Saturday, July 09, 2011

Why the Second Amendment is not (and should never be?) "part of normal constitutional law"

Earlier this week, the Seventh Circuit issued a lengthy and detailed ruling in Ezell v. Chicago (available here), which issued a preliminary injunction against Chicago gun range ban based on the Second Amendment.  The Ezell ruling is both interesting and intricate; in this extended new post over at The Volokh Conspiracy, Second Amendment scholar and fan David Kopel astutely explains how and why "Ezell v. Chicago is a tremendously important case for Second Amendment doctrine."

I share Kopel's view about the importance of the Ezell opinion, and I recommend highly his summary and assessment of Ezell in his astute post.  However, as evidenced by the title of my post here, I want to take issue with a key assertion Kopel makes at the start of the (otherwise astute) concluding paragraph of his post.  Kopel finishes with these summary observation about what Ezell tells us:

In short, the Second Amendment is part of normal constitutional law.  The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights.  Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times.  As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

The problem I have is with the claim that Ezell demostratrates that the Second Amendment is "part of normal constitutional law," principally because Ezell distinguishes the Seventh Circuit's approval in Skoein of the federal crime prohibiting certain misdemeanants from possessing guns (basics here) by emphasizing that only "law-abiding, responsible citizens" get full Second Amendment protection.  If Second Amendment rights and jurisprudence truly depends and pivots on who is deemed a "law-abiding, responsible citizen," then the Second Amendment is not part of normal constitutional law because I know of no other constitutional right that only protects "law-abiding, responsible citizens."

Of course, a citizen's constitutional rights can and often are diminished or extinguished as a result of conviction and sentencing for a crime.  Incarcerated prisoners, in addition to obviously losing many liberty rights, also generally have no Fourth Amendment rights and have very limited First Amendment rights.  Similarly, duly imposed conditions of probation and/or parole that are part of a formal criminal sentence can lawfully result in restrictions on otherwise constitutional activities and liberties.

However, as I have explained in some prior posts, I am not aware of any other fundamental rights expressly protected by the Bill of Rights which are forever lost or forfeited whenever a person has ever once previously broken the law or been less than "responsible" in their behavior.  Indeed, I think we would be deeply troubled by a constitutional jurisprudence that held that once a citizen was ever convicted of any crime, even just a misdemeanor (e.g., speeding, littering), then that person never again has any First Amendment right to free speech or to attend church or any Fifth Amendment right to prevent the taking of their property or any Sixth Amendment to confront witnesses or to counsel in a criminal trial. 

In posts in the wake of Heller, I had predicted and feared that Second Amendment doctrine would start distinguishing between good "law-abiding, responsible citizens" people who get protected by this fundamental constitutional right and bad "other citizens" who get little or no constitutional protection.  The important Ezell opinion suggests the doctrine is developing in just this way, and that reality leads me to balk when Kopel asserts that "the Second Amendment is part of normal constitutional law." 

Or, to cast my concerns in a different light, I suggest we all should be very concerned if and when "normal constitutional law" starts to embrace and enforce significant distinctions between good "law-abiding, responsible citizens" people who get protected by constitutional rights and bad "other citizens" who get little or no constitutional protection.  I genuinely fear that this kind of "normal" constitutional doctrine, which is now emerging in the Second Amendment setting, very well could start a path toward the significant formal and/or functional reduction of many fundamental constitutional rights and liberties.

A few related Second Amendment posts:

July 9, 2011 in Offender Characteristics, Second Amendment issues, Who Sentences? | Permalink | Comments (31) | TrackBack

Friday, July 08, 2011

Ninth Circuit puzzling over whether Tucson shooter Jared Loughner can be forcibly medicated

The new piece posted at the WSJ Law Blog, headlined "Government Still Not Cleared to Forcibly Medicate Jared Loughner," provides a good account of the on-going legal debate over the treatment of the Tucson shooter. Here are excerpts:

We thought it was settled that prison officials could forcibly medicate Tucson gunman Jared Loughner, who is accused of shooting Congresswoman Gabrielle Giffords and 18 others earlier this year.   A federal judge last month upheld an earlier decision by prison officials to force Loughner to take anti-psychotic drugs in an effort to try to render him mentally fit to stand trial for the shootings.

But the 9th Circuit late last week halted the forced medication, and yesterday a three-judge panel of the court expressed skepticism that prison officials were legally entitled to administer drugs involuntarily without first getting court clearance, WSJ reports.

The battle over medicating Loughner, who has been diagnosed as a schizophrenic, will be a key factor in determining whether he ever stands trial.  At yesterday’s 9th Circuit hearing, government lawyer Christina Cabanillis said that under a Supreme Court decision, federal prison officials can make a medication decision on their own when they determine that someone in their custody is a danger to himself or others, WSJ reports.

But 9th Circuit judges drew a distinction between a convicted inmate, who was the subject of the Supreme Court decision, and a pretrial detainee, such as Loughner, who has the presumption of innocence. 

“Why should someone presumptively innocent not be treated with greater personal deference” than an inmate, asked Judge Alex Kozinski, chief judge of the 9th Circuit....

Whether a person is an inmate or a pre-trial detainee, Cabanillis countered, “when you are dangerous in a prison setting, you are dangerous.”  

The 9th Circuit is expected to rule soon.

July 8, 2011 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Thursday, July 07, 2011

Willie Nelson sweet plea deal for pot possession goes up in smoke

This New York Times piece, headlined "Case of Willie Nelson Pot Bust Isn’t Extinguished Yet," reports on the latest notable turn of events in a high-profile pot possession case.  Here are the details:

The seemingly routine occurrence of Willie Nelson’s being found in possession of marijuana has stoked a small conflagration in a Texas county where a judge says she will not permit what she sees as the lenient punishment of this singer by an overly deferential prosecutor.

Judge Becky Dean-Walker of Hudspeth County said on Tuesday morning that she would not accept a mailed-in plea agreement for Mr. Nelson that stemmed from a 2010 drug arrest there and that she believed that the county attorney, Kit Bramblett, was giving the singer preferential treatment because he is famous.

“He’s supposed to file the charge he feels is appropriate,” Judge Dean-Walker said of Mr. Bramblett in a telephone interview.  “Not what he feels he should do for his favorite singer. It is up to the judge to agree or not.”  Judge Dean-Walker added, “If you’re not going to do it for the guy in the corner, why do it for a celebrity?”

Mr. Nelson was arrested at a border stop in Sierra Blanca, Tex., on Nov. 26 when a Border Patrol agent there smelled marijuana on the musician’s tour bus.  Though agents said they had found about six ounces of marijuana on the bus, Mr. Bramblett later said that weight included containers and paraphernalia, and that the total amount of the drug was about three ounces.

The case drew headlines in March when Mr. Bramblett said Mr. Nelson could plead guilty to a misdemeanor charge if he paid a small fine and sang “Blue Eyes Crying in the Rain” in court.  Judge Dean-Walker quickly responded that she would not accept such an arrangement.

In June Mr. Bramblett said Mr. Nelson had pleaded no contest to a misdemeanor charge of possession of drug paraphernalia and would pay a $500 fine and about $280 in court costs. But on Friday Reuters reported that the judge would not accept this deal, either.

Judge Dean-Walker said on Tuesday that Mr. Bramblett previously asked to have Mr. Nelson’s charge reduced to a Class C misdemeanor and that she had refused. She added that Mr. Bramblett “has made a habit of speaking with the press before anything has been resolved.”...

Judge Dean-Walker said she was not concerned that the disagreement over Mr. Nelson’s plea was denying the singer his due process. “At no point do I have to let him off,” the judge said. “If Willie Nelson gets off with nothing, I’m not going to be part of it.”

July 7, 2011 in Celebrity sentencings, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, July 06, 2011

Interesting split Eighth Circuit ruling on uncounseled prior convictions used to enhance sentence

The Eighth Circuit has a very interesting ruling today in US v. Cavanaugh, No. 10-1154 (8th Cir. July 6, 2011) (available here), concerning both the Sixth Amendment right to counsel and sentencing enhancements based on priro convictions. Here is the start of the majority opinion (Per Judge Melloy):

Roman Cavanaugh, Jr., was charged for the offense of domestic assault by a habitual offender, 18 U.S.C. § 117.  As elements of the offense, the government must prove Cavanaugh received "a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings" for certain abuse offenses.  Id. § 117(a).  Below, the district court dismissed the indictment because, although Cavanaugh had received prior misdemeanor abuse convictions in tribal court on three separate occasions, Cavanaugh had not received the benefit of appointed counsel in the proceedings that resulted in the convictions.

The issues presented in this appeal are whether the Fifth or Sixth Amendments to the United States Constitution preclude the use of these prior tribal-court misdemeanor convictions as predicate convictions to establish the habitual-offender elements of § 117. Cavanaugh's prior convictions resulted in actual incarceration that, pursuant to Gideon v. Wainwright, 372 U.S. 335 (1963), and Scott v. Illinois, 440 U.S. 367 (1979), would have been unconstitutional in violation of the Sixth Amendment right to appointed counsel if the convictions had originated in a state or federal court.  The district court, recognizing that the Sixth Amendment imposes no duty on Indian tribes to provide counsel for indigent defendants, noted that the prior convictions were valid at their inception and that the prior terms of incarceration were not in violation of the United States Constitution, tribal law, or the Indian Civil Rights Act, 25 U.S.C. § 1302.  The court, nevertheless, held that the uncounseled convictions were infirm for the purpose of proving the habitual-offender, predicate-conviction elements of the § 117 offense in these subsequent federal court proceedings.

The government appeals, and we reverse.  In doing so, we note an apparent inconsistency in several cases dealing with the use of arguably infirm prior judgments to establish guilt, trigger a sentencing enhancement, or determine a sentence for a subsequent offense. Ultimately, however, we are persuaded in this case that the predicate convictions, valid at their inception, and not alleged to be otherwise unreliable, may be used to prove the elements of § 117.

And here is the start of Judge Bye's dissent:

I agree with my panel colleagues' observation as to the Supreme Court's jurisprudence failing to provide clear direction in determining whether the Sixth Amendment precludes a federal court from using an uncounseled tribal court misdemeanor conviction to prove the elements of a subsequent federal offense.  The majority's opinion exhaustively covers the subject matter and aptly describes the tension in the decisions which we must consider.  I can also agree the lack of clarity means reasonable decision-makers are likely to differ on the conclusions they reach with respect to allowing or prohibiting such use of an uncounseled tribal court conviction.  I disagree with the conclusion reached by the majority, however, and therefore respectfully dissent.

July 6, 2011 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, July 05, 2011

Fourth Circuit (splitting with other circuits) finds problem with appeal wavier demand for extra acceptance reduction

Hard-core sentencing fans (and perhaps only hard-core sentencing fans) should find very interesting and perhaps somewhat surprising a ruling today from the Fourth Circuit in US v. Divens, No. 09-4967 (4th Cir. July 5, 2011) (available here).  Here is the start of the opinion along with an excerpt from part of the opinion spotlighting why the Fourth Circuit is splitting from its sisters on this issue:

Lashawn Dwayne Divens pled guilty to possession with intent to distribute cocaine. Divens signed an acceptance of responsibility statement but declined to sign a plea agreement waiving certain rights to appellate review and collateral attack.  Solely because Divens would not waive these rights, the Government refused to move for an additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b).  Divens appeals, challenging the district court’s failure to compel the Government to move for the § 3E1.1(b) reduction.  For the reasons that follow, we vacate Divens’s sentence and remand for further proceedings consistent with this opinion.....

Section 3E1.1(a) of the Guidelines provides for a two-level decrease in a defendant’s offense level if he "clearly demonstrates acceptance of responsibility for his offense."... The district court awarded Divens the two-level reduction under § 3E1.1(a), but because the Government refused to file a motion under § 3E1.1(b), the court did not award Divens the additional one-level reduction provided by that subsection. The Government makes no claim that Divens does not qualify for a decrease.... [;] the Government’s sole contention is that Divens’s failure to sign the appellate waiver justifies the Government’s refusal to move for the additional one-level reduction under § 3E1.1(b)....

[In our view], under § 3E1.1(b) the Government retains discretion to refuse to move for an additional one-level reduction, but only on the basis of an interest recognized by the guideline itself — not, as with § 5K1.1, on the basis of any conceivable legitimate interest.

We recognize that this holding does not accord with that of other circuits.  See United States v. Deberry, 576 F.3d 708 (7th Cir. 2009); United States v. Johnson, 581 F.3d 994 (9th Cir. 2009); United States v. Beatty, 538 F.3d 8 (1st Cir. 2008); United States v. Newson, 515 F.3d 374 (5th Cir. 2008). Those courts have concluded that the Government may withhold a § 3E1.1(b) motion based on any rational interest. This conclusion relies heavily on cases interpreting § 5K1.1.

In our view, for the reasons explained above, the commentary to § 3E1.1(b) forecloses courts from relying on § 5k1.1 cases in interpreting § 3E1.1(b). This commentary, however, has received little attention from our sister circuits. Instead, those courts focus almost exclusively on the fact that Congress in 2003 amended § 3E1.1(b) to insert the governmental motion requirement. See PROTECT Act, Pub. L. No. 108-21, § 401(g). According to those courts, the mere fact of this 2003 amendment somehow demonstrates that Congress intended that the Government possess the wide discretion under § 3E1.1(b) that it enjoys under § 5K1.1. But nothing in the 2003 reforms evinces such an intent. After all, Congress could have amended the § 3E1.1(b) commentary so that it conformed to the commentary surrounding § 5K1.1. Congress declined to do so; it instead left unchanged § 3E1.1(b)’s mandatory commentary and inserted language suggesting that the Government’s newfound discretion applies only to the question of "whether the defendant has assisted authorities in a manner that avoids preparing for trial." U.S.S.G. § 3E1.1 cmt. 6.

July 5, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack

Monday, July 04, 2011

"California 'three-strike' sentences used less often 15 years later"

18PXb9.Hi.4 The title of this post is the headline of this front-page article in the Sacramento Bee.  Here are some hightlights:

Fifteen years after passage of the state's landmark "three strikes" sentencing law, prosecutors in Sacramento and throughout California have become far more selective in applying the full force of the statute, reducing the number of lifetime prison terms being sought for third strikers to a relative trickle.

While it used to obtain the maximum sentences anywhere from 50 to nearly 100 times a year, the Sacramento District Attorney's Office now asks for life terms for third strikers fewer than 20 times a year, according to the California Department of Corrections and Rehabilitation.  The office obtained 16 such sentences in 2010 compared with a high of 94 in 1996.....

District attorneys across the state used to collectively pack off criminals on maximum three-strikes terms by the hundreds -- more than 1,700 in 1996 alone.  In the past three years, the numbers have dropped to well short of 200 annually.  California prisons housed 8,727 three-strike lifers as of Dec. 31.

Explanations for the decrease vary.  One factor, said legal experts, is the 1996 California Supreme Court decision that gave judges a say in three-strikes sentencing.  They also point to a basic supply-side issue: Voters and lawmakers have approved a collection of tough sentencing laws that have depleted the pool of eligible offenders earlier in their criminal careers, taking them off the streets before they qualify for 25-to-life terms under the three-strikes statute.

Sacramento prosecutors say they've simply gained a better sense of which offenders truly deserve the harshest measure of the law. "Have we evolved over time? Yes," said Sacramento County District Attorney Jan Scully, whose 17-year tenure in office closely tracks the history of California's three-strikes law.

But she also believes there just aren't as many people to sentence anymore, noting Sacramento County has imprisoned 557 offenders on 25-to-life terms since the law went into effect. "Not just in Sacramento but across the state, we've put away people on three strikes and they aren't now in our communities," Scully said.

Passed by the Legislature and overwhelmingly approved by voters in 1994, the three-strikes law can be used to impose 25-to-life prison terms on repeat serious and violent offenders if they pick up a third felony, no matter how minor. It also doubles prison terms for new offenders with single past convictions for serious or violent felonies.

Prosecutors have always had discretion under the law to reduce potential life terms to lesser sentences, but many didn't exercise it. Los Angeles County prosecutors, in particular, refrained from "striking strikes," or dismissing prior serious or violent convictions for the purpose of lowering prison terms.

The approach changed when Steve Cooley was elected L.A. County district attorney in 2000. Elected largely on a platform of refining the law's application, Cooley took the lead in putting a new policy in place. He reserved the heavier sentences for defendants with serious or violent third strikes, but built in exceptions to target offenders with horrific pasts even if their latest charge wasn't so serious.

Cooley said over-application of the law by some California prosecutors -- hitting people for third strikes for minor felonies such as drug possession and pizza theft -- prompted a public backlash. A 2004 statewide ballot measure that would have dumped three strikes altogether came within three percentage points of winning.

"If you have a good law, and you abuse it, you will predictably lose it," Cooley said at a recent symposium on the three-strikes law in Los Angeles.  "If somebody has a rock (of cocaine) in his sock, you give him 25 to life? Give me a break."

In an interview, Cooley said that Proposition 66, the 2004 initiative, "scared the bejesus out of everyone." In its aftermath, prosecutors developed policies "to make sure we're not very disparate in our handling of these cases," Cooley said....

Sometimes, judges dial down life terms on their own.  Over the prosecutor's objection, Sacramento Superior Court Judge Richard K. Sueyoshi recently removed a prior strike from the complaint on defendant David C. Boult, convicted of being an ex-con with a gun. Instead of 25-to-life, Boult got 10 years and four months.

Sueyoshi's action once would have have been impossible.  The three-strikes law initially allowed only prosecutors to dismiss strikes.  But the state Supreme Court, in a 1996 decision, gave judges the authority to do it.

Even with discretionary authority returned to the judges and prosecutors exercising a softer approach, plenty of critics still think the California statute is unduly harsh and applied unevenly in different parts of the state.  "You still have some district attorneys out there who are still using it to capture aging felons on relatively minor third felonies," said McGeorge School of Law professor Michael Vitiello.

In addition, Vitiello said, the prisons house thousands of offenders who are doing 25-to-life sentences whose cases may not have triggered that term today.  Vitiello said the state needs a "broad sentencing scheme" overseen by an appointed commission that would review the state's entire sentencing structure in order to reserve limited prison space for the most dangerous offenders.

July 4, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, June 30, 2011

District judge finds Eighth Amendment problem with stacked mandatories for juve gun offender

Thanks to this post at the Southern District of Florida Blog (which always has lots of interesting coverage of federal law and sentencing), I have learned of this important Eighth Amendment ruling based on Graham and the application of federal gun mandatories.  Here are key excerpts from Judge Cook's opinion in US v. Mathurin:

Here, Mathurin faces a mandatory minimum 307-year sentence.  Because Congress hasabolished the federal parole system, this sentence gives Mathurin no possibility of release basedon demonstrated maturity and rehabilitation.  A significant portion of this sentence is comprisedof mandatory 25-year consecutive sentences required under § 924(c)(1)(D)(ii), which provides:

[N]o term of imprisonment imposed on a person under this subsection shall runconcurrently with any other term of imprisonment imposed on the person,including any term of imprisonment imposed for the crime of violence or drugtrafficking crime during which the firearm was used, carried, or possessed.

Under Graham, this provision of § 924(c)(1)(D) is unconstitutional as applied to Mathurin, a juvenile offender convicted of non-homicide offenses.  To apply the statute in accordance withthe Eighth Amendment, severance of the constitutionally offensive portion of § 924(c)(1)(D) is necessary....

[C]onsistent with Congress’s intent and with Supreme Court precedent on thedoctrine of severability, I find that the language of § 924(c)(1)(D)(ii) mandating consecutive sentences for subsequent violations is excisable from the remainder of the statute as it applies to Mathurin and similarly situated juvenile defendants.  This holding is limited to the unique circumstances of this case, which involves a non-homicide juvenile offender sentenced under § 924(c)(1) for multiple counts of possession of a firearm during the commission of a violent crime; it does not affect the consecutive sentence requirement as applied to adult offenders or juvenile offenders under different factual circumstances....

Under this narrow holding of this case, Mathurin’s sentence amounts to 492 months in prison.  Additionally, under 18 U.S.C. § 3624(b), Mathurin may reduce his sentence by 54 days per year of incarceration if he “display[s] exemplary compliance with institutional disciplinaryregulations.”  Pursuant to 18 U.S.C. § 3624(b), Mathurin may reduce his total sentence byapproximately 5.5 years.  Thus, if Mathurin demonstrates maturity and rehabilitation, he may beeligible for release at around the age of 53.

Mathurin’s total term of incarceration, consideringthe potential reductions under 18 U.S.C. § 3624(b), complies with both the Eighth Amendmentand Congress’s statutory requirements.

June 30, 2011 in Assessing Graham and its aftermath, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Sentencing-overhaul law to reduce Ohio's prison population"

Criminal-law-art0-gfnd7k9s-10630gfx-criminal-law-tab-eps The title of this post is the headline of this article in today's Columbus Dispatch.  Here are the details:

The tough-on-crime cycle that began in the 1980s came full circle yesterday when Gov. John Kasich signed criminal-sentencing reform that could reduce the prison population by several thousand inmates in the next three years.

Former Attorney General Jim Petro, who was there to watch Kasich sign House Bill 86 into law, said he was relieved. "It didn't work then, and it isn't working now," Petro said of the crime crackdown that he supported as a Republican state lawmaker and enforced as attorney general from 2003 to 2007.  He said the 1980s view of crime is too costly to maintain.

It is projected that the reform law will save taxpayers $46.3 million over three years, while reducing the prison population by about 7.5 percent.  State prisons now hold 50,655 inmates, about 31 percent over the design capacity.

Legislative backers consistently said savings would reach $78 million, based on an estimate from a study done for the state by the Council of State Governments.  But Carlo LoParo, spokesman for the Department of Rehabilitation and Correction, said the actual savings will be almost $46.3million.  He said that's because not all elements proposed by the study ended up in the final version of the legislation.

The law will divert some nonviolent offenders, including drug offenders, to community programs; give inmates the chance to earn up to 8 percent credit off their sentences by completing treatment and training programs; and allow the release of inmates, with court approval, after they have served at least 80 percent of their sentences.  The law also equalizes penalties for crack and powder-cocaine possession and raises the threshold for a felony theft charge to $1,000 from $500.

Kasich signed the bill in an Ohio Senate hearing room jammed with lawmakers and past and present prison officials.  "I get emotional about this because I think the passage of this bill and the changing of this law is going to result in the saving of many, many lives, maybe even thousands," Kasich said.

Ohio prisons director Gary C. Mohr called it "a day of hope."  He said the law will keep nonviolent offenders out of prison where they now come into contact with -- and are negatively influenced by -- long-term offenders and violent gang members....

Other provisions of the law will require the prisons agency to issue a report justifying why they are keeping inmates 65 or older, provide certificates to help former inmates get jobs and create an instant diversion program for shoplifters.

The bill also includes reforms related to youth offenders.  "These reforms will mitigate placing kids on a conveyor belt to adult crime," said Judge Theresa Dellick of Mahoning County Juvenile Court.

June 30, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, June 28, 2011

Do would-be white-collar offenders actually "get the message" from long sentences?

The question in the title of this post is prompted by this new piece by Professor Peter Henning from the New York Times headlined "Long Sentences Send a Message Few May Hear."  Here are excerpts:

The Justice Department has asked for a sentence of as much as 385 years for Lee B. Farkas, former chief executive of the Taylor, Bean & Whitaker Mortgage Corporation, who was convicted of orchestrating a $2.9 billion fraud that caused the collapse of Colonial Bank.  The reason for seeking such a severe penalty is to “draw the attention of corporate executives” to the potential for severe punishments for fraudulent activity, but the question is whether anyone will actually listen.

Mr. Farkas was convicted by a jury on 14 counts for selling falsified mortgage loans in a scheme that lasted from 2002 to 2008, and then trying to orchestrate a $533 million investment by the federal government through the Troubled Asset Relief Program to keep Colonial Bank afloat. Prosecutors say that he diverted some $40 million from Taylor Bean for personal investments in bars in Atlanta and Fort Lauderdale along with various trinkets, including a $28 million jet....

In order to grab the attention of other executives, Justice Department officials have asked for more than just a life sentence, instead requesting the maximum term for each charge to be served consecutively, which adds up to 385 years.

In seeking a punishment even greater than that imposed on Bernard L. Madoff, now serving a 150-year sentence, the Justice Department wants to use Mr. Farkas’s sentence as an example to other corporate officers who might be tempted to stray into illegality. According to prosecutors: “Sentencing him to the maximum penalty allowed by law will send the most forceful and unequivocal message to senior corporate executives that engaging in fraud and deceit in order to pump up your company or line your own pockets is unacceptable and will have severe consequences.”...

It is an interesting question whether the “unequivocal message to senior corporate executives” from a particularly harsh sentence would in fact be heard.  I think the answer is that it would not. 

Taylor Bean was a privately held company based in Ocala, Fla., and its primary lender, Colonial Bank, was based in Montgomery, Ala. Both were far from the major financial and banking centers. Taylor Bean was not a major player in the mortgage-backed securities market, and the prosecution took place somewhat off the beaten path for financial prosecutions: in the Eastern District of Virginia in Alexandria, not in New York where it might have garnered more attention....

It is unlikely that Mr. Farkas will become the face of the government’s efforts to root out criminal conduct arising from the financial maelstrom that hit in 2008.  The intended audience for the government’s recommendation may well write off whatever sentence Mr. Farkas receives as hardly a blip on their radar screen.  Packaging fake mortgages and diverting corporate funds to private ventures like bars is not something any self-respecting Wall Street executive would ever stoop to doing, at least so the thinking might go.  Mr. Farkas can be classified an outlier who engaged in the type of naked fraud that corporate executives would never be so crass as to try, at least in their own minds....

In United States v. Martin, a case involving the sentencing of a former chief financial officer at HealthSouth, the United States Court of Appeals for the 11th Circuit asserted that “because economic and fraud-based crime are more rational, cool, and calculated than sudden crimes of passion or opportunity these crimes are prime candidates for general deterrence.”

I wonder whether corporate executives can be deterred by sentences given to others when they can rationalize misconduct they might engage in as necessary to preserve the company or to make a quarterly estimate, and they would never be caught doing something blatantly illegal.  Even Mr. Madoff did not view himself as doing anything particularly troublesome while taking money from new investors and passing much of it on to old investors -- he even described some of his victims as “greedy.”

If executives can convince themselves that there’s nothing “really” wrong with what was done, like inflating revenue or paying a foreign official to obtain a contract, because there was a good reason for doing it, then the likelihood of being deterred by a long prison sentence seems fairly minimal.  Corporate executives might not be good candidates for deterrence because they perceive themselves as different from -- and often better than --those who have been caught and punished, even if they are not.

Recent related post:

June 28, 2011 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Monday, June 27, 2011

Justice Scalia's amusing assault on ACCA jurisprudence in dissent from denials of cert

As mentioned briefly in this prior post, Justice Scalia got in another complaint about the vagueness of the Armed Career Criminal Act as he dissented from a denial of cert in a set of ACCA cases.  Here is the heart of his complain from this entertaining little opinion in Derby v. US:

Before us are petitions for certiorari by criminal defendants asking us to decide whether four more of the “vast variety of . . . criminal offenses” that we have not yet addressed, see Sykes v. United States, ante, at 2–4, 7 (SCALIA, J., dissenting), are crimes of violence under the residual provision of the Armed Career Criminal Act (ACCA).  See 18 U. S. C. §924(e)(2)(B)(ii)....

How we would resolve these cases if we granted certiorari would be a fine subject for a law-office betting pool.  No one knows for sure.  Certainly our most recent decision interpreting ACCA’s residual clause, Sykes v. United States, ante, p. 1, would be of no help.  The “rule” we announced there, as far as I can tell, is as follows: A court must compare the degree of risk of the crime in question with the degree of risk of ACCA’s enumerated offenses (burglary, extortion, arson, and crimes involving the use of explosives) as a “beginning point,” ante, at 6–7; look at the statistical record, which is not “dispositive” but sometimes confirms “commonsense conclusion[s],” ante, at 8; and check whether the crime is “purposeful, violent, and aggressive,” unless of course the crime is among the unspecified “many cases” in which that test is “redundant with the inquiry into risk,” ante, at 11.  And of course given our track record of adding a new animal to our bestiary of ACCA residual-clause standards in each of the four successive cases we have thus far decided, see ante, at 2–4 (SCALIA, J., dissenting), who knows what new beasties our fifth, sixth, seventh, and eighth tries would produce?  Surely a perfectly fair wager.

If it is uncertain how this Court will apply Sykes and the rest of our ACCA cases going forward, it is even more uncertain how our lower-court colleagues will deal with them. Conceivably, they will simply throw the opinions into the air in frustration, and give free rein to their own feelings as to what offenses should be considered crimes of violence —which, to tell the truth, seems to be what we have done.  (Before throwing the opinions into the air, however, they should check whether littering — or littering in a purposeful, violent, and aggressive fashion — is a felony in their jurisdiction.  If so, it may be a violent felony under ACCA; or perhaps not.)

Since our ACCA cases are incomprehensible to judges, the statute obviously does not give “person[s] of ordinary intelligence fair notice” of its reach.  United States v. Batchelder, 442 U. S. 114, 123 (1979) (internal quotation marks omitted).  I would grant certiorari, declare ACCA’s residual provision to be unconstitutionally vague, and ring down the curtain on the ACCA farce playing in federal courts throughout the Nation.

In addition to be joyfully amusing, I think there are some very interesting and important jurisprudential ideas lurking in this opinion for lower courts.  I will expand on this thought in some future posts.

June 27, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tucson shooter Jared Loughner to be forcibly medicated in prison

As detailed in this CBS News piece, the appointed attorneys "for the Tucson shooting rampage suspect say federal prison officials have decided to forcibly give him anti-psychotic drugs." Here is more:

Attorneys for Jared Loughner filed an emergency motion on Friday asking U.S. District Judge Larry Burns to stop them from doing so.  Burns has twice denied their requests to be given notice before their client is drugged.

Defense attorney Judy Clarke wrote that a prison administrative hearing on June 14 found Loughner was a danger to himself.  She doesn't know if they have started giving him drugs.  Loughner has pleaded not guilty to 49 charges stemming from the Jan. 8 shooting that killed six and injured 13, including Rep. Gabrielle Giffords.

Mental health experts who examined Loughner concluded he suffers from schizophrenia; he has been at a federal prison facility in Springfield, Mo., since May 28, where experts will try to make him psychologically fit to stand trial.  He will spend up to four months there. If Loughner is later determined to be competent enough to understand the case against him and assist his lawyers, the court proceedings will resume.  His stay at the facility could also be extended.

USA Today reported earlier this month that it's likely Loughner will eventually be cleared to stand trial. "It's a fairly routine part of criminal justice," Richard Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia, told the newspaper.  Bonnie said about 85 percent of patients initially ruled mentally unfit are eventually cleared to stand trial or otherwise face charges against them.

June 27, 2011 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Friday, June 24, 2011

Conrad Black has more federal time to do after resentencing

As detailed in this Reuters piece, which is headlined "Ex-media mogul Conrad Black sent back to prison," today's highest-profile federal sentencing did not result in merely a time-served outcome.  Here are the particulars:

A U.S. judge on Friday ordered former media baron Conrad Black to serve 13 more months in prison for his fraud and obstruction of justice conviction.  Judge Amy St. Eve of U.S. District Court, who sentenced Black to 6-1/2 years following his 2007 trial, ordered the 66-year-old member of Britain's House of Lords to serve a total of 42 months, of which 29 months has already been served.

Black's wife, Barbara Amiel Black, collapsed immediately after St. Eve ruled, and was assisted out of the courtroom by medical personnel.  Black was released from prison in July 2010 based on a successful appeal to the U.S. Supreme Court.  The high court narrowed the scope of the federal honest services law used to help convict him.

St. Eve said she took into accounts letters from inmates who had served time with Black, which said he had tutored and mentored them.  But she said she also took into account the harm Black did to shareholders of Hollinger International, the media company he had controlled. "You had a duty of trust.  The shareholders put their trust in you. And you violated that trust," St. Eve said.  She said the sentence would "send a message to executives in your position to show respect for the law."...

Black was convicted of scheming with partner David Radler and other executives to siphon off millions of dollars in proceeds from the sales of newspapers as they unwound Hollinger International, then the world's third-largest publisher of English-language newspapers.  It once operated the Chicago Sun-Times, the Jerusalem Post, London's Daily Telegraph and dozens of other newspapers across North America.

June 24, 2011 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (2) | TrackBack

Wednesday, June 22, 2011

Texas executes murderer despite evidence suggesting mental retardation

As detailed in this Reuters article, "Texas executed on Tuesday a man convicted of fatally shooting two people and paralyzing a third near Houston in 1998, despite evidence that he was mentally disabled." Here is more:

Milton Mathis, 32, was sentenced in 1999, before the U.S. Supreme Court ruled it unconstitutional to execute inmates with mental disabilities. His supporters had been trying for years to argue that he should be spared. On Tuesday, a final plea to the Supreme Court to hear evidence of his mental disability was denied, and he was executed by lethal injection....

Mathis was the 23rd person executed in the United States this year and the sixth executed in Texas, the most active death penalty state in the nation. Shortly before he died, Mathis criticized the Texas death penalty as a "mass slaughter. The system has failed me. This is a miscarriage of justice," he said.... Mathis was convicted in September 1999 of opening fire on a home in Fort Bend County, west of Houston, and killing Travis Brown and Daniel Hibbard. [Melanie] Almaguer, then 15, was also shot in the head. Mathis also turned the gun on Almaguer's mother, who was in the home, but ran out of bullets, according to the state attorney general's office. He looted the home before setting it on fire, fled in Brown's car, and later told a fellow inmate that he wished he had "killed them all," according to the attorney general's office.

Most U.S. inmates with mental disabilities have been spared execution since the Supreme Court in 2002 declared it unconstitutional, said Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which tracks capital punishment cases. Those who have been executed were usually cases in which the inmate's claim of mental disability was in dispute, including the Mathis case, he said....

Mathis, who had an eighth-grade education when he was convicted, has scored in the low 60s on several IQ tests -- including a 62 on a test administered by the state's prison system, according to an essay on the Stand Down Texas website by Mark White, a former Texas governor who opposed Mathis' execution. Stand Down Texas supports a death penalty moratorium in Texas. Psychology experts have routinely put the standard for mental disabilities around a 70 IQ and lower....

Texas has a particularly high burden of proof for mental disability, said Keith Hampton, an Austin defense attorney who specializes in death penalty cases. It takes more than IQ tests, he said. Attorneys also have to prove that the inmate had disabilities before age 18, and that he or she has shown a deficit in adaptive skills, such as reading and writing and following directions.

June 22, 2011 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (13) | TrackBack

Tuesday, June 21, 2011

"The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"

The title of this post is the title of this new piece by a doctor in a forthcoming medical journal which in now available via SSRN.  Here is the abstract:

In the 21st century’s first decade, the U.S. Supreme Court has set two key constitutionally-based limits to punishment of juveniles.  In Roper v. Simmons (2005) the Court barred imposition of the death penalty for crimes committed by juveniles, and in Graham v. Florida (2010) it forbade life imprisonment without possibility of parole (LWOP) for juveniles who commit non-homicide offenses. Both decisions held these penalties violated the Eight Amendment’s prohibition on cruel and unusual punishment because they were disproportionate given juveniles’ distinctive cognitive, psychosocial and neuroanatomical characteristics.  Roper and Graham reflect two decades’ long trends, one legal and one clinical, whose interaction will control the legal system’s approach to juvenile justice for some time.

Since 1980 more children, at younger ages, became legally susceptible to much harsher punishments (through trial as adults), yet over the same period clinical skepticism concerning the cognitive, psychosocial, and neuroanatomical development of youth that was required for the legal process, and the appropriateness of these sentences, grew. In Roper and Graham the Court resolved this paradox by siding clearly with clinicians . The Court’s adoption of a developmental model of culpability, with heavy reliance on cognitive psychological research concerning risk-taking, susceptibility to peer pressure and mutability of character, as well as MRI and fMRI studies of adolescent and young adult brain development, may produce future challenges to lengthy juvenile sentences, to broad provisions allowing transfer of juveniles for trial as adults and even possibly to younger juveniles’ competence to stand trial.

June 21, 2011 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Friday, June 17, 2011

Sentencing proof that Brooklyn never quite gets the respect of Manhattan...

comes from this New York Daily News article, headlined "Fraudster dubbed 'Brooklyn's Bernie Madoff' sentenced to 20 years in prison." Here are the basics:

A Brooklyn fraudster was sentenced Friday to 20 years in prison for fleecing hundreds of hard-working victims in a Ponzi scheme that went on for three decades.  Philip Barry, dubbed "Brooklyn's Bernie Madoff" received far less jail time than the 150 years his namesake is serving, but the financial ruin he wrought was no less devastating.

"He's just like a bank robber," Francis Monteleone said in Brooklyn Federal Court. "He robbed my dad, a struggling tailor who trusted him," said Monteleone who also handed over $215,000 from her divorce settlement to the bum.

Barry, 53, a boyish-looking schlub who is a master manipulator, listened impassively as seven victims poured out their hearts to Judge Raymond Dearie.

Linda Poluha said Barry won't have to worry about his three square meals or a roof over his head that doesn't leak like her family does. "If there was still such a thing as a chain gang I believe you deserve that," Poluha said.

The judge dismissed defense lawyer's Lisa Hoyes' argument that Barry lived frugally and didn't enrich himself with the life savings entrusted to him. "Does that make any difference to these folks?" Dearie said.

Assistant U.S. Attorney Jeffrey Goldberg pegged the victims' losses at more than $24 million.

The joke in the title of this post is based on the fact that "Brooklyn's Bernie Madoff" received a prison sentence only roughly 12% as long as Manhattan's Bernie Madoff.  Then again, given that the victims' losses caused by Madoff have been pegged to be many billions of dollars, "Brooklyn's Bernie Madoff" actually got a longer sentence for his fraud if measured on a dollar-for-dollar, prison-term-for-prison-term basis.

June 17, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack

Thursday, June 16, 2011

Third Circuit rejects sundry challenges to lack of fast-track sentencing programs in certain districts

The Third Circuit has an interesting discussion of so-called fast-track sentencing programs today in US v. Lopez, No. 10-2518 (3d Cir. June 16, 2011) (available here).  Here is how the opinion starts:

In these consolidated appeals, Jose Lopez, Pedro Esparza-Diaz, Pedro Arrelucea-Zamudio, and Silvestre Brito-Hernandez (“Appellants”) challenge the constitutionality and reasonableness of the sentences they received after pleading guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2).   Appellants claim that their Fifth Amendment rights were violated as a result of the Department of Justice‟s (“DOJ”) implementation of “fast-track” early disposition programs in select judicial districts.  Section 5K3.1 of the United States Sentencing Guidelines (“U.S.S.G.”) permits a district court to depart not more than four levels pursuant to an early disposition program authorized by the Attorney General for the particular district.  In districts where fast-track programs are in place, qualifying defendants have the option to plead guilty immediately, in exchange for the Government's filing of a motion to depart pursuant to U.S.S.G. § 5K3.1.  None of the districts within the Third Circuit have a fast-track program.

Although Appellants acknowledge that fast-track programs are defensible in districts with a high volume of immigration cases, such as districts along the southwest border of the United States, they challenge the reasoning behind authorizing these programs in districts with a low volume of immigration cases and in non-border districts.  Appellants maintain that fast-track programs have been approved in an arbitrary manner, creating a disparity among similarly situated defendants that violates their Fifth Amendment right to equal protection.  Additionally, Appellants challenge the reasonableness of their sentences.  We determine that the DOJ's implementation of fast-track programs is rationally related to several legitimate governmental interests and does not violate Appellants' Fifth Amendment rights.  Further, the sentences imposed were procedurally and substantively reasonable.  We will affirm the judgments of sentence entered by each District Court.

June 16, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, June 14, 2011

"Shorter prison time sought for abused women in NY"

The title of this post is the headline of this recent piece in the Wall Street Journal discussing an interesting sentencing bill in New York.  Here are excerpts:

Kim Dadou spent 17 years in prison for manslaughter for shooting her boyfriend as he choked and threatened her in his car. She had called police several times before and used the gun he kept under the passenger seat to kill him.  She was sentenced to 8 1/3 to 25 years, denied parole five times and released in 2008.  Now, New York advocates for women prisoners are pushing legislation to cut sentences for domestic violence victims like Dadou, who strike back at abusers or get coerced into committing other crimes....

Bill supporters argue that abuse victims pose little threat to anyone other than their abusers.  They acknowledge the resentencing measures won't pass this year but say the debate should start following a study from Cornell Law School and the Correctional Association that found limited leniency now for "survivor-defendants."

"It is the beginning of the battle," said Assemblyman Jeffrion Aubry, a bill sponsor who chairs the Assembly Committee on Correction. "We think there are mitigating issues here a judge ought to be able to consider in crafting a sentence."

The bills would give judges discretion to cut a sentence for first-degree manslaughter, for example, from five to 25 years to one to five years, or to probation with alternative programs.

Prosecutors said victims already get consideration with lesser charges, like manslaughter instead of murder, and lower sentences than others convicted of serious crimes.  Also, most domestic violence victims don't commit violence.  "We're trying to focus more on the front end" with efforts to jail abusers, said Franklin County District Attorney Derek Champagne, president of the state district attorneys' association. "There are times when it may not truly be self-defense."

Out of some 2,000 women in state prisons, fewer than 175 could have their sentences cut under Aubry's bill, according to the Correctional Association of New York, the study's co-author.  However, more than 200 women are convicted every year for crimes directly related to their abuse and would be potentially eligible for alternate sentencing, said Tamar Kraft-Solar, director of the association's Women in Prison Project. They canvassed 49 other states, and New York would be the first to enact such a law, Kraft-Stolar said.

Under the legislation, judges could impose alternative sentences if they find the defendant was a domestic abuse survivor, the abuse was a "significant contributing factor" in the crime and the sentence under the general statute would be "unduly harsh." Some victims said it was not a simple matter of leaving an abuser. They said violence, threats and danger typically escalate when they threaten to leave and that children complicate any attempts to get out of the situation.

The report from Cornell's Avon Global Center for Women and Justice and the association's Women in Prison Project cited state parole statistics showing 80 percent of women sent to New York prisons for a violent felony in 2009 had no prior felony convictions. Of the 38 women convicted of murder and released between 1985 and 2003, not one returned to prison on a new crime in the next three years, the report found.

New York's 1998 sentencing reform, called "Jenna's Law," contained an exception for domestic violence victims from most tough fixed sentences for violent crimes. However, state Sentencing Commission reports a decade later noted the exception had been used only once, for a man who actually got a longer sentence that way.

The research report discussed in this article, which is available at this link, is titled "From Protection to Punishment: Post-Conviction Barriers to Justice for Survivor-Defendants in New York State."

June 14, 2011 in Offender Characteristics, Offense Characteristics | Permalink | Comments (7) | TrackBack

Monday, June 13, 2011

Thoughtful comments on the ugly ACCA bigger picture from an informed reader

A federal public defender today sent me a terrific e-mail about ACCA litigation, which he has allowed me to reprint in full below:

Between and among the various opinions written in Sykesand upon commentary found at SL&P and other places (i.e., the New York Times), I fear that a meaningful opportunity for more meaningful discussion is being missed.

The litigiousness of the Armed Career Criminal Act, as colorfully depicted by Justice Scalia, involves, invites, and permits all involved in the federal criminal justice system to approach the meaningful task of sentencing on "can't see the forest for the trees" terms. By this I start from the proposition that reasonable minds can surely disagree as to whether an armed recidivist like Sykes should properly receive a sentence of not more than 10 years (and, often, significantly less) or one of not less than 15 years (and, sometimes, slightly longer).  But the proper and just resolution to such disagreements simply shouldn't turn doctrinally upon whether or not the Indiana crime (and, pursuant to the categorical approach, it is indeed the Indiana crime, rather than the crime that Sykes actually committed) of vehicular flight from an officer is or is not sufficiently similar to the crimes of burglary, arson, extortion, or explosives in terms of the kind and degree of purposeful risked harm at issue. To premise a significant decision involving literally years of a man's liberty, with the attendant cost attached to the deprivation of liberty, upon such minutia seems only slightly more principled than deciding between a sentence of A or a dramatically greater sentence of B upon the outcome of a game of rock-paper-scissors (the latter being a methodology less susceptible of frequent Supreme Court litigation than the ACCA).

The point here is not that Sykes is wrongly decided nor is it that the nuances of a defendant's prior criminality have no place at the figurative (and, for that matter, literal) sentencing table.  Rather, the point is that premising punishment in substantial manners upon such fine lines seems inconsistent with the Section 3553(a) "parsimony" clause: if not more than 10 years is "sufficient" for Sykes if the Indiana crime is not violent, how does at least 15 years become "sufficient but no greater than necessary" simply upon the same Indiana crime being deemed "violent"?

And, as you know, the cited concern extends beyond statutory minimums to guideline application.  A recidivist drug dealing client of mine is on the verge of signing a plea agreement that stands for either of two outcomes: (1) his post-acceptance number, prior to an anticipated reward for substantial assistance, will be 121 months; or (2) the relevant number will be 262!  The more than double-down contingency has nothing to do with his federal offense, his personal characteristics, or even an actual assessment of his prior criminality.  Instead, more than 10 pre-5K years of his life turn on whether or not a court's contemplation of note 1 to Section 4B1.2, with an attendant Shepard analysis of the relevant statute and underlying state court file, results in a finding that the client's 2001 conviction for "maintaining a drug trafficking place" in violation of Wisconsin law constitutes a "controlled substance offense" for purposes of career offender status. Comparable to Sykes, reasonable minds may differ as to whether my client should get 10 years or 22 years but contemplation of the meaningful matter should be more principled than it will be.

I wholly agree with this commentary and its justifiable consternation about the impact of criminal history diktats on federal sentencing outcomes.  And, among other important insights, this commentary spotlights that detailed mandatory sentencing systems can often get bogged down pursuing a (false and confusing) form of highly formalized consistency based on the interpretation of opaque legal rules rather than staying focused on producing a (transparent and understandable) form of substantive punishment justice for each individual offender.

Some related recent posts on Sykes:

June 13, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Georgia Supreme Court upholds again placing high burden on capital defendants to prove retardation

As detailed in this new AP article, "Georgia's top court has upheld the strict standard that capital defendants must meet to prove they are mentally disabled to avoid an execution." Here is more:

The Georgia Supreme Court's 6-1 ruling on Monday rejected a challenge brought by Alphonso Stripling, who claimed the state cannot seek the death penalty against him for the 1988 killings of two because he is mentally disabled. The court also concluded that the burden of proof is on Stripling, not the state.

Georgia became the first state in the nation to ban executing mentally disabled inmates. But it also is the only state that requires defendants to prove they are mentally disabled beyond a reasonable doubt....

A federal appeals court is considering a similar challenge.

The full opinion from the Georgia Supreme Court is available here, and this paragraph from the solo dissent provide a brief national overview on this issue:

Of the thirty states that impose the death penalty, twenty-two have adopted a preponderance of the evidence standard for proving mental retardation. Although Georgia led the nation in prohibiting the execution of mentally retarded offenders, it is now the only state that imposes a reasonable-doubt standard to prove mental retardation.

June 13, 2011 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Friday, June 10, 2011

"California To Release All Prisoners Who Seem Nice Enough"

Onion The title of this post is the amusing headline of this piece at The Onion which explains what might well be part of California's plan to deal with the Supreme Court's ruling in Plata.  Here is more:

In an effort to reduce prison populations throughout the state, California governor Jerry Brown announced today that he would release all inmates who seemed as though they were nice enough people.

“The goal of this new initiative is to gather a rough first impression of whether or not a prisoner is a decent-enough-seeming person, and to release him or her back into society based solely on that general gut reaction," said Brown, adding that prison authorities would spend an estimated 12 minutes with each inmate to chat about “this and that” and decide whether or not a prisoner seemed like the friendly sort. "Obviously, some might try to take a swing at the warden in the beginning, but if they calm down from there and maybe smile a few times, they’re probably fine." 

At press time, officials at San Quentin State Prison had determined that inmate Vincente “Lobo” Díaz came across as slightly eccentric, granted, but basically likable.

Some prior amusing sentencing-related pieces from The Onion:

June 10, 2011 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack