Sentencing Law and Policy

"Lawyers worry new measure of mental retardation could prompt more executions"

The title of this article is the headline of this new Reuters article, which provides an interesting death penalty angle on a high-profile non-death-penalty story.  Here are excerpts:

A new standard from the country's leading psychiatric association to diagnose mental retardation could allow courts to execute convicted criminals with IQ scores below 70 more easily, say death penalty lawyers.

The Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association (APA), is the standard guidebook of psychiatric disorders and is used by clinicians to identify and diagnose psychiatric illnesses.

Each new edition is scrutinized by mental healthcare providers and the pharmaceutical industry for changes in definitions as well as new categories of illnesses.  Such shifts can have enormous economic, social and legal implications and often are the subject of controversy.

The fifth edition of the book since it was first published in 1952, or DSM-V, is due to be released May 22.  Already it has prompted concern from death penalty lawyers because of the change in the way the manual defines mental illness, or intellectual disability, the new name given in DSM-V.

Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms, such as bathing regularly or maintaining work.  Based on that IQ benchmark, the U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that it is illegal to execute a mentally handicapped person.

But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual's behavior to determine if he or she meets the developmental standards.

Making the definition of mental retardation more subjective could prompt more courts to subvert Atkins, said David Dow, a death penalty lawyer in Houston whose client Marvin Wilson was executed in Texas last summer despite his IQ score of 61.

"There are a lot of courts that are hostile to the basic legal doctrine the Atkins case established," Dow said. "When you replace a test that is one part objective, one part subjective with a solely subjective test, it becomes easier for courts that are hostile to the constitutional principle of Atkins to evade that criterion."...

From 2002 to 2012, only a quarter of the death row inmates who claimed to have mental retardation were granted stays of execution, according to research by John Blume, director of Cornell University Law School's Death Penalty Project. This included cases that had exhausted all appeals from the time of the Atkins decision to the end of 2012.

"Judges and jurors have stereotypes of what it means to be mentally retarded," Blume said. "There is a problem with people who have lower than 70 IQ scores getting executed in spite of the Atkins ruling, and under the new DSM guidance, that problem is only going to get worse."

According to Darrel Regier, vice chairman of the task force that produced the DSM-V revisions, the DSM is developed to provide guidelines for diagnosing mental illnesses for clinicians, not to provide treatment or judicial guidelines, and the test scores are only useful when interpreted by a clinical expert.

The DSM-IV's reliance on an IQ score led, in some cases, to jurors sentencing people with IQ scores of 71 or 72 to death, in spite of the test's five-point margin of error, Regier said. "A single IQ point on a test can have profound implications for life and death without (clinical) interpretation," he said.

James Harris, the founding director of the Developmental Neuropsychiatry Program at the Johns Hopkins University School of Medicine and a member of the DSM-V work group, said the criteria focus on three areas of adaptive functioning: academic, social and practical.... "We believe that we are providing the courts with a more fine-grained means to consider adaptive functioning more comprehensively and more meaningfully," Harris said.

There are many clear realities, as well as many opaque stories, concerning death penalty administration and adjudication lurking in this story.  For starters, Atkins was decided by the Supreme Court more than a decade ago, and I find it both troublesome and telling that we have not gotten anywhere close to figuring out the final practical "cash out" of Atkins during this period despite the reality that there should be only a few hundred capital cases in which a murder defendants status as mentally retarded could be reasonably disputed.

Second, while defense lawyers seem quick to suggest that the new change in the DSM will make it easier for some lower courts to "evade Atkins," it seems to me that the new DSM will also make it easier for some lower courts to perhaps expand Atkins to offenders with IQ measures of 75 or higher.  Indeed, I have seen more than a few courts quickly reject Atkins claims based on an IQ score in the 70s, and then news DSM would seem to preclude too-ready reliance on a single number to resolve these claims.

Third, if and whenever there is reason to fear lower courts in some states are regularly seeking to evade Atkins, the best solution would be to urge a legislature to codify a particular statutory approach to Atkins issues and/or to convince the Supreme Court to (finally) take up an "applying Atkins" case.  Indeed, I find uniquely worrisome the notion that DSM revisions on any issue ought to be shaped by how the DSM might be applied or misapplied in a few capital cases each years.

A few related posts (mostly pretty old):

• The challenges of implementing Atkins
• Split Elevent Circuit refuses to reject Georgia's approach to implementing Atkins
• Notable Indiana ruling on implementing Atkins
• The death penalty and mental illness
• How many have sought off death row using Atkins?
• California Supreme Court opinion implementing Atkins
• Oklahoma court develops Atkins procedures
• Notable (and cert-worthy?) Pennsylvania Supreme Court decision on application of Atkins

After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP

As reported in this new USA Today article, "Jodi Arias, convicted of first-degree murder of her on-and-off lover, says she was surprised by the jury's verdict Wednesday and hopes for the death penalty over life in prison."  Here is more:

Arias, who choked back tears as the jury's decision was read, told KSAZ-TV in a courthouse interview after the verdict was announced that she was surprised the jury found her guilty of premeditation in the death of Alexander. "It was unexpected for me, yes, because there was no premeditation on my part," she said.

She said she would "prefer to die sooner than later" and that "death is the ultimate freedom." The Maricopa County sheriff's office said in a statement that Arias was being put on a suicide watch because of her interview comments.

The 12 jurors deliberated reached a verdict after deliberating less than three full days. The televised trial, which began Jan. 2, gained notoriety for its accounts of gore and sex....

Arias spoke to Fox affiliate KSAZ in an exclusive courtroom interview about 20 minutes after the verdict was read.  Arias was mostly calm and chose her words carefully during the 45-minute interview, appearing to hold back tears a few times, much as she did during the trial, according to the interview.

She said she hoped her sentence would be the death penalty. "The worst outcome for me would be natural life (in prison). I would much rather die sooner rather than later," she said.

Arias said she is healthy, doesn't smoke and that longevity runs in her family. That means she would expect to live in prison for a long time. "I said years ago I'd rather get death than life," she said. "I believe death is the ultimate freedom."

Arias added that she hopes the family of victim Travis Alexander can find peace now that the verdict has been rendered. She said she prayed for members of the jury every day and was shocked that they decided the killing was pre-meditated.  Arias said she could "see how it could look that way" but that "there was no premeditation on my part."...

Maricopa County Attorney Bill Montgomery issued a statement after the verdict was read, saying, "We look forward to the next phase of the proceedings, where the state will present evidence to prove the murder was committed in an especially heinous, cruel, or depraved manner."...

Defense attorneys contended that Arias killed Alexander in June 2008 in an unplanned fit of rage as she reacted to what attorneys portrayed as his pattern of emotional and physical abuse.  It had cost Maricopa County taxpayers at least $1.7 million as of late April to defend Arias.

I have not followed this case closely until now, and it will be interesting to see if the capital sentencing proceedings in the days and weeks ahead garner as much attention as the trial did. It will also be interesting to see if Arias and/or her attorneys expressly request the sentencing jury to impose a death sentence.

Based on various press reports, I surmise that Arias appears to be a effective liar, and thus I cannot help but wonder if her desire for a death sentence is not really a desire to die sooner. A shrewd defendant in Arias' position would know that her case and appeals would be sure to get a lot more attention, from courts and abolitionist activists, if she were to be sentenced to death. If Arias gets an LWOP sentence, her life and crimes will likely be forgotten in a few years. But if she gets sentenced to death, we will likely be seeing her name in the papers during each round of legal appeals for decades to come.

"The Exchange of Inmate Organs for Liberty: Diminishing the 'Yuck Factor' in the Bioethics Repugnance Debate"

The title of this post is the title of this notable new paper by Jamila Jefferson-Jones now available via SSRN. Here is the abstract (which prompts for me a reaction of "cool" rather than "yuck"):

Mississippi Governor Haley Barbour granted clemency to Jamie and Gladys Scott on December 29, 2010.  This decision indefinitely suspended their double life sentences and freed them after 16 years in prison for armed robbery.  The price of their liberty: Gladys’ kidney.

The story of the Scott Sisters’ release and the condition imposed upon Gladys Scott reflexively elicits an intense negative response on the part of the listener who likely is focusing on the “yuck factor” — a strong sentiment that what they just heard is unfair, unseemly, or just plain wrong.

What happens, then if the Scott Sisters’ story is replicated — if it is multiplied across prison populations?  Were programs put into place that allowed prison inmates to trade their kidneys (or portions of their lungs, livers or pancreases) for liberty, it follows that the “yuck factor” would be multiplied exponentially.  However, it must be noted that in confecting his peculiar clemency condition, Governor Barbour chose a course of action that was, ironically, unobjectionable to the civil rights community (including the state’s Black activist community) that was clamoring for the release of the Scott Sisters.  If one were to cast the civil rights community as guardians of (or at least stakeholders regarding) the interests of poor and minority communities, the Scott Sister’s clemency case is particularly intriguing in that they cheered, rather than crying, “Yuck!” and objecting to the terms of release imposed by the Governor.  The outcry from some bioethicists notwithstanding, this scenario begs the question of why we should not allow other prisoners — those to whom serendipity has not provided an ailing sister — to do the same and whether it is in fact possible to do so while avoiding, or at least mitigating repugnance.

This article contemplates whether the National Organ Transplant Act’s (“NOTA”) prohibition against the trading of organs for “valuable consideration” should include an exception that would allow state and federal prison inmates to donate organs in exchange for release or credit toward release.  Such a stance surely raises questions regarding whether the state would be coercing the forfeiture of body parts as punishment or in exchange for freedom.  Moreover, critics may question the potential effects on the criminal justice system of allowing those facing incarceration to bargain their bodies, and conceivably, their long-term health, in exchange for reduced prison terms.  Therefore, such an inmate organ donation program is only feasible if a system is confected to remove the “yuck factor” ostensibly by removing coercion from the equation and by addressing the other concerns that mirror those addressed in the living donor sales debate.  Such a program would need to reframe the legal context in which the Scott Sisters’ clemency condition was crafted into one in which a great measure of power and choice resides instead in the hands of the inmate participants.

Should the top 1% get sentenced extra tough for defrauding Social Security?

The question in the title of this post is prompted by this notable report of an interesting federal sentencing proceeding taking place today in Minnesota.  Here are the basics:

A North Oaks couple will be sentenced Monday for defrauding the Social Security Administration of more than $300,000 in medical assistance despite a family net worth of $11 million. James and Cynthia Hood pleaded guilty in October to falsely claiming $332,000 in medical assistance payments for their seriously disabled children over five years.

Prosecutors are recommending a 41- to 50-month sentence for James Hood, but no prison time for Cynthia Hood ecause of the critical role she plays in caring for her two disabled children.  One is autistic and the other has spastic quadriplegic cerebral palsy.

U.S. District Judge Joan Ericksen is expected to sentence the couple in a hearing beginning at 11 a.m. at the federal courthouse in Minneapolis.

The U.S. attorney’s office stated it “does not object to a non-incarcerative sentence for Cynthia Marsalis Hood, which includes home confinement, community service and a fine.” She should normally receive a prison sentence of 27 to 33 months for her conduct, federal prosecutors said in a memorandum last month.

The Hoods’ three children are 15-year-old triplets. Two of them are described by the prosecutors as “severely disabled.” Cynthia Hood sleeps next to one child “on a nightly basis” to keep her airways clear, in addition to helping “with all toileting and bathing needs.”...

The prosecution’s recommendation for a lighter sentence cites specific paragraphs from federal guidelines that indicate Cynthia Hood may have cooperated with the federal investigation. When they pleaded guilty in October, she and her husband paid the U.S. Marshals Service $484,312 as part of the plea agreement....

James Hood is a retired professor at Tulane University in New Orleans. Following Hurricane Katrina in 2005, the couple “decided to relocate to Minnesota to take advantage of the health care and educational resources available for their children,” the court documents state.

Social Security Income (SSI) benefits for a child require that a parent and child have no more than $2,000 in income and assets, excluding a house and vehicle. “SSI is meant to be a resource of last resort,” prosecutors wrote. However, in a benefits interview in February of 2006, Cynthia Hood lied, claiming her husband lived in Louisiana and she was the sole legal guardian of her children, authorities said. She also lied about her assets and said she only had $1,400 in the bank, they said.

She failed to disclose that she and her husband owned a house in Louisiana that they had listed for sale at $278,000, that she held at least 16 bank accounts while he had 68 bank accounts, and that their combined interest income in 2006 was $183,000, prosecutors said.   Her husband also owned a farm in Batavia, Iowa, that consisted of 180 acres of timber and farmland where corn and soybeans grew, with an income in 2005 of $187,910 that included $19,000 in state and federal agricultural payments.

The documents state that Cynthia Hood was purportedly unaware that for three years, they also received Medicaid payments from Louisiana for their children, thereby defrauding both Minnesota and Louisiana at the same time.  The medical payments Hood received in Minnesota included more than $20,000 per year in salary to serve as a personal attendant for her children and $30,000 for a wheelchair-accessible elevator installed in the Hoods’ North Oaks home.

I would like to see the proverbial "book" thrown at these white-collar scoundrals, but I do not see the value or need for that book to include costly federal incarceration for either of these defendants.

In my view, it would be far more fitting to require James Hood to do 3+ years of community service rather than spend time (and taxpayer money) getting three squares and a cot in some low-level federal prison facility.  I think Mr. Hood could and should be ordered as part of probation to helping truly poor people secure the Medicaid funding they deserve or ordered to spend time back in New Orleans helping truly needy folks still struggling with post-Katrina challenges.

UPDATE:  This follow-up press report reports on the the sentencing outcomes for the Hoods, which appear to track the recommendations made by prosecutors:

A wealthy North Oaks woman will serve no prison time for defrauding Medical Assistance of $332,000. On Monday, U.S. District Judge Joan Ericksen sentenced her to probation instead, saying her two severely disabled children “are very, very dependent on you.”

Ericksen ordered Cynthia Hood, 55, to pay a $300,000 fine, but said she was entitled to the lighter sentence because she was not the fraud’s ringleader, cooperated with authorities in investigating her husband, and was essential to caring for the children.

Her husband, James Hood, 69, was sentenced to 3½ years in prison and must pay a $200,000 fine. Erickson called his actions “despicable.”

You be the judge: how would you sentence for the missed tax payments of Lauryn Hill?

After a rescheduling and now some important repayments, an interesting and high-profile federal sentencing is on tap for this morning in Newark, New Jersey.  This new Reuters article provides the basics for all would-be federal sentencing judges to ponder in order to answer the question in the title of this post:

Hip hop artist Lauryn Hill, on the eve of her scheduled sentencing on federal tax evasion charges, has paid off the balance of more than $900,000 she owed in back taxes and penalties, her attorney said on Sunday.

The Grammy-winning musician is scheduled for sentencing on Monday in U.S. District Court in Newark, New Jersey on three charges she failed to file tax returns on more than $1.8 million between 2005 and 2007.  She faces up to a year in jail for each charge, but the final sentence is expected to be adjusted based on her repayment of the money, her attorney said.

She owed at least $504,000 in federal back taxes as well as state taxes and penalties that brought the estimated total to more than $900,000.  "Ms Hill has not only now fully paid prior to sentencing her taxes, which are part of her criminal restitution, but she has additionally fully paid her federal and state personal taxes for the entire period under examination through 2009," her attorney, Nathan Hochman, said in an email.

In April, Hill was admonished by U.S. Magistrate Judge Madeline Cox Arleo for failing to make promised payments on her unpaid taxes ahead of her sentencing.  She had expected to raise the money from a new recording contract last fall but only paid $50,000 when she did not complete the expected tracks, her attorney said.

Her attorney said last month that Hill lined up a loan secured by two pieces of real estate. He said on Sunday that the tax repayment came from a combination of sources but did not include funds from any new record sales.

A new single by Hill, her first in several years, called "Neurotic Society," was posted on iTunes on Friday.  She posted a link to the song on the social media site Tumblr on Saturday, writing, "Here is a link to a piece that I was ‘required' to release immediately, by virtue of the impending legal deadline.  "I love being able to reach people directly, but in an ideal scenario, I would not have to rush the release of new music... But the message is still there," she wrote.

Hill's 1998 solo album "The Miseducation of Lauryn Hill" won the singer, a former member of the Fugees, five Grammy awards.

Given that it appears Hill has now made the government whole after her tax evasion crimes, and especially given that she apparently can be and wants to continue to be a productive tax-paying member of society, I believe I would be very eager to give Hill some kind of (harsh?  expensive?) alternative to imprisonment sentence.

For all sort of obvious and not-so-obvious reasons, I think a significant fine plus a (very burdensome?) community service requirement could and should achieve all the congressional purposes of punishment better than a brief stint in prison.

Indeed, I think a creative shaming sentence could perhaps be especially appropriate in a case like this.It might be very beneficial, and I doubt unconstitutional, to require as part of a probation term that Hill write and release a few songs in which she discusses the consequences of failing to pay required federal taxes and/or in which she discusses the pros and cons of her experiences with the federal criminal justice system. 

UPDATE:  This AP story reports on the actual sentencing outcome for the federal tax code re-education of Lauryn Hill.  I will let readers click through so as not to turn this post into a "spoiler" before reading the comments.

Notable new Judge Weinstein opinion on child porn sentencing for juve offender

Over the weekend, experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) alerted me to what he called a "new and (again) excellent opinion by Judge Jack Weinstein" in U.S. v. D.M., 12-CR-170 (EDNY May 1, 2013) (available here).  The opinion runs nearly 50 pages, and Mark provided a summary which he has graciously allowed me to post here:

D.M. is a child porn possession case wherein Judge Weinstein imposed straight probation. What is rather unusual about the case (in addition to the sentence imposed) is the fact that the government initially charged the defendant with distribution, which carries a 5-year mandatory minimum, but later allowed the defendant to plead to a simple possession charge in order for the court not to be bound by the mandatory minimum after the defendant successfully completed a couple of polygraphs regarding whether he intended to distribute (as is typical, he had used a peer-to-peer site to obtain the contraband).

The nature of the plea negotiation is quite interesting, and, as Judge Weinstein rightly notes, counsel for both sides should be congratulated for their effort to seek justice, as opposed to the all-so-typical bidding war regarding months' imprisonment that mirrors what occurs in civil settlement negotiations rather than what should occur (and what did occur here). 

Judge Weinstein begins the opinion as follows: “This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.”  How many judges can say that in any criminal case that is resolved by plea?  Far, far too few. 

Judge Weinstein ends thus: “The sentence imposed will provide an opportunity for defendant to succeed in therapy, at school, at attaining employment, and at becoming a functioning and law-abiding member of society. A sentence involving incarceration has been considered and is rejected.  All concerned are best served by following this course.”

This is a good read for all, regardless of practice focus. (Of course, those who have clients charged with child porn, it is a particularly good case to read and cite, not the least of which is because it is the first published opinion to discuss in substantive detail the Commission’s new Child Porn report).

Alabama mass shooter wants (but cannot get) a death sentence rather than LWOP

A helpful readers sent me this fascinating article from Alabama, which is headlined "Man charged in Copper Top shooting writes in letter to judge that he is sorry and had asked for death penalty."  Here are the fascinating details:

Nathan Wilkins, the man charged with injuring 18 people in a July 2012 shooting at The Copper Top bar in downtown Tuscaloosa, told a judge in a letter that he is sorry and that he has asked for a death sentence.

In the letter dated April 22 sent to Tuscaloosa County Circuit Judge Brad Almond and filed Tuesday morning, Wilkins wrote that he has issues with his court-appointed attorney. "I know I can't get a fair trial in Tuscaloosa," the letter states. "It is obvious by your actions so far in making me keep the same lawyer that you appointed. I have written you telling you the problems with him but instead of taking care of it you chose to ignore it. Why would I want a lawyer representing me who has me already convicted and sentenced me to life in his mind."

In a letter sent to the judge in December, Wilkins asked for a new attorney and told the judge that he had no memory of the night. He also wrote that he had been prescribed medication that made him suicidal.

Wilkins, 45, was indicted in August on 68 counts in connection with a July rampage that included a late July 16 shooting in the Indian Lake subdivision in Northport and an early July 17 shooting at the Copper Top in downtown Tuscaloosa's Temerson Square. He is accused of using an assault-style rifle in the shootings and of setting fire to his former employer's property in Brookwood and in Northport.

Wilkins turned himself in on July 17 at a FedEx store in Jasper. He remains in the Tuscaloosa County Jail on $2 million bond. A trial has been scheduled to begin Monday.

"I had asked Ted Sexton and my lawyer to give me the death penalty but instead they want to put me in prison for life because it wasn't bad enough because no one died," the letter states. "Why send me to prison for life and support me with taxpayer money. That used to make me so mad when I wasn't in jail and paying taxes and had to support people like that. You can ask anyone who knows me that this is what I believe. So I am taking this out of your hands and sentencing myself to death."

Attempted murder is not included with capital offenses under Alabama law. "I cannot bear to be away from my family especially my grandkids for life," the letter states. "I would like to tell all involved I am sorry. I wish this incident would bring attention to prescription sleeping pills, especially Ambien, before it ruins someone elses (sic) life!  I want to say I'm sorry to everyone involved. Thank you for giving me no other choice."

This story raises so many interesting and challenging issues, I am not sure where to start.  Just discussion purposes, let me ask three different questions of three different groups of potential readers:

1. For strong death penalty opponents: "Do you think this defendant, who seems all but certain to get an LWOP sentence for his many crimes, should be allowed/enabled to commit suicide if and when he gets an LWOP sentence?"

2. For strong death penalty proponents: "Doesn't this case demonstrate that there are some defendants who truly view an LWOP sentence to be worse than death?"

3. For everyone else interested in a constitutional debate: "Do you think that, because (a) death has been deemed by the US Supreme Court to be a "cruel and unusual" punishment for Nathan Wilkins's crimes and (b) he really seems to view LWOP a punishment worse than death, is there at least a reasonable basis for his lawyers to claim that LWOP for Nathan Wilkins should also be considered "cruel and unusual" because their client (genuinely?) views such a punishment to be crueler than death?"

"Can a Hard-Core Criminal Become a Better Person?"

The title of this post is the headline of this notable new piece up at Slate coming from Quora where questions submitted by readers get answered by experts or persons in the know.   This question was answered by by Chris Richardson, a consultant, and here are excerpts:

Yes.  My father did.

He was born a sharecropper in Georgia in 1927.  His mother and father, never on easy terms (this is an understatement), separated when he was about 12 years old, and she moved with him and his younger sister to Boston, where she became a popular actress in the New Deal-funded black Shakespearean theater there....

They lived, of course, in the ghetto.  My father became a young hustler very early in his career there, pulling various scams to bring a little extra cash to the family....

When he was 14, the United States went to war.  My father wanted to join the fighting, but not only was his skin color a barrier, he was also too young to enlist.  But he knew he had to get out of Boston and the life of crime (and punishment); he didn't need to be clairvoyant to see in his future.

He eventually figured out how to join a mercenary group recruiting in Canada, was trained, outfitted, and shipped to China, where he fought against the Japanese during the war and later for the Communist Chinese government in various skirmishes afterward. From this, he learned the following: fluency in both Mandarin and Cantonese, much of which he retained in later life; a predilection for Asian women, and indeed for all things Asian; and how to do what was necessary to survive, including killing other humans without reservation or excessive remorse.

The latter skill paid off when, as a young man in the late 1940s, he was shipped to Los Angeles with nothing but a thank you from the Chinese government, a couple hundred bucks in his pocket and the shirt on his back.  He immediately learned that things hadn't changed much in his favor back home, so finding honest work for decent pay was not an option.  So he started hustling again, eventually becoming the leader of a group of drug smugglers bringing various contraband into Texas, Arizona, and California from Mexico. He learned Spanish.  In the course of these activities, he committed any number of violent crimes, including, rumor has it, murder.

A few years later, he was arrested for drug smuggling, tried, convicted, and sent to prison, where he remained for nearly 15 years, until his release in the early 1960s.

And this time, things were different.  The "crazy, liberal" California state government had created a program specifically designed to actually reform ex-convicts, including black ones, by sending them to college on special scholarships.  My father enrolled in Sacramento City College, transferred to UC-Davis (yes, that's my alma mater, too), and excelled. He earned multiple degrees in political science, met and married a crazy, rich white hippie chick from Orinda (my mother), fathered a son (me), and eventually landed a job as a professor of political science at the California State University in Chico.

He retired from Chico State in 1993, at the ripe old age of 66.  Nine years later, he died in his living room of a heart attack, five days before the first anniversary of the Sept. 11 terrorist attacks, having never committed another crime, other than the occasional traffic violation, again.

DOJ review confirms government waste and mismanagement of BOP's handling of compassionate release

Public policy groups have long criticized the many terrible ways in with the federal Bureau of Prisons (BOP) administered the authority Congress provided it for the early release of prisoners in dire condition. Most notably, late last year, as discussed here, Human Rights Watch and Families Against Mandatory Minimums today released a major report criticizing the poor administration of the federal compassionate release program. Today, this big new report from the Justice Department's Office of Inspector General confirmed what critics have long said. Here are key excerpts from the final portion of the report:

We concluded that an effectively managed compassionate release program would result in cost savings for the BOP, as well as assist the BOP in managing its continually growing inmate population and the resulting capacity challenges it is facing.  We further found that such a program would likely have a relatively low rate of recidivism.  However, we found that the existing BOP compassionate release program is poorly managed and that its inconsistent and ad hoc implementation has likely resulted in potentially eligible inmates not being considered for release.  It has also likely resulted in terminally ill inmates dying before their requests for compassionate release were decided.  Problems with the program’s management are concentrated in four areas.

First, the BOP’s regulations and Program Statement do not establish appropriate medical and non-medical criteria for compassionate release consideration and do not adequately define “extraordinary and compelling” circumstances that might warrant release....

Second, the BOP has failed to put in place timeliness standards at each step of the review process....

Third, the BOP does not have procedures to inform inmates about the compassionate release program....

Fourth, the BOP does not have a system to track all compassionate release requests, the timeliness of the review process, or whether decisions made by institution and regional office staff are consistent with each other or with BOP policy....

The BOP also does not track the time it takes to process requests and has no formal or standard means of determining the date the review process begins.  Consequently, the BOP cannot monitor its process effectively.  This is especially problematic for inmates with terminal medical conditions, and we found that 13 percent of inmates whose requests had been approved for compassionate release by a Warden and Regional Director died before a decision was made by the BOP Director....

Further, the BOP does not maintain cost data associated with the custody and treatment of inmates who may be eligible for compassionate release.  Despite this lack of data, the BOP reported to Congress that it could save $3.2 million by expanding the compassionate release program....

Finally, we found the rate of recidivism for inmates approved and released through the existing compassionate release program to be low compared with the overall rate for federal inmates released into the community.

Some recent related posts:

• New report assails (lack of) compassionate release in federal system
• NY Times editorial laments lack of compassionate release

New big Human Rights Watch report assails placing juve sex offenders on registries

As reported in this new AP piece, Human Rights Watch today released a big report urging governments to stop placing juveniles on publicly accessible sex-offender registries. Here are parts of the AP account of the report and reactions thereto:

Human Rights Watch said its report, being released Wednesday, is the most comprehensive examination to date of the impact that registry laws have on juvenile sex offenders. "Of course anyone responsible for a sexual assault should be held accountable," says lawyer Nicole Pittman, the report's author.  "But punishment should fit both the offense and the offender, and placing children who commit sex offenses on a public registry — often for life — can cause more harm than good."

The report says the laws, which require placing offenders' photographs and personal information on online registries, often make them targets for harassment and violence. In two cases cited in the report, youths were convicted of sex offenses at 12 and committed suicide at 17 due to what their mothers said was despair related to the registries.  One of the boys, from Flint, Mich., killed himself even after being removed from the list....

The registry laws generally include restrictions that prohibit offenders from living within a designated distance of places where children gather, such as schools and playgrounds. "They often struggle to continue their education," Human Rights Watch said.  "Many have a hard time finding — and keeping — a job, or a home."

According to Human Rights Watch, 747,000 adult and youth sex offenders were registered nationwide as of 2011. The organization said it was unable to quantify how many were juveniles, but it interviewed 281 youth sex offenders while preparing the report, as well as defense attorneys, prosecutors, judges, law enforcement officials and victims of child-on-child sexual assault....

Under a federal law, the Adam Walsh Act, states are required to include certain juvenile sex offenders as young as 14 on their registries.  Some states have balked at complying with this requirement, even at the price of losing some federal criminal-justice funding. Other states have provisions tougher than the federal act, subjecting children younger than 14 to the possibility of 25-year or lifetime listings on public registries.

According to Pittman, it's fairly common in about 35 states for juveniles to be placed on public sex-offender registries.  Other states take that step only for juveniles convicted of sex offenses in adult court, she said, while a few place juvenile sex offenders only on registries that are not accessible by the public.

The report recommends that all juveniles be exempted from the public registration laws, citing research suggesting they are less likely to reoffend than adult sex offenders. Short of a full exemption, the report says, registration policies for juveniles should be tailored to account for the nature of their offense, the risk they pose to public safety and their potential for rehabilitation....

Scott Burns, executive director of the National District Attorneys Association, said his organization would not support a blanket exemption of juveniles from the sex-offender registries. But he said prosecutors should have the discretion to require registration or not, based upon each case.

"If a 15-year-old 'sexted' a picture of him or herself, it is safe to say that prosecutors would take appropriate steps to ensure that person isn't required to become a registered sex offender for life," Burns said in an e-mail. "If a 17-year-old had committed multiple violent sex offenses against children, registration as a sex offender would most likely be recommended."...

Mai Fernandez, of the center for victims of crime, said the entire sex-offender system — covering both juveniles and adults — is flawed and needs an overhaul.  "If you know a young person living in your neighborhood has raped someone, there are things that should kick in — tighter supervision, more services — to be sure that child doesn't commit that crime again," Fernandez said.  "That's more important than the registry."

The full 111-page HRW report, which is titled "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US," can be accessed via this link in both complete pdf and on-line form. Here is how that page describes the report:

This 111-page report details the harm public registration laws cause for youth sex offenders. The laws, which can apply for decades or even a lifetime and are layered on top of time in prison or juvenile detention, require placing offenders’ personal information on online registries, often making them targets for harassment, humiliation, and even violence. The laws also severely restrict where, and with whom, youth sex offenders may live, work, attend school, or even spend time.

Is adjective "draconian" fitting for a proposed 13-year prison sentence for insider trader?

The question in the title of this post is prompted by this lengthy new Bloomberg article about the defense's sentencing submission in a high-profile, white-collar federal sentencing scheduled for later this month.  The Bloomberg article is headlined "Chiasson Seeks Leniency From U.S. Judge Citing Charitable Deeds," and here are excerpts:

Level Global Investors LP co-founder Anthony Chiasson, convicted of an insider-trading scheme that reaped $72 million, asked a judge to give him less time in prison than the 13-year term called for by U.S. sentencing guidelines.

Lawyers for Chiasson, 39, called such a sentence “draconian” in a, April 29 court filing. They urged U.S. District Judge Richard Sullivan in Manhattan to impose an unspecified shorter prison term, saying the alleged crimes were “aberrant” and that Chiasson has led an “exemplary life.”

Defense lawyers Greg Morvillo and Reed Weingarten cited Chiasson’s charitable work, including his effort to save his Catholic Jesuit high school in Portland, Maine, from closure, the creation of a scholarship program for his alma mater, Babson College, and his contributions to the Robin Hood Foundation and the Michael J. Fox Foundation.  “Anthony Chiasson is an extraordinary man,” Morvillo and Weingarten said in a memo to Sullivan. “But for the conduct that brings him before the court, Anthony has led an exemplary life.”

Chiasson, who began his career on Wall Street at Solomon Brothers and left SAC Capital Advisors LP to start the hedge fund, is scheduled to be sentenced May 13.  While U.S. court officials said that based on non-binding guidelines Chiasson should serve 121 to 157 months in prison, his lawyers said the appropriate range is 78 to 97 months.

A Manhattan federal jury in December found Chiasson guilty of five counts of securities fraud and convicted former Diamondback Capital Management LLC portfolio manager Todd Newman of one count of conspiracy and four counts of securities fraud.  Newman is scheduled to be sentenced May 2.  The U.S. alleged that the two portfolio managers were part of a “corrupt chain” of hedge-fund managers and analysts and insiders at technology companies who swapped and traded on illicit tips.  The U.S. said Level Global earned $68 million as a result of the insider trading based on material nonpublic information Chiasson received from Spyridon “Sam” Adondakis, a former Level Global analyst who worked for him. 

Defense lawyers estimated the fund earned $11.7 million as a result of trading in the stocks of Dell Inc. and Nvidia Corp. They disputed the government’s allegation that Chiasson based the transactions on illicit information and argued that federal sentencing guidelines allow prosecutors to inflate profits generated as a result of alleged crimes.  “There is only one reason the range is so high: the guidelines’ unrelenting predisposition to punish profit,” Morvillo and Weingarten said.

Morvillo and Weingarten also argued that Chiasson “should not be required to forfeit gains of any co-conspirators.” They said that the fund earned more than $21.6 million on trades by David Ganek, a Level Global co-founder who was ruled by Judge Sullivan to be an uncharged co-conspirator in the insider- trading scheme.  Adondakis, who pleaded guilty, testified that he didn’t tell Ganek about the source of his tips.  Ganek hasn’t been charged with wrongdoing....

Chiasson’s lawyers argued that he deserves a sentence comparable to others convicted of insider trading, including former Goldman Sachs Group Inc. director Rajat Gupta, who was ordered to serve two years in prison, and former Primary Global Research LLC executive James Fleishman and Michael Kimelman, the co-founder of Incremental Capital LLC, who were both given 30- month prison terms.  In January, a federal appeals court allowed Gupta to remain free while he fights his conviction.  Both Fleishman and Kimelman were recently released from prison.

The adjective draconian is often used now as a synonym for unduly harsh punishments, and I am sure I have sometimes used the term this way in various settings. But the faint-hearted linguistic originalist in me cannot help but note that arguably no prison terms should be really called draconian because incarceration was largely an unknown punishment in achient Greece and Draco the lawgiver was (in)famous for prescribing death as a punishment for both major and minor crimes. (With tongue-in-cheek, I suppose maybe a different (but less real) Draco could be expected to be a proponent of long prison terms, though I this this character probably realized he and his family only narrowly avoid imprisonment in Azkaban.)

Historical and literary references aside, these latest insider-trader, white-collar sentencing cases are surely worth watching closely.  My sense is that, especially with the economy seeming to be improving, there is diminishing public and social pressure to "throw the book" at wall-street types like Anthony Chiasson.  And yet, as the arguments in Chiasson's case highlight, every below-guideline sentence given in major white-collar cases provide a strong defense argument in later cases that only below-guideline sentences are proper pursuant to the sentencing commands of 3553(a).

Mizzou Supreme Court hears arguments concerning Miller's impact

As reported in this local article, headlined "MO Sup Court hears cases of two St. Louis juveniles sentenced to life without parole," the top court in the Show Me State is trying to figure out how it must adjust its sentencing system in the wake of last year's Miller ruling by the US Supreme Court.  Here are the basics of what is now before the Supreme Court of Missouri:

Two St. Louis cases were among the first to go before the state's high court Tuesday as it tries to decide what should be done with dozens of juvenile murder convicts who were sentenced to mandatory terms of life without parole before the U.S. Supreme Court declared it unconstitutional....

One of those is the high-profile case of Ledale Nathan Jr., who was 16 when he and an accomplice stormed into a home in the LaSalle Park neighborhood of St. Louis, burglarized it and shot the family members inside. One woman was killed and two others, a city firefighter and police officer, were wounded.

In Missouri, first-degree murder carries only two sentencing options: life without parole, or death (which the U.S. Supreme Court had already ruled could not apply to juveniles).  But in the June 2012 Miller v. Alabama decision, the U.S. Supreme Court determined that while juveniles can be sentenced to life without parole, it cannot be automatic and must only be done after the judge or jury has the opportunity to hear mitigating circumstances that include the defendant's age and a range of other factors.

The state legislature is expected to ultimately decide how to change the statutory range of punishment to comport with the court ruling, clearing things up for cases going forward. But in the meantime, the state supreme court is being asked to consider what the Miller decision means for the older cases — both those on direct appeal, and those that have exhausted their state court remedies.

There are 84 cases in Missouri in which a person is currently serving life without parole for an offense committed as a juvenile, according to the last count by the Missouri Department of Corrections.  Of those cases, 46 of the offenders were age 17 at the time of the crime, 25 were age 16, 11 were age 15, and two were age 14.

Of the three cases argued on Tuesday, two were being heard on direct appeal, one being the Nathan case.  The state, represented by Attorney General Kris Koster's office, conceded that the two cases should get a new sentencing hearing, but argued the only options should be life — which amounts to 30 years in Missouri — or life without parole.

"Allowing life and life without parole achieves as close as the court can get without adding words or redrafting the statute," argued Assistant Attorney General Evan Buchheim, in the Nathan case. Buchheim said until the legislature decide on anything different, "we've got to work with what we've got."

But Nathan's attorney, Jessica Hathaway, and the American Civil Liberties Union, which argued as a friend of the court, contended that route would go beyond the court's authority by rewriting the statute.  They argued instead for a sentencing range that applies for second degree murder, or a Class A felony, which is ten to 30 years (life)....

Similar arguments were made in the other case being heard on direct appeal, the St. Louis case of Laron Hart, convicted of the fatally shooting of a man and robbery of a woman at gunpoint in January 2010, when he was 17.  In the third case involves the 1995 conviction of a McDonald County woman, Sheena Eastburn, as an accomplice in the shooting death of her husband.  The state has argued Miller does not apply to her case because she has exhausted her appeals, among other procedural issues.

Unsurprising (and justifiable?) gender sentencing disparities in NJ teacher-student sex cases

As detailed in this local story, an award-winning, 31-year-old female teacher in New Jersey avoided any prison time at her sentencing yesterday following a plea to sex charges after an illegal relationship a 15-year-old student.  Here are the basics:

Erica DePalo was in the prime of her teaching career.  Just 31-years-old, with nearly a decade of teaching behind her, letters show the Essex County Teacher of the Year was loved by students and respected by colleagues.  But hidden behind her cheerful facade was a woman suffering from extreme depression and anxiety, DePalo’s lawyer told the court — leading to an illicit sexual relationship with a 15-year-old student....

The former West Orange high school teacher, who admitted to the relationship with her student, was sentenced in state Superior Court today to a three-year suspended sentence, which means she will not serve any prison time if she cooperates with the conditions of her parole.  DePalo also must register as a sex offender under Megan’s Law and cannot seek public or government office nor have any contact with the victim.

The non-custodial plea was largely influenced by DePalo’s psychiatric condition at the time of the sexual relationship, attorneys said.  Months before DePalo began the relationship with the boy, she was diagnosed with bipolar disorder, [defense attorney Anthony] Alfano said.  A doctor incorrectly prescribed anti-depressants which affected her sense of entitlement and judgment....

In court, DePalo took responsibility for the affair, apologizing to the victim in a quivering voice, tears running down her cheeks. "I feel nothing but remorse for my actions and deep, deep sadness for all I’ve lost because of them," she said.

Police charged DePalo in August with first-degree aggravated sexual assault, second-degree sexual assault and endangering the welfare of a child. The first two charges were dropped as part of the plea deal.  If DePalo had gone to trial and been convicted, she could have faced up to ten years in prison.

The non-custodial sentence was previously criticized by West Orange superintendent James O’Neil as too lenient. Both Alfano and Assistant Prosecutor Tony Gutierrez said the victim’s family consented to the plea. Gutierrez said the 15-year-old boy, who was a student in DePalo’s honor’s English class, was the only victim and that the relationship lasted a few weeks.

Alfano said gender was never brought up in plea negotiations, referencing a Star-Ledger analysis of 97 cases which revealed men serve about 40 percent longer jail terms and go to prison more often than women in these cases.

The referenced analysis on the study of NJ teacher-student sex cases appears in this companion article, which provides this accoutning:

Critics have called the punishment for the former Essex County teacher of the year too lenient and reflective of a double standard that disproportionately penalizes men for similar relationships with students.

A Star-Ledger analysis of 97 cases in New Jersey over the past decade reveals significant disparities: Men are on average sent to jail in more cases and receive longer sentences. The data about 72 men and 25 women also shows:

• Male defendants went to prison in 54 percent of cases compared with 44 percent of cases for female defendants;

• Men averaged 2.4 years in prison compared with 1.6 years in prison for women, or 50 percent more time;

• Ninety-three of the 97 cases ended in plea deals;

• €…Forty-seven cases ended in noncustodial sentences, which typically involved pre-trial intervention programs or probation.

There are various reasons for the disparities in these cases, experts say, including the perception that girls and women need to be protected and are more vulnerable than their male counterparts, the availability of evidence, and the willingness of the student to participate in the prosecution.

"There’s a general societal disposition that does continue to treat women as the gentler sex, so typically the threshold for sending women to prison is higher," said Martin Horn, director of the New York State Sentencing Commission and a professor at the John Jay College of Criminal Justice.

All cases studied involve teachers, substitute teachers, coaches or school personnel who admitted to, or were convicted of, engaging in sexual relationships with students connected to their school.  "Juries and judges sort of make a consideration about how exploitative the crime is and how predatory the perpetrator is," Horn said.  "The system is supposed to make discriminations or make distinctions between individuals based on their perceived levels of culpability."

Most of the 97 cases analyzed were described in reports as consensual in nature (though not in the eyes of the law).  In New Jersey, the age of consent is 16, but a person in a supervisory role, such as a teacher, can be guilty of sexual offenses even if a student is 16 or 17. 

Because New Jersey’s Administrative Office of the Courts does not keep separate records on sex crimes committed by educators, The Star-Ledger used reports filed by the state Board of Examiners detailing teacher license suspensions. The suspension reports that described inappropriate student relationships were cross-checked with court records to obtain necessary information. This is not inclusive of every teacher-student case in the past 10 years.

"Is 100 Years a Life Sentence? Opinions Are Divided"

The title of this post is the headline of this notable new Sidebar column in the New York Times by Adam Liptak.  Hard-core sentencing fans should realize from the title that this is a story about one of the many doctrinal questions gurgling in lower courts three years after a landmark Eighth Amendment SCOTUS ruling.  Here are excerpts from the column:

If people who are too young to vote commit crimes short of murder, the Supreme Court said in 2010, they should not be sentenced to die in prison.  That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.

One is formal. The court may have meant only to bar sentences labeled “life without parole.”  On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life....

The other way to understand the decision is practical.  If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.

The lower courts are split on how to interpret the Graham decision, and the Supreme Court seems to be in no hurry to answer the question.  Last week, the justices turned away an appeal from Chaz Bunch of Ohio, who was convicted of kidnapping and raping a woman in a carjacking when he was 16.  He was sentenced to 89 years.  Even assuming he becomes eligible for early release, he will be 95 years old before he can leave prison.

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the sentence, even as it acknowledged that there were two ways to approach the matter.... Until the Supreme Court speaks, Judge Rogers wrote, there is no “clearly established federal law” to assist Mr. Bunch, who was challenging his state conviction in federal court.

Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.”  An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.

“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.

Mr. Henry is black and was born in 1989.  The life expectancy of black males born that year was 64, according to the Centers for Disease Control and Prevention. Life expectancy in prison is shorter than it is outside. Wherever the line is, then, a 76-year sentence would seem to be past it.  “Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.

That is a reasonable question.  But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one.  “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said.  It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said....

The number of juvenile offenders serving de facto life terms because of very long sentences is probably in the hundreds.  Some of the appeals court judges who have upheld such sentences did not sound enthusiastic about the task.  “Without any tools to work with, however, we can only apply Graham as it is written,” Judge Griffin wrote.  “If the Supreme Court has more in mind, it will have to say what that is.”

Arkansas Supreme Court explains what Miller ruling means now for Kuntrell Jackson

As reported in this AP piece, in a ruling today the Arkansas Supreme Court "ordered a new sentencing hearing for Kuntrell Jackson, whose case was one of two that led to a U.S. Supreme Court decision last year throwing out mandatory life sentences without parole for juveniles." The nine-page ruling in Jackson v. Norris, 2013 Ark. 175 (April 25, 2013) (available here), is an interesting read for a number of reasons.

First, this latest round of habeas litigation for  Kuntrell Jackson does not deal at all with any possible dispute over whether the Supreme Court's Miller ruling is to be given retroactive effect.  This may because it appears the prosecution did not contest Jackson's request to be resentencing in light of Miller, as evidence by this sentence from the opinion: "We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case.  See Yates v. Aiken, 484 U.S. 211, 218 (1988)."

Second, after parroting most of the key language from the SCOTUS Miller ruling, the Arkansas Supreme Court has an interesting discussion of how to revamp the sentencing provisions applicable to Kuntrell Jackson's conviction in the wake of Miller.  Here is how that discussion finishes:

We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration.  We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony.  For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life.  Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997).

Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.

Notably, Jackson's crime took place in 1999, and I presume he has been in custody since his arrest. In other words, given that he has already served more than a decade in prison and that the Arkansas Supreme Court has decided he is now eligible for a sentence as low as 10 years, he could possibly upon resentencing get a term of only time served. Going forward, it will be interesting to see what sentence state prosecutors request and what sentence actually gets imposed on Jackson at his future resentencing.

Georgia now has permission, but not needed pentobarbital, for executing Warren Hill

The saga surrounding Georgia's efforts to carry out the punishment of death for a Warren Hill, now more than two decades after his second murder, moved forward yesterday after a big split panel ruling by the Eleventh Circuit.  This Atlanta Journal Constitution article, headlined "Court lifts execution stay; state out of lethal-injection drugs," explains the panel ruling, while also highlights why this long-running death penalty drama seems unlikely to end anytime soon:

The federal appeals court in Atlanta has denied Warren Hill’s bid to halt his execution on grounds he is mentally retarded at a time when the state finds itself out of lethal-injection drugs. 

By a 2-1 vote, the 11th U.S. Circuit Court of Appeals said Hill’s mental retardation claims had already been considered and rejected.  The court also said that because Hill only challenged his eligibility for execution, and not his conviction of murder, it could not consider his new claims.

The court lifted its stay of execution, meaning the state can set a new execution date for Hill at anytime.  But the Georgia Department of Corrections is currently out of pentobarbital, a barbiturate used as the state’s sole lethal-injection drug.  “At this time, we are looking into the procurement of the drug,” agency spokeswoman Gwendolyn Hogan said in an email.

Hill’s case attracted international attention this year when three state experts, who previously testified Hill was faking his mental disability, came forward and said they had been mistaken.  The doctors — two psychiatrists and a psychologist — described their evaluations of Hill more than a decade ago as rush jobs and said an improved scientific understanding of mental retardation led them to now believe Hill is mildly mentally retarded.

In 1988, Georgia became the first state to ban executions of the mentally retarded; the U.S. Supreme Court declared the practice unconstitutional nationwide in 2002.

Judge Rosemary Barkett issued a stinging dissent, saying there is now “no question” that Georgia will be executing a mentally retarded man.  She noted that all seven mental health experts — the state’s and Hill’s — who have examined Hill now unanimously agree he is mentally retarded.   “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness,” she wrote.

Hill’s lawyer, Brian Kammer, said he was “deeply disappointed” that the 11th Circuit “found that procedural barriers prevent them from considering the compelling new evidence.”  He said it is likely he will ask the U.S. Supreme Court to consider Hill’s claims....

Hill was sentenced to death for killing Joseph Handspike, an inmate serving a life sentence in the same state prison where Hill was incarcerated.  In 1990, Hill bludgeoned Handspike to death with a nail-studded wooden board.  At the time, Hill was already serving a life sentence for killing his 18-year-old girlfriend, Myra Wright, by shooting her 11 times in 1986.

The full 69-page split panel ruling in In re Hill,  No. 13-10702 (11th Cir. April 22, 2012), is available at this link.

SCOTUS holds "social sharing" of a little pot not an "aggravated felony" under INA

In a 7-2 opinion handed down this morning in Moncrieffe v. Holder (available here), the Supreme Court explains why a low-level marijuana offense does not automatically mean deportation. Here is the first and last paragraph of the majority opinion (per Justice Sotomayor):

The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U. S. C. §1101 et seq., provides that a noncitizen who has been convicted of an “aggravated felony” may be deported from this country.  The INA also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case.  Among the crimes that are classified as aggravated felonies, and thus lead to these harsh consequences, are illicit drug trafficking offenses.  We must decide whether this category includes a state criminal statute that extends to the social sharing of a small amount of marijuana.  We hold it does not....

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.”  Once again we hold that the Government’s approach defies “the ‘commonsense conception’” of these terms.  Carachuri-Rosendo, 560 U.S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53).  Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding’” of “trafficking,” which “‘ordinarily . . . means some sort of commercial dealing.’”  Carachuri-Rosendo, 560 U.S., at ___ (slip op., at 9) (quoting Lopez, 549 U.S., at 53–54).  Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an “aggravated felony.”  We hold that it may not be.  If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.  The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justices Thomas and Alito both authored separate dissents, though neither garner any companion votes.

Noteworthy new lawyer and now a new judge for Jesse Jackson Jr. sentencing

This new Chicago Tribune article, headlined "For sentencing, Jacksons get new judge named Jackson," reports on some notable pre-sentencing developments in the run up to a high-profile federal sentencing scheduled for later this year. Here are the basics:

The felony cases of former Rep. Jesse Jackson Jr. and his wife, former Chicago Ald. Sandi Jackson, have been assigned to a new judge — named Jackson.

Court papers filed Tuesday moved the cases to U.S. District Judge Amy Berman Jackson, but did not explain why the judge who accepted the Jacksons' guilty pleas, Robert Wilkins, would not be the one to sentence them this summer.

Harvard law professor Charles Ogletree Jr., who recently joined Jesse Jackson Jr.'s legal team, told the Tribune that Wilkins is a former law student whom he knows well, and that Wilkins may have recused himself out of caution.

Ogletree said he joined Jackson Jr.'s team on a pro bono basis and will appear at his sentencing June 28. He said he was not involved in the defense of Sandi Jackson, who will be sentenced July 1.

Under sentencing guidelines, the former congressman faces 46 to 57 months in prison and Sandi Jackson one to two years. The pair pleaded guilty in separate cases in the U.S. District Court for the District of Columbia after Jackson Jr. looted his campaign treasury of more than $750,000 and Sandi Jackson failed to report on joint tax returns about $600,000 in income.

Ogletree, when asked what would be a fair sentence for Jackson Jr., would not say whether that involved prison time but argued that he deserved a "second chance." He said he thought any judge will look not only at the guidelines but at Jackson Jr.'s record of public and community service and work with seniors and young people.

Ogletree, a longtime acquaintance of the Rev. Jesse Jackson Sr., the civil rights leader, said the case was not about the father but about his son, who is "a young man in a very challenging situation who has a story that I hope people will be willing to listen to."

Judge Amy Berman Jackson was chosen for the Jacksons' case based on a random reassignment. She is not related to the couple — but she is a Harvard law alum like Wilkins and Ogletree.

Judge Jackson has familiarity with a convicted congressman: As a defense attorney before her appointment to the bench, she represented Rep. William Jefferson, D-La., who was convicted of corruption after authorities found $90,000 in cash in his freezer.

Recent related posts:

• You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?
• Jacksons plead guilty and federal prosecutors recommend significant prison terms for both

Latest proof that every issue, including gay marriage, has a sentencing angle

One of many reasons I love to obsess over sentencing is because I see sentencing issues in everything other issue of public or private concern.  Indeed, as my students (and reader of this blog) often hear from me, I see any and every issue of public policy concern to really be a crime and punishment issue in some way.  The latest proof of this sentencing-is-everything perspective comes today with a gay marriage spin thanks to this new article from the New York Daily News.  The piece is headlined "Openly gay daughter of Colombo gangster pleads for mercy in sentencing," and here are excerpts:

The openly gay daughter of Colombo gangster Dennis Delucia has outed her father as a supporter of same-sex marriage. In a moving letter seeking mercy from the judge who will sentence him, Donna Delucia says her father is a family man in the truest sense.

“My dad was the one who told me he would love me no matter what I would do or tell him,” Donna Delucia wrote to Judge Kiyo Matsumoto. “I finally came out at 22 years old. My mother did not handle it well and pushed me away .... I was scared, frightened and afraid of my dad’s reaction,” she continued in the letter filed in Brooklyn Federal Court.

“My dad accepted me, embraced me and has supported me. His love and acceptance helped me through the rough times and growing pains.”

Dennis Delucia, 71, a reputed capo in the crime family, pleaded guilty last year to extortion and faces 46 months in prison. He admitted using a couple of extra-large goons who made him look like a “midget” to intimidate the operator of a rival gambling club in the Bronx.

She conceded her father is a “chauvinist” and recalled his “king of the castle” views that included prohibiting her brothers from cleaning off the dinner table because they were boys. But after Donna fell in love with her partner and informed him they were planning to have a baby, the mobster cried. “He made me so proud,” Donna wrote.

Delucia helped pay for Donna and her spouse to move from Philadelphia to New York where same-sex parents pass parental rights to their partner. Today, they live in Kentucky, “far from the hype of Italian-Americans,” where they are raising their 9-year-old son. “Please let him come home,” Donna begged the judge. “I want my son to spend long days with his grandfather. I want him to know my dad.”

As federal sentencing gurus know, there is a long-running (and never quite resolved) debate over whether and how "family ties and responsibilities" can and should impact a federal sentencing decision. This story provides a timely reminder that whether and where same-sex marriage is allowed can and will, in turn, impact whether and how defendants with gay relatives can and will be able to tell a more modernized story of the importance of "family ties and responsibilities."

Nebraska legislature debating "Miller fix" sentencing proposals

As reported in this local article, headlined "Debate begins on juvenile sentencing bill," the single body that legislates in Nebraska is sorting through competing ways to deal with the Supreme Court's handiwork in Miller.  Here are the basics:

Senators turned away two attempts Monday to amend a bill that calls for a minimum sentence of 30 years for juveniles convicted of first-degree or felony murder.

They defeated amendments that sought to make the minimum sentence 60 years and one that would have removed specific mitigating factors for judges to consider when sentencing....

A 30-year minimum sentence would provide discretion to the courts and is in line with current science on juvenile brain development, said Omaha Sen. Brad Ashford, who introduced the bill.

With a 30-year minimum sentence, the offender would be eligible for parole in 15 years. A judge would have the option of sentencing the convicted juvenile to more time -- or could impose a life sentence.

The Supreme Court ruled judges must consider a defendant's age, immaturity, impetuosity and failure to appreciate risks and consequences. They must take into account the family and home environment that surrounds the youth. The Nebraska bill would require the court to consider those mitigating factors, as well as the outcome of a comprehensive mental health evaluation by a licensed adolescent mental health professional.

On Monday, senators defeated an amendment by Omaha Sen. Scott Lautenbaugh, after dividing it into two questions: One that would have made the minimum sentence 60 years was defeated on a 21-23 vote. The other, which would have eliminated consideration of mitigating factors, was defeated on a 16-27 vote.

Ashford said in crafting a constitutional solution to the Nebraska life sentence, the committee knew the 35-year sentence in Pennsylvania and the 60-year sentence in Iowa were under constitutional attack. "Sixty is just beyond the pale. It would never, in my view, pass constitutional muster," he said.

Supporters of the amendment said the possibility of parole after 15 years was unacceptable. And judges already consider such factors as those listed in the bill. Omaha Sen. Beau McCoy said the discussion on the 60-year minimum sentence could resume Tuesday.

Among other stories, I find it interesting and notable that on-going constitutional litigation in other states over efforts to respond to Miller is clearly impacting how Nebraska's legislature is working through its legislative fix.  I think famed constitutional theorist Alexander Bickel, who often spoke of the import and impact of a multi-branch national dialogue about core constitutional principles (see post here by Barry Friedman at SCOTUSblog), would be quite pleased to see how just such a dialogue is unfolding as to how best to operationalize the sentencing principles set out in the Miller ruling.