Friday, September 27, 2013
"The New Asylums: Jails Swell With Mentally Ill"
The title of this post is the headline of this lengthy new investigative report published in The Wall Street Journal. Here are excerpts from the important article:
America's lockups are its new asylums. After scores of state mental institutions were closed beginning in the 1970s, few alternatives materialized. Many of the afflicted wound up on the streets, where, untreated, they became more vulnerable to joblessness, drug abuse and crime.
The country's three biggest jail systems — Cook County, in Illinois; Los Angeles County; and New York City — are on the front lines. With more than 11,000 prisoners under treatment on any given day, they represent by far the largest mental-health treatment facilities in the country. By comparison, the three largest state-run mental hospitals have a combined 4,000 beds.
Put another way, the number of mentally ill prisoners the three facilities handle daily is equal to 28% of all beds in the nation's 213 state psychiatric hospitals, according to the National Association of State Mental Health Program Directors Research Institute Inc. "In every city and state I have visited, the jails have become the de facto mental institutions," says Esteban Gonzalez, president of the American Jail Association, an organization for jail employees.
Correctional systems define mental illness differently. Generally, the term is used to describe prisoners who require medication for serious issues ranging from major depressive disorders to schizophrenia and bipolar disorders. Also included are inmates with diagnoses that warrant overnight stays in a mental hospital or who demonstrate serious functional impairment.
To get a snapshot of how the U.S. is grappling with such an explosive societal issue, The Wall Street Journal surveyed all 50 states about issues of mental health within their prison populations. Of the 22 states that provided detailed responses, their mental-health patient ratios ranged from one in 10 inmates to one in two. Inmates in all 23 responding states account for 55% of the prisoners in the U.S. under state jurisdiction.
In Oregon, the trend is particularly acute. Officials there estimate that half the state's 14,000 prison inmates suffer from some type of mental-health issue. Several states with large inmate populations, like Michigan and Illinois, reported to the Journal that about 8% to 10% of their inmates suffered from serious mental illnesses, such as schizophrenia. Smaller states, like Montana, said as many as 15% of their inmates suffered from serious mental illness.
Roughly 5% of all adult Americans suffer from a serious mental illness, according to a 2012 report by a division of the U.S. Department of Health and Human Services.
Caring for such distressed inmates is costly. National Alliance on Mental Illness, one of the leading advocacy research groups, estimates that prisoners with mental illness cost the nation $9 billion annually. Other challenges are evident. In Los Angeles, for example, the U.S. Department of Justice found in 1997 that mentally ill inmates were abused and endured conditions that violated their federal civil rights.
Earlier this month the DOJ sent a letter to L.A. officials saying that despite some apparent progress, there is "a growing number" of mentally ill inmates housed in general population quarters at Men's Central Jail, as well as a "recent increase in suicides." Assistant Los Angeles County Sheriff Terri McDonald said the growing population of mentally ill inmates "certainly strains the system." She said they would continue to work with DOJ officials "and we welcome their thoughts."
Some facilities have attempted to cope by hiring psychiatric staff and retraining prison officers. Few, however, claim to be adequately equipped to handle some of the nation's most mentally frail. A seeming revolving door compounds the problem: Upon their release, the mentally ill tend to find scant resources and often quickly fall back into the system, says Mr. Gonzalez.
Even in some areas that have seen reductions in the general inmate population, the mentally ill constitute a growing share of correctional space. For example, New York City's total prison population has fallen to 11,500, down from 13,576 in 2005. Yet the number of mentally ill prisoners has risen, to 4,300 from 3,319, says Dora Schriro, commissioner of corrections for the city. That means the city's percentage of mentally ill prisoners grew from 24% to 37%.
The picture echoes the past. Two centuries ago, reformers were disturbed to find large numbers of the mentally ill in jails, paving the way for the development of state-run institutions. In the 1950s and 1960s, complaints about abuses, advances in medication and a push to give the patients more independence led to another change, this time toward community settings. The weaknesses of that concept—a lack of facilities, barriers created by privacy laws and tightened local and state funding—has brought the picture full circle.
"Society was horrified to warehouse people in state hospitals, but we have no problem with warehousing them in jails and prisons," says Thomas Dart, sheriff of Cook County.
Thursday, September 26, 2013
Ohio DP Task Force recommends excluding those with "serious mental illness" from capital punishmentAs reported in this local article, which is headlined "Group wants law excluding severely mentally ill from death penalty," Joint Task Force to Review the Administration of Ohio’s Death Penalty (of which I am a member) endorsed a significant recommendation with respect to mental illness and the administration of the death penalty. Here are the basics:
A state task force today voted to recommend that the state legislature pass a law excluding the severely mental ill from the death penalty in murder cases.
The Joint Task Force to Review the Administration of Ohio’s Death Penalty, a creation of the Ohio Supreme Court and the Ohio State Bar Association, wants the General Assembly to hold hearings and pass a law to prevent people who have a severe mental illness, such as schizophrenia, at the time of the crime from facing the death penalty. The aim is not to stop them from being prosecuted, however.
Despite the vote, there is a deep divide among task force members about what constitutes serious mental illness and whether the current legal system does an adequate job of screening for it.
“I don’t want everyone with ADHD or some real or imaginary disability to avoid responsibility,” said state Sen. Bill Seitz, R-Cincinnati, a task force member who voted for the proposal but with reservations.
Hamilton County Prosecutor Joseph Deters said the court system screens out the seriously mentally ill through the trial and appeal process. “We are producing more and more layers of litigation in capital cases that I think are unnecessary.”
John Parker, a Cleveland attorney whose subcommittee recommended the exclusion, reasoned that the legislature, not the task force, is best equipped to decide what he admitted will be a contentious issue after hearing from law enforcement, prosecutors, the public defender, mental health experts and others.
Judge Kathleen Keough of the Cleveland Court of Appeals said walling off the seriously mentally ill from the possibility of being executed is “a matter of common decency.” She said the federal courts have ruled that the mentally retarded and juveniles cannot be executed and people with severe mental illness should be considered similarly. “Mental illness is not a choice,” she said....
The task force was motivated to make the proposal by former Ohio Supreme Court Judge Evelyn Lundberg Stratton, a longtime advocate for the mentally ill, who recommended when she was on the court two years ago that the “time had come to re-examine whether we as a society should administer the death penalty to a person with a serious mental illness.”
The task force, which convened nearly two years ago, will wrap up its meetings in November and begin drafting a final report to the governor and state legislators to be submitted next year.
Tuesday, September 24, 2013
Through the Guideline looking glass, where a prior misdemeanor is really an "aggravated felony"An oft-quoted passage from the famous Lewis Carroll novel Through the Looking-Glass, and What Alice Found There came to mind as I was reading a recent Fifth Circuit's sentencing ruling. Here is the passage I have in mind:
This first paragraph from the unanimous panel ruling in United States v. Ramirez, No. 13-10473 (5th Cir. Sept. 23, 2013) (available here), should make plain why this literary reference seems apt:
"When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master — that's all."
Efrain Hernandez Ramirez pled guilty to one count of illegal reentry following removal and at his sentencing, the district court applied an eight-level enhancement based on a prior conviction for an aggravated felony. The aggravated felony in question was a New York state misdemeanor conviction for third-degree sexual abuse of a fifteen-year-old girl. Ramirez appeals, arguing that his misdemeanor conviction cannot be an aggravated felony. For the following reasons, we AFFIRM.
Wednesday, September 18, 2013
The Sentencing Project releases "Life Goes On: The Historic Rise in Life Sentences in America"
I received an email alerting me to an important new publication about life and LWOP sentence just released by The Sentencing Project. Here is the text of the email, which includes links to the publication as well as a summry of its key findings:
While serious crime rates in the U.S. have been declining for the last 20 years, the number of prisoners serving life sentences has more than quadrupled since 1984. As documented in our new report, Life Goes On: The Historic Rise in Life Sentences in America, by senior research analyst Ashley Nellis, over 159,000 people were serving life sentences in 2012, with nearly 50,000 serving life without parole.
Key findings from the report include:
In order to reshape our crime policies to facilitaterehabilation, promote public safety, and reduce the high cost of massincarceration, the report recommends eliminating life without parole,increasing the use of executive clemency, preparing persons sentenced to lifefor release from prison, and restoring the role of parole in prisoner release.
- One of every nine individuals in prison is serving a life sentence.
- The population of prisoners serving life without parole (LWOP) has risen more sharply than those with the possibility of parole: there has been a 22.2% increase in LWOP since just 2008.
- Approximately 10,000 lifers have been convicted of nonviolent offenses.
- Nearly half of lifers are African American and 1 in 6 are Latino.
- More than 10,000 life-sentenced inmates have been convicted of crimes that occurred before they turned 18 and nearly 1 in 4 of them were sentenced to LWOP.
- More than 5,300 (3.4%) of the life-sentenced inmates are female.
September 18, 2013 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack
Florida Supreme Court considers important issues concerning Graham's meaning and reachAs reported in this local piece, headlined "Supreme Court hears juvenile sentencing arguments," the top court in Florida heard oral argument on a very important issues concerning the reach of the Supreme Court's recent Eighth Amendment jurisprudence concerning juvenile sentencing. Here are the details:
In the wake of a 2010 U.S. Supreme Court ruling that upended sentencing guidelines for juveniles, the Florida Supreme Court on Tuesday heard oral arguments in a case involving Shimeeka Gridine, who was sentenced to 70 years in prison for crimes committed when he was 14 years old.
The case is one of several that have surfaced in Florida courts since the U.S. Supreme Court ruled that life sentences without parole for juveniles in non-homicide cases violate the Eighth Amendment, which bans cruel and unusual punishment.
Gridine, now 18, pleaded guilty to attempted first-degree murder, attempted armed robbery and aggravated battery after he shot a man in 2009 while trying to rob a Jacksonville gas station. He was sentenced to 70 years for the attempted murder and 25 years for the armed robbery, with the sentences to run concurrently.
Assistant Public Defender Gail Anderson argued Tuesday that amounts to a life sentence. A mandatory minimum sentencing requirement makes Gridine ineligible for gain time for good behavior on the 25-year sentence. And under Florida’s “truth-in-sentencing” law requiring offenders to serve at least 85 percent of their prison sentences, he must then serve at least 85 percent of the remaining 45 years of the 70-year sentence. “Assuming he got all the gain time he was eligible for on the remainder of the sentence, he would be 77 years old before he was released,” Anderson said. “And I think that, under any reasonable construction, is a life sentence.”...
But Assistant Attorney General Kellie Nielan said the Graham ruling provided no time limits. “(The) Graham (decision) has said that someone needs review sometime within their life,” she told the court. “They need an opportunity for release within their life. It doesn’t say when.”
“Aren’t we condemning him from the outset?” asked Justice James E.C. Perry. “I thought he had to have a meaningful review at the outset.”
“No, Graham does not require that,” Nielan replied. “And Graham only applies to the life sentences — or, if you want to extend that to de facto life sentences, which are going to be sentences of at least 50 years. So a juvenile who is sentenced to 40 years is not entitled to any review.”
Justice Charles Canady said that was hypothetical. “We’ve got cases here where it seems like by just about any reasonable understanding of what a life sentence is, this case falls into the equivalent of a life sentence,” he said.
In Gridine’s 2009 trial, Judge Adrian G. Soud of the 4th Judicial Circuit in Duval County ruled that the teen was not protected by the Graham decision “because he had a clear and premeditated intent to kill. … Just because this juvenile defendant failed in his criminal and deadly endeavor does not preclude this court from sentencing the defendant commensurate with the defendant’s intent — the same intent possessed by a juvenile murderer.”
After the hearing, Anderson said she was hoping the justices would find unconstitutional the 85-percent law that abolished parole as it applies to Gridine and make him eligible for parole after 25 years. She said another possibility is that the high court could order that Gridine be resentenced. “That’s what the district courts have been doing — just ordering a resentencing,” she said. “But that just leaves everybody in the same limbo they’ve been in up to now.”
Since the Graham decision, the Florida Legislature has taken up bills that would have allowed life sentences for juveniles with the possibility of release after 20 years if they show signs of rehabilitation. So far, however, none has passed.
This report suggests that the Florida Supreme Court could find two ways to avoid declaring the long juvenile sentence here unconstitutional, but it also suggests that at least some of the Florida Justices may not be so eager to do so.
Monday, September 16, 2013
New York Times editorial says "End Mandatory Life Sentences"The title of this post is drawn from the headline of this new New York Times editorial, which is actually focused mostly on giving Miller v. Alabama retroactive application. Here are excerpts:
Young people are different. The Supreme Court has delivered that message repeatedly over the last decade in limiting or flatly prohibiting the most severe criminal punishments for those under 18 at the time of their crime.
In 2005, the court banned the death penalty for juveniles. In 2010, it outlawed sentences of life without parole for juveniles convicted of crimes other than homicide. And, in a 2012 case, Miller v. Alabama, it said juveniles may never receive a mandatory sentence of life without parole, which prisoners refer to as “the other death penalty.”...
In each case, the court was silent on the question of whether its ruling applied retroactively to inmates who had already been convicted. The just answer would surely be yes, and courts have largely agreed, making those first two juvenile justice rulings retroactive. But some states insist that the ban on mandatory life without parole does not apply to offenders who have already been sentenced.
In the Miller case, the court required lower courts to make “individualized sentencing decisions” for juvenile defendants because juveniles are not as morally culpable as adults, and they are more capable of changing over time. If the ban on mandatory life without parole is retroactive, more than 2,000 prisoners would be eligible for a new sentencing hearing. So far, whether these individuals can get a new hearing depends on where they live.
Courts in Michigan, Iowa and Mississippi have ruled that the ban applies to previously sentenced juveniles. The Department of Justice takes that position as well. Yet the Minnesota Supreme Court and one federal appeals court have taken the opposite view....
Critics fear that allowing resentencing would increase violent crime. But courts may still impose life without parole, provided that the judge first gives proper consideration to the mitigating effects of youth. The Alabama Supreme Court set out guidelines last week that require a court to consider 14 factors, including a defendant’s age, emotional maturity, family environment and potential for rehabilitation before issuing such a sentence.
Ideally, life without parole would never be a sentencing option for juveniles. The Supreme Court’s own logic suggests this, even if it was not willing to go that far. After the Miller case, three states entirely eliminated juvenile life without parole, joining six other states that had already banned the sentence, and lawsuits on the retroactivity issue are pending in several states. As lawmakers and courts deal with this issue, they should remember — as the Supreme Court has declared — that adolescents are not adults, and that principle should apply regardless of the date of a conviction.
Saturday, September 14, 2013
Alabama Supreme Court reworks state law for juve killers after MillerAs reported in this effective local article, headlined "Alabama Supreme Court sets out how juvenile killers are to be sentenced," yesterday brought a major state court ruling on how juvenile murderers must be dealt with in the wake of the Supreme Court's Miller ruling. Here are the basics via the news report:
The unanimous 50+ page opinion from the Alabama Supreme Court is available at this link, and here is its critical closing paragraph discussing the factors that are now to be considered by Alabama sentencing judges in juve murder cases:
The Alabama Supreme Court [has] issued a ruling that says state judges can give juvenile killers sentences of life with the possibility of parole under Alabama's current capital punishment law. The court also set out 14 factors judges could use in determining whether to sentence a juvenile convicted of a capital crime to life with or without the possibility of parole.
"This is a great result for the state and its justice system," Alabama Attorney General Luther Strange said in a statement issued this afternoon. "The Court has unanimously agreed with our position that prosecutors can try juveniles for capital murder and seek sentences of life without parole in appropriate cases. This gives prosecutors and judges clarity going forward, and it eliminates the limbo that victims' families have been dealing with in recent months."
The court's ruling came in response to requests by two teens charged with capital murder in two Jefferson Count cases who sought to have their capital-murder indictments dismissed because of a ruling last year by the U.S. Supreme Court. Judges have had two options to sentence people under Alabama's capital punishment law -- death or life without the possibility of parole....
A bill had been presented this spring in the Alabama Legislature. That bill called for giving judges the option of a life sentence with one chance at parole after 40 years. Legislators, however, did not enact that bill before their session ended May 20.
Meanwhile attorneys for the two Jefferson County teens -- Rashad Stoves and Larry Henderson -- had argued before the Alabama Supreme Court to overturn circuit court judges rulings in their cases to dismiss the capital murder indictments pending against them because the courts did not yet have a new law in place....
"What they've done is legislate from the bench," Wendell Sheffield, an attorney for Stoves said this morning of the Alabama Supreme Court's ruling. "They are saying it is within their equitable powers ... They've taken an unconstitutional statute and have attempted to make it constitutional." Sheffield and law partner John Lentine said at this point they are reviewing the court's decision in depth and will decide whether to take the case further.
In its ruling, the court stated that it had the right to delete the portion of the law struck down by the U.S. Supreme Court. The Alabama justices stated that the U.S. Supreme Court did not give guidance on what factors judges should use in sentencing. "It is well settled that should a statute become invalid or unconstitutional in part, the part that is valid will be sustained where it can be separated from that part that is void," the court ruled....
The Alabama justices stated that with their ruling juveniles now will know that, if convicted, they face a sentence of life imprisonment without the possibility of parole as a "ceiling" and life with the possibility of parole as the "floor." To help judges decide whether the sentences should be life with or without parole, the Alabama Supreme Court set out 14 factors the judges should use based on a Pennsylvania court ruling....
Sheffield and Lentine also said that it appears from the ruling that the juvenile sentencing will be done by the trial judge, without a jury's recommendation. In capital cases involving adults in which the death penalty is an option, juries are asked to make a recommendation.
Today's ruling also will be of interest to a number of people already serving life without the possibility of parole sentences in Alabama who were considered juveniles when the crime occurred. Some of those prisoners have already filed appeals seeking to be have their sentences changed in light of last year's U.S. Supreme Court ruling.
We agree with the juveniles that the Miller Court did not delineate specifically which factors to use in sentencing a juvenile convicted of a capital offense. We find helpful Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. Ct. 2012), which ordered that a juvenile sentenced to a mandatory life-without-parole sentence must be resentenced with a consideration of the principles annunciated in Miller. We hold that a sentencing hearing for a juvenile convicted of a capital offense must now include consideration of: (1) the juvenile's chronological age at the time of the offense and the hallmark features of youth, such as immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile's diminished culpability; (3) the circumstances of the offense; (4) the extent of the juvenile's participation in the crime; (5) the juvenile's family, home, and neighborhood environment; (6) the juvenile's emotional maturity and development; (7) whether familial and/or peer pressure affected the juvenile; (8) the juvenile's past exposure to violence; (9) the juvenile's drug and alcohol history; (10) the juvenile's ability to deal with the police; (11) the juvenile's capacity to assist his or her attorney; (12) the juvenile's mental-health history; (13) the juvenile's potential for rehabilitation; and (14) any other relevant factor related to the juvenile's youth. See generally Commonwealth v. Knox. We recognize that some of the factors may not apply to a particular juvenile's case and that some of the factors may overlap. Nevertheless, we believe that providing the trial court with guidance on individualized sentencing for juveniles charged with capital murder comports with the guidelines of Miller.
Monday, September 09, 2013
California killer claiming autism supports Atkins claim to preclude executionThis article from San Jose Mercury News reports on a notable effort by a killer on death row to raise a unique argument as part of an Atkins Eighth Amendment claim to prevent his execution. This piece is headlined "California death penalty and mental retardation: Condemned killer seeks reprieve," and here are excerpts:
More than six years ago, it appeared that condemned Santa Clara County killer David Allen Raley had run out of legal options to avoid execution. After two decades of appeals, the U.S. Supreme Court had rejected Raley's seemingly final challenge to his 1988 death sentence for murdering a Peninsula teenager and attempting to murder her high school friend.
But as is often the case for California's death row inmates, Raley's legal odyssey is far from over. Armed with a new order from the California Supreme Court, Raley has revived his appeals with a claim that he was mentally retarded at the time of his 1985 crime -- a finding that would spare him from execution under a 2002 U.S. Supreme Court decision.
On Monday, Santa Clara County Superior Court Judge Linda Clark will start a special two-week hearing in Raley's case, which among other evidence has raised the unique claim that he is autistic and therefore falls under the legal protections against executing the mentally retarded. Clark will issue a recommendation to the state Supreme Court, which will make a final decision on Raley's fate.
In the meantime, Raley's legal team argues the 51-year-old death row inmate should spend the rest of his life in prison for the 1985 murder of Jeanine Grinsell and the attempted murder of her close friend, Laurie McKenna, inside a deserted Hillsborough mansion. "It is very true that David Raley is significantly developmentally disabled," said Robert Bacon, one of Raley's lawyers....
In court papers submitted to Clark, prosecutors branded Raley's argument a belated legal Hail Mary to avoid lethal injection and scoffed at the suggestion he is mentally disabled, noting his IQ tests were never below the standard threshold for mental retardation. "(Raley) acted alone in committing these horrible crimes and the facts elicited at trial show evidence of premeditation, cunning and problem solving, all characteristics inconsistent with a diagnosis of intellectual disability," prosecutors wrote.
Raley's case is part of an increasingly common legal battle unfolding in recent years in California and other death penalty states, the result of the U.S. Supreme Court's ruling that it is unconstitutional to execute the mentally retarded. The high court left it to the states to sort out which death row inmates or defendants facing capital murder charges may fall under the murky definition of mental retardation, forcing courts to grapple with evaluating whether there is clear proof of the disability before the age of 18.
The California Supreme Court has issued orders in dozens of cases like Raley's in which death row inmates have made the claim, often decades after a crime and death sentence. These include Bay Area condemned killers Walter Cook, from San Mateo County, and Robert Young and Delaney Marks, sent to death row from Alameda County. Courts have also spared some murderers from the death penalty at trial, including convicted San Jose cop killer DeShawn Campbell, who was found to be mentally retarded and sent to prison for life....
Death penalty supporters say claims such as Raley's are contributing to the legal morass. "The fuzziness in the definition of retardation" has given death row inmates another avenue to contest their sentences, "even though generally meritless" said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.
But Raley's supporters say his case is an example of the state spending too much time and money on the death penalty. The American Civil Liberties Union cites his mental disability and costly appeals as reason to abandon capital punishment. "He's not the worst of the worst," Bacon added. "The interests of public safety could be served with life in prison without the possibility of parole."
September 9, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (11) | TrackBack
"Talking About Cruelty: The Eighth Amendment and Juvenile Offenders after Miller v. Alabama"The title of this post is the title of this notable new paper by Samuel Pillsbury now available via SSRN. Here is the abstract:
After setting out the issues and approach of the U.S. Supreme Court majority in Miller v. Alabama, the article develops cruelty as a constitutional norm. Initially cruelty as a norm for Enlightenment thinkers in the late 18th century and in the creation of the American penitentiary in the early nineteenth century is considered. Then the article examines cruelty as a modern norm that condemns both sadism and indifference towards the serious suffering of others. This norm supports the Miller conclusion that mandatory life without chance of parole sentences for certain juvenile offenders are cruel, because such sentences mandate a form of culpable indifference to individual value.
The article then describes how a cruelty norm may guide courts in resolving the constitutionality of a life without chance of parole sentence for juvenile by a judge who had discretion to order a lesser sentence. The cruelty norm described would find unconstitutional a life sentence for a juvenile unless a subsequent opportunity was provided for the offender to seek release based on personal reform. Otherwise, a life sentence would disregard the basic value of the offender in the person that he or she might become.
Wednesday, September 04, 2013
Another effective review of the messy Miller aftermathThis morning's Wall Street Journal has this new article reviewing all the legal uncertainty which persists in state courts more than a year after the Supreme Court's Miller ruling declared unconstitutional mandatory LWOP sentences for juvenile murderers. (Regular readers may recall similar recent AP and Stateline piecesfocused mostly on legislative responses to Miller discussed here and here.) This new WSJ piece is headlined "Courts Split Over Ruling on Juvenile Life Sentence: Confusion on 2012 Decision Creates a Legal Limbo for Inmates, Their Lawyers," and here are excerpts:
Jeffrey Ragland, sentenced to life without parole in 1986 for his involvement in the killing of a fellow teen with a tire-iron blow to the head, could soon be a free man. That outcome is the result of a ruling by the Iowa Supreme Court last month that found the sentence handed down to Mr. Ragland, now 44 years old, unconstitutional. The court concluded that a June 2012 ruling from the U.S. Supreme Court outlawing mandatory life-without-parole sentences for juveniles should be applied retroactively, rather than only to future cases.
Other high-level courts, including the Minnesota Supreme Court and the Eleventh U.S. Circuit Court of Appeals in Atlanta, have ruled otherwise, finding the Supreme Court's ruling in Miller v. Alabama shouldn't reach backward in time. Inmates challenging their sentences in those cases had their appeals denied.
This schism over the Miller ruling has helped sow deep confusion among inmates, their lawyers, lawmakers and sentencing-policy advocates. More than a year after the high court ruling, many of the approximately 2,100 people sentenced as juveniles to mandatory life-without-parole sentences before June 2012 are being held in a sort of legal limbo — with few answers in sight.
"The situation is an absolute mess," said Wendell Sheffield, a criminal defense lawyer in Birmingham, Ala., who represents a juvenile being held in jail on capital murder charges. "We got an opinion from the highest court in the land, but nobody knows how to implement it."... [S]o far, courts have largely divided over a highly technical question of constitutional law: whether the rule established in Justice Kagan's opinion is "substantive" in nature, and therefore should apply retroactively, or "procedural," which would only alter the method of determining a sentence going forward.
Several Supreme Court rulings in recent years in regard to sentencing, such as the 2002 decision that banned the death penalty for the mentally disabled, were in the former category and applied to sentences already imposed. Justice Kagan's opinion didn't explicitly label the new rule as procedural or substantive....
Advocates for overhauling the juvenile-justice system hailed the Ragland ruling. "An incentive to rehabilitate should be part of most juvenile sentences," said Jody Kent, director of the Campaign for the Fair Sentencing of Youth. "So often we have no idea what a child is going to be like in 10, 20 or 30 years."
A spokesman for Iowa Gov. Terry Branstad, a Republican whose office had argued against Mr. Ragland's new sentence, said victims "must never be re-victimized and can never be forgotten from the process." It is a concern echoed by other victims' rights supporters, who think renewed parole hearings, with their promise of springing convicted murderers from prison, would open old wounds.
Since the Miller ruling, a handful of the 28 states with mandatory life-without-parole sentences for at least some juveniles have changed their laws. Some, like Delaware and Texas, scrapped the option of such sentences entirely. Others, like Arkansas and Nebraska, still allow judges to impose the sentence, but also let them consider a life sentence with the possibility of parole.
But the majority of states have yet to change their laws, leaving the status of scores of inmates and defendants up in the air. Mr. Sheffield said his client in Alabama is "completely stuck in a holding pattern" until the legislature or the Alabama courts give some clarity. "I think the [U.S.] Supreme Court was hopeful that state legislatures would deal with this fairly quickly," he said. "But they haven't — and it's just adding to the chaos."
I suspect the US Supreme Court will eventually feel compelled to take up the issue of whether and how the Miller ruling is to apply retroactively to long ago final cases. If (and when?) the Justice take up this matter, I think the case could end up being one of the most significant SCOTUS retroactivity decisions since Teague.
A few recent related posts:
- Effective press review of some state responses to SCOTUS Miller ruling
- Terrific Stateline review of states' varied applications of and reactions to Miller
- A year after Miller confirmed kids are different, how may kids have different sentences?
- Iowa Supreme Court rules in favor of juve defendants in three post-Graham appeals
- In lengthy split opinion, Minnesota Supreme Court concludes Miller should not apply retroactively
September 4, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack
Monday, September 02, 2013
"Against Juvenile Sex Offender Registration"The title of this post is the title of this notable new paper by Catherine Carpenter now available via SSRN. Here is the abstract:
Imagine if you were held accountable the rest of your life for something you did as a child?
This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives.
No matter the constitutionality of adult sex offender registration — and on that point, there is debate — this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses. Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior. And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent.
Compounding the problem is mandatory lifetime registration for child offenders. This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida. This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders.
Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children. And on that issue, we are failing. The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation. In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.
September 2, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack
Wednesday, August 28, 2013
Fort Hood mass murderer, Nidal Hasan, gets death penalty ... everybody happy?This CBS News piece reports on the not-very-surprising outcome of a high-profile capital military sentencing proceeding today: "Thirteen senior Army officers have sentenced Maj. Nidal Hasan to death for carrying out the horrific 2009 shooting rampage at Fort Hood Army base." Here is more about today's proceedings and what comes next:
The panel's recommendation will now go to a convening authority, the general responsible for assembling the capital court-martial, for review and approval. The convening authority can approve or reduce the sentence.
On Friday, Hasan was unanimously convicted on 13 charges of premeditated murder and convicted of 32 charges of attempted premeditated murder. His conviction carries a mandatory minimum sentence of life in prison and the panel was authorized to consider the death penalty.
During sentencing the government presented 20 witnesses over two days, including soldiers who were injured as well as parents, spouses, and children of those who were murdered by Hasan. Each described how the shooting has impacted their lives while Hasan, who was paralyzed in the shooting and is now confined to a wheelchair, sat about 20 feet away.
On Wednesday, in an emotional 50-minute closing statement, the government revisited the stories of each witness and then told panel, "The acts of 5 November were religiously motivated, but you should not punish him for his religion. You should punish him for his hate."
The government argued against the idea that a death sentence would result in martyrdom for Hasan. "He will never be a martyr because he has nothing to give. Do not be misled. Do not be fooled. He is not giving his life. We are taking his life. This is not his gift to God; this is his debt to society. This is not a charitable act. He is not now and never will be a martyr. He is a cold-blooded murderer," argued prosecutor Col. Michael Mulligan.
As a convicted defendant, Maj. Hasan had the right to give an unsworn statement before the court or to testify under oath. When it was his turn to present evidence at sentencing, he simply said, "the defense rests." He also declined to present a closing argument on Wednesday....
In courts martial, appellate review is mandatory and cannot be waived or withdrawn when the sentence includes death. Under military law, any sentence calling for more than one year of incarceration gets an automatic review by the Army Court of Military Review, which then goes to the Armed Forces Court of Appeals....
It has been more than 50 years since the U.S. military executed a U.S. service member. Army Pfc. John A. Bennett was the last service member to be put to death, on April 13, 1961 after being convicted of the rape and attempted murder of an 11-year-old girl.
In 1983, the Armed Forces Court of Appeals ruled that military capital punishment was unconstitutional, but it was reinstated in 1984 when President Reagan signed an executive order adopting new rules for capital courts martial. According to the Death Penalty Information Center, there have been 16 military death penalty convictions since 1984, but 11 of those sentences have been overturned. The remaining five service members remain on death row....
On Tuesday his stand-by defense counsel submitted a motion to present mitigating evidence that could help Hasan in sentencing. Hasan objected and Judge Osborn denied the motion, stating a pro-se defendant in the military justice system "is the captain of his own ship."
Col. Joseph Cerreto, a retired former Judge Advocate General, said he cannot imagine that appellate counsel will not be appointed to prosecute the appeal. "Whether Hasan wants it or not, no court is going to order the death penalty or life incarceration without parole without appellate counsel having briefed and argued the case," he said.
Even if Hasan does not cooperate, appointed lawyers can note his opposition in their briefs to the court and then go ahead and raise any legal issues they deem appropriate.
As this story makes clear, the prosecutors and seemingly many connected to the victims of Hasan's crimes were hoping to get a death sentence in the case. But reports have also indicated that Hasan himself wanted to be sentenced to death. Thus the question in the title of this post: is anyone upset that Hasan has been sentenced to death?
I know, of course, that death penalty abolitionists do not want to see any jurisdiction actual use the death penalty, as so I suspect there may be a few folks how are not truly happy with this outcome. Still, given than Hasan himself apparently wants to be sentenced to death and further that it seems very unlikely he will be executed anytime soon (if at all), I wonder if even abolitionist might in this kind of case at least by not all too displeased by this sentence of death.
Monday, August 26, 2013
Terrific Stateline review of states' varied applications of and reactions to MillerMaggie Clark over at Stateline has this notable new article (and this amazing associated resource) reviewing all the diverse ways states are deal with the Supreme Court's Miller ruling. the piece is headlined "After Supreme Court Ruling, States Act on Juvenile Sentences," and here are excerpts:
Last year, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory life sentences for offenders under 18 are cruel and unusual punishment, and therefore unconstitutional. In the wake of that decision, a federal court this month ruled that ... more than 300 other Michigan juvenile lifers are entitled to a parole hearing.
Michigan is one of at least 11 states that have revisited their sentencing laws in response to the Supreme Court decision (see Stateline chart). Generally, juvenile killers in those states will be eligible for a parole hearing after serving a mandatory minimum sentence of about 25 years.
Still, there are at least 15 states that have not yet eliminated mandatory life without parole sentences for juveniles. In many states, legislatures and courts aren’t sure how the Miller decision should apply to offenders such ... already serving such sentences. Nationwide, there are more than 2,000 prisoners in 43 states serving life without parole sentences for crimes they committed as juveniles....
[I]n Pennsylvania, which has largest number of inmates whose sentences are covered by the Supreme Court ruling, the state Supreme Court has been considering the retroactivity question for over a year. The court’s decision could lead to the resentencing and eventual release of over 400 convicted murderers.
In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Supreme Court decision applies retroactively to all prisoners serving such sentences. But in Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.
State Supreme Courts in Illinois, Florida, Massachusetts and Colorado will likely consider the retroactivity question this fall, said Marsha Levick, chief counsel at the Juvenile Law Center, a legal advocacy group for youth....
The super-predator theory, popular in the early 1990s, predicted a wave of juvenile violent crime in the following decade. States reacted by treating many juvenile offenders as if they were adults. Between 1992 and 1995, 48 states increased penalties for juveniles convicted of violent crime, according to the Department of Justice. But that wave never came: Juvenile crime started to drop in the early 1990s, and it has continued to decline in the years since, as has adult crime.
The harsher juvenile sentencing laws likely were not a factor in the decline, since data show there was no difference in the crime rate for states with mandatory life without parole sentences and those without. Crime has declined nationwide, and across all demographics....
Considering youth as a mitigating factor is part of the Supreme Court’s broader move toward treating kids differently than adults. In two decisions banning the death penalty for juveniles for both homicide and non-homicide crimes, the justices relied heavily on neuroscience showing that brains are still growing and changing well through the teenage years, meaning that juveniles are likely to grow out of their criminal behavior, especially if they’re put in a rehabilitative setting.
Still, kids are committing adult crimes, and in these cases, victims’ families were promised life without parole sentences for their family member’s killer, said Joy Yearout, spokeswoman for Michigan Attorney General Bill Schuette. “Families were told that (the killers) would never be paroled, and that could have been 20 or 30 years ago,” Yearout said. “Now the families are being told that’s not true anymore and that’s very frightening. It’s very important to have truth in sentencing so that victims have assurance that the sentence will actually be what’s set.” Schuette has said he will appeal the Michigan federal court decision.
Most of the 11 states that have changed their laws to comply with Miller v. Alabama have either discouraged the use of life without parole sentences for juveniles, or scrapped them altogether.
But because the Supreme Court only struck down mandatory life without parole for juveniles, and not all such sentences, states are not required to completely overhaul their juvenile sentencing policies. In Alabama, where the Supreme Court case originated, the attorney general recently advised district attorneys to seek life with parole in two ongoing juvenile murder cases. The Alabama legislature has not yet approved any changes in mandatory sentencing laws to comply with the Supreme Court ruling.
August 26, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Saturday, August 24, 2013
Debate continues after Mizzou Gov vetoes bill to take juve sex offenders off registriesAs reported in this AP piece, headlined "Vetoed bill could affect 870 Mo. sex offenders," the Show Me state is showing all of us how a focused debate over juvenile sex offenders can play out these days. Here are the basics:
A Missouri bill removing the names of juvenile sex offenders from public registries could affect hundreds more people than originally estimated and help hide the whereabouts of some high-profile offenders, Gov. Jay Nixon said Wednesday.
The Democratic governor pointed to new figures and specific examples of sex-offenders as he traveled to St. Louis and Kansas City to try to build a case for why legislators should sustain his veto of the bill.... Republican legislative leaders have said the measure is a likely target for a veto override, noting that it passed originally with overwhelmingly support.
Under the bill, people who are younger than 18 when they commit sex offenses would no longer appear on law enforcement websites that list the home addresses and physical description of sex offenders. Adults who are currently listed because of sex offenses committed as juveniles also could be removed from the public registry five years after their convictions or release from prison.
Supporters of the bill have said the public registries leave a permanent mark on adults who may have been convicted as teenagers for consensual sexual activities with younger juveniles. They have said such people deserve a second chance outside of the public spotlight.
The bill passed the House 153-0 and the Senate 28-4 earlier this year. Nixon has said the legislation would weaken state laws and undermine public safety....
"The leadership of the House may be ready to help violent sex offenders hide from the public and law enforcement, but their victims, and the millions of Missourians who use these websites to help keep their families safe, are not," Nixon said.
The governor's office distributed information about specific sex offenders who could be removed from the list if lawmakers were to override his veto. Among them is Daniel Winfrey, who was 15-years-old in April 1991, when sisters Julie and Robin Kerry were raped and killed at the Chain of Rocks Bridge over the Mississippi River in the St. Louis area. Winfrey pleaded guilty to second-degree murder and rape after agreeing to testify against several others involved in the crime.
Other offenders that the governor's office cited as likely to be removed from the public registry included men who had been convicted as juveniles of rape, sexual assault and sodomy against children who were ages 5, 6, 7 and 8.
Nixon spokesman Scott Holste said the legislation would benefit people who committed "heinous" acts. "These aren't Romeo and Juliet people we're talking about here," Holste said.
Tuesday, August 20, 2013
US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinionLong-time readers know that big federal sentencing news can often come from the heartland in the form of potent lengthy opinions by US District Judge Mark Bennett. His latest important sentencing work, which a number of helpful readers have made sure I would not miss, comes in US v. Young, No. 5:12-cr-04107 (D. Iowa Aug. 16, 2013) (available for download below). I could say much about so many notable passages in this 75-page Young opinion (which includes 20+ pages of data-rich appendices at the end), but I will be content to let the first few paragraph highlight why this opinion is a must-read for all who follow the federal sentencing system:
This case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice (DOJ) of § 851 drug sentencing enhancements. These enhancements, at a minimum, double a drug defendant’s mandatory minimum sentence and may also raise the maximum possible sentence, for example, from forty years to life. They are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction in state or federal court (even some state court misdemeanor convictions count), no matter how old that conviction is.
Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.
These decisions are shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency. See In re Oliver, 333 U.S. 257, 266–271 (1948) (“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by . . . the English Court of Star Chamber.”). Attorney General Holder’s August 12, 2013, Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Holder 2013 Memo), while establishing a national policy for § 841 enhancements, does nothing to pull aside the cloak of secrecy shrouding the nationwide disparities in the application of § 851 enhancements.
August 20, 2013 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (47) | TrackBack
Monday, August 19, 2013
Making the case for releasing more of the tens of thousands of "Graying Prisoners"Jamie Fellner, who is a senior adviser at Human Rights Watch and focuses on US criminal justice issues, has this notable new New York Times op-ed headlined "Graying Prisoners." Here are highlights:
More and more United States prisons resemble nursing homes with bars, where the elderly and infirm eke out shrunken lives. Prison isn’t easy for anyone, but it is especially punishing for those afflicted by the burdens of old age. Yet the old and the very old make up the fastest-growing segment of the prison population.... [A]t least 26,100 men and women 65 and older incarcerated in state and federal prisons, up 62 percent in just five years.
Owing largely to decades of tough-on-crime policies — mandatory minimum sentences, “three strikes” laws and the elimination of federal parole — these numbers are likely to increase as more and more prisoners remain incarcerated into their 70s and 80s, many until they die....
[S]ome older inmates committed violent crimes, and there are people who think such prisoners should leave prison only “in a pine box.” Anger, grief and the desire for retribution are understandable, and we can all agree that people who commit serious crimes should be held accountable. But retribution can shade into vengeance. While being old should not be an automatic get-out-of-jail-free card, infirmity and illness can change the calculus of what justice requires.
It is worth asking: What do we as a society get from keeping these people in prison? People like the 87-year-old I met who had an “L” painted on his left shoe and an “R” on his right so he would know which was which and who didn’t even seem to know he was in prison. Or the old men I watched play bingo in a prison day room who needed staff members to put the markers on the bingo cards for them.
Attorney General Eric Holder gave his answer to this question on Aug. 12 when he announced new compassionate release policies for the Bureau of Prisons. Elderly and infirm federal prisoners who have served a significant part of their sentence and pose no danger will now be eligible for early release.
Recidivism studies consistently show declining rates of crime with age. Those who are bedridden or in wheelchairs are not likely to go on crime sprees. The scores of older prisoners I have met want to spend their remaining time with their families; they are coming to terms with mortality, regret their past crimes and hope, if time permits, to make amends.
Keeping the elderly and infirm in prison is extraordinarily costly. Annual medical costs for older prisoners range from three to nine times higher than those for younger ones, because, as in the general population, older people behind bars have high rates of chronic disease and infirmities and require more hospitalizations and medical care.
I have talked with dozens of correctional staff members who acknowledge that officers are not trained to manage geriatric prisoners. Nor are there enough of them to give the extra attention such prisoners may need — to ensure they take their medications, find their way to their cell, are clean if they are incontinent.
So what can be done? Compassionate release and medical parole programs exist in many prison systems, but they are poorly used and often exclude people who committed violent crimes or sex offenses even if those people are no longer able to repeat such crimes.
If the programs were properly devised and used, some aging prisoners could go back to their families. Others could be released to nursing homes or assisted-living facilities — although it is increasingly difficult to find private facilities that will take former prisoners. States and the federal government should also jettison laws requiring mandatory sentences that condemn offenders to old age in prison, without regard to whether they pose a threat to the public or have the potential for rehabilitation.
If we aren’t willing to change sentencing laws or make more use of compassionate release, we’ll need to pour vast sums of money into prisons to provide adequate conditions of care for the soaring population of geriatric prisoners. That means investing in special training for correction officers; in round-the-clock medical care; in retrofitting buildings, wheelchair-accessible cells and bathrooms; in units with lower bunks and no stairs; and in increased hospice care for the terminally ill.
But do we really want to go that route? In the case of frail and incapacitated prisoners who can safely be released to spend what remains of their lives under supervised parole, release is a far more compassionate, sensible course.
Effective press review of some state responses to SCOTUS Miller rulingThe AP has this notable new article on the wire discussing at lengthy some of the response at the state level to the Supreme Court's Miller ruling last year prohibiting madatory LWOP sentences for juvenile murderers. Here is an excerpt:
[There are] an estimated 2,100 so-called juvenile lifers across the country — inmates sentenced to lengthy prison terms without parole — who hope for a reprieve in the wake of a 2012 U.S. Supreme Court ruling, Miller v. Alabama. The decision determined such sentences are cruel and unusual punishment and therefore unconstitutional. The court ruled, 5-4, that the proportionality of the sentence must take into account "the mitigating qualities of youth," such as immaturity and the failure of young people to understand the ramifications of their actions.
In part to head off an avalanche of expected appeals, at least 10 states have changed laws to comply with the ruling. In June, Delaware Gov. Jack Markell signed a bill eliminating mandatory life sentences without parole for juvenile killers, who are also ineligible for the death penalty. The new law requires juveniles convicted of first-degree murder to serve at least 25 years in prison while still allowing judges the discretion to impose a sentence of life without parole. Juvenile offenders convicted of first-degree murder are also allowed to petition for a sentence modification after serving 30 years.
Wyoming Gov. Matt Mead signed a bill in February specifying that juveniles convicted of murder would be eligible for parole after serving 25 years in prison. Last fall, Pennsylvania Gov. Tom Corbett signed legislation giving judges options other than life in prison when sentencing juveniles in murder cases. Other states with new juvenile sentencing laws include Arkansas, California, Montana, Nebraska, North Carolina, South Dakota and Utah, according to data collected by the National Conference of State Legislatures this summer.
In Connecticut, [there are] about 200 inmates who could be affected by the high court's ruling, a proposal that would have allowed parole hearings for teen offenders who've served at least 12 years or 60 percent of their sentence died this year. There are plans to resurrect the bill next year.
But the prospect of possibly shortening sentences has been met with mixed reaction from relatives of crime victims. "If you can't believe a judge's final decision in a courtroom, who can you believe?" asked John Cluny, whose wife and teenage son were shot to death in 1993 by his son's 15-year-old friend, Michael Bernier. Bernier was sentenced to 60 years for the murders. Cluny calls him "a cold-blooded killer."
Despite good behavior in prison and years of reflection and maturity, Cluny questions giving such killers another chance at freedom. "You're in prison for what you did, not for what you've become," he said.
August 19, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Sunday, August 18, 2013
Lawyers for Aurora shooter James Holmes attacking Colorado's death penalty againAs reported in this AP piece, the attorneys representing "theater shooting suspect James Holmes launched another legal assault on Colorado's death penalty laws Friday, arguing they don't set clear standards and that they make it too hard for jurors to weigh mitigating factors." Here is more on the latest developments in a high-profile state capital case:
They also complained that Arapahoe County District Judge Carlos A. Samour is ruling on defense motions too quickly and asked him to allow them to argue their points "fully and fairly."
Holmes is accused of opening fire in a theater full of people watching a Batman movie in suburban Denver in July 2012, killing 12 and wounding 70. He pleaded not guilty by reason of insanity to multiple charges of murder and attempted murder. Prosecutors are seeking the death penalty.
In two motions totaling 32 pages of arguments, defense lawyers argued the death penalty law is unconstitutional and asked Samour to rule out execution for Holmes. In addition to questioning the standards of the laws, the defense said the statutes allow fewer options for defendants to appeal the death penalty if they choose trial by jury than if they choose trial before a judge, without a jury....
Prosecutors are sure to file strenuous arguments that the laws are constitutional. Samour's decision is likely weeks away. Samour rejected the defense's previous attack on the death penalty law in May. Before Holmes entered his insanity plea, his lawyers argued the death penalty law could unfairly cripple their ability to mount an insanity defense.
With Holmes' life literally at risk, his lawyers are pursuing multiple lines of defense as well as questioning some of Samour's actions, to the judge's obvious displeasure. Samour has kept the case moving at a steady if not brisk pace, and one defense motion released Friday told Samour he has ruled too quickly on some defense motions — without a hearing, before prosecutors responded and without allowing the defense to reply to prosecution arguments.
The defense asked Samour to "refrain from issuing premature rulings." Samour hasn't ruled on the motion. Earlier Friday, Samour denied a defense motion seeking the mental health records of prosecution witnesses, bluntly dismissing it as a "fishing expedition."
Samour said Holmes' lawyers don't know whether any of the witnesses have received mental health treatment, whether any records of the treatments exist and whether the records are relevant to the trial. "In other words, the defendant wants the court to approve a fishing expedition," Samour wrote. "The court declines the invitation to do so."...
Samour denied 12 defense motions that sought a raft of records, including tapes of police communications on the day of the shootings, all statements that victims and witnesses made to police and all prosecution records of communications with victims. Samour granted a defense request for information on the credibility of prosecution witnesses, noting prosecutors didn't submit any arguments opposing that motion.
It is hard to fault Holmes' attorneys for raising every plausible pre-trial claim in an effort to prevent their client from being sentenced to death; indeed, they are ethically obliged to do so. But I struggle somewhat, now a full year since the crime was committed, with claims by the defense that the trial judge, who seems to be just seeking to get this case to trial before too long, is guilty of resolving "motions too quickly."
Friday, August 16, 2013
Iowa Supreme Court rules in favor of juve defendants in three post-Graham appealsAs reported in this local article, headlined "Hundreds of juveniles could appeal felony sentences under Iowa court rulings," the Iowa Supreme COurt handed down three notable opinions today that operationalize the US Supreme Court's opinion in Graham concerning LWOP sentences for juve non-homicide offendes. Here are the basics:
Hundreds of juveniles convicted of felonies could apply to have their sentences reviewed under three decisions handed down Friday by the Iowa Supreme Court.
Iowa's high court upheld a lower court's decision to reduce the sentence of Jeffrey Ragland, now 44, to life in prison with a possibility of parole after 25 years. Ragland, when he was 17 was convicted of first-degree murder, which carries a mandatory sentence of life in prison without parole, even though he did not swing the tire iron that killed a man.
The Iowa court also ordered two other juvenile cases for resentencing that did not involve mandatory life sentences without parole: Denem Anthony Null, now 20, is serving a minimum sentence of more than 52 years for a 2010 murder and robbery. He was 16 at the time of his crimes. Desirae Monique Pearson, now 19, is serving a minimum of 35 years for robbery and burglary committed in 2010....
In today's rulings, the court said Gov. Terry Branstad overreached last year when he sought to keep 38 juveniles in prison who were convicted to life in prison without a chance of parole. The governor imposed life sentences with a chance of parole after 60 years after the U.S. Supreme Court ruled a teenager convicted of murder must be sentenced differently than adults.
Friday's decisions produced sharp divisions on the high court. Justice Edward Mansifeld, in his dissent in Pearson's case, cautioned the high court's broad interpretation of the U.S. Supreme Court ruling regarding juvenile sentencing could produce a "flurry" of court hearings. He said the 425 juvenile inmates serving time in Iowa prisons “may now have a ticket to court and a potential resentencing.”
"This would be unprecedented," said Mansfield, noting other state courts have chosen to reconsider sentences that locked up juveniles for life without parole.
The impact of the court’s decision remains to be seen. Dozens, or even hundreds of cases, spread across Iowa should not strain the court system, said Robert Rigg, a Drake University law professor. The fact that juveniles convicted of serious felonies can ask for new sentences only opens the door to a hearing, and does not guarantee anything beyond that, Rigg said. The high court has required a judge consider a variety of factors during sentencing, such as a youth's history, socioeconomic background, history of substance abuse and psychiatric evaluations, he said.
All this information is already gathered. But under mandatory sentencing laws, a judge is not allowed to consider these factors, Rigg said. "When we have mandatory minimums, you order these investigations but can't use them in sentencing," Rigg said.
Gov. Terry Branstad intends to work with the legislature to establish criminal sentences that keeps convicted juveniles in prison, said Tim Albrecht, the governor’s spokesman. The high court’s decision does not affect the governor’s authority to grant clemency, which includes commutation of life sentences, he said. “Victims must never be re-victimized and can never be forgotten from the process,” Albrecht said. “The governor and lieutenant governor look forward to working with the Iowa Legislature to find a way to keep dangerous juvenile murderers off the streets and keep Iowans safe.”
Lawmakers could find it difficult to change the state's juvenile sentencing laws if they disagree with the court's rulings, because justices used the Iowa constitution to make its case. Those who disagreed with the court's 2009 decision that legalized same sex marriage ran into similar roadblocks, said Rigg, the Drake professor, who noted this approach also means the decision can't be appealed to the U.S. Supreme Court.
State law until last year required anyone sentenced for first-degree murder, regardless of age, to spend life in prison without parole. Other mandatory sentences also existed for serious felonies. In June 2012, though, U.S. Supreme Court in Miller v. Alabama found such sentences to be cruel and unusual based on brain research showing that juveniles are less culpable for their crimes due to differences in brain development and impulse control.
Branstad's immediate response to that federal ruling was a blanket commutation order that allowed parole for teen murderers only after they had spent 60 years behind bars. That move was widely criticized by lawyers and advocates for the 38 people serving time for such murders. Several of the offenders are appealing saying that 60 years still constitutes a long period of time behind bars....
After the U.S. Supreme Court, Ragland's attorney sought parole for his client. The district court ruled that Branstad exceeded his authority and resentenced Ragland to life in prison with the possibility of parole after 25 years.
The Iowa Supreme Court, in Friday's unanimous decision, upheld the lower court's ruling. The court agreed with the district court's findings that the governor's commutation still amounted to a life sentence without parole. Ragland would be 78 before he could possibly be released and near the end of his statistical life expectancy....
The court continued in its opinion: “In light of our increased understanding of the decision making of youths, the sentencing process must be tailored to account in a meaningful way for the attributes of juveniles that are distinct from adult conduct. At the core of all of this also lies the profound sense of what a person loses by beginning to serve a lifetime of incarceration as a youth.”
In a concurring opinion, Justice David Wiggins wrote that Branstad’s imposition of a sentence “might constitute a denial of due process.” In his concurring opinion Justice Bruce Zager wrote that he believed Branstad exceeded his constitutional authority when Branstad removed Ragland’s ability to earn good time credit against the commuted sentence.
Jon Kinnamon, Ragland’s attorney, said the court’s decision will open the door for his client to seek parole. He doesn’t know when Ragland’s case could be reviewed by the board, he said. He said he planned to contact Ragland and his family yet today. “I would presume that the next step would be that he would be in front of the parole board,” he said.
All three of the Iowa Supreme Court opinions are available via this webpage, and the Ragland opinion reference above is at this link. The longest opinion of the three is in Iowa v. Null, and its 83 pages can be found at this link.
August 16, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Thursday, August 15, 2013
"White women sent to Ohio prisons in record numbers, reports say"The title of this post is the headline of this notable new press report about some notable criminal justice data coming out of the Buckeye State. Here are the details:
Amanda Lane is the face of Ohio's fastest-growing prison trend. Lane, 28, is white and from rural Pickaway County, where she was convicted of drug charges and sentenced to 18 months in prison. The state's prisons are filling up with people just like her, a surge that has shocked researchers and experts.
White women, many from rural Ohio, are the fastest growing population in Ohio prisons. In fact, they made up 80 percent of the female felons sentenced to prison between June 30, 2012, and July 1, or fiscal year 2013, according to state records.
Compare that to fiscal year 2003, when white women sentenced to prison made up 55 percent of females in prison. In 1998, they made up 43 percent, according to state records.
On June 1, there were 3,974 female inmates in Ohio prisons; 2,962 were white, or nearly 75 percent. Nationally, the numbers of white women sentenced to prison rose 48 percent from 2000 to 2009, according to the Sentencing Project, a Washington, D.C., think tank. "It's a major shift," said Steve Van Dine, chief of the bureau of research for the Ohio Department of Rehabilitation and Correction, speaking about the trend here. "It's rather dramatic."
Researchers say it is clear where many of the the numbers are coming from: rural Ohio. "That's the thing that jumped out at me," said James Austin, a national researcher who studied women in Ohio prisons through a grant from the U.S. Justice Department. "The numbers weren't coming from Cleveland or Columbus, but from predominantly white, rural counties."...
In the men, the percentages have changed, as the number of whites sentenced to prison has grown. In June, there are 22,880 white men in prison, while there are 21,864 black men. But those numbers are not as dramatic as the shifts seen in women felons.
"I tend to believe that judges in the more rural counties tend to sentence people more harshly," said Mike Huff, a former assistant Athens County prosecutor who now handles criminal defense work. "In rural counties, it is a big deal when someone gets caught making methamphetamine or selling drugs. People talk about it. They don't want that stuff around. Small newspapers and radio stations report it. It's big news, and judges realize that."
In a 2006 report for Ohio prisons, Austin found that "the increase in admissions has been largely limited to white females who tend to come from the more rural and suburban areas of the state. Compared to males, female admissions tend to be more white, older convicted of a non-violent crime, have short sentences (and) no prior incarcerations."...
Austin's report said one of the key reasons for the growth of white women in prison is that smaller, rural counties have a limited number of community-based programs for women, meaning judges have few programming options in sentencings. "In smaller counties, there are, generally, fewer programs for women," Austin said in an interview.