Wednesday, March 4, 2015

Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium

As reported in this local article, headlined "Pennsylvania Supreme Court to take death penalty moratorium case: Philadelphia DA calls governor’s actions lawless and unconstitutional," a fascinating case concerning state executive powers in the Keystone State is officially to be considered by the state Supreme Court. Here are the details:

The Pennsylvania Supreme Court on Tuesday agreed to take a case filed by the Philadelphia district attorney’s office challenging Gov. Tom Wolf’s moratorium implemented last month on capital punishment in the state. District Attorney R. Seth Williams asked the court to take up the matter involving a defendant named Terrance Williams, who was scheduled for lethal injection today.

Although Seth Williams asked that the court take the case on an expedited basis, the court refused, and it will be heard on a standard calendar, which means that both sides will file briefs and replies over the next several months, and oral argument will be scheduled at a date in the future.

It will probably be more than a year before any decision is reached, and University of Pittsburgh law professor John Burkoff said it could be even longer if the court decides it wants two new justices, who will be elected later this year, to consider the case as well.

Mr. Wolf announced on Feb. 13 that he was instituting a moratorium on the death penalty in Pennsylvania, saying that it was not an “expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes.” Instead, he continued, it was “based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive.” He cited nationwide statistics that show 150 people have been exonerated from death row, including six in Pennsylvania....

But in his filing, Seth Williams argues that Mr. Wolf’s action was lawless and unconstitutional. “Merely characterizing conduct by the governor as a reprieve does not make it so,” the prosecutor’s filing said.

Instead, it continued, “At all times in Pennsylvania history a reprieve has meant one thing and only one thing: a temporary stay of a criminal judgment for a defined period of time, for the purpose of allowing the defendant to pursue an available legal remedy. The current act of the governor is not a reprieve. Nor, indeed, could it be. There is no remaining legal remedy available to defendant. He received exhaustive state and federal review. He sought pardon or commutation and it was denied. There is nothing legitimate left to pursue and no remedy to wait for.”

To halt the imposition of the death penalty on a defendant, the district attorney’s office continued, the sentence must be commuted, which can be done only with unanimous agreement by the state Board of Pardons. Seth Williams accused the governor of usurping judicial function.

But in the governor’s response, his attorneys said what he was doing is temporary — a reprieve — and requires no input from the Board of Pardons. “The governor has ‘exclusive authority’ and ‘unfettered discretion to grant a reprieve after imposition of sentence and on a case by case basis,’ ” they wrote, quoting an earlier court case.

Prior related posts:

March 4, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Three of "Kettle Falls Five" convicted on least serious federal marijuana charges in Washington

This AP story reports on the notable mixed verdict in a high-profile federal prosecution of a group of defendants in Washington state who claimed they were growing marijuana only for medical purposes.  Here are the details:

Three people were found guilty Tuesday of growing marijuana, but they also were exonerated of more serious charges in a widely-watched federal drug case in a state where medical and recreational marijuana is legal.

The three remaining defendants of the so-called Kettle Falls Five were all found guilty of growing marijuana. But a jury found them not guilty of distributing marijuana, conspiracy to distribute and firearms charges that carried long prison sentences.

U.S. District Court Judge Thomas Rice set sentencing for June 10.

The defendants were Rhonda Firestack-Harvey, her son Rolland Gregg and his wife, Michelle Gregg. Firestack-Harvey wiped away tears as she declared victory in the case. "The truth comes out," she said, noting that the defendants were growing marijuana for medical purposes and had cards permitting that use. "We would have loved to be exonerated of all charges."

However, there was no doubt that federal drug agents found marijuana plants growing on their property near Kettle Falls, she said.

Federal prosecutors did not speak with reporters after the verdict, which followed a full day of deliberations by the jury. Prosecutors asked that the three be taken into custody until sentencing, but Rice declined.

"It's a victory, but it's bittersweet," said Jeff Niesen, an attorney for Firestack-Harvey. "They've been convicted of a federal crime." But while the tougher charges carried sentences of a decade in prison, growing marijuana should bring a much lower sentence, Niesen said.

On Monday, attorneys for the defendants asked jurors to throw out what he described as an overzealous and overreaching case. Attorney Phil Tefleyan criticized the government's prosecution of the three, who contend they were growing medical marijuana for personal use in a case that has drawn wide attention over the government's willingness to prosecute marijuana growers. "They roped in this innocent family," Tefleyan told jurors.

Assistant U.S. Attorney Earl Hicks told jurors Monday that Washington state's stance on marijuana doesn't matter. He says the question for the jury is, "Is it legal under federal law?"

The defendants contend they didn't distribute the marijuana. But they were barred from telling jurors their claim that they grew the marijuana only for personal medical use. That issue can be raised during sentencing. Tefleyan said the government could not point to a single sale of the drug by the family. He said the evidence seized by drug enforcement agents during a raid in August 2012 — 4 pounds of marijuana and about $700 in cash — didn't support the conclusion the family was dealing.

The government has argued the family grew the plants in violation of federal law. "I don't believe there's any question in this case that we're talking about the manufacture of marijuana," Hicks told the jury.

Tefleyan placed blame for those plants on Jason Zucker, a former defendant who cut a plea deal last week, just before the trial started. Zucker, 39, testified Friday that he fronted $10,000 in costs to get the operation up and running. Zucker's plea deal called for a 16-month sentence....

Larry Harvey, 71, was recently dismissed from the case after being diagnosed with terminal pancreatic cancer in December.

I believe that these defendants' acquittal on gun charges means that that they are not subject to any mandatory minimum sentencing terms, and the judge's decision to allow them to be free awaiting sentencing suggests to me that they will likely not receive significant (or perhaps any) prison time for these offenses. In addition, these defendants might have various grounds for appealing to the Ninth Circuit (although they many not want to bother if they get relatively lenient sentencing terms).

Prior related posts:

Cross-posted at Marijuana Law, Policy and Reform

March 4, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 3, 2015

"Fishy SOX: Overcriminalization's New Harm Paradigm"

The title of this post is the title of this new paper by Todd Haugh available via SSRN. The piece argues that the recently decided Yates case is more consequential than the standard fish shory. Here is the abstract:

The harms of overcriminalization are usually thought of in a particular way—that the proliferation of criminal laws leads to increasing and inconsistent criminal enforcement and adjudication. For example, an offender commits an unethical or illegal act and, because of the overwhelming depth and breadth of the criminal law, becomes subject to too much prosecutorial discretion and faces disparate enforcement or punishment. But there is an additional, possibly more pernicious, harm of overcriminalization.

Drawing from the fields of criminology and behavioral ethics, this Article makes the case that overcriminalization actually increases the commission of criminal acts themselves, particularly by white collar offenders. This occurs because overcriminalization, by delegitimatizing the criminal law, fuels offender rationalizations. Rationalizations are part of the psychological process necessary for the commission of crime—they allow offenders to square their self-perception as “good people” with the illegal behavior they are contemplating, thereby allowing the behavior to go forward. Overcriminalization, then, is more than a post-act concern. It is inherently criminogenic because it facilitates some of the most prevalent and powerful rationalizations used by would-be offenders. Put simply, overcriminalization is fostering the very conduct it seeks to eliminate. This phenomenon is on display in the recently argued Supreme Court case Yates v. United States. Using Yates as a backdrop, this Article presents a new paradigm of overcriminalization and its harms.

March 3, 2015 in Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (5) | TrackBack (0)

Prez policing task force calls for a "National Crime and Justice Task Force"

As reported widely (see here and here), the task force appointed in December by President Obama to examine modern policing released a big report on Monday with lots of detailed reform recommendations.  Everyone interested in policing issues should check out this lengthy (and reader-friendly) report, which is technically  titled an "Interim Report of the President’s Task Force on 21st Century Policing."  

Not surprisingly, there is not much discussion of sentencing and formal punishment issues in the report because such topics are mostly beyond the of a task force tasked with reviewing police practices.  But, the introduction to the report highlighted the intersection of policing and other criminal justice issues, and includes these notable passages and recommendations:

Many excellent and specific suggestions emerged from these listening sessions on all facets of policing in the 21st century, but many questions arose as well. Paramount among them was how to bring unity of purpose and consensus on best practices to a nation with 18,000 separate law enforcement agencies and a strong history of a preference for local control of local issues.  It became very clear that it is time for a comprehensive and multifaceted examination of all the interrelated parts of the criminal justice system and a focused investigation into how poverty, lack of education, mental health, and other social conditions cause or intersect with criminal behavior. We propose two overarching recommendations that will seek the answers to these questions.

0.1 OVERARCHING RECOMMENDATION: The President should support and provide funding for the creation of a National Crime and Justice Task Force to review and evaluate all components of the criminal justice system for the purpose of making recommendations to the country on comprehensive criminal justice reform....

0.2 OVERARCHING RECOMMENDATION: The President should promote programs that take a comprehensive and inclusive look at community based initiatives that address the core issues of poverty, education, health, and safety.

March 3, 2015 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Jury seated and ready for opening arguments in Boston bombing trial

As reported in this AP article, to culminate "two months of jury selection, a panel of 12 jurors and six alternates was seated Tuesday for the federal death penalty trial of Boston Marathon bombing suspect Dzhokhar Tsarnaev." Here is more about a high-profile federal capital proceeding:

The all-white panel consists of eight men and 10 women. Jurors include a self-employed house painter, an air traffic controller, an executive assistant at a law firm and a former emergency room nurse. Opening statements in the case are scheduled for Wednesday.

Tsarnaev, 21, faces 30 charges in connection with twin bombings at the finish line of the marathon April 15, 2013. Three people were killed and more than 260 were injured. He is also charged in the killing of a Massachusetts Institute of Technology police officer days after the bombings.

If the jury convicts Tsarnaev, the trial will move on to a second phase to determine his punishment. The only two options available for the jury are life in prison or the death penalty....

During the jury selection process, Tsarnaev's lawyers tried repeatedly to get the trial moved out of Massachusetts, saying he could not find a fair and impartial jury because of the emotional impact the bombings had in the state. O'Toole rejected three change-of-venue motions, saying the process of carefully questioning jurors to detect bias was successful in finding impartial jurors. The 1st U.S. Circuit Court of Appeals twice refused to order the trial moved.

Some prior related posts:

March 3, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Student Guest Post: "Behind Bars In 140 Characters or Less"

I told students in my Sentencing Course this semester that they could earn extra credit in the class by providing me with blog-ready, cut-and-paste materials for this blog.  One student did just that by providing me with this effective review of recent discussions of prison discipline in South Carolina:

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"Behind Bars In 140 Characters or Less"

This February 19 article from the New York Times Magazine entitled “The Shame of Solitary Confinement” explores the abuse of solitary confinement sentencing for inmates of South Carolina prisons.

Dave Maass, an investigative researcher for the Electronic Frontier Foundation, used the 40-page South Carolina Department of Corrections Social Media Disciplinary Report to parse through punishments inmates receive for posting to Facebook or Twitter while behind bars.  (His full report can be found here.) The distributed punishments range from loss of canteen privileges, good time, or visitation, to loss of property privileges or telephone rights.

On the record of some inmates, “disciplinary detention” for X number of days is listed.  Disciplinary detention or “administrative segregation” are nicer terms for solitary confinement.  Maass discovered that South Carolina inmates who made online posts were receiving seemingly disproportionate sentences of solitary confinement for their actions, a punishment typically received for “the worst of the worst” within prison.  Now, simple rule violations, in South Carolina and (we have reason to believe) in other states, can land inmates in solitary.  Could these disobedient actions not be equally, and perhaps more justly, punished by locating and confiscating the device, and sentencing the inmate to an overnight work shift, janitor duty, or a loss of other privileges short of years worth of solitary confinement?

The most troubling thing of all, Maass discovered, is that the undefined number of days could reach up to nearly thirty-eight years of solitary confinement for repeat offenders. 

“In October 2013, for example, Tyheem Henry received a penalty of 37½ years in solitary confinement, for posting on Facebook on 38 different days.  When Maass looked into the issue, he found that the agency was sending inmates caught posting on social-media sites to solitary confinement for an average of 512 days.”

In Tyheem Henry’s case, that’s nearly one year of solitary confinement per post on social media.  In cases less egregious than Henry’s, where inmates posted only once or twice, the average length of solitary per post exceeded a year.

The policies behind prisons not wanting inmates to post to online sites is strong.  The state is concerned that inmates may use the sites to intimidate witnesses or to plan the exchange of drugs or other contraband.  Since prisoners generally are not allowed Internet access nor cell phones, presence of posts is also indicative of a possession of contraband and thereby an automatic rule violation.

Fortunately, Maass is hopeful that this punishment scheme is disappearing, thanks to South Carolina judges and Department of Corrections Director Bryan Stirling.  On February 2, Stirling signed a new disciplinary mandate setting the maximum solitary punishment to sixty days per infraction/series of related infractions.  Stirling reported that the new policy would prevent “stacking time,” the practice that allowed for the extended sentences discussed above.

“In January 2014, a few months after Stirling took office, a South Carolina state court judge, J. Michael Baxley, entered a hard-hitting directive in a long-running lawsuit on behalf of about 3,500 mentally ill prisoners.  Baxley called the case “the most troubling” to come to the South Carolina courts, “far above all others,” in his 14 years on the bench. For mentally ill patients, isolation was “often used in lieu of treatment, with severe consequences,” Baxley found. Prisoners in South Carolina who suffered from depression, schizophrenia and other mental illnesses were almost twice as likely as other prisoners to go to solitary, for an average of 647 days.”

Citizens, taxpayers, and prison reformists should still be concerned, however.  Is it going to take a Judge Baxley in each of the fifty states to add some structure to the punishment scheme for inmates? Shouldn’t there be at least some debate as to whether solitary confinement should be on the table at all for social media violations?  After all, nearly 7% of South Carolina’s inmate population remains in solitary confinement.

“South Carolina’s record of abusing solitary may be particularly horrendous, but it’s not unique.  California is being sued over prolonged solitary confinement — defined as lasting between 10 and 28 years (yes, again, years).  In 2013, a county in New Mexico agreed to pay a settlement of $15.5 million to a man who, awaiting trial in jail on a drunken-driving charge, endured mental and physical suffering during 22 months of isolation. (He was never prosecuted.)”

March 3, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack (0)

Concerns about lethal drug creates reprieve for condemned Georgia woman

As reported in this CNN piece, for "the second time, a Georgia woman's execution has been postponed -- this time because of concerns about the drugs to be used." Here is why:

Kelly Renee Gissendaner was scheduled to die at 7 p.m. ET Monday.  "Prior to the execution, the drugs were sent to an independent lab for testing of potency.  The drugs fell within the acceptable testing limits," the Georgia Department of Corrections said in a statement.

"Within the hours leading up to the scheduled execution, the Execution Team performed the necessary checks.  At that time, the drugs appeared cloudy.  The Department of Corrections immediately consulted with a pharmacist, and in an abundance of caution, Inmate Gissendaner's execution has been postponed."

The 47-year-old was originally scheduled to die on Wednesday, but that execution was called off because of winter weather.

If I were a deeply religious person, I might be inclined to contend that some higher power is doing all it can to keep Georgia from being able to execute Gissendaner.

March 3, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Monday, March 2, 2015

California Supreme Court rules blanket sex-offender residency restriction fails rational basis review

In recent years, a number of state courts have struck down local sex-offender residency restrictions on a number of different legal grounds.  As this AP article reports, another state Supreme Court is now part of this group: "California's Supreme Court ruled Monday the state cannot prohibit all registered sex offenders in San Diego County from living within 2,000 feet of a school or park."

As the title of this post hints, the unanimous ruling released today in In re Taylor, S206143 (Cal. March 2, 2015) (available here), strikes me as especially significant because of the legal rationale used to strike down a state-wide voter-initiative law as it was applied in one jurisdiction. These passages explaining the heart of the ruling highlight why Taylor will likely be cited in challenges to sex offender residency restrictions nationwide:

In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners' constitutional challenges to section 3003.5(b).  As we next explain, we are persuaded that blanket enforcement of the mandatory residency restrictions of Jessica's Law, as applied to registered sex offenders on parole in San Diego County, cannot survive even the more deferential rational basis standard of constitutional review. Such enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees‟ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons.  Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive....

The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole.  We conclude the evidentiary record below establishes that blanket enforcement of Jessica's Law's mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators.

March 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack (0)

"A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges"

The provocative title of this post is the provocative title of this new article authored by US District Judge Mark Bennett now available via SSRN.  Here is the abstract:

A federal district court judge who has sentenced more than 4000 defendants reflects on federal sentencing and its role in mass incarceration.  The focus of the article is on federal sentencing in crack cocaine cases and policy disagreements with the United States Sentencing Guidelines (Guidelines) in drug trafficking cases.  The article explores the U.S. Supreme Court cases in Kimbrough v. United States, United States v. Spears, and Pepper v. United States, the only U.S. Supreme Court cases that address sentencing judges’ policy disagreements with the guidelines.  Ironically, or perhaps serendipitously, the author was the sentencing judge in both Spears and Pepper, where he was reversed a whopping 5 times by the U.S. Court of Appeals for the Eighth Circuit (twice by an en banc court) before both defendants’ sentencing positions were vindicated by the U.S. Supreme Court.

The article takes exception to two Third Circuit judges who have argued in law review articles that federal sentencing judges should be concerned about "legislative backlash" if they sentence outside the now advisory guidelines.  In the arc of the history of federal sentencing and its impact on mass incarceration, we are perched at a cresting point where the gravity of reason and our Nation’s experience with mass incarceration hopefully will pull towards greater justice in sentencing.

March 2, 2015 in Drug Offense Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

AG Holder provides Congress a sentencing reform to-do list

This new Politico story indicates that a confirmation vote for Loretta Lynch to replace Eric Holder as Attorney General may still be week away. But AG Holder is still in the midst of some parting shots as he prepares to leave his position, and this Washington Post commentary finds the AG making a full-throated pitch for more congressional sentencing reforms.  Here are excerpts from a piece headlined "Time to tackle unfinished business in criminal justice reform":

Today, a rare consensus has emerged in favor of reforming our federal drug sentencing laws.  This presents a historic opportunity to improve the fairness of our criminal justice system.  But unless we act quickly, we risk letting the moment pass.

The Justice Department has sought to be an early innovator on this front.  A year and a half ago, I launched the Smart on Crime initiative — a comprehensive effort to reorient the federal government’s approach to criminal justice....  Preliminary results from this effort are extremely encouraging....

Last year also witnessed the first overall reduction in the federal prison population in 32 years.  Most impressive of all, we achieved this drop in incarceration at the same time we cut the crime rate, marking the first simultaneous reduction in both crime and incarceration rates in more than four decades.

But while it is indisputable that we are moving in the right direction, there is a limit to what the Justice Department can accomplish on its own.  Moving forward, we need to build upon, and make permanent, these gains through action in Congress.... [A] few specific items of unfinished business should command our immediate attention.

First, although Obama signed the Fair Sentencing Act to eliminate a discriminatory 100-to-1 sentencing disparity between crack and powder cocaine, thousands of individuals who committed crimes before 2010 are still serving sentences based on the old ratio. This is unfair.  Congress should pass legislation to apply that statute retroactively so that no one is sitting in prison serving a sentence that Congress, the president and the attorney general have all declared unjust.

Second, while the Justice Department has declined to seek harsh mandatory minimum sentences in cases where they are not warranted, we need to codify this approach. Congress should pass one of the multiple bipartisan bills aimed at restricting and refining those crimes to which mandatory minimums apply.

Third, in individual states, legislatures should eliminate statutes that prevent an estimated 5.8 million U.S. citizens from exercising their right to vote because of felony convictions.  These unfair restrictions only serve to impede the work of transitioning formerly incarcerated people back into society.

Finally, we should seek to expand the use of federal drug courts throughout the country for low-level drug offenses.  These programs provide proven alternatives to incarceration for men and women who are willing to do the hard work of recovery, and it is my hope that, in the next five years, there will be an operational drug court in every federal district — with individual states following suit.

While I will depart the Obama administration in the coming weeks — and my own formal career in law enforcement will soon draw to a close — I intend to continue this work, to promote this mission and to advance this cause.  And I hope that, in the days ahead, leaders in Congress and around the country will come together to help build the fairer, more efficient and more effective criminal justice system that all Americans deserve.

In this post over at The Volokh Conspiracy, titled "The President doesn’t need Congress’s help to fix unjust sentences," Will Baude properly notes that Prez Obama could take care of the first item on the AG's action list without any action by Congress.  As Will notes, the "Constitution gives the President 'Power to grant Reprieves and Pardons for Offences against the United States.' If the President indeed shares the Attorney General’s views, he can eliminate the thousands of unfair sentences at a few strokes of a pen."  Will speculates that "the President is unwilling to exercise his constitutional pardon power [this way] because he wants political cover if somebody who is pardoned later goes on to do something wrong." 

I am glad Will highlights the president could through commutations (or pardons) readily fix on his own problems and unfairness presented by the non-retroactivity of the Fair Sentencing Act.  Those problems persist because of President Obama's failure of resolve, not a failure of power, on this front.  In addition, I think the President could (and should) be using a lot more of his political time and energy trying to move Congress forward on other fronts as well (e.g., he could have, but failed to, talk at lengthy about these issues during his State of the Union address not long ago).

March 2, 2015 in Clemency and Pardons, Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Georgia scheduled to execute only female murderer on its death row

As reported in this AP piece, headlined "After weather delay, Georgia ready to perform rare execution of a woman," the Peach State appears poised this evening to end the life of a bad apple notable for her gender. Here are the details:

After getting a temporary reprieve when her execution was postponed because of winter weather conditions forecast to hit the state, the only woman on Georgia's death row is again set for execution Monday. Kelly Renee Gissendaner, 46, was scheduled to be executed Wednesday at the state prison in Jackson, but the Department of Corrections postponed it to Monday at 7 p.m., citing the weather and associated scheduling issues.

Gissendaner was convicted of murder in the February 1997 stabbing death of her husband, Douglas Gissendaner. Prosecutors said she plotted his death with her boyfriend, Gregory Owen.... Kelly Gissendaner repeatedly pushed Owen in late 1996 to kill her husband rather than just divorcing him as Owen suggested, prosecutors said. Acting on Kelly Gissendaner's instructions, Owen ambushed Douglas Gissendaner at the Gissendaners' home, forced him to drive to a remote area and stabbed him multiple times, prosecutors said

Owen pleaded guilty and received a life prison sentence with eligibility for parole after 25 years. He testified at Gissendaner's trial, and a jury convicted her and sentenced her to death in 1998.

The State Board of Pardons and Paroles, the only entity in Georgia authorized to commute a death sentence, on Wednesday denied Gissendaner clemency. A federal judge in Atlanta rejected a request to halt her execution, and her lawyers have appealed that decision to the 11th U.S. Circuit Court of Appeals.

If Gissendaner's execution happens, she will be the first woman executed in Georgia in 70 years. Lena Baker, a black maid, was executed in 1945 after being convicted in a one-day trial for killing her white employer. Georgia officials issued her a pardon in 2005 after six decades of lobbying and arguments by her family that she likely killed the man because he was holding her against her will. Baker was the only woman to die in the state's electric chair. P>Execution of female inmates is rare with only 15 women put to death nationwide since the Supreme Court in 1976 allowed the death penalty to resume. During that same time, about 1,400 men have been executed, according to the Death Penalty Information Center.

Prosecutors offered Gissendaner the same plea deal that was offered to Owen, but she turned it down. Post-conviction testimony from her trial lawyer, Edwin Wilson, gives some insight into why, Gissendaner's lawyers argued in a clemency petition. They quote Wilson as saying he didn't think a jury would sentence Gissendaner to death. "I guess I thought this because she was a woman and because she did not actually kill Doug," Wilson is quoted as saying, adding that he should have urged her to take the plea.

Victor Streib, a retired Ohio Northern University law professor and an expert on the death penalty for women, said it's clear that women are condemned to die far less frequently than men, but that there are so few cases that it's tough to draw any general conclusions. "Statistically, yes, if you've got two cases and everything about them is exactly the same and one case is a woman and the other case is a man, the man is more likely to be sentenced to death," Streib said, but added that he wouldn't count on that as a legal strategy.

One reason women aren't sentenced to death as often is that they don't commit as many murders and when they do they generally aren't the "worst of the worst" murders that lead to the death penalty, Streib said. Juries may also be more likely to believe a woman was emotionally distressed or not in her right mind at the time of a killing, which can spare them a death sentence, he said.

March 2, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack (0)

Resentencing on tap in Ohio beard-cutting federal assault cases

As reported in this local article, headlined "Judge to re-sentence defendants in Amish beard-cutting case," today brings another sentencing proceeding in a high-profile civil-rights case prosecuted in Ohio's federal courts. Here are the basics:

Federal prosecutors believe that the 16 Amish people who will be re-sentenced by a federal judge this afternoon for a series of beard-cutting attacks in 2011 still have not shown that they understand the harm that they caused.

A memo filed Friday by Kristy Parker, deputy chief of the civil rights division of the Department of Justice, reiterated that U.S. District Judge Dan Polster should give Bishop Sam Mullet and his followers the same sentences he gave them in February 2013, even if they do not stand convicted of carrying out religiously-motivated hate crimes because of an appellate court's decision.

"Simply put, there has also been no indication over the past two years that the time the defendants have served up to this point has in any way caused them to re-evaluate the propriety or the gravity of their behavior other than their acknowledgment that the government takes the matters seriously (even if they do not) and their obvious unhappiness at having been caught and punished," the filing says....

Polster will re-sentence all 16 defendants -- who come from the small farming community of Bergholz in Jefferson County -- at 1:30 p.m. at the federal courthouse in Cleveland. Eight of those defendants have already served out their original sentences, and Polster said in an email to attorneys last week that he intends to sentence them to time served.

At the original sentencing, the judge handed down prison terms ranging from a year and a day to 15 years for Mullet, the community's leader. Prosecutors are expected to ask for the same sentences today because Polster's original ones were lower than those recommended by the U.S. probation office. Defense attorneys are asking the judge to sentence the defendants to time served and to release the eight who remain in prison.

The defendants are members of a breakaway sect of the Amish community made up of 18 families. They were convicted of multiple crimes in September 2012 for carrying out five nighttime raids. In the attacks, members of the community rousted five victims out of bed and chopped off their beards and hair with horse mane shears and battery-powered clippers. The attackers documented the attacks with a disposable camera....

A sentencing memo filed for Mullet says that its unlikely that Mullet would ever do something similar again, and that the Bergholz Amish community is still shunned by other Amish communities because of the case and its surrounding publicity.

In a memo filed Friday, prosecutors say that "it is the defendants themselves who created these circumstances through their own lawless conduct, yet they continue to blame the government and their properly imposed prison sentences for the harms they feel they have suffered. "The defendants' sentencing memoranda leaves the impression that they are the victims in this case, not the people they violently assaulted during nighttime raids and orchestrated attacks," the memo continues.

Some related prior posts:

March 2, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack (0)

Sunday, March 1, 2015

Another account of the massiveness and messy process behind Prez clemency initiative

This lengthy new Washington Post article, headlined "U.S. clemency effort, slow to start, will rely on an army of pro bono lawyers," reports on the extraordinary scope and process behind the clemency initiative started seemingly long ago and still awaiting major action by Prez Obama. Here are excerpts:

A massive influx of applications from prisoners and a complicated review process have slowed the Obama administration’s highly touted initiative to grant clemency to nonviolent offenders, shifting the burden to an army of pro bono lawyers and specialists willing to help.

Just over a year after the administration unveiled its initiative, President Obama has commuted the sentences of eight prisoners, all of whose applications had already been submitted at the time of the announcement.  In the meantime, more than 35,000 inmates — about 16 percent of the federal prison population — have applied to have their sentences shortened under the Justice Department-led initiative.

In an unusual arrangement, the department has sought to deal with the deluge by encouraging outside lawyers to help identify candidates for earlier release and to represent them. Prisoner applications are being reviewed by more than 1,000 attorneys at 323 law firms and organizations nationwide.

“We have created what very well may be the largest, most ambitious pro-bono effort in the history of the legal profession,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, one of the four groups that make up what is known as the Clemency Project 2014.  Reimer, detailing the group’s efforts for the first time, said it spent all of 2014 “gearing up” and was hopeful the process would be accelerated soon....

Candidates for clemency under the new Justice Department criteria, released in the spring, must have served at least 10 years of their sentence, have no significant criminal history and no connection to gangs, cartels or organized crime.  Applicants also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.

Even given those criteria, however, the universe of inmates who might qualify is huge, lawyers say.  “We had decades of harsh sentencing,” said Marjorie J. Peerce, a partner at Ballard Spahr in New York, whose lawyers have been screening clemency applications. “People were going to jail for decades because they were drug addicts selling a little bit of crack. There was such a disparity, and it was disproportionately affecting minorities.”...

[T]he Clemency Project — which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and Reimer’s association of criminal defense attorneys — has sent the petitions of only 14 inmates to the Justice Department’s Office of the Pardon Attorney to be considered for clemency....

Lawyers with the Clemency Project say the pace is partly a symptom of dealing with clients whose cases are complex and whose ability to communicate is limited because they’re incarcerated.  Every lawyer participating in the project had to be trained to sift through the applications to identify candidates who met the Justice Department criteria.  In many cases, they had to try to locate old legal documents and contact prosecutors and judges who imposed the sentences for answers.

Most of the inmates who requested assistance from the lawyers sent applications electronically through the Bureau of Prisons computers, but several thousand who didn’t have access to computers sent paper applications that had to be manually entered into an enormous database the attorneys have built.  Prisoner applications are still trickling in. “Some of these inmates have been in 20 to 25 years. Lawyers have to try to get pre-sentencing reports and sentencing transcripts, and, in some cases, the sentencing proceeding might not have been transcribed. It’s a cumbersome process, and you want to get it right,” Peerce said.

Although the Clemency Project is facilitating the process for inmates, it is not working directly with the Justice Department.  Inmates can contact the Clemency Project, which will research and prepare petitions for qualified candidates and send them to the Office of the Pardon Attorney, or, as 5,333 inmates have done since the spring, apply directly to that office. From there, petitions with recommendations go to the office of acting Deputy Attorney General Sally Quillian Yates.

Yates then sends the petitions with her recommendations to the White House counsel, Neil Eggleston, who sends them with his recommendations to Obama. Some advocates view that process as overly cumbersome. Justice Department spokeswoman Emily Pierce said that the agency “remains committed to the President’s Clemency Initiative, consistent with our overall efforts to modernize outdated sentencing laws.”

“The Clemency Initiative is just one prong of the tools we are using to accomplish that goal, including pushing sentencing reform in Congress and through the Sentencing Commission,” Pierce said. “We also are committed to ensuring that each individual who applies is treated fairly and equally and that public safety is a consideration in each and every petition under consideration.”

Reimer, of the National Association of Criminal Defense Lawyers, said that now that the Clemency Project has put in place a process for sorting out clemency applications, it plans to review and submit them to the Justice Department more quickly. “We’ve got a lot of work this year, but we’re determined to do it,” he said. “We will find everyone who may qualify and complete that by sometime early next year.”

Some prior related posts:

March 1, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Must one study lynchings past to understand US punishments present?

The question in the title of this post is prompted by this article discussing a recent speech by a prominent civil rights activist.  The piece is headlined "Angela Davis equates lynchings with prisons, death penalty," and here are excerpts:

Iconic civil rights leader Angela Davis opened her lecture Wednesday evening at Purdue University by evoking Black History Month — setting the stage for a moving presentation that connected past stories of oppression to today's movements for freedom....

During her talk at Purdue, Davis tied the historical tradition of the black struggle against oppression to multiple contemporary movements against racist violence, anti-Semitism, Islamophobia, homophobia and able-ism.  "The black radical tradition can be claimed by anyone who believes that freedom is a worthy cause and that the struggle for freedom links our contemporary aspirations with many struggles of the past," she said.

She connected the history of black lynchings to today's issues of mass incarceration and capital punishment. "The death penalty's roots are sunk deep into the legacy of lynching," she said. "… If we fail to take into account the central role of lynching, then we will never truly understand the way racism worked its way into the criminal justice system."

March 1, 2015 in Death Penalty Reforms, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5) | TrackBack (0)

"The Politics of Botched Executions"

The title of this post is the title of this timely new article by Corinna Lain now available via SSRN.  Here is the abstract:

For decades now, America’s death penalty has been beset by serious problems in its administration, but what has finally gotten the public’s attention is a spate of botched executions in the first half of 2014.  Botched executions are, like the death penalty’s other woes, nothing new. But having to manage the public relations nightmare that has followed these high-profile events is new, and tells a story of its own.  What are the politics of botched executions?  Officials have lowered the blinds so witnesses could not see what was happening inside the execution chamber, called for an “independent review” by other arms of the state, minimized concerns by comparing the execution to the condemned’s crimes, even denied that a botched execution was botched in the first place.

In this symposium contribution, I recount the four botched executions of 2014 and state responses that accompanied them.  I then make three observations — one about states’ fealty to the death penalty, one about backlash politics, and one about the changing cultural construct of lethal injection in the United States.  Finally, I surmise how state responses to botched executions (or the lack thereof) might impact the constitutionality of lethal injection and prove true the old adage about politics making strange bedfellows: the inept executioner may prove to be the abolitionist’s best friend.

March 1, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Friday, February 27, 2015

So many modern marijuana reform stories, so little time (but lots of space at MLP&R)

As briefly noted in a prior post, today I have been attending and participating in the first ever Tribal Marijuana Conference.  In part because the conference is so well-conceived and in part because the issues are so dynamic and multi-faceted, I have learned a lot on many fronts relating both to modern tribal law and the many fascinating legal, social and political issues that modern marijuana reform necessarily raises (some event basics here via MLP&R).  Though I am not able to process all the issues discussed today, let alone effectively blog about them all, I will close my work week by just linking to some recent posts now up at Marijuana Law, Policy & Reform:

 

NATIONAL/FEDERAL STORIES AND DEVELOPMENTS

 

STATE/DC STORIES AND DEVELOPMENTS

February 27, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (1) | TrackBack (0)

Split Connecticut Supreme Court works through Miller application issues

Images (3)As reported in this local AP piece, headlined "Connecticut court tosses 100-year sentence imposed on teen," the top court in the Nutmeg State issued a notable and significant ruling on juvenile sentencing in the wake of recent SCOTUS Eighth Amendment jurisprudence. Here are the basics:

The Connecticut Supreme Court on Friday overturned a 100-year prison sentence that was imposed on a Hartford teenager in a murder case, saying juveniles cannot be treated the same as adults when being sentenced for violent crimes.

In a 5-2 ruling, justices ordered a new sentencing hearing for Ackeem Riley, who was 17 in November 2006 when he sprayed gunfire into a Hartford crowd from a passing car. Three bystanders were shot, including 16-year-old honor student Tray Davis, who died....

The Miller decision was one of three U.S. Supreme Court rulings since 2005 that “fundamentally altered the legal landscape for the sentencing of juvenile offenders to comport with the ban on cruel and unusual punishment,” Connecticut Justice Andrew McDonald wrote in the majority decision. The rulings also barred capital punishment for all juvenile offenders and prohibited life imprisonment without the possibility of parole for juveniles in non-homicide cases.

McDonald wrote in Friday’s ruling, which overturned a state Appellate Court decision, that it didn’t appear trial Judge Thomas V. O’Keefe Jr. adequately considered Riley’s age at the time of the shooting. “The court made no mention of facts in the presentence report that might reflect immaturity, impetuosity, and failure to appreciate risks and consequences,” McDonald wrote. “In the entire sentencing proceeding, only defense counsel made an oblique reference to age.”

Justices Carmen Espinoza and Peter Zarella dissented....

State lawmakers are now considering a bill that would revamp Connecticut’s juvenile sentencing rules to conform to the U.S. Supreme court rulings. A similar measure failed last year. There are about 50 Connecticut prisoners serving sentences of 50 or more years for crimes committed when they were under 18, and most are not eligible for parole. Defense lawyers say they expect more appeals involving the juvenile sentencing issue.

The extended majority ruling in Connecticut v. Riley is available at this link, and it gets started with these passages:

The defendant, Ackeem Riley, was seventeen years old when he committed homicide and nonhomicide offenses for which the trial court imposed, in the exercise of its discretion, a total effective sentence of 100 years imprisonment. The defendant has no possibility of parole before his natural life expires. In his certified appeal to this court, the defendant claims that his sentence and the procedures under which it was imposed violate Graham and Miller, and, hence, the eighth amendment....

We agree with the defendant’s Miller claim. Therefore, he is entitled to a new sentencing proceeding at which the court must consider as mitigation the defendant’s age at the time he committed the offenses and the hallmarks of adolescence that Miller deemed constitutionally significant when a juvenile offenderis subject to a potential life sentence. We decline, however, to address the defendant’s Graham claim. As we explain later in this opinion, the legislature has received a sentencing commission’s recommendations for reforms to our juvenile sentencing scheme to respond to the dictates of Graham and Miller. Therefore, in deference to the legislature’s authority over such matters and in light of the uncertainty of the defendant’s sentence upon due consideration of the Miller factors, we conclude that it is premature to determine whether it would violate the eighth amendment to preclude any possibility of release when a juvenile offender receives a life sentence.

The dissenting Riley opinion is available at this link, and it starts this way:

I disagree with the majority’s conclusion that the total effective sentence of 100 years imprisonment imposed by the trial court on the defendant, Ackeem Riley, violates the eighth amendment to the United States constitution. I agree with the Appellate Court’s conclusion that, "[b]ecause the court exercised discretion in fashioning the defendant’s sentence, and was free to consider any mitigating evidence the defendant was able to marshal, including evidence pertaining to his age and maturity"; State v. Riley, 140 Conn. App. 1, 4, 58 A.3d 304 (2013); the sentence complied with the decision of the United States Supreme Court in Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), which held that "the [e]ighth [a]mendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." (Emphasis added.) Id., 2469. To be clear, therefore, Miller applies only to mandatory sentencing schemes. Accordingly, I respectfully dissent.

February 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

How might US Sentencing Commission's new Tribal Issues Advisory Group deal with marijuana law and policy?

The question in the title of this post is prompted by this notable new US Sentencing Commission press release, which was released on a day I am participating in the first ever Tribal Marijuana Conference (some background here via MLP&R).  Here are excerpts from the press release:

The United States Sentencing Commission announced today the formation of a Tribal Issues Advisory Group (TIAG), which will consider methods to improve the operation of the federal sentencing guidelines as they relate to American Indian defendants, victims, and tribal communities.

The TIAG will look at whether there are disparities in how federal sentencing guidelines are applied to defendants from tribal communities or in the sentences received by such defendants as compared to similarly situated state defendants. The group will also examine whether there should be changes to the guidelines to better account for tribal court convictions or tribal court orders of protection and consider how the Commission should engage with tribal communities in an ongoing manner....

The TIAG is composed of federal appointees and at-large members. The federal judge appointees are Judge Diane Humetewa from Arizona, Judge Brian Morris from Montana, Chief Judge Ralph Erickson from North Dakota, and Chief Judge Jeffrey Viken and Judge Roberto Lange from South Dakota. The ten at-large members were selected from a broad array of applicants from across the country, and they represent a wide spectrum of tribal communities and roles in the criminal justice system. The TIAG at-large members include tribal court judges, social scientists, law enforcement officials, defense attorneys, and victims’ advocates.

“I commend the Commission for creating a mechanism to develop insights and information that have the potential to improve the lives of our citizens in Indian Country,” said Chief Judge Erickson. “I look forward to working with the distinguished members of this Group and with the Commission to rationally address longstanding sentencing issues in Indian Country.”

There are literally hundreds of tribal attendees at the tribal marijuana conference because it seems a number of tribal leaders think there is a chance that, despite federal prohibition, marijuana activity on tribal lands might "have the potential to improve the lives of our citizens in Indian Country." Of course, this new USSC advisory group has more than enough challenging issues to consider without getting into marijuana law and policy matters. But, especially because typically only the feds have full criminal jurisdiction in tribal lands, I think it will unavoidable for TIAG to discuss marijuana enforcement issues if (and when?) a number of tribes jump into the marijuana industry in the weeks and months ahead.

February 27, 2015 in Federal Sentencing Guidelines, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

"A Second Chance: Education's Role in Reversing Mass Incarceration"

The title of this post is the headline of this notable new Atlantic commentary by Irwin Weathersby.  Here is how it starts: 

The American Journal of Men’s Health published a study this month titled "I Want a Second Chance" that explores the challenges faced by formerly incarcerated men as they seek to redeem themselves in the eyes of their children and society.  The research questions of the study sought to illustrate the unique circumstances of African American men: "What are the daily experiences of reentry for African American men?  What identities are African American men in reentry negotiating? What are the experiences of fatherhood for African American men in reentry? What are the experiences of their participation in a reentry program?  The findings of the focus group featured in the study reveal a collective desire to provide for themselves and to be looked upon with dignity so that their lives can regain value.  At the core of what they want most is simply to be regarded differently. As an educator who has worked closely with this population, I am convinced that their desires can be achieved through education: Formerly incarcerated men must learn to embrace methods of self-improvement, and Americans must learn to empathize and restore their citizenship.

Imagine the impact of this not-so-radical idea — if our American gaze of formerly incarcerated black men was altered — at a time when this country is fractured among race and class lines that are as bright and conspicuous as new scars.  Just this month another politician has become embroiled in controversy after an off-color portrait of the president; another unarmed black man was killed at the hands of a police officer; another wrongfully convicted black man was awarded millions of dollars in retribution after his sentence was vacated; another black man’s family was awarded millions of dollars in a settlement for his wrongful death while incarcerated; another formerly incarcerated black man was likely denied a job due to the 50-percent decrease in callback rate for applicants with criminal records.  Another day of Black History month has borne witness to our persistent troubles.

According to an article written by Amy L. Solomon and published by the National Institute of Justice, an estimated 13 million people in the U.S. are admitted to and released from local jails.  And more than 700,000 people are admitted to and released from state and local prisons each year, with men accounting for more than three-fourths of those arrested.  The numbers are even more staggering for African Americans, who comprise almost 40 percent of the entire prison population.  But even more troubling is the fact that, on any given day, one in 15 black men are in prison.  And among young African American men — those ages 20 through 34 — the ratio lowers further to one in nine.  "In fact, young, male African American high-school dropouts have higher odds of being in jail than being employed," Solomon reports.  These shameful statistics suggest that creating channels of reentry are imperative.

February 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (4) | TrackBack (0)

AG nominee Loretta Lynch one step closer to confirmation

As reported in this Politico piece, "Loretta Lynch cleared a key vote in the Senate Judiciary Committee on Thursday in her bid to become the nation’s next attorney general, picking up support from three Republicans on the panel in favor of her confirmation." Here are the details:

The vote was 12-8. The three Republicans who backed her nomination, along with all committee Democrats, were Orrin Hatch of Utah, Lindsey Graham of South Carolina and Jeff Flake of Arizona.

The next battle is on the Senate floor, where the federal prosecutor from Brooklyn is still expected to have enough GOP backing to be confirmed. But the controversy over President Barack Obama’s executive actions on immigration have overshadowed her nomination — particularly after her confirmation hearing last month, where she testified that those unilateral moves are legal.

Most GOP senators on the committee stressed that they could not support someone to be the nation’s chief law enforcement official who believes that the executive actions — which Republicans uniformly oppose and say are unconstitutional — are legal....

The committee’s chairman, Sen. Chuck Grassley (R-Iowa), announced Thursday that he would oppose Lynch because he believes she would not be sufficiently independent from Obama and the administration’s policies. “I remain unconvinced she will lead the [Department of Justice] in a different direction,” he said. “Now, I’m confident that if she had demonstrated a little more independence from the president, she would’ve garnered a lot of support today.”

Democrats, meanwhile, have long demanded that the controversy over Obama’s executive actions — which could stop deportations for more than 4 million immigrants here illegally and grant them work permits — stay out of the attorney general battle. “Loretta Lynch, a supremely qualified nominee for a vital national security and law enforcement post, should never have been pulled into the fray” over immigration, Sen. Chuck Schumer (D-N.Y.) said....

Sen. Dick Durbin (D-Ill.) invoked the issue of race and gender in regard to the nomination of Lynch, who would be the first black female attorney general if confirmed. He noted that near the 50th anniversary of the civil rights march in Selma, Alabama, it was “fundamentally unfair” to reject Lynch because she agrees with Obama’s immigration policies.

That drew the ire of Republicans. Hatch, who has said for weeks that he would support Lynch, said Democrats’ insinuation of a so-called double standard on her nomination was an “offensive and patently false innuendo.”

February 27, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (2) | TrackBack (0)