trial late last year by hammering the government for the scarcity of hard evidence tying Baca directly to the obstruction plan. That proceeding ended in a mistrial when the jury deadlocked with all but one juror voting to acquit Baca. For the second trial, however, Fox revamped his case and Anderson issued a string of rulings that hamstrung Hochman. All along, Hochman argued that while Baca was upset by the FBI investigation, he never authorized anything illegal. Tanaka, he said, was the ringleader who carried out the obstruction without Baca’s knowledge.

In giving Baca three years in prison, Anderson struck a middle ground of sorts. Federal sentencing guidelines called for a term of 41 to 51 months. Under normal circumstances, the government would have urged Anderson to come down within that range, Fox wrote in court filings.

But Baca’s age, his diagnosis last year with Alzheimer’s and medical experts’ expectation that his mind will have deteriorated badly within a few years were legitimate mitigating factors in determining his punishment, Fox said. “The interests of justice will not be served by defendant spending many years behind bars in a severely impaired state,” the prosecutor wrote. He recommended that Baca be sentenced to two years in prison.

Hochman, meanwhile, urged Anderson in court papers and again on Friday to spare Baca any time in prison, saying he should instead be confined to his home for a period of time and perform community service. In a lengthy last-ditch bid for leniency, Hochman reviewed Baca’s nearly five decades of service in the sheriff’s department, saying he served “with distinction and honor.”

The true measure of the man, Hochman insisted, was seen in the the education programs he started as sheriff for inmates and at-risk youth. Hochman submitted to Anderson letters from a few hundred of Baca’s supporters, including former Gov. Arnold Schwarzenegger and several local religious leaders. The inevitable toll from Alzheimer’s was another reason to spare him prison, Hochman said. “This diagnosis is a sentence of its own. It is a sentence that will leave him a mere shell of his former self and one that will rob him of the memories of his life,” he wrote in a court filing.

Anderson rejected out of hand the idea that Baca should avoid time in prison. He acknowledged Baca’s lengthy record as a public servant, but said it made his crimes more perplexing. "Mr. Baca's criminal conduct is so at odds with the public image he carefully crafted,” Anderson said. Like old B-movies, "you seem to have your own version of the good cop/bad cop routine … that allowed you to keep your hands clean but did not make you any less culpable.”

While the two-year sentence suggested by the government was not enough in Anderson’s eyes, the judge said he did take Baca’s failing health and career into account. Absent those factors, he said he would have imposed on Baca the same five-year sentence he gave Tanaka.

The sentence deepens the stain already imprinted on Baca’s legacy and the reputation he enjoyed as one of the nation’s most visible and respected reformers in law enforcement. While quirky to the point of being enigmatic, Baca was seen as a champion of progressive ideas, including the need for police to build strong ties to minority communities. He stepped down in 2014 with the department engulfed in the jail scandal.

May 13, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Thursday, May 04, 2017

South Carolina Supreme Court rejects constitutional challenge to juve sex offender's mandatory lifetime registration/monitoring

Yesterday the South Carolina Supreme Court handed down an opinion in In the Interest of Justin B., No. 27716 (S. Ct. May 3, 2017) (available here), unanimously rejecting the contention that "mandatory imposition of lifetime registration and electronic monitoring on juveniles is unconstitutional."  The relatively short opinion is a bit curious because, after reviewing a bunch of previous rulings in which it had "upheld the constitutionality of the mandatory lifetime sex offender registry requirement with electronic monitoring for adults and juveniles," the opinion does not discuss Graham or Miller but does confront and reject the juvenile's assertion that the constitutional analysis should "yield a different result under the reasoning of Roper v. Simmons."

Roper is, indisputably, a relevant precedent if and when a juvenile offender is arguing against mandatory imposition of lifetime registration and electronic monitoring.  But, in my view, the more recent precedents of Graham and Miller are even more critical and central to mounting an Eighth Amendment argument against any mandatory lifetime sanction for a juvenile offender. (As noted in this prior post, more than five years ago the Ohio Supreme Court relied heavily on Graham to find unconstitutional a mandatory lifetime registration requirement for juvenile sex offenders.)

In the end, I do not think engagement with Graham and Miller would have made any real difference to the South Carolina Supreme Court.  As this conclusion to the opinion highlights, that court has long deemed registration and monitoring to be civil non-punitive provisions that are not really subject to traditional constitutional limits on punishment:

The requirement that adults and juveniles who commit criminal sexual conduct must register as a sex offender and wear an electronic monitor is not a punitive measure, and the requirement bears a rational relationship to the Legislature's purpose in the Sex Offender Registry Act to protect our citizens — including children — from repeat sex offenders.  The requirement, therefore, is not unconstitutional.  If the requirement that juvenile sex offenders must register and must wear an electronic monitor is in need of change, that decision is to be made by the Legislature — not the courts.  The decision of the family court to follow the mandatory, statutory requirement to impose lifetime sex offender registration and electronic monitoring on Justin B. is AFFIRMED

May 4, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Wednesday, May 03, 2017

PBS Frontline covers the impact of Miller via "Second Chance Kids"

Pbs-frontline-merged-logoAs detailed via this posting, the PBS series Frontline premiered a new documentary last night titled Second Chance Kids. Here is a kind of preview from the posting:

What happens when prisoners convicted of murder as teenagers are given the chance to re-enter society? In the wake of Miller v. Alabama — the 2012 Supreme Court ruling that found mandatory life sentences without the chance of parole for juveniles unconstitutional — some 2,000 offenders across the country are hoping to find out.

With unique access, the new FRONTLINE documentary, Second Chance Kids, follows the cases of two of the first juvenile lifers in the country to seek parole following the landmark ruling — including Anthony Rolon of Massachusetts.

At age 17, Rolon stabbed 20-year-old Bobby Botelho to death. He was given life without parole during the country’s crackdown on so-called juvenile “superpredators” — teenagers who were labeled violent, dangerous and incapable of change. The theory, which was popularized by academics and embraced by Democrats and Republicans alike, resulted in disproportionately extreme sentencing of black and Latino youths.

As the documentary explores, the “superpredator” theory has now largely been discredited and disavowed. And a series of Supreme Court rulings, relying heavily on developmental science, has said that the personal circumstances of teenage offenders must be taken into account when they’re sentenced. The court has also ruled that many of them should have the chance to prove they’ve changed.

In the above excerpt from Second Chance Kids, go inside the parole hearing that will decide Rolon’s fate. Watch as Rolon and his legal team plead for his release after 18 years, and as Botelho’s family argues against it.

As juvenile offenders across the country await their potential re-sentencing, the documentary asks tough questions about crime and punishment in America, and what happens when some offenders are given a second chance.

The PSB website allows one to watch the documentary in full, and it also has these two companion articles:

"They Were Sentenced as “Superpredators.” Who Were They Really?"

"How Brain Science Is Changing How Long Teens Spend in Prison"

May 3, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9)

Tuesday, May 02, 2017

After his guilty plea to a civil rights offense, what federal guideline range and ultimate sentence will Michael Slager face for killing Walter Scott?

As reported in this ABC News piece, "police officer Michael Slager pleaded guilty today to a federal civil rights offense in the shooting death of unarmed black man Walter Scott, bringing a conclusion to the case two years after the police shooting was caught on video by a bystander."  Here are more of the case processing basics: 

Slager pleading guilty to violating Scott's civil rights in federal court this afternoon will end the federal case against him and also resolve the state charges that were still pending after a mistrial was declared in the state murder trial last year. Slager's mother and Scott's mother both wept in court as the 35-year old former cop was led away in handcuffs.

Slager, dressed in a gray suit, said very little, answering "yes" to each of the judge's questions about whether he was aware of the various rights he was surrendering.  Slager's attorney, Andrew Savage, said in a statement before court, "We hope that Michael’s acceptance of responsibility will help the Scott family as they continue to grieve their loss."...

Slager, who is white, was accused of killing Scott, an unarmed black man, at a traffic stop on April 4, 2015, while Slager was an officer with North Charleston's police department.  Video that surfaced shortly after the encounter appears to show the moment Slager fatally shot Scott as he ran away. The video garnered national attention, propelling Slager into the spotlight.  He was fired from the force after the shooting.

Slager was charged in South Carolina with murder and pleaded not guilty.  The case ended in a mistrial in December 2016 and the retrial was expected to take place this year.  The federal trial had been expected to take place later this month.  The Justice Department said in a statement today that, according to documents filed in connection with the guilty plea, Slager "willfully used deadly force on Walter Scott even though it was objectively unreasonable under the circumstances."...

Slager has not yet been sentenced and the sentence is at the discretion of the judge, Wilson said. Slager faces a maximum sentence of life in prison for the federal civil rights violation as well as a potential $250,000 fine, the Department of Justice said.

For those thinking about the sentence that Slager can and will face, the plea agreement put together in the case foreshadows some of the likely guidelines action. Specifically, here is what Section 5 of the plea agreement says (with my emphasis added):

The parties request that the Court apply the United States Sentencing Guidelines (Guidelines) to calculate the applicable sentence and impose a sentence consistent with the Guidelines and 18 U.S.C. § 3553. The defendant agrees to waive all constitutional challenges to the validity of the Guidelines.  The defendant understands and acknowledges that the Court will find, by a preponderance of the evidence, the facts used to determine the offense level and, that in making its findings, the Court may consider any reliable evidence, including hearsay. Nothing in this section prevents the parties from filing objections to the Presentence Report prepared by the United States Probation Office, or from arguing the application of specific sections of the Guidelines.  The parties agree that the Court will determine the final Guideline range.  The parties understand that this Plea Agreement binds the parties only and does not bind the Court. The defendant understands that the government will advocate for the Court to apply the guidelines for Second Degree Murder and Obstruction of Justice, and reserves the right to seek a guidelines sentence, up to and including a sentence of life imprisonment.   The defendant reserves the right to advocate for any sentence he deems appropriate and the right to request a downward departure and/or downward variance.

Based on my understanding of this bolded sentence, it would appear the government will advocate for these basic guideline calculations: base level of 38 (for 2d degree murder) + 2 (for obstruction) - 3 (for acceptance of responsibility) = offense level of at least 37.  (I say "at least" 37 for the offense level because some victim-related or other chapter 3 enhancements might be deemed applicable, and the last part of this bolded sentence hints that the government may think other enhancements are applicable.) 

At offense level 37, Slager as a first offender would be looing at a guideline range of 210 to 262 month (17.5 to 21.8 years).  Arguably, the bolded language would preclude the government from seeking a departure or variance above whatever is determined to be the calculated guideline range.  And one can reasonably expect Slager and his defense team will seek a downward departure or variance, though what exact sentence the defense will seek is an interesting issue to watch as sentencing approaches.

May 2, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (21)

Sunday, April 30, 2017

Should an offender's citizenship status impact prosecutorial charging decisions and how?

The question in the title of this post is prompted in part by a comment made by Attorney General Jeff Sessions in this speech given on Friday and in part by this news article out of Baltimore brought to my attention by a commentor.  Here is part of the speech from AG Sessions focusing on the how some prosecutors may now be concerning themselves with citizen status in charging:

We have also taken steps to end the lawless practices of so-called “sanctuary” jurisdictions, which make our country less safe.  I understand there are those who disagree.  But the American people rightly demand a lawful system of immigration. Congress has established a lawful system of immigration.

The Bureau of Justice Statistics just released a report showing that 42 percent of defendants charged in U.S. district court were non-U.S. citizens.  And according to the U.S. Sentencing Commission, in 2013, 48 percent of all deported aliens who were convicted for coming back to the United States illegally were also convicted of a non-immigration related crime.

And yet, I regret to say that we’ve seen district attorneys openly brag about not charging cases appropriately -- giving special treatment to illegal aliens to ensure these criminal aliens aren’t deported from their communities.  They advertise that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen.  It baffles me.

Regardless, no jurisdiction has a right to violate federal law, especially when that violation leads to the death of innocent Americans, like Kate Steinle.  As the President has made clear, our system is a system of laws, and we will be the Administration that ends the rampant immigration illegality.

And here is part of the Baltimore press article highlighting what AG Sessions seems to be talking about:

The Baltimore State's Attorney's Office has instructed prosecutors to think twice before charging illegal immigrants with minor, non-violent crimes in response to stepped up immigration enforcement by the Trump administration.

Chief Deputy State's Attorney Michael Schatzow, in a memo sent to all staff Thursday and obtained by The Baltimore Sun, wrote that the Justice Department's deportation efforts "have increased the potential collateral consequences to certain immigrants of minor, non-violent criminal conduct." "In considering the appropriate disposition of a minor, non-violent criminal case, please be certain to consider those potential consequences to the victim, witnesses, and the defendant," Schatzow wrote....

The Homeland Security Department issued memos in February saying any immigrant in the country illegally who is charged or convicted of any offense, or even suspected of a crime, will now be an enforcement priority.

Elizabeth Alex, a Baltimore regional director for CASA de Maryland, said immigrants and their relatives are afraid to engage in the court process, and Baltimore prosecutors are right to include immigration status as part of their consideration in how to handle a case. "Prosecutorial discretion exists in all kinds of cases, and it's more education to [prosecutors] about the multiple factors that they should take into consideration as they proceed," she said. "The consequences are different today than they were a year ago."

U.S. Rep. Andy Harris, the lone Republican in Maryland's congressional delegation, said it is "a real shame that the State Attorney's office is unwilling to enforce the law against illegal aliens who commit crimes in the United States."

"A vast majority of Americans believe that illegal aliens who commit crimes while here in the U.S. should bear the full brunt of the law, and be deported," Harris said through a spokesperson.

The Justice Department declined to comment on the Baltimore memo. But in remarks Friday on Long Island, Sessions decried district attorneys who he said "openly brag about not charging cases appropriately -- giving special treatment to illegal aliens to ensure these criminal aliens aren't deported from their communities."... The comments appeared to be in response to the acting district attorney in Brooklyn, N.Y., who earlier this week issued similar instruction to prosecutors there.

"We must ensure that a conviction, especially for a minor offense, does not lead to unintended and severe consequences like deportation, which can be unfair, tear families apart and destabilize our communities and businesses," Acting District Attorney Eric Gonzalez said in an announcement Monday. Gonzalez went a step further, hiring two immigration attorneys to train staff on immigration issues and to advise prosecutors when making plea offers and sentencing recommendations "in an effort to avoid disproportionate collateral consequences."

Mayor Catherine E. Pugh, who has sought to reassure immigrants that Baltimore is a "welcoming city" that will not check for proof of citizenship, declined to comment on the State's Attorney's Office memo. "Mayor Pugh will leave prosecution strategies and tactics to the State's Attorney and her staff," spokesman Anthony McCarthy said in an e-mail....

Police Commissioner Kevin Davis has expressed concern about immigrants not reporting crimes or cooperating with investigations because they fear repercussions related to their status, and has attended community meetings stressing that police won't make immigration checks.  Schatzow, in the State's Attorney's Office memo, noted such concerns, saying fear of being deported could "impair our effectiveness in combating violent crimes and criminals."

Notably, it has long been common in many settings for defense attorneys to seek and prosecutors to seriously consider downgrading certain charges from felonies to misdemeanors for some immigrant offenders in order to keep them from being subject to automatic deportation under applicable federal statutes.  I am uncertain whether AG Sessions is baffled by this practice, but I am certain that this practice is not confined to just a few jurisdictions.

That said, I do think the equation feels a bit different if and when we focus on foregoing certain criminal charges altogether for a certain class of offender because of the collateral consequences of deportation that could follow from any charges.  Though I would be troubled by deportation always serving as the de facto punishment for, say, low-level marijuana possession, I also would be concerned about the deterrent impact (as well as the optics) of policies and practices that make it easier for illegal immigrant offenders to avoid charges for certain classes of criminal wrong-doing.  Stated somewhat differently, given that citizens as well as non-citizens can and often do suffer an array of profound collateral consequences even when charged with minor, non-violent crimes, I would like to see prosecutors in Baltimore and everywhere else regularly instructed to consider "potential collateral consequences" for all offenders in all setting when making charging decisions.

April 30, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Thursday, April 27, 2017

"Criminal Law as Family Law"

The title of this post is the title of this new paper now available via SSRN authored by Andrea Dennis. Here is the abstract:

The criminal justice system has expanded dramatically over the last several decades, extending its reach into family life.  This expansion has disproportionately and negatively impacted Black communities and social networks, including Black families.  Despite these pervasive shifts, legal scholars have virtually ignored the intersection of criminal, family, and racial justice.

This Article explores the gap in literature in two respects.  First, the Article weaves together criminal law, family law, and racial justice by cataloging ways in which the modern criminal justice state regulates family life, particularly for Black families.  Second, the Article examines the depth of criminal justice interference in family life and autonomy through analysis of the impact of community supervision on families.  These explorations reveal that community supervision, and criminal justice more broadly, operate as a de facto family law regime, negatively restructuring Black family autonomy, stability and loyalty, all of which family law seeks to promote.  The Article recommends that the practice of community supervision return to its roots in human services and calls on legal scholars to focus critical attention on criminal law’s creation of disparate and unequal family law systems.

April 27, 2017 in Collateral consequences, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (3)

Wednesday, April 12, 2017

Might Dylann Roof have claimed ineffective assistance of counsel if he didn't get sentenced to death?

Most murderers who get sentenced to death at some point claim their lawyers were constitutionally ineffective. But this new local article, headlined "Dylann Roof calls his lawyers 'sneakiest people I ever met,' says mental health defense was 'a lie'," suggests one high-profile condemned mass murderer might have claimed his lawyer was ineffective if he wasn't sentenced to death. The full article is fascinating, and here is how it gets started:

Calling his attorneys "the sneakiest group of people I have ever met,” Dylann Roof reached out to federal prosecutors on the eve of his hate crimes trial in an effort to scuttle a planned mental health defense aimed at sparing him the death penalty.

Roof blistered his legal team in a three-page jailhouse letter, accusing them of tricking him into undergoing tests to challenge his competency to stand trial for killing nine black worshippers at Charleston's Emanuel AME Church in June 2015. Roof told prosecutors he wanted no part of this strategy, which he labeled "a lie."

"Because I have no real defense, my lawyers have been forced to grasp at straws and present a pathetic, fraudulent excuse for a defense in my name," he wrote in early November. "They have regularly told me in an aggressive manner that I have no say in my own defense, that my input doesn't matter, and that there is nothing I can do about it."

Roof's letter was among more than 70 filings that U.S. District Court Judge Richard Gergel unsealed Tuesday – one day after the 23-year-old white supremacist pleaded guilty to nine counts of murder in state court. Though Roof’s federal trial ended in January with a death sentence, Gergel had been reluctant to release records about his mental status while the state case was pending.

The newly unsealed documents show procedural disagreements over how Roof’s mental health would be evaluated and growing discord between the killer and his top-flight legal team of capital defense specialists. Roof railed at their “slick” tactics, and they in turn expressed frustration with a “delusional” client who seemed preoccupied with fantasies that white supremacists would break him out of prison and make him governor of South Carolina, the documents show.

In the handwritten November letter to “Prosecution,” Roof alleged that his legal team had told him he was being tested to determine if a thyroid condition had affected his brain when they were really compiling evidence to challenge his competency. He said he wanted the people trying to convict him to know that “what my lawyers plan to say in my defense is a lie and will be said without my consent or permission.”

“My lawyers have purposely kept me in the dark about my defense until the last minute in order to prevent me from being able to do anything about it, which is why I have been forced to write to you,” he stated. “Throughout my case they have used scare tactics, threats, manipulation, and outright lies to further their own, not my, agenda.” He warned prosecutors not to let his legal team “fool you or the court like they’ve fooled me.”

Prosecutors notified Roof's lawyers after receiving the letter, and lead defense attorney David Bruck agreed that Gergel, the trial judge, needed to see the missive, according to a chain of emails. After a closed-door meeting on Nov. 7, Roof's lawyers pleaded with the judge to delay planned jury selection in the case so Roof could undergo an extensive mental competency review. They repeatedly described Roof as delusional, and noted his "depression, extreme anxiety and autism spectrum disorder."

They stated that their tenuous working relationship with him had suffered "a severe rupture" when he "openly attempted to sabotage his own case" by reaching out to prosecutors. "(W)e are now faced with a client who would rather die than be labeled mentally ill or neuro-developmentally impaired, and who would rather communicate and ally himself with those who propose to execute him than us," his attorneys wrote.

The attorneys stated that Roof believed "the very white nationalists whom he considers his allies" would turn on him and persecute him for his "perceived infirmities" if he were to be labeled incompetent. They stated that Roof had "an irrational belief that being labeled mentally impaired will affect the defendant's standing with some hypothetical white nationalists whom the defendant has never met or communicated with — and cannot even name — but whom he believes may appoint him to a high government position some day."

They attached notes indicating that Roof had been so distracted by his delusional ideas that he was unable to respond to the basic needs of his defense. Among his odd notions was a fantasy that white supremacists would stage a prison break to rescue him from captivity, they said. "His single-minded focus on being rescued and made governor of South Carolina makes salient to him things that are irrational and he cannot rationally assist counsel as a result," they stated.

April 12, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Tuesday, April 11, 2017

AG Sesssions issues memo to federal prosecutors that "mandates the prioritization of criminal immigration enforcement"

As reported in this press release from the US Justice Department, "Attorney General Jeff Sessions today spoke to Customs and Border Protection personnel at the United States-Mexico border in Nogales, Arizona," and in his remarks the AG "announced that he has issued [this] attached memo to United States Attorneys that mandates the prioritization of criminal immigration enforcement."  Here is more from the press release and the speech it references:

The memo directs federal prosecutors to focus on particular offenses that, if aggressively charged and prosecuted, can help prevent and deter illegal immigration.  Additionally, the Attorney General revealed that the Department of Justice will add 50 more immigration judges to the bench this year and 75 next year. He also highlighted the Department's plan to streamline its hiring of judges, reflecting the dire need to reduce the backlogs in our immigration courts....

[From the AG's speech:]

[T]oday, I am pleased to stand here with you and announce new guidance regarding our commitment to criminal immigration enforcement.  As we speak, I am issuing a document to all federal prosecutors that mandates the prioritization of such enforcement.

Starting today, federal prosecutors are now required to consider for prosecution all of the following offenses:

  • The transportation or harboring of aliens. As you know too well, this is a booming business down here.  No more.  We are going to shut down and jail those who have been profiting off this lawlessness — people smuggling gang members across the border, helping convicted criminals re-enter this country and preying on those who don’t know how dangerous the journey can be.

  • Further, where an alien has unlawfully entered the country, which is a misdemeanor, that alien will now be charged with a felony if they unlawfully enter or attempt enter a second time and certain aggravating circumstances are present.

  • Also, aliens that illegally re-enter the country after prior removal will be referred for felony prosecution — and a priority will be given to such offenses, especially where indicators of gang affiliation, a risk to public safety or criminal history are present.

  • Fourth: where possible, prosecutors are directed to charge criminal aliens with document fraud and aggravated identity theft — the latter carrying a two-year mandatory minimum sentence.

  • Finally, and perhaps most importantly: I have directed that all 94 U.S. Attorneys Offices make the prosecution of assault on a federal law enforcement officer — that’s all of you — a top priority. If someone dares to assault one of our folks in the line of duty, they will do federal time for it.

To ensure that these priorities are implemented, starting today, each U.S. Attorney’s Office, whether on the border or interior, will designate an Assistant United States Attorney as the Border Security Coordinator for their District.  It will be this experienced prosecutor’s job to coordinate the criminal immigration enforcement response for their respective offices.

For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era.  This is the Trump era.  The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.

April 11, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Sunday, April 09, 2017

"Mass incarceration, public health, and widening inequality in the USA"

The title of this post is the title of this new Lancet article authored by Christopher Wildeman and Emily Wang.  Here is the summary:

In this Series paper, we examine how mass incarceration shapes inequality in health.  The USA is the world leader in incarceration, which disproportionately affects black populations.  Nearly one in three black men will ever be imprisoned, and nearly half of black women currently have a family member or extended family member who is in prison. However, until recently the public health implications of mass incarceration were unclear.  Most research in this area has focused on the health of current and former inmates, with findings suggesting that incarceration could produce some short-term improvements in physical health during imprisonment but has profoundly harmful effects on physical and mental health after release. The emerging literature on the family and community effects of mass incarceration points to negative health impacts on the female partners and children of incarcerated men, and raises concerns that excessive incarceration could harm entire communities and thus might partly underlie health disparities both in the USA and between the USA and other developed countries.  Research into interventions, policies, and practices that could mitigate the harms of incarceration and the post-incarceration period is urgently needed, particularly studies using rigorous experimental or quasi-experimental designs.

The Lancet piece is behind a pay-wall; this Atlantic article provides a helpful account of its themes. Here is an excerpt from the Atlantic coverage:

For children and communities, the impacts of a parent’s incarceration are unequivocally bad, write study authors Christopher Wildeman of Cornell University and Emily Wang of Yale. Kids whose fathers go to jail are at increased risk of depression, anxiety, learning disabilities, and obesity, and they are more likely to do drugs later in life. Because criminal records dampen job opportunities, according to some studies people who live in neighborhoods with high levels of incarceration are more likely to experience asthma from dilapidated housing. These consequences are especially severe for children of color: Because black men are jailed disproportionately, a black child born in 1990 had a one-in-four chance of having their father imprisoned, Wildeman and Wong write.

When imprisoned fathers return home, “they have trouble finding employment,” says Kristin Turney, a sociologist at the University of California, Irvine, who has studied the health of inmates’ children but was not involved with the study.  Part of the explanation is reduced income, she said, and “part of it is the relationship between the parents. Maintaining romantic partnerships while incarcerated is tricky, so it can lead to more [familial] conflict.”

But, paradoxically, going to prison can actually improve health — at least temporarily — for some inmates. Black male inmates, the authors write, have a lower mortality rate than similarly aged black men who aren’t in jail.  The reason?  The risk of death from violent accidents, overdoses on drugs or alcohol, and homicides is much lower in prison than it is in the neighborhoods where these men would be living otherwise.  What’s more, before the Affordable Care Act was passed, many states made it all but impossible for low-income, childless men to obtain health care.  Under the ACA, 32 states expanded Medicaid to cover all poor adults, but 19 have not.  Because of that, Wildeman and Wang write, prison is the first time many incarcerated young men receive regular health care.

The drop in mortality “is just an indicator of how dangerous the environment for African-Americans is on the outside, rather than being a function of how good the medical care is that they’re receiving” in prison, Wildeman told me.  (This health boost excludes the effect of solitary confinement, which has well-known, horrific consequences for mental health.)

April 9, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5)

Wednesday, April 05, 2017

"Criminological Perspective on Juvenile Sex Offender Policy"

The title of this post is the title of this short new article authored by Franklin Zimring available via SSRN. Here is the abstract:

Persons under 18 are in the very early years of sexual maturity and lack both experience and perspective.  When juveniles commit sexual offenses, the behavior is typically not violent and most often involves conduct only referred to authorities because of an age difference between the offender and the victim.  Rates of future sexual offending in later years are quite low for most juvenile sex offenders and on current data the presence or absence of a juvenile sex offense is not a significant predictor of sexual offending in young adulthood.  Under these circumstances, requiring registration and public notification of juvenile sex offenders is very poor crime control policy as well as gross injustice to the juvenile offender.

April 5, 2017 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)

Tuesday, April 04, 2017

"Criminal Employment Law"

The title of this post is the title of this new article authored by Benjamin Levin available via SSRN. Here is the abstract:

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law.

This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal justice system.  But private employers act without constitutional or significant structural checks.  Therefore, I argue that the criminal justice system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment.  Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market.  And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers.

April 4, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Monday, April 03, 2017

"Race, Plea, and Charge Reduction: An Assessment of Racial Disparities in the Plea Process"

The title of this post is the title of this notable article just published in Justice Quarterly authored by Christi Metcalfe and Ted Chiricos.  Here is its abstract:

With the growing recognition of the salience of prosecutorial discretion, attention to biases in the earlier phases of case processing is increasing.  Still, few studies have considered the influence of defendant race and race/sex within the plea process.  The present study uses a sample of felony cases to assess the influence of race and race/sex on the mode of disposition, similarities and differences in the factors that predict the likelihood of a plea across race, and potential racial disparities in the plea value received pertaining to a charge reduction.

The findings suggest that blacks, and black males in particular, are less likely to plea, and are expected to receive a lower value for their plea.  Also, the factors that predict the likelihood of a plea are substantively different across race. Conditioning effects of race and sex are found in the likelihood of a plea and probabilities of a charge reduction.

April 3, 2017 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Sunday, April 02, 2017

"Briefing the Supreme Court: Promoting Science or Myth?"

The title of this post is the title of this new timely essay authored by Melissa Hamilton now available via SSRN. Here is the abstract:

The United States Supreme Court is considering Packingham v. North Carolina, a case testing the constitutionality of a ban on the use of social networking sites by registered sex offenders.  An issue that has arisen in the case is the state’s justification for the ban.  North Carolina and thirteen other states represented in a friend of the court brief make three claims concerning the risk of registered sex offenders: (1) sex offenders have a notoriously high rate of sexual recidivism; (2) sex offenders are typically crossover offenders in having both adult and child victims; and (3) sexual predators commonly use social networking sites to lure children for sexual exploitation purposes.  The collective states contend that these three claims are supported by scientific evidence and common sense.  This Essay explores the reliability of the scientific studies cited in the briefings considering the heteregenous group of registered sex offenders to whom the social networking ban is targeted.

April 2, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Science, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, March 28, 2017

Ruling 5-3, SCOTUS rejects Texas effort to limit definition of intellectual disability for death penalty application

The Supreme Court this morning handed down an opinion in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), in favor of a capital defendant.  Because I am on the road, I will not be able to provide context for this ruling until later today.  Short story seems to be that the more liberal Justices were not impressed by the more conservative standard Texas courts have used to apply the Atkins and Hall precedents concerning Eighth Amendment limits on executing the intellectually disabled.

UPDATE:  Now with a few minutes at a desktop, I can quote Justice Ginsburg's opinion for the Court:

Bobby James Moore fatally shot a store clerk during a botched robbery.  He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution.  A state habeas court made detailed factfindings and determined that, under this Court’s decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. ___ (2014), Moore qualified as intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.”  The habeas court therefore recommended that Moore be granted relief.

The Texas Court of Criminal Appeals (CCA) declined to adopt the judgment recommended by the state habeas court. In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno, 135 S.W.3d 1 (2004).  See Ex parte Moore, 470 S.W.3d 481, 486–487 (2015).  The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed] heavily” against upsetting Moore’s death sentence. 470 S.W.3d at 526.

We vacate the CCA’s judgment.  As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.” 572 U.S., at ___ (slip op., at 19); see id., at ___ (slip op., at 7).  That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus.  Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source.  Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual disability will be executed,” 572 U.S., at ___ (slip op., at 1).  Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled.

March 28, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Saturday, March 25, 2017

"End the death penalty for mentally ill criminals"

The title of this post is the title of this new Washington Post commentary that strikes me as notable because it is penned by two former midwestern governors, Bob Taft (who was governor of Ohio from 1999 to 2007) and Joseph Kernan (who was governor of Indiana from 2003 to 2005). Here are excerpts:

Legislators in six states — Indiana, Ohio, South Dakota, Tennessee, Texas and Virginia — have proposed legislation to prohibit the death penalty for individuals with severe mental illness. As former governors of states that are grappling with this issue, we strongly support this effort to end an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts.

The overwhelming majority of people with severe mental illness are not violent; in fact, they are more likely to be victims than perpetrators of violent crime. For the very small number who do commit a capital crime while suffering from a severe mental disorder, current death-penalty law does not adequately take the effects of their illness into account.

As a result, defendants with severe mental illness — such as schizophrenia, bipolar disorder, post-traumatic stress disorder and traumatic brain injury — continue to be sentenced to death and executed. Last March, Texas executed Adam Ward, a man recognized as “diagnosed with bipolar disorder and placed on lithium as early as age four,” according to appellate court documents.  And in 2015, Georgia executed Andrew Brannan, a decorated Vietnam War veteran who also had a pronounced mental illness. He qualified for 100 percent disability from the Department of Veterans Affairs because of his PTSD and bipolar disorder.

Although their grave illnesses do not excuse these defendants’ crimes, we believe that life imprisonment without the possibility of parole would have been a more appropriate punishment. Illnesses such as schizophrenia and bipolar disorder are characterized by impairments that — when untreated — significantly affect one’s ability to distinguish fact from reality, to make rational decisions or to react appropriately to events and other people. Under these conditions, the degree of culpability may not rise to the level of cold, unimpaired calculus that justifies the ultimate penalty....

Studies have also shown that death- penalty jurors often misunderstand mental illness, which is often viewed as an aggravating factor — that is, a reason to sentence someone to death — rather than as a mitigating factor, which is what it should be. The troubling consequence is that some defendants may end up on death row because of their mental illness.

The fact that the death penalty applies to those with mental illness also means that veterans with demonstrated PTSD may be executed. Even though most of the thousands of veterans struggling with PTSD do not commit the serious crimes that may be eligible for the death penalty, an estimated 10 percent of the United States’ death-row inmates are veterans — some of whom suffered from active and severe symptoms of PTSD at the time of their crime. These veterans have experienced trauma that few others have faced and have made a vital contribution to the safety of our country that deserves our recognition....

The death penalty was not intended for people in the throes of severe delusions, living with schizophrenia or suffering from combat-related PTSD. These are not the blameworthy individuals whose executions can be justified. We come from different political parties, but we join the majority of Americans — supporters and opponents of the death penalty alike — who believe it should not be imposed on defendants with such serious impairments.  This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency.

March 25, 2017 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (8)

Thursday, March 23, 2017

"How long should Louisiana keep old, ill criminals in prison?"

The title of this post is the headline of this lengthy NOLA.com article. Here are excerpts:

Emanuel Lee [is] doing life for strangling his girlfriend in New Orleans.... Lee arrived at Angola 26 years ago [and] unless something drastic changes, he will die at Angola, one of the hundreds of aging and ill inmates who are costing taxpayers hundreds of thousands of dollars every year to treat and incarcerate.

What to do with Lee and prisoners like him is likely to be a major topic of discussion in the Louisiana Legislature's 2017 session starting April 10. Gov. John Bel Edwards is expected to make a push to lower Louisiana's highest-in-the-world incarceration rate, in part by opening options for parole for non-violent offenders who serve shorter prison sentences. But the governor also has said he is interested in reducing the number of Louisiana inmates with longer sentences as well.

Many of Louisiana's older, long-term prisoners might no longer pose a threat to society, judging from national studies of recidivism. And for prisoners with serious illnesses, the costs of treatment can be daunting. Taxpayers are responsible for prison medical care, but some of that money could be used elsewhere, such as for higher education and mental health care for children, if ill prisoners were released.

The governor's task force on reducing the prison population recommended last week that Louisiana expand parole opportunities to prisoners with long sentences, including lifers. It suggested that lifers be eligible for parole after serving 30 years in prison and reaching age 50, unless they were convicted of first-degree murder. People serving long but less-than-life sentences should be eligible for parole after 20 years in prison and reaching age 45, even if they committed violent or sex crimes, according to the task force.

These provisions are often referred to as "geriatric parole." If put into place, geriatric parole would immediately make about 570 prisoners eligible for parole, and also would affect convicts who are sentenced in the future to life terms. Lee might come up for parole in four years, after serving 30 years of his sentence.

The task force has also suggested that Edwards and lawmakers make it easier for people with serious medical conditions, no matter their age, to get out of prison. They are proposing a medical furlough program to let any inmate who is not on death row be released temporarily from prison to a hospital or nursing home for medical treatment.

These recommendations aren't without controversy. The Louisiana District Attorneys Association has said geriatric parole and other proposals to let violent offenders out of prison are non-starters. The group's representative on the governor's task force, District Attorney Bo Duhe of the 16th Judicial District, voted against geriatric parole.

Duhe supported the medical furlough concept, but the District Attorneys Association said its members have concerns about that recommendation, too, and many want to alter it if it has a chance of becoming law. "Those issues have been suspect because of their potential for abuse," said Pete Adams, executive director of the association.

In a state where the law-and-order crowd insists "life means life," it's easy to see why some are nervous at the prospect of offering the possibility of freedom to a criminal who was banished for life, even if the criminal is sick, old or dying. Many of Louisiana's 4,850 lifers have committed very serious crimes....

Louisiana is an outlier in how it punishes crimes such as Lee's. Only Louisiana and one other state, Mississippi, mandate life without parole for second-degree murder; there is no option in the law. In Texas that crime is punished by five to 99 years in prison, with parole eligibility after 30 years. In Arkansas, it is a 10- to 40-year sentence, according to a report issued by the Louisiana governor's sentencing task force....

One of the arguments for giving older inmates a shot at parole, even those convicted of violent crime, centers on their unlikelihood of committing crimes again. Research suggests that most people "age out" of criminal activity after their 20s....

Even if parole becomes possible for people with life sentences, it's not automatic. That's a decision for the Pardons and Parole Board, which in 2015 granted only 2 percent of discretionary parole requests, according to the governor's task force report....

While some advocates for geriatric and medical parole make a moral argument to release old or ill prisoners, there is also a practical reason: It's expensive for the public. During the fiscal year that ended June 30, the Department of Corrections spent about $52.3 million on hospital and medical wards in its prisons, plus $22.7 million for health care at off-site locations, for a total of $75 million.

Older inmates require treatment for dementia, blindness, hypertension, hearing loss and vision problems at a higher rate than their younger counterparts. Older people who have been locked up for decades are more likely to need medical care than a person who is the same age but not in prison: They go to the doctor about five times more often, according to the Vera Institute of Justice.

March 23, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (10)

Wednesday, March 22, 2017

Tenth Circuit clarifies and emphasizes import and reach of Graham's limit on extreme juve sentences

Yesterday in Budder v. Addison, No. 16-6088 (10th Cir. March 21, 2017) (available here), a Tenth Circuit panel granted habeas relief to a juvenile non-homicide offender sentenced in Oklahoma to serve over 131 years in prison before being eligible for parole. The Budden opinion discusses the Supreme Court's Graham ruling at great length in the course of rejecting Oklahoma's effort to defend a sentence that was not technically "life without parole."  Here are some excerpts from the opinion:  

Despite Oklahoma’s arguments to the contrary, we cannot read the Court’s categorical rule as excluding juvenile offenders who will be imprisoned for life with no hope of release for nonhomicide crimes merely because the state does not label this punishment as “life without parole.”  The Constitution’s protections do not depend upon a legislature’s semantic classifications.  Limiting the Court’s holding by this linguistic distinction would allow states to subvert the requirements of the Constitution by merely sentencing their offenders to terms of 100 years instead of “life.” The Constitution’s protections are not so malleable.

More importantly, the Court did not just hold that it violated the Eighth Amendment to sentence a juvenile nonhomicide offender to life without parole; it held that, when a state imposes a sentence of life on a juvenile nonhomicide offender, it must provide that offender with a “meaningful opportunity to obtain release.”  Id. at 75; see also id. (“[The Eighth Amendment] does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.”).  Further, the Court explained that its categorical holding was necessary because it would “give[] all juvenile nonhomicide offenders a chance to demonstrate maturity and reform.” Graham, 560 U.S. at 79 (emphasis added).  If the rule announced in Graham is to provide all juvenile offenders such an opportunity, it must be read to apply to all sentences that are of such length that they would remove any possibility of eventual release.  Thus, we conclude, the sentencing practice that was the Court’s focus in Graham was any sentence that denies a juvenile nonhomicide offender a realistic opportunity to obtain release in his or her lifetime, whether or not that sentence bears the specific label “life without parole.” ...

Again, we must emphasize that states may not circumvent the strictures of the Constitution merely by altering the way they structure their charges or sentences.  Just as they may not sentence juvenile nonhomicide offenders to 100 years instead of “life,” they may not take a single offense and slice it into multiple sub offenses in order to avoid Graham’s rule that juvenile offenders who do not commit homicide may not be sentenced to life without the possibility of parole.  When the Court compared the severity of the crime with the severity of the punishment, in light of the characteristics of the offender, it did not look to the state’s definitions or the exact charges brought.  It looked to whether the offender was a juvenile, whether the offender killed or intended to kill the victim, and whether the sentence would deny the offender any realistic opportunity to obtain release.  The Court specifically concluded that, not only was a categorical rule appropriate, it was “necessary,” id. at 75, because a case specific approach “would allow courts to account for factual differences between cases and to impose life without parole sentences for particularly heinous crimes,” id. at 77.  The Court found this approach to pose too great a risk that some juveniles would receive life without parole sentences “despite insufficient culpability.” Id. at 78 (quoting Roper, 543 U.S. at 572–73).  The Court was not convinced “that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” Id. at 77.  Not only did the Court draw the line at homicide, it structured a categorical rule specifically to prevent the possibility that a sentencing judge would ever impose a sentence of life without the possibility of parole on a juvenile who did not commit homicide.  The Eight Amendment prohibits such a sentence, regardless of the severity of nonhomicide crimes a juvenile has committed.

March 22, 2017 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (3)

Monday, March 20, 2017

Over Posnerian dissent, Seventh Circuit panel upholds two-year prison term for elderly, ill fraudster

A Seventh Circuit panel recently issued an interesting set of opinions discussing federal prison care in the course of rejecting a sentencing appeal in US v. Rothbard,  No. 16-3996 (7th Cir. March 17, 2017) (available here). The start of the majority opinion by Chief Judge Wood provides the basics of the case and ruling:

Jeffrey Rothbard pleaded guilty to one count of wire fraud in connection with his participation in a scheme to defraud companies that were interested in obtaining loans for environmentally friendly upgrades to their facilities. He committed this offense, which yielded more than $200,000 for him, while he was on probation for a felony forgery conviction in Indiana.  The district court sentenced him to 24 months’ imprisonment, despite the fact that Rothbard is an older man with serious health problems and the Probation Office thought that incarceration was not necessary. On appeal, Rothbard urges us to find that his sentence is substantively unreasonable, both because he has stayed out of trouble for nearly three years and because he fears that the Bureau of Prisons (BOP) may be unable to furnish the medication on which his health critically depends.

Perhaps, had we been the sentencing judges, we would have accepted his arguments. But the district court here gave sound reasons for its chosen sentence. In addition, both the evidence in the record before the district court, and supplemental information that we requested about BOP’s ability to provide appropriate care, satisfy us that the nominal 24-month sentence will not, in reality, spell doom for Rothbard. We therefore affirm the district court’s judgment.

Judge Posner dissented from the majority ruling, citing an array of sources to support his contention and concern that BOP might not adequately attend to the defendant's medical needs.  His dissent concludes this way:

To conclude, my inclination would be to reverse the judgment of the district court with directions to impose the sentence recommended by the probation service. But I would be content to reverse and remand with instructions that the district judge appoint neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions, with particular emphasis on the federal prison system, and that the judge reconsider his sentence in light of evidence presented by these witnesses as well as any witnesses that the government or the defendant may care to call.

What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.

March 20, 2017 in Booker in the Circuits, Offender Characteristics, Prisons and prisoners | Permalink | Comments (3)