Sunday, June 28, 2015
Gearing up for the next SCOTUS death penalty case while awaiting Glossip ruling
Though the Supreme Court has saved for last its decision in the still-pending Glossip case concerning execution protocols, I still am not expecting that Glossip will prove to be a blockbuster ruling. I am guessing the decision will focus principally on Oklahoma's history with various execution drugs (and, if lower courts are lucky, will provide a clearer script for resolving Eighth Amendment challenges to execution protocols).
Consequently, an especially for those who are even more concerned about the imposition of death sentences than how they get carried out, it is perhaps not too soon to look ahead to future SCOTUS death penalty cases. One such case already on the near horizon comes from Florida, as this new local press article highlights. The article is headlined simply "Fla. death penalty faces scrutiny from Supreme Court," and here are excerpts:
Thirteen years after the U.S. Supreme Court ruled that juries, not judges, should decide death sentences, Florida stands alone in how its justice system imposes capital punishment.... Now the nation’s highest court is poised to consider in its next term whether Florida needs to change its system for deciding whom to execute. The issue concerns the role of juries in death penalty decisions. It’s an aspect of the state’s system of capital punishment that courts have struggled with for years.
In Florida, as in other states, when defendants are convicted of murder in a death penalty case, juries hear evidence regarding the existence of “aggravating factors,” or aspects of the case that weigh in favor of a death sentence, as well as “mitigating factors,” information that favors a sentence of life in prison without the possibility of parole. In recommending a sentence, a jury determines whether aggravating factors in a case outweigh the mitigating circumstances and justify the imposition of a death sentence.
But Florida juries, unlike most other states, are told their decisions are merely advisory, and that the judge will make the ultimate determination over whether to sentence a defendant to death. Trial judges in Florida are required to make their own, independent findings and are permitted to impose sentences different from jury recommendations. Juries in Florida also are not required to reach unanimous decisions on the existence of specific aggravating factors or on whether to recommend a death sentence.
No other state allows the imposition of a death sentence without jurors either finding unanimously that a specific aggravating factor has been established or unanimously finding that capital punishment is appropriate. The American Bar Association, which takes no position on the overall constitutionality of the death penalty, is urging the U.S. Supreme Court to direct Florida to make changes and require jurors to specify which aggravating factors they have unanimously found to be present. The association wants the high court to require jurors to unanimously agree on the imposition of death sentences....
The U.S. Supreme Court in 2002 threw out Arizona’s system of capital punishment, ruling it was unconstitutional because judges, not juries, determined the existence of aggravating factors and sentenced defendants to death. Months later, the Florida Supreme Court left intact the state’s system of capital punishment, concluding that the U.S. Supreme Court had repeatedly reviewed it and found it constitutional. The state’s high court noted that the U.S. Supreme Court had refused to hear the appeal of one of the Florida defendants challenging the state system, even after it made the Arizona decision....
The state Supreme Court called in 2005 for the state Legislature to make changes to the state’s death penalty law to require unanimity in jury recommendations. But state lawmakers didn’t act. In the ensuing years, the state Supreme Court continued to hold that the state’s death penalty system is constitutional. One of those rulings came in the Escambia County case of Timothy Lee Hurst, convicted of murdering coworker Cynthia Harrison in a robbery at Popeye’s restaurant on May 2, 1998....
At the conclusion of the second sentencing hearing [in Hurst's case], jurors returned a verdict of 7-5 in favor of death. Hurst appealed again to the state Supreme Court, which upheld his death sentence, rejecting arguments that included assertions the jury should have been required to unanimously find a specific aggravating circumstance and unanimously decide his sentence.
The state Supreme Court noted in its Hurst ruling that it has previously concluded that the U.S. Supreme Court ruling in the Arizona case did not require juries to make specific findings of aggravating factors or to make unanimous decisions regarding death sentences. The Florida court refused to revisit its prior rulings.
Hurst also argued the jury should have been required to determine whether he was mentally disabled, a finding that would have barred the implementation of the death penalty. After hearing testimony from witnesses and experts, the trial judge ruled that Hurst was not mentally disabled. The state Supreme Court ruled that although some states require such findings be made by juries, Florida is not one of those states, and the U.S. Supreme Court has not mandated that procedure.
Hurst appealed to the U.S. Supreme Court, which agreed to hear the case in its next term, which begins in October.
Saturday, June 27, 2015
"Will New Bipartisan Criminal Justice Reform Plan Fly?"
The question in the title of this post is the headline of this notable new Crime Report piece by Ted Gest discussing the prospects for the newly introduced SAFE Justice Act (basics here). Here are excerpts:
As support for criminal justice reform has spread, many states have left the federal government behind when it comes to reducing their prison populations. There were 208,598 federal inmates as of yesterday, dwarfing the state with the most in the last national count: Texas, with about 168,000. Prisons are consuming at least a quarter of the U.S. Justice Department's budget, putting a squeeze on other spending.
Until yesterday, most discussion of the issue in Congress has taken place in the Senate, where several members, ranging from conservative Republican Rand Paul of Kentucky to liberal Democrat Cory Booker of New Jersey have filed competing bills that would change federal sentencing laws and help inmates return successfully to society.
Now, two key House members from both major political parties are weighing in with a "Safe, Accountable, Fair, and Effective Justice Act"-- dubbed SAFE -- they suggest could go even farther than the Senate measures.
They are James Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, who have long headed the House subcommittee dealing with crime. (Scott recently moved from the panel, officially called the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, and turned his role over to Rep. Sheila Jackson Lee of Texas.)...
Sensenbrenner and Scott headed a House over-criminalization task force that has spent the last year and a half holding hearings on the issue that led in large part to the new bill. Sensenbrenner contended yesterday that over-criminalization is a "major driver" of the federal prison count, although he conceded that no one know how many such cases are filed.
Liberals are much more interested in drug cases, arguing that mandatory minimum penalties dating from the 1980s have ensnared thousands of Americans serving terms of five or ten years or longer for relatively minor violations. Scott said that two-thirds of federal inmates serving mandatory terms in drug cases are not narcotics kingpins. He argued that in the end, the nation's high incarceration rate "generates more crime than it stops."
One notable aspect of yesterday's announcement was the presence of a wide range of organizations supporting the bill, including the American Civil Liberties Union, the conservative Koch Industries, the American Conservative Union Foundation, Families Against Mandatory Minimums, and the Police Foundation.
Helpfully, this article provides this link to this full text of the new House proposal which is formally the "Sensenbrenner-Scott Over-Criminalization Task Force Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015."
Prior related post:
Might prisons struggle with new SCOTUS jurisprudence on fundamental right to marry?
Lots of folks a lot more invested in gay rights and broad constitutional jurisprudence likely have a lot more important things to say than I do about the Supreme Court's landmark marriage ruling in Obergefell v. Hodges. But given that, as noted in this prior post, the Oklahoma Corrections Department halted all prison weddings while awating the Obergefell ruling, I could not resist here wondering aloud about whether prison officials will be long struggling with the reach of the ruling as the intersection of prisoner rights and the fundamental right to marry creates new and complicated administrative concerns.
As the opinion for the Court in Obergefell mentioned, decades ago in Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court "held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry." The Obergefell ruling further mentions Turner in a notable passage that perhaps takes on extra meaning when one considers the loneliness and fear that surely accompany long-term incarceration for many prisoners:
And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U.S., at 95–96. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ___ (slip op., at 14). Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.
Of course, Supreme Court jurisprudence has long explained that prisoners have greatly diminished rights (e.g., they have no reasonable expectation of privacy and thus few if any traditional Fourth Amendment rights), and that the rights they retain behind prison walls must give way to reasonable prison regulations. More specifically, in Turner, the Court expressly stated that "legitimate security concerns may require placing reasonable restrictions upon an inmate's right to marry."
Nevertheless, in Turner the Court rigorously questioned claims by Missouri officials rationales for strict limits on prisoner marriages and concluded that an "almost complete ban on the decision to marry is not reasonably related to legitimate penological objectives." Consequently, in the wake of the the Obergefell ruling, I read Turner to preclude prison officials from simply asserting, without substantial evidence, that it will never allow prisoners to have a same-sex marriage. (Notably, only one current Justice was on the Court when Turner was decided, and Justice Scalia joined the opinion for the Court authored by Justice O'Connor striking down the Missouri prison's "almost complete ban on the decision to marry.")
Friday, June 26, 2015
How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
After this post, I am going to take some time off-line in order to calmly and carefully read all the opinions in the big SCOTUS constitutional sentencing ruling today in Johnson v. US. (Sadly, I think it is a bit too early to get some liquid assistance in calming down, but that will change in due time.) Helpfully, Justice Scalia's opinion for the Court in Johnson is relatively short and thus it should not prove too difficult for everyone to figure out the import of the Johnson ruling for future applications of ACCA or even for future vagueness/due process Fifth Amendment constitutional jurisprudence.
But, as the title of this post is meant to highlights, I suspect it may prove quite difficult for everyone to figure out the impact of the Johnson ruling for past applications of ACCA and those currently serving long federal ACCA mandatory prison sentences. I am pretty sure vagueness ruling are considered substantive for retroactivity purposes, so even long-ago sentenced federal prisoners should at least be able to get into federal court to now bring Johnson claims. But not every federal prisoner serving an ACCA sentence has even a viable Johnson claim and I suspect most do not have what I would call a strong Johnson claim. In my mind, to have a strong Johnson claim, a defendant would have to be able to show he clearly qualified for an ACCA sentence based on and only on a triggering prior conviction that hinged on the application of the (now unconstitutional) residual clause.
That said, I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim. And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in federl prison.
I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners. In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid.
Some prior posts on Johnson and its possible impact (last two from before the opinion)
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
June 26, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (15)
A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
As noted here, the US Supreme Court issued a (very?) big constitutional criminal procedure ruling today in Johnson v. US. I will need at least a few hours (if not a few days and certainly many reads) to really figure out how big a deal Johnson is. But I can and will here, at the risk of prioritizing speed over accuracy, quickly type out the first big 5 thoughts that have come to mind concerning the line-up of jurists in the Johnson ruling:
1. It is truly amazing (and quite significant) that Justice Scalia was able to convince five of his colleagues (including three of the four newer Justices) to issue a big pro-defendant constitutional criminal procedure ruling in Johnson.
2. It is very significant that Chief Justice Roberts joined Justice Scalia's significant pro-defendant constitutional criminal procedure ruling for the Court in Johnson.
3. It is interesting that Justice Kennedy briefly concurred separately and did not join Justice Scalia's significant pro-defendant constitutional criminal procedure ruling for the Court in Johnson.
4. It is notable that the concurrence authored by Justice Thomas is longer than the majority opinion (and I suspect it was going to be the opinion for the Court before Justice Scalia convinced his colleagues to order rehearing on the constitutional issue the majority addressed).
5. It is not at all surprising Justice Alito alone dissents, and I may start formally counting how many (non-capital) criminal cases have been (and will in the coming years) be defined by that reality.
SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
In a very important Fifth Amendment criminal procedure ruling, though one certain to be overlooked because of an even more important Fourteenth Amendment ruling issued right before it, the Supreme Court this morning in Johnson v. United States, 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." Justice Scalia wrote the main opinion for the Court (which carried five other Justices, including the Chief), and here is a key paragraph from the begining of the opinion's legal analysis:
We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause [of ACCA] both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.
I will need some time to review and reflect to figure out how big a ruling Johnson may prove to be. But the basic reality that the defendant prevailed here on the broadest constitutional ground (and especially the fact that only Justice Alito was prepared to rule for the federal government on appeal) further proves a point I have been making since Blakely was handed down over a decade ago: The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation.
That all said, and of particular significance for ACCA sentences that are built on convictions that do not depend on interpretations of the residual clause, the Court's opinion in Johnson ends with this critical and clear discussion of the limits of the holding:
We hold that imposing an increased sentence under theresidual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contraryholdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.
Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders
As this report from The Hill details, a notable and significant group of Representatives are backing a notable and significant new federal criminal justice reform bill. Here are the basics:
A bipartisan pair of lawmakers on Thursday unveiled a comprehensive criminal reform bill aimed at reducing the federal prison population. The Safe, Accountable, Fair, and Effective (SAFE) Justice Act from Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) calls for new rehabilitation methods and sentencing reforms. The bill is the result of the House Judiciary Committee's over-criminalization task force which examined ways to reform federal prisons....
Sensenbrenner said the bill was intended to reverse the staggering increase in the prison population, which has quadrupled in the last 30 years. Despite increased incarceration and spending on prisons, recidivism still remains a problem, he also noted. The bill applies mandatory minimums only to major crimes, and “expands recidivism reduction programming to incentivize and reward those who are working to make a change,” Sensenbrenner said....
Scott said the bill would encourage innovate approaches to criminal justice reform. “We were not interested in playing politics with crime policy,” said Scott. He noted that 32 states had been able to reduce both crime and incarceration rates over the past five years. Calling those states "laboratories of democracy," he said the bill adopted many of those tested practices.
Scott lamented the high incarceration rate in the U.S. He said the bill aims to “direct non-violent low level, first time offenders from prison" and better acknowledge the conditions that lead to crime. “If you address those underlying issues, you will have a better return rate than just from locking them up,” he said.
The bill also garnered support from major groups across the political spectrum. Leaders and representatives from Koch Industries, the ACLU, the NAACP, the Washington D.C. Police Foundation, Families Against Mandatory Minimums, and the Center for Criminal Justice Reform at the American Conservative Union have expressed support for the bill.
The bill is co-sponsored by Reps. Doug Collins (R-Ga.), Elijah Cummings (D-Md.), Raul Labrador (R-Idaho), Judy Chu (D-Calif.), Mia Love (R-Utah), and Scott Rigell (R-Va). “Too many of our children have gotten caught into a cycle that they can not get out of,” said Love, explaining the bill's appeal.
Rep. Rigell touted the broad coalition backing the bill, which includes Koch Industries, owned-by the Koch Brothers, who are major conservative donors. “If you think of those as two gate posts, “ he said, noting Koch Industries and the ACLU, “that’s an awfully wide gate.”
I am struggling to find on-line the full text of this important new federal sentencing reform proposal, but this summary from FAMM leads me to believe that this new SAFE Justice Act may go significantly farther (and be more politically viable) that the Smarter Sentencing Act and the Justice Safety Valve Act proposals that failed to move forward in the last Congress. Indeed, these passages from this new Vox article, which provides the most detailed media account of the SAFE Justice bill's specifics, is prompting me to think all would-be federal reformers — including Prez Obama and his Justice Department, and especially Senators Cruz and Paul and other reform-minded GOP Prez candidates — should think seriously about giving up on the SSA and other reform bills now in the Senate in order to put all their advocacy efforts behind getting SAFE Justice passed through the House ASAP:
While Senate efforts at criminal justice reform have exposed a generational split in the Republican Party, in which young reformers like Senators Mike Lee and Rand Paul face off against old-school, tough-on-crime conservatives like Senators Chuck Grassley and Jeff Sessions, the House's bill was written by one of those old-school Republicans — Rep. James Sensenbrenner of Wisconsin — as well as Rep. Bobby Scott (D-VA).
Sensenbrenner and Scott think of the Safe Justice Act as a federal version of the criminal justice reform bills that have been taken up in state after state over the past several years, many of them under the mottos of "justice reinvestment" and "smart on crime." In their minds, they're building on what's worked in the states and are in line with reformers' emphasis on "data-driven" and "evidence-based" criminal justice policymaking.
The Safe Justice Act is a collection of dozens of different reforms. Most of them aren't terribly big on their own, but many of them overlap. That makes it really hard to estimate exactly how much the federal prison population would shrink if the bill became law. But its effect would be bigger than anything that's been introduced in Congress so far.
Many of the reforms would cut sentences for drug crimes — which reflects a growing consensus that nonviolent drug offenses aren't as bad as violent crimes. Drug prisoners are about half of all federal prisoners (unlike in states, where violent crime is the biggest cause of incarceration). That means that many of the Safe Justice Act's biggest reforms would target the largest slice of the federal population....
Most changes to prison sentences in Congress have focused on cutting mandatory minimum sentences, which force judges to sentence people to five, 10, or 20 years for certain drug crimes. But across-the-board cuts to mandatory minimums have been met with serious resistance from old-school Republicans, including Senate Judiciary Chair Chuck Grassley (R-IA). The House's solution, via the Safe Justice Act, isn't to reduce the mandatory minimums themselves — but to narrow the range of people who they apply to. Instead of someone who's convicted of trafficking a certain amount of cocaine being automatically sentenced to 10 years, for example, he'd only trigger the 10-year minimum if he were also a leader or organizer of an organization of five or more people. And even then, the bill says that judges can override the mandatory minimum if the defendant doesn't have much of a criminal history, or has a serious drug problem.
The bill would also make it possible for more people to be sentenced to probation instead of getting sent to prison. It would allow drug offenders to get probation if they'd been convicted of low-level drug crimes before. It would encourage judges to give probation to first-time low-level offenders. And it would encourage districts to start up drug courts and other "problem-solving courts"; some states have found these are better ways to treat some addicts than prison is....
Current prisoners whose sentences would have been affected by the bill's front-end reforms could apply to get their sentences reduced that way. But the Safe Justice Act would also give them another way to reduce their sentences: by getting time off for rehabilitation. Under the bill, every federal prisoner would get an individual case plan, based on what particular prison education, work, substance abuse, or other programs are the best fit for his needs. For every month a prisoner follows the case plan, he'd get 10 days off his prison sentence — meaning a prisoner with a perfect behavior record could get his sentence reduced by a third. (Prisoners serving time for homicide, terrorism, or sex crimes aren't eligible for time off, but that's a very small slice of the federal prison population.) The logic is that prisoners who want to rehabilitate themselves, and whose good behavior shows they're succeeding, shouldn't be forced to spend extra time in prison just for prison's sake.
The bill goes even further when it comes to probation — which affects many more people than prison. For every month of perfect behavior on probation, the offender would get 30 days off the end of his sentence — essentially cutting the probation term in half. If the offender violated probation, on the other hand, there would be a set of gradually escalating punishments, instead of an automatic ticket back to prison....
In the year 2015, it is extremely hard to get any sort of bill through Congress. And Sensenbrenner, Scott, and their fellow reformers have a narrow window before the presidential campaign saps Congress of any will to act it has left. So the barriers are pretty high. But this isn't, in itself, supposed to be a polarizing bill. The presence of Sensenbrenner and other old-school Republicans reflects that. And this is something that both houses of Congress have been debating for some time.
If House leadership decides to snatch up the Safe Justice Act and bring it to the floor quickly, it might give the Senate enough time to act. Maybe they'll be interested in the provisions that would make it a little harder for the federal government to treat regulatory violations as crimes; that's a pet cause of conservatives, even those who aren't otherwise committed to reforming criminal justice.
Still, House leadership might not be interested. But this is the broadest bill that's been introduced during the current wave of criminal justice reform, and it's a marker of just how much consensus there is among reformers in both parties when it comes to reducing federal incarceration.
June 26, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
"A Second Chance: Rebiography as Just Compensation"
I often tell my sentencing students that every good legal or policy debate has some important sentencing story lurking within it. The title of this post is the title of this intriguing article authored by Jamila Jefferson-Jones just now appearing on SSRN, and it argues Fifth Amendment's Takings Clause has an important sentencing story lurking within. Here is the abstract:
Once upon a time, reinvention was an integral part of the myth of the American Dream. As the story went, one could leave the old country or old neighborhood, without looking back -- fashioning one's own second chance by stepping into a newer, better identity, crafting a redesigned life story out of whole cloth if necessary. As one legal historian noted, "American culture and law put enormous emphasis on second chances." For most of the 20th Century, this notion of the second chance was also alive and well in the American criminal justice system, as rehabilitation was considered its primary goal. My earlier article, "A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History," couched the need for rebiography upon reentry in terms of the ongoing reputational damage suffered by the previously convicted. Then, regulatory takings analysis was applied to that reputational damage. In doing so, it analyzed the critical property-like characteristics of reputation, concluding that reputation is a form of "status property" and that such continued stigma attachment and reputational damage constitutes a "taking" without just compensation. Finally, it was argued that rebiography can serve as "just compensation" for this type of taking.
Rebiography as "just compensation" for the reputational taking suffered by the previously convicted leaves open two questions: First, does the takings analysis have the same outcome regardless of the offender? In other words, does an offender have to try to use her reputation in a positive manner and be prevented from doing so in order to have a takings claim, or is it enough to say that requiring disclosure of criminal history is a taking across the board that always requires just compensation? Secondly, what is the relationship between "rebiography" and "privacy"? In "A Good Name," an established continued stigma attachment was shown as a governmental taking. Now, it is offered in a way to show that "just compensation" is owed to the previously convicted and that the way to provide it is through establishing a "rebiography right," stemming from the taking of a constitutionally cognizable property right.
Part I of this new article provides the introduction, giving general definitions of rebiography and “just compensation.” In Part II, there are reviews of the application of the Takings Clause to the reputational damage suffered by the previously convicted and apply this analysis to actual cases. In Part III, it is further explained as to why rebiography is necessary given statistics on the previously convicted's employment prospects and recidivism. The article goes on to examine legislative and judicial options for rebiography.
Thursday, June 25, 2015
Seeking SCOTUS predictions: what should we now expect in Glossip and Johnson?
I feel like the Supreme Court did me a solid this morning by deciding two non-criminal cases and continuing to keep everyone waiting for the two sentencing cases I have been following most closely this term: Glossip concerning execution protocols and Johnson concerning the constitutionality and application of the federal Armed Career Criminal Act. I say that because I am due to be off-line and out-of-the-office most of the rest of today, and I am somewhat relieved I do not yet need to read and react to the (many divided and lengthy?) opinions to come from the Justices in these two cases.
In part because I am going to be off-line for a while, and in part because SCOTUS gave us a few more tea leaves to read with its rulings today and earlier this week, I am eager to hear from folks about what they are now expecting in Glossip and/or Johnson. I think it is now a near certainty that we are going to get (deeply?) divided rulings in both cases, and I have long assumed Glossip would come down to a 5-4 vote and that Johnson might end up the same. But as the days go by without a ruling, I am getting more and more excited (or should I say concerned) that both Glossip and Johnson will be big, lengthy and consequential.
Do others agree? Do folks expect the rulings tomomrrow? Monday? Later?
Do folks now have predictions about who will be writing for the Court and will be writing the main dissents in each case?
Does anyone share my fear that we might get a badly splintered Court in both cases?
Circa mid-2015, Clemency Project 2014 will go down as an abject failure if it does not submit more petitions before 2016
This notable new USA Today article, headlined "'The clock is running' on Obama clemency initiative," reports that the various administrative and practical difficulties encountered (and self-created?) by those trying to get Prez Obama more good clemency case are now seemingly at risk of completely "screwing the pooch" on the whole clemency push. Here are the discouraging details:
The Obama administration is urging lawyers for federal inmates to move more quickly in filing petitions for presidential clemency, reminding them that "the clock is running" on the Obama presidency. The new urgency from the Justice Department comes more than a year into a program intended to shorten the sentences to federal inmates who would have gotten less time under current law.
That clemency initiative was coupled with the Clemency Project 2014, an outside consortium of lawyers working on those cases. But the Clemency Project filed only 31 petitions in its first year, leading to criticism from some proponents of criminal justice reform that the process is moving too slowly.
"If there is one message I want you to take away today, it's this: Sooner is better," U.S. Pardon Attorney Deborah Leff told volunteer lawyers in a video seminar last week. "Delaying is not helpful." Leff is the Justice Department official who provides recommendations on commutations and pardons to the president, who under the Constitution has the power to shorten sentences for federal crimes and to restore other civil rights....
The Clemency Project has set a goal of Jan. 20, 2016, for all petitions to be filed, to give the Obama administration a full year to consider them and send them to the president's desk for a decision before his term ends. Leff said any petitions that come in after that date could be left to Obama's successor. "So if we receive an enormous number of petitions at the last minute, yes, they will be reviewed. But a lot of them will not be reviewed during this administration," she said.
She also suggested that attorneys were spending too much time on cases. "While I greatly admire your legal skills, this is not the time to prepare a treatise of hundreds of pages," she told the lawyers.
Another problem is paperwork. The Office of the Pardon Attorney requires the pre-sentence report for every inmate, but that can involve a complicated process of court approval. "It's been a real bottleneck to get these documents into the hands of the lawyers," said James Felman, a Tampa attorney who chairs the criminal defense committee of the American Bar Association. So the Clemency Project has now streamlined that process, allowing the Bureau of Prisons to supply that document unless a judge objects.
Felman said lawyers also need to understand that they're asking the president for mercy, and so need to be forthright about the strengths and weaknesses of the case. "Aggressive lawyering is not necessarily going to pay off," he said. The cases don't have to be perfect. Felman said the Justice Department has signaled a willingness to consider cases that don't meet all of the criteria. "Some of the criteria are less definite than others. Like, for example, a clean record in prison. Nobody has a perfect record in prison," he said.
And the Justice Department said that even cases that aren't appropriate for the clemency initiative — which is intended for people who have already served at least 10 years — will still get consideration. "In addition to the president's clemency initiative, he continues to consider commutations under the traditional criteria for clemency," said Justice Department spokeswoman Dena Iverson. "Every applicant for clemency receives an individual review."
Margaret Love, a Washington attorney who had Leff's job in the Clinton administration, said she worries that an emphasis on the volume and speed of cases could compromise the ability of attorneys to make the best argument for their clients. "What I heard was hurry up, hurry up, deliver as many cases as quickly as you possibly can," she said. "If it's true that there were only 31 cases submitted by the project by the end of May, that's surprising given the number of lawyers they have working on them."
Regular readers know that, ever since Prez Obama and his Aministration started talking up an effort to get serious about using the clemency power seriously, I have been regularly expressing concerns about how structurally peculiar and procedurally belabored this new (and now not-so-new) clemency push has been. My particular worry, which is exacerbated by articles like this one and other similar reports, has been that a robust effort by defense lawyer groups to (1) review the complete files of, and (2) provide trained lawyers for, and (3) present a complete and extensive argument/application for, any and every federal prisoner who might want to pursue a clemency application could create a whole lot of costly and time-consuming busy work with few real substantive benefits. This is especially so given that, as all serious federal clemency advocates should know, the Pardon Attorney's Office has historically always taken its sweet time to assemble and review the files of any clemency application and will always (and justifiably) be wary of relying on just the information and representations made by a clemency applicant and is lawyer.
That all said, I remain hopeful that all the hard work being done by all the groups and lawyers involved in Clemency Project 2014 will prove meaningful and valuable and will ultimately enable Prez Obama to live up to his promises to get serious about using the clemency power seriously before he leave office in January 2017. But that might now require those working on Clemency Project 2014 to get serious about getting their applications submitted ASAP rather than continuing to spend time letting the perfect be the enemy of the good enough in this arena.
Some prior related posts:
- Perspectives on Clemency Project 2014 from federal prisoners and an advocate for them
- Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
- Extraordinary review of messiness of Prez Obama's clemency push
- Senator Grassley queries DOJ concerning its work with Clemency Project 2014
- NACDL explains the massive work behind Clemency Project 2014
- Defender hiccup or major headache for Clemency Project 2014?
- Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people
- ProPublica urges next AG to "Fix Presidential Pardons"
- Might Charles Koch put big money behind big reform of federal clemency process?
- Professor Mark Osler's informed perspective on recent federal clemency developments
- Former Pardon Attorney: "A Modest Proposal to Expedite the Administration's Clemency Initiative"
Highlighting the need for much better modern prison metrics
Adam Gelb and Craig Prins, who are directors of the Pew Charitable Trusts' public safety performance project, have this notable new Washington Times commentary about prisons and prison reform. The piece, headlined "Who’s behind bars?: A better prison composition index could gauge whether reforms are succeeding," effectively highlights that for more effective prison reform (and more effective assessment of these reforms) could benefit greatly from more effective prison metrics. Here are excerpts:
The verdict is in, and it’s close to unanimous: The United States has built too many prisons. After nearly 40 years of uninterrupted prison growth that put one in 100 adults behind bars, a wave of state reforms over the past several years has reduced the incarceration rate while the crime rate has continued to fall. These tandem trends have convinced many Americans that locking more and more people up for longer and longer periods of time is neither the best nor only way to protect public safety.
Governors and legislatures in red and blue states alike have enacted substantial policy shifts, often by wide bipartisan majorities. Voters, in opinion surveys and at the ballot box, appear to be solidly behind putting the brakes on prison construction and steering lower-level offenders to alternatives.
Shifting national attitudes about crime and punishment have led to calls for even more aggressive reforms to criminal penalties and deep reductions in the inmate population. Elected officials and opinion leaders from opposite ends of the political spectrum have begun a dialogue about what it would mean — and take — to cut the current prison population in half, a once far-fetched fantasy that several new advocacy groups have adopted as their outright objective.
Tracking the number of inmates is essential but not enough to know whether we are making progress toward a more effective criminal justice system. A fuller picture requires a new and more nuanced measure — one that goes beyond the tally and captures the type of inmates behind bars. Recent state reforms have sought to protect public safety, hold offenders accountable and control corrections costs. To achieve these goals, many states are focusing their expensive prison beds on violent and career criminals with new policies that divert lower-level offenders into non-prison sanctions or reduce the time they spend locked up, restrict revocations of parole and probation for minor rules violations, and expand eligibility and funding for drug courts and other alternatives.
Yet most states cannot readily determine whether the new policies are working any better than those they replace. Beyond a simple count of prisoners, the typical state data report offers basic demographic information and breaks down how many inmates are serving time for violent, property, drug and other crimes. These numbers are helpful, but by themselves they reveal only fragments of the information necessary to paint a meaningful portrait of inmate populations. For instance, an offender currently serving time for a relatively minor crime may have a string of prior violent convictions that make him a higher risk to society than someone in prison for a more serious offense not likely to be repeated.
A more holistic look at prison use would blend current offense, prior record and risk of recidivism. By joining some combination of these elements into a single measure — a prison composition index — policymakers and the public could develop a better understanding of how their prison beds are being used and whether their reforms are succeeding....
The end goal is to come up with a single measure tracked over time that answers the question: What percentage of the prison population consists of violent and chronic offenders who pose a threat to public safety, and how many are offenders who could safely pay their debt to society in less expensive and more effective ways?
Pennsylvania is probably the first state to attempt to use a sophisticated prison composition index. Under the direction of Secretary John Wetzel, the Pennsylvania Department of Corrections uses an “Offender Violence Risk Typology” tool, which merges information about current offense, prior record and risk level to create three categories of inmates. According to the index, 69 percent of Pennsylvania’s prison admissions and 59 percent of the standing population in 2013 fell into the least serious of the three categories, figures that have changed little since 2010.
The raw number of prisoners is an important barometer of our criminal justice system. But we also need to know who the inmates are, why they’re there, and whether society will be better off if they are incarcerated or sentenced in other ways.
Examining federal death row as Dzhokhar Tsarnaev becomes its newest (and youngest) member
The new NBC News piece, headlined "Tsarnaev Joins A Death Row With Many Members, And Few Executions," reviews some realities of federal death row in the wake of yesterday's formal capital sentencing of the Boston Marathon bomber. Here are excerpts:
Now that he's been formally sentenced to death, Boston Marathon bomber Dzhokhar Tsarnaev will soon become a resident of federal death row, joining 61 other killers who've been condemned to die by lethal injection at the U.S. Penitentiary in Terra Haute, Indiana.
There he will wait — likely for a very long time. Just how long depends on a range of factors, mainly the strength of his legal appeals. But it's safe to assume that, provided the appeals fail, it will be several years before he is put to death.
Despite the name, there isn't much death on death row. Since the federal government reinstated the death penalty in 1988, 75 inmates have ended up on death row, according to the Death Penalty Information Center. Ten have been removed, and only three have been executed.
The last man to die there was Louis Jones Jr., in 2003, eight years after he was sentenced for murdering a U.S. soldier. The other two, marijuana kingpin Juan Raul Garza and Oklahoma City bomber Timothy McVeigh, waited eight years and four years, respectively, for their executions.
That leaves 61 men and 1 woman still on federal death row, including two people whose original conviction or sentence has been reversed but their legal fate has not yet been finalized. Tsarnaev, 21, is the youngest.
He'll join a cast of violent men at Terra Haute — the one woman on death row, Lisa Montgomery, who killed a pregnant woman and cut her unborn baby out of her womb, is serving her remaining days in the Federal Medical Center Carswell in Fort Worth, Texas....
The longest current residents of death row are Corey Johnson, James Roane Jr. and Richard Tipton, fellow gang members who were sentenced to execution in 1993 for nine murders committed to protect their crack dealing operation. The newest — before Tsarnaev — is Thomas Sanders, who was sentenced to death in September for kidnapping and killing a 12-year-old girl.
It is often said that justice delayed is justice denied. As this article highlights, if you embrace that aphorism, federal death row is locale which has been experiencing a whole lot of justice denied in recent times.
Noticing Senator Cornyn's notable role in federal criminal justice reform efforts
Regular readers know that Senator Charles Grassley is perhaps the most critical current player in the current debates over federal sentencing reform because of his role as Senate Judiciary Committee Chair. But this new National Journal article, headlined "Cornyn's New Role: The 'Bridge' on Tricky Bipartisan Bills," highlights the key role now being played by the current Senate whip. Here are excerpts from an interesting piece about Texas Senator John Cornyn:
On April 10, John Cornyn toured a huge prison in rural east Texas, about a three-hour drive north of his Houston birthplace. Nearly 700 security employees stroll the H.H. Coffield facility, which has a maximum capacity of around 3,800 prisoners, and Cornyn, a three-term senator who rose to the Texas Supreme Court and attorney general positions during the lock-'em-up-and-throw-away-the key 1990s, was there to draw attention to a project helping prisoners learn the skills they need to rehabilitate — and get out.
"Some of the inmates were so poorly educated they couldn't even read a tape measure," said Cornyn in an interview in his Washington office this week. "Which if you think about it, it doesn't say much for our public education system, but it also just shows how big a problem we have when people have zero coping skills — no education — and they basically have lived a continuous life of crime, and they know nothing else in terms of the challenges. We have to break that cycle."
Almost seven months into his role as Senate majority whip, Cornyn talks quite a bit about breaking cycles, whether in prisons or the nature of crises in the Senate. His official role is to keep the Republicans in line and on-message, but he also has been an influential figure — the "bridge," as one Democrat puts it — on bipartisan pieces of legislation, particularly on two in the Judiciary Committee that bedeviled the last Congress: a criminal-justice reform package — the cause du jour infiltrating liberal and conservative think tanks, as well as the 2016 presidential debate — and patent-reform legislation with Sen. Chuck Schumer. Neither is on the Senate GOP leadership's short list, but both bills could see floor action with Cornyn's help, especially if the appropriations process breaks down, leaving room in the schedule.
On criminal justice, Democrats see Cornyn as an instrumental figure in creating the package that requires low-risk offenders to participate in recidivism-reduction programs for an earlier release—saving taxpayer money and making communities safer — and that includes a bipartisan bill reducing mandatory-minimum prison sentences. That bill is supported by members across the ideological spectrum but was opposed by Cornyn — who says now that it wasn't ready for "prime time" — along with Sen. Chuck Grassley, now the Judiciary Committee chairman, and others last year.
"I think we need a marriage of both of those proposals," said Cornyn, who would like to build on his bill to include some sentencing reforms. "I think looking at nonviolent offenders, low-risk offenders, I think there's some things we can do."
"My hope is that in the near future we will have a product that we can then have a hearing on and then mark up, and my hope is that we'll get something to the president this year," he added.
Sen. Dick Durbin, who is leading the sentencing-reform effort with Sen. Mike Lee, said Tuesday that Congress could have a "dramatic impact" on the federal prison population by addressing even just a "very narrow" category of drug offenses not involving firearms, gangs, violence, or terrorism.
Grassley has been an obstacle on the issue, according to Sen. Jeff Flake, a Judiciary panel member. Grassley was not invited to a White House meeting to discuss the topic this year and was advised in his hometown paper to take up sentencing reform a few months ago. But he seems more willing to move the package now — he said recently that the committee has the "capability" of reaching a bipartisan agreement this year — and has been convening meetings to see if a compromise can be struck.
Sen. Sheldon Whitehouse, a Judiciary Committee Democrat, sees Cornyn as the "bridge" trying to get their bills through the panel. "As you know, I think Chairman Grassley has gone to the floor three separate times to express his displeasure and dissatisfaction with the mandatory-minimum bill," said Whitehouse. "So by way of the chairman putting a marker down that he's not pleased with a piece of legislation in his committee, it would be hard to imagine much of a bigger, louder marker than that."
"And I think Senator Cornyn is a very helpful voice in trying to be a bridge among the different parties involved here," he added. "Whether it's Chairman Grassley, or Senator Lee or Senator Durbin, I think both Senator Cornyn and I are trying to be that bridge, but given that the chairman is a Republican and given that Senator Cornyn is a former attorney general, former judge, and leader within the Republican caucus, I think Senator Cornyn is a particularly important figure in the bridge between Senator Lee and Chairman Grassley."
June 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Wednesday, June 24, 2015
"A Shrinking Texas Death Row"
The title of this post is the headline of this intriguing new item from the Texas Tribune. The piece has a series of great interactive charts providing the details on this basic death-penalty data story:
The number of inmates on Texas’ death row is falling. At its peak in 1999, 460 men and women were living with a death sentence in Texas, according to the federal Bureau of Justice Statistics (BJS). Today, there are 260.
The reason for the decline isn't a rise in executions. In 2000, an all-time high of 40 inmates were executed in Texas, compared with 10 last year. So far this year, nine inmates have been executed.
The main reason is a drop in new death sentences. In 1999, 48 people were sentenced to Texas death row, according to BJS data. In 2008, that number was nine — and has stayed in that range ever since. This year, there have been no new death sentences so far, according to the Texas Department of Criminal Justice (TDCJ).
Kathryn Kase, executive director of the Texas Defender Service, a nonprofit organization of death penalty attorneys, said that zero is significant. “This is the longest we’ve gone in a calendar year in Texas without a new death sentence,” Kase said. “Before this year, the longest that we’ve gone is through the first quarter."
Experts suggest several factors could be contributing to the falling number of death sentences, from a national decline in support for the death penalty to shortages of the lethal drugs used in executions. In 2005, the U.S. Supreme Court ruled that juvenile offenders could not face execution, lessening future sentences as well as sparing 29 offenders who were already sitting on death row.
But consistently, they point to a 2005 law that offered Texas prosecutors the option to pursue life-without-parole sentences against capital murder defendants. Previously, capital murder offenders who did not receive the death penalty were eligible for parole after 40 years....
Since that law was enacted, the number of life-without-parole sentences has increased nearly every year, according to TDCJ. Between 2007 and 2014, the number of life-without-parole sentences jumped from 37 to 96.
Currently, 745 people are serving a life-without-parole sentence in Texas, nearly three times the number of death row inmates. So far this year, Kase said three death penalty cases have gone to trial. All have ended with life-without-parole sentences.
Notable new federal drug sentencing guideline reform data and discussion from US Sentencing Commission
I just received via e-mail a notable alert from the US Sentencing Commission concerningnotable new information and materials now available on the USSC's website. Here is the text of the alert I received (along with relevant links):
Today, the U.S. Sentencing Commission released its first report on retroactive application of the 2014 drug guidelines amendment, which reduced the drug quantity table in the federal sentencing guidelines by two levels. This report includes motions decided through the end of May 2015 for a reduced sentence under the new amendment. Read the report.
For background information on why the Commission amended the drug guidelines, read the first of our new Policy Profile series, “Sensible Sentencing Reform: The 2014 Reduction of Drug Sentences.”
The Commission is also seeking public comment on proposed priorities for the upcoming amendment cycle. Public comment is due on or before July 27, 2015. More information
There is data and discussion in each of thse three new USSC documents that merit careful study and perhaps future substantive comment. For now, though, I am eager just to praise the Commission for the creation of the reader-friendly and astute "new Policy Profile series." I have long thought it a good idea for the USSC to say a lot more about matters of policy, but to do so in smaller forms than the traditional lengthy 300+ page reports to Congress. Thus, I consider this new Policy Profile series to be both a great idea and one that could pay lots of dividends for all policy-makers, researchers and advocates who are concerned about federal sentencing law and policy,
June 24, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
"I know there needs to be [sentencing] reform,” Sen. Chuck Grassley says. “We need this.”
The title of this post is the (slightly modified) subheadline of this lengthy new Politico report, headlined "Riots spur Senate look at sentencing reform." Here are excerpts:
After the Baltimore and Ferguson riots ignited nationwide discussions of race and criminal justice, a bipartisan group of top Senators is making headway on a sentencing reform compromise to release well-behaved prisoners early and reduce some mandatory-minimums.
But the fledgling proposal — yet to be committed to paper — faces potential resistance from the wings of both parties: Liberals and libertarians who want it to go further, and tough-on-crime conservatives who fear that it lets convicts off the hook.
The group, led by Senate Judiciary Chairman Chuck Grassley (R-Iowa), is writing legislation to allow convicts with low risks of recidivism to earn time off their sentences. They’re also contemplating reductions to some nonviolent drug-related mandatory minimums — and maybe even increasing others on white-collar crime in the name of sentencing equality. Talks are ongoing.
The path forward is uncertain, however. Grassley must thread the needle between his colleagues like Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) — who say the war on drugs is dead and want to ditch mandatory minimums completely — and lawmakers like Sens. Marco Rubio (R-Fla.) and Jeff Sessions (R-Ala.), who are leery of ditching all such sentencing requirements and still back a tough-on-crime mindset that dominated the GOP in the 1980s and 1990s. It also marks a transition for Grassley, who’s never been a big advocate for reducing mandatory minimums and has been labelled an arch-nemesis of criminal justice reform by newspapers back home in Iowa.
“I have different views than Paul and those guys,” Grassley said in a short interview. “They’d make you believe [people are incarcerated] for smoking one pot or one ‘roach’ … But they’re not; they’re in for a lifetime of violent crime.” “But I know there needs to be reform,” he quickly added. “We need this.”
It’s a political gamble. On the one hand, the group risks being accused of writing a watered-down overhaul; on the other, lawmakers don’t want to be accused of letting convicts off too easily. Striking a balance between those two positions has been difficult in the past — and one of the reasons such legislation hasn’t been enacted in previous congresses.
“You’ve got to be very careful,” said Sessions, a former U.S. Attorney for the Southern District of Alabama who’s already skeptical of the burgeoning deal. He launched into a lecture: “Historic criminal justice reform in the early 1980s has led to this dramatic drop in the crime rate. I mean, the murder rate is less than half of what it was — and so [mandatory minimums were] a fundamental component… I don’t want us to go further than we should in reducing sentences.”
The new compromise package comes amidst heightened inter-racial tensions following the deaths of unarmed black men at the hands of police officers. And when a young white man murdered nine black churchgoers in Charleston, S.C., because of their skin color, the nation was again plunged into discussions of race relations. “My hope is that in light of what happened in South Carolina, we think beyond the symbolism of the [confederate] flag, to changes that really show we’re committed to fairness when it comes to racial equality,” said Democratic Minority Whip Dick Durbin (D-Ill.), who is part of the compromise group.
For supporters of sentencing reform, reform is needed in the name of equality. Many mandatory minimums disproportionately affect African Americans because they are used for sentencing drug-related crimes that plague predominately lower-income, urban populations. “We’re housing too many of our citizens who are committing nonviolent crimes,” said civil rights activist Rep. John Lewis (D-Ga.). “So many people, especially, low-income people who can’t hire lawyers — and it’s not fair.”...
Over the past few years, reform negotiations have been dominated by people like Paul and more libertarian-type Republicans, as well as Democrats such as Leahy. The pair have teamed up on legislation that effectively eliminates mandatory minimums by allowing judges to override them. But the idea of eliminating mandatory minimum makes people like Grassley and his co-Republican negotiator, Sen. John Cornyn, nervous.
“Having been a judge for 13 years and attorney general, my observation is we have to be careful,” Cornyn said during a Tuesday interview in his Senate office. “Even though people may be well intentioned, there could be very negative consequences.”
The package marries provisions of two bills that passed the Judiciary panel last Congress. The first, sponsored by Cornyn and Sen. Sheldon Whitehouse (D-R.I.), another member of the group, focuses on the back end of sentencing reform by letting inmates out early and giving them tools to assimilate back to normal life. The program would only be offered for prisoners considered to have a low risk of re-offending and who do not have prior convictions. Those who have committed more serious crimes such as rape, murder or terrorism wouldn’t be eligible.
“The people coming out of prison are better prepared to re-enter society and be productive as opposed to regressing back into their life of crime,” under the program, said Cornyn, who notes that states have found positive results by implementing these sorts of programs. In Texas, Cornyn’s home state, such reductions have allowed them to close three prisons, he says. The deal would also take a page out of a bipartisan bill called “Smarter Sentencing” that would reduce mandatory minimums for drug crimes.
The compromise would leave intact mandatory minimums on violent offences as well as convictions that involve the use of firearms (an important exception for Cornyn), importing heroin and cocaine (a requirement of Grassley’s), gang involvement and terrorism, among others. “It’s narrow category of drug sentencing… but it would have a dramatic impact on the population in our federal prisons,” Durbin said.
Critics like Leahy, however, are bound to have reservations because the bill likely won’t go far enough. “Passage of mandatory minimum sentencing laws has not made us safer, but it has driven our federal prison population to historic highs — a nearly 800 percent increase in 30 years,” the former Judiciary chairman said in late April, speaking to The Constitution Project. “I oppose all mandatory minimums.”
Leahy, one of the Democrats’ lead voices on this issue, also isn’t a fan of the Cornyn bill — ultimately abstaining from voting on the measure last year because he believes it will just exacerbate racial disparity with its “high risk,” “low” designations. Paul’s office would not weigh in on the package that’s still in the works.
Other lawmakers are taking the opposite tack. When asked about such a package, Sessions on Monday ranted about “safer streets … where children can be raised,” and likened the debate to a “pendulum that tends to swing.” Rubio has also written op-eds expressing reservations about getting rid of certain minimum sentence requirements. And Grassley, whose committee staff is taking the lead on the matter, is sympathetic to those worries. In fact, it’s ironic that Grassley — who was not invited to the White House when Obama hosted Republicans to discuss this issue — is taking the lead on the compromise. Back home, the Des Moines Register called him a “stumbling block remains stubbornly in place.”
But Grassley says he’s always favored reducing some minimum sentences. He also wants to increase others, however — placing him at odds with some Democrats he’s currently negotiating with. He’d like to increase mandatory minimums on white color crimes like fraud, he says.
While they applauded the idea of allowing prisoners to earn more time off their sentences, several Congressional Black Caucus members engaged in the criminal justice reform talks threw cold water on that particular pitch. “That’s not the way to do it,” said Rep. Hank Johnson (D-Ga.). “I would oppose that for the same reason I’m opposed to mandatory minimums on other crimes: They take discretion away from the judge and put too much discretion in the hands of the prosecution.” Rep. Keith Ellison (D-Minn.) said the idea would “clearly” addresses the question of equal treatment for black and white offenders, but he has “an objection to mandatory minimums beyond the equity question.”...
Other pieces of the package still up in the air include provisions limiting asset seizures, or funding police body cameras — but Grassley worries bringing those into the negotiations at this point may hinder talks.
Cornyn suggested the group would be open to changes in committee and on the floor — so long as they don’t take the bill too far off course from the direction it’s headed, he added. And despite potential pitfalls to come, Whitehouse seemed confident they could deliver: “There’s a sweet spot for people who support reconsideration of mandatory minimums… there is a sweet spot in the middle.”
June 24, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)
Many bombing victims scheduled to speak at formal sentencing of Dzhokhar Tsarnaev
This AP article, headlined "More than 30 victims to speak at Boston bomber's sentencing," provides a preview of a high-profile formal sentencing scheduled to take place today in Massachusetts federal court. Here are excerpts:
More than 30 victims of the Boston Marathon bombing and their family members are expected to describe the attack's impact on their lives before a judge formally sentences bomber Dzhokhar Tsarnaev to death.
In May, a federal jury condemned Tsarnaev to die for bombing the 2013 marathon with his brother. Three people were killed and more than 260 were injured when the brothers detonated two pressure-cooker bombs near the finish line. Under the federal death penalty law, Judge George O'Toole Jr. is required to impose the jury's sentence. Tsarnaev's sentencing hearing is scheduled for Wednesday morning in U.S. District Court.
Among those expected to speak are Rebekah Gregory, a Texas woman who lost a leg in the bombings, and Liz Norden, the mother of two Massachusetts men who each lost a leg. Tsarnaev, 21, also will be given a chance to speak if he chooses.
"Punishment in Popular Culture"
The title of this post is the title of this intriguing new book of essays edited by Charles Ogletree and Austin Sarat. The book's table of contents reveals that the essays are authored by an array of interesting and distinct scholars who focus on an array of interesting and distinct topics ranging from early prison films to Abu Ghraib to "White Masculinity and Harsh Punishment in 1990s Popular Culture." The book's introduction authored by the editors provides a great preview of the book's themes and coverage, and here is an excerpt:
From the Gospel of Matthew to George Bernard Shaw and former Supreme Court Justice William Brennan, many have remarked that how a society punishes reveals its true character. Punishment tells us who we are. The way a society punishes demonstrates its commitment to standards of judgment and justice, its distinctive views of blame and responsibility, its understandings of mercy and forgiveness, and its particular ways of responding to evil....
Punishment in Popular Culture examines the cultural images that undergird and critique America’s distinctive approach to punishment. It analyzes punishment as a set of images, as a marvelous spectacle of condemnation. It recognizes that the semiotics of punishment is all around us, not just in the architecture of the prison or the speech made by a judge as she sends someone to a penal colony, but in both “high” and “popular” culture iconography — in novels, television, and film. Punishment has traditionally been one of the great subjects of cultural production, suggesting the powerful allure of the fall and of our prospects for redemption. But perhaps the word “our” is inaccurate here. Émile Durkheim and George Herbert Mead, among others, remind us that it is through practices of punishment that cultural boundaries are drawn, that solidarity is created through acts of marking difference between self and other, that these processes proceed through dis-identification as much as imagined connection....
America, as is widely known, has been on a several decades’ old incarceration boom. As noted above, we continue to lock up more people for longer periods of time than most other nations, as well as to use the death penalty and to racialize punishment in ways that are quite remarkable. How are these facts of American penal life reflected in, encouraged through, or critiqued by the portraits of punishment that Americans regularly encounter on television and in film? What are the conventions of genre that help to familiarize those portraits and connect them to broader political and cultural themes? In its cultural lives, can punishment claim a secure basis in morality? Or do television and film help to undermine its moral claims? How are developments in the broader political economy reflected in the ways punishment appears in mass culture? And finally, how are images of punishment received by their audiences?
While the work collected in our book does not purport to provide a comprehensive overview, these are the questions that Punishment in Popular Culture addresses. Our book thematizes issues of genre, morality, political economy, and reception in its analyses and brings together distinguished scholars of punishment and experts in media studies in an unusual juxtaposition of disciplines and perspectives.
Tuesday, June 23, 2015
DOJ indicating it will appeal Judge Glesson's remarkable federal expungement order
As reported in this prior post, last month US District Judge John Gleeson examined the collateral workplace consequences of an old federal fraud conviction in the course of ordering the (legally questionable?) remedy of expungement in Doe v. US, No. 14-MC-1412 (EDNY May 21, 2015) (available here). Now, as reported in this Wall Street Journal article, headlined "Justice Department Sets Its Sights on Rare Expungement Order," it appears that the Second Circuit will have a chance to consider this matter. Here are the basics:
The Justice Department spearheads the federal government’s efforts to help people convicted of crimes return to society after paying their dues, but a case in Brooklyn is putting its views to the test. The U.S. Attorney’s Office for the Eastern District of New York signaled Friday that it will appeal a rare order by a federal judge expunging the fraud conviction of a health-care aide and mother of four who said her efforts to hold down a job have been sabotaged by her criminal record.
In his May order, U.S. District Judge John Gleeson nodded to “a growing recognition that the adverse employment consequences of old convictions are excessive and counter-productive.” He cited a 2011 letter by then Attorney General Eric Holder pressing state attorneys general to reassess state laws that limit the job prospects of ex-offenders. That same year, Mr. Holder established a council of 20 government agencies whose goal is “to remove federal barriers to successful reentry, so that motivated individuals — who have served their time and paid their debts — are able to compete for a job, attain stable housing, support their children and their families, and contribute to their communities.”
“If the government is trying to look out for people in these situations, why take this case of all cases?” said Brooklyn lawyer Bernard H. Udell, who is representing the woman whose conviction Judge Gleeson expunged. A spokeswoman at the Justice Department’s headquarters in Washington, D.C., declined to comment. A spokeswoman for the U.S. attorney’s office in Brooklyn had no immediate comment.
In 2002, Judge Gleeson sentenced the woman, who is identified in court documents by the pseudonym Jane Doe, to five years of probation for feigning injury in a staged car crash and falsely claiming to have received medical services as part of a scheme to collect insurance money. She landed several jobs as a health-care aide since her conviction but lost them after her record came to light in background checks, according to her petition. Judge Gleeson cited several factors in support of his decision to expunge her record, including the 17 years that have elapsed since she committed a crime, the trouble she has had keeping jobs, her age (mid-50s) and the nonviolent nature of her crime.
The Brooklyn U.S. attorney’s office opposed the petition in Judge Gleeson’s court, saying in a January legal brief that employers in the health-care industry were entitled to know about her criminal past. The brief said expungement should be used only in extreme circumstances, citing cases involving illegal arrests and police misconduct.
Prior related post:
- US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction
Is the initiative process a wise way to move forward with criminal justice reform?
Those who know me well know that I have become, generally speaking, big fan of direct democracy and not really that much of a fan of representative democracy. This affinity is driven in part by the efficacy of direct democracy in driving forward the national marijuana reform movement, but it is driven more fundamentally by the reality that direct democracy gets the electorate talking about (and the media reporting on) substantive policies and public priorities. In contrast, as we see now most every election cycle, representative democracy too often gets the electorate talking about (and the media reporting on) personal scandals and public personas.
Because I am a big fan of direct democracy, I was especially excited to see this recent Washington Post article headlined "ACLU growing political program, plans ballot initiatives." Here are excerpts:
The American Civil Liberties Union, looking to increase its effectiveness, is launching a major political advocacy program. The group has raised or received commitments for $80 million to back up a 501(c)(4) and announced on Friday that veteran Democratic operative Karin Johanson has been hired as its first ever national political director.
Johanson, who was executive director of the Democratic Congressional Campaign Committee when the party took control of the House in 2006, will run the ACLU’s Washington, D.C. office and spearhead several ballot initiative campaigns in 2016, focused on criminal justice reform and banning discrimination against the LGBT community....
“It has become increasingly clear that we can’t rely upon litigation or old-style lobbying,” Romero said in an interview. “The gridlock in Washington is suffocating … Sitting down with legislators, walking through the pros and cons of a particular bill and trying to cajole them to do the right thing increasingly draws limited dividends. The place to light a fire under them is in their home district.”
The ACLU will soon pick three states with high incarceration rates and then sponsor ballot initiatives next year aiming to force sentencing reform. Five states are being considered, but they’ll pick just three so that the group can go all-in and score some tangible victories.
Criminal justice is a hot issue right now, with backing from liberals, libertarians like the billionaire Koch brothers and fiscal conservatives. “This is not a reform effort focused on the Northeast liberal corridor,” said Romero. “We’re going to the tough states, the Deep South.”
For various reasons, I am pleased to learn that the ACLU is looking to bring the arguments for criminal justice reform straight to the people through the initiative process. But I also know there are many people interested in criminal justice reform who have different views on the best means to reform ends, and I would be eager to hear in the comments any reasons why I should not be too excited about seeking criminal justice reform through direct democracy.
"Policing, Mass Imprisonment, and the Failure of American Lawyers"
In prior comments, someone spotlighted this notable recent commentary by Alec Karakatsanis appearing in the Harvard Law Review Forum under the title that serves as the title of this posts. Here are excerpts from the introduction and the final paragraph of this provocative piece:
The contemporary system of American policing and incarceration puts human beings in cages at rates unprecedented in American history and unparalleled in the modern world. Its current rate of incarceration is about five to ten times that of other comparably wealthy countries and five times its own steady historical average prior to 1980. It is a considerable bureaucratic achievement to accomplish the transfer of thirteen million bodies each year from their homes and families and schools and communities into government boxes of concrete and metal. It is also a failure of the legal profession....
The failure of lawyers is a tragedy in two parts. First, there has been an intellectual failure of the profession to scrutinize the evidentiary and logical foundations of modern policing and mass incarceration. Second, the profession has failed in everyday practice to ensure that the contemporary criminal legal system functions consistently with our rights and values....
Legal academics, judges, and lawyers of conscience must take up this two-pronged challenge: we must bring intellectual rigor to legal discourse and doctrine on these issues, and we must use the energy that animates our bodies to ensure that the legal system looks in practice as it appears in our scrolls and on our marble monuments.
Monday, June 22, 2015
Robina Institute now has great new "Sentencing Guidelines Resource Center"
Via e-mail, I just learned about a great new resource, The Sentencing Guidelines Resource Center, that has been created on-line by the Robina Institute of Criminal Law and Criminal Justice. Here is the text of the e-mail description of this resource center (which I already have added to my Resources sidebar):
The Robina Institute is pleased to present The Sentencing Guidelines Resource Center. The Sentencing Guidelines Resource Center is a new website that serves as a central source of information related to American sentencing guidelines systems. The Sentencing Guidelines Resource Center includes:
By bringing together, in one place, materials that span all of the current sentencing guidelines systems in the U.S., the Robina Institute’s Sentencing Guidelines Resource Center is able to facilitate the exchange and sharing of information, expertise, and experience; educate on issues related to sentencing policy, guidelines, and commissions; promote multi- jurisdictional comparative research and policy analysis; and promote the adoption and retention of best practices in sentencing guidelines systems.
- Detailed profiles of 6 sentencing guidelines jurisdictions: Alabama; Kansas; Minnesota; Oregon; Pennsylvania; and Utah. More jurisdictions will be added over the next several months.
- Current versions of the guidelines in each jurisdiction.
- A searchable repository of materials produced by sentencing guidelines commissions (training manuals, worksheets, reports, meeting summaries).
- Summaries of important interpretive case law.
- A comparison tool so visitors can examine sentencing guidelines systems, side by side.
- In-depth articles covering topics about guidelines and sentencing commissions.
How much will get spent on (merely symbolic?) death penalty referendum efforts in Nebraska?
The question in the title of this post is prompted by this notable local article from Nebraska headlined "Group fighting death penalty retention gets $400,000 grant." Here are the interesting "follow-the-money" details:
Death penalty opponents got a cash injection Friday, and death penalty advocates accused them of using it to suppress voter rights.
ACLU of Nebraska will give the $400,000 grant from Massachusetts-based Proteus Action League to the Nebraskans for Public Safety coalition formed to fight the effort to retain capital punishment in the state. Proteus Action has given $21 million nationwide in the past five years toward repeal of the death penalty. "This support demonstrates the world is watching what is happening here this summer," Danielle Conrad, executive director of the ACLU of Nebraska. "This support will be like rocket fuel to the campaign."
ACLU of Nebraska is part of the coalition, as are Nebraskans for Alternatives to the Death Penalty, Nebraska Innocence Project, faith leaders, conservative leaders and the Nebraska Criminal Defense Attorneys Association.
Friday afternoon, Nebraskans for the Death Penalty called ACLU participation in the coalition shameful. “Nebraskans have a constitutional right to vote on whether they wish to restore the death penalty," founding member Bob Evnen said in a statement. "The ACLU has announced that it will spend hundreds of thousands of dollars to try to sabotage the right to vote on this very important issue. Few rights in a democracy are more fundamental than the right to vote. The ACLU’s effort to thwart that right is shameful.”
Replied Conrad: "I absolutely disagree with that. I don't understand that attack." Conrad said her group's work is the opposite of voter suppression. Declining to sign the pro-death-penalty petition is in fact exercising one's right to vote, she said.
Last month, Nebraska became the first red state since 1973 to abolish capital punishment. The Legislature voted for repeal May 20 and a week later overrode a veto by Gov. Pete Ricketts. The bill (LB268) goes into effect Aug. 31.
Almost immediately, Omaha Sen. Beau McCoy said he'd look at putting the issue to a vote, and Nebraskans for the Death Penalty opened offices in Omaha and Lincoln the first week of June.... Death penalty supporters have 72 more days to gather 115,000 verified signatures -- 10 percent of registered voters -- to suspend the law and put it to a vote in November 2016. They need about half that number to put the issue to a vote after the law takes effect.
"I think both are hard," Conrad said of the two thresholds. "I can tell you from working both sides of campaigns in direct democracy, it's not easy to be out in the heat and the rain in a multitude of counties. ... I don't think that they or we can take anything for granted."
Conrad said Nebraskans for Public Safety will use the $400,000 to make sure the petition drive is conducted properly and to work statewide to educate people on the issue. And if the move to stop the law from taking effect is successful, she said, her group will have a good start at working to defeat a vote next year.
Peterson said he expects Nebraskans for the Death Penalty will raise and spend about $900,000 and will file required paperwork June 30 saying how much it has raised so far.
This story suggests that at least a few million dollars are likely to be spent on just the initiative run-up effort in Nebraska, and I have to assume many millions more will get spent on the campaign if (when?) the issue gets on the ballot. And yet, even if Nebraska voters were to bring the death penalty back after the legislature's recent repeal, it seems highly unlikely the vote will significantly increase the chances any formerly condemned murderer gets executed or that any future murderers get sent to death row.
Even if the death penalty is brought back by voter initiative, defense attorneys are sure to continue pursuing extensive (and expensive) litigation in state and federal courts asserting that the eleven folks already on Nebraska's death row cannot now be executed. And even if the death penalty is brought back by voter initiative, prosecutors are sure to continue to struggle to convince Nebraska juries to condemn murderers to death in future cases.
Notably, given that Nebraska has not executed anyone in nearly two decades, and has averaged less than a single death sentence per year over its modern history, symbolism plainly matters a lot more than substantive outcomes as money is raised to fight over the death penalty's future in the Cornhusker State. Whatever position one takes on the death penalty, it is hard not to wonder if the monies to be spent on the developing symbolic capital policy fight could go to much uses for violent crime victims and the state's judicial system.
Interesting statement from Justice Sotomayor on Fifth Circuit approach to plain-error sentencing review
As noted in this post today (and this prior post from last week) about recent SCOTUS activity, sentencing fans like me eagerly awaiting big Supreme Court rulings in the Johnson Armed Career Criminal Act case and the Glossip lethal execution drug case have to keep waiting at least a few more days for a decision. But, truly hard-core sentencing fans got a smidgen of unexpected love from Justice Sonia Sotomayor through this brief statement in Carlton v. US concerning how the Fifth Circuit applies plain-error review. Here are excerpts which provide the context:
The District Court enhanced petitioner Roy Carlton’s sentence based on a factual inaccuracy introduced into the sentencing record by the Government. The United States Court of Appeals for the Fifth Circuit refused to review Carlton’s appellate challenge to the enhancement, relying on Circuit precedent holding that factual errors are never cognizable on plain-error review. For the reasons that follow, I believe the Fifth Circuit’s precedent is misguided....
The doctrine of plain error follows from the recognition that a “rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with . . . the rules of fundamental justice.” United States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation marks omitted). And in all the years since the doctrine arose, we have never suggested that plain-error review should apply differently depending on whether a mistake is characterized as one of fact or one of law. To the contrary, “[w]e have emphasized that a per se approach to plain-error review is flawed.” Puckett v. United States, 556 U.S. 129, 142 (2009) (internal quotation marks omitted). The Fifth Circuit’s wooden rule that factual mistakes cannot constitute plain error runs counter to these teachings....
Given its inconsistency with the governing text and longstanding precedent, it is little wonder that no other court of appeals has adopted the per se rule outlined by the Fifth Circuit in Lopez.... All agree the District Court improperly relied on testimony Anderson never gave. But in the Fifth Circuit — and only the Fifth Circuit — that mistake cannot be reviewed and possibly corrected. As a result, Carlton may spend several additional months in jail simply because he was sentenced in Alexandria, Louisiana, instead of Alexandria, Virginia.
For all these reasons, I conclude that Lopez’s categorical rule is unjustified. Nevertheless, I reluctantly agree with the Court’s decision to deny certiorari in this case. The Solicitor General informs us that the Fifth Circuit is at times inconsistent in its adherence to Lopez. When that sort of internal division exists, the ordinary course of action is to allow the court of appeals the first opportunity to resolve the disagreement. I hope the Fifth Circuit will use that opportunity to rethink its approach to plain-error review.
Notable new study on 56 failed capital cases in North Carolina over past 25 years
As detailed in this local article, headlined "Report: NC prosecutors sometimes push for death penalty in flimsy cases," a notable new report about capital prosecutions in the Tar Heel State was released this morning. Here are the basics:
Fending off a capital murder charge can cost falsely accused defendants money, jobs, homes and their health, according to a report released by the Durham-based Center for Death Penalty Litigation.
The center studied 56 cases from 1989 to 2015 in which the death penalty was threatened as a potential punishment, but the charges were either dropped or the person charged was acquitted at trial. The results suggest that prosecutors sometimes use the threat of the state's most severe penalty when their evidence is the weakest, said Gerda Stein, a spokeswoman for the center. "They believe they have the right person," Stein said. "The problem is, they don't have enough evidence."
The center's report suggests the death penalty is used to bully defendants into accepting plea deals or to extract confessions from witnesses.
North Carolina has not executed a criminal defendant since 2006 as lawsuits over the method of execution and the now-repealed Racial Justice Act have kept the state from moving forward. During that time, there have been high-profile exonerations of death row inmates, including the recently pardoned Leon Brown and his half-brother, Henry McCollum.
Less well known are cases like that of Leslie Lincoln, who was accused of her mother's 2002 murder. She was implicated in part by faulty DNA evidence. Ultimately, she was found not guilty at trial, but she struggled with the aftermath of spending three years in jail and another two years on house arrest. She lost her job, savings and home and suffered from anxiety and depression after the acquittal, according to the report....
The center distributed embargoed copies of its report last week. One of those who reviewed a copy was former Supreme Court Justice Bob Orr, who says he does not oppose the death penalty but is troubled by its uneven application. "I think one of the points the report stresses is the leverage that comes with trying somebody and potentially pursuing the death penalty," Orr said. "It is sometimes the weakest cases, the ones where you don't have the strong evidence, that there seems to be an inclination to try to move forward with the death penalty."
The report doesn't suggest specific fixes to the issue. The center is one of a number of groups that has argued for the elimination of the death penalty altogether.
Orr said that, if the state is going to continue having capital punishment, it needs to do more to ensure a fair system. Both prosecutors and the defense attorneys for indigent defendants need better funding, he said, and he suggested the state ought to somehow centralize the decision on whether the death penalty is pursued, taking it out of the hands of prosecutors who might use the threat of capital punishment as tactical leverage. "That would make for a fairer, more even-handed, dispassionate decision-making process," he said.
The title of this new report is "On Trial for their Lives: The Hidden Costs of Wrongful Capital Prosecutions in North Carolina," and it can be accessed via this link. That link also provides this summary of report's main findings about the 56 North Carolina cases it studied:
• The state spent nearly $2.4 million in defense costs alone to pursue these failed cases capitally. Had the defendants been charged non-capitally, all that money could have been saved. (This conservative figure does not take into account the additional prosecution and incarceration costs in capital cases.)
• Defendants who were wrongfully prosecuted spent an average of two years in jail before they were acquitted by juries or had their charges dismissed by prosecutors.
• The 56 defendants in the study spent a total of 112 years in jail, despite never being convicted of a crime.
• By the time they were cleared of wrongdoing, many defendants lost their homes, jobs, businesses, and savings accounts, and saw personal relationships destroyed. They received no compensation after they were cleared of charges.
• Serious errors or misconduct played a role in many cases. The 56 cases involved instances of witness coercion, hidden evidence, bungled investigations, the use of improper forensic evidence, and highly unreliable witnesses.
SCOTUS rules 5-4 against government in two criminal procedure cases
The Supreme Court, back in action this morning, issued two notable split decisions in favor of individuals asserting rights against local or state criminal justice powers. Here is an abridged (slightly modified) account of the SCOTUSblog early coverage of these rulings (with links):
This case arises out of an incident in a Wisconsin jail. Kingsley was waiting for trial on a drug charge when he got into a dispute with jail officers, who handcuffed him, forcibly removed him from his cell, and later used a taser on him. Kingsley then filed a lawsuit, alleging that jail officials had used excessive force. The question before the Court was what standard of review should apply to an excessive force claim by a pretrial detainee.
The Court ruled in favor of Kingsley, holding that courts should apply an objective test – the same Fourth Amendment excessive force test that applies to people who have not been arrested. Vote is 5-4. Under Section 1983, a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable to prevail on an excessive force claim.
Scalia dissents, joined by Chief and Thomas, and Alito dissents as well.
The question in this case was whether a Los Angeles ordinance that required hotel owners to keep registries of guests, and allowed officers to search them without any suspicion is unconstitutional under the Fourth Amendment. The Court the ordinance facially unconstitutional. Statute is facially unconstitutional because it fails to provide motel owners with an opportunity for pre-compliance review.
Sotomayor is writing. Decision of the Ninth Circuit is affirmed. This is a strong decision for Fourth Amendment lovers.
"Justice Kennedy practically invites a challenge to solitary confinement"
The title of this post is the headline of this Los Angeles Times article which effectively reviews the remarkable (off-point) concurrence penned by Justice Kennedy in last week's SCOTUS ruling in a Davis v. Ayala. Here are excerpts:
Supreme Court Justice Anthony M. Kennedy, in an unusual separate opinion in a case, wrote that it may be time for judges to limit the use of long-term solitary confinement in prisons. His comments accompanying a decision issued Thursday marked a rare instance of a Supreme Court justice virtually inviting a constitutional challenge to a prison policy.
“Years on end of near-total isolation exacts a terrible price,” he wrote. He cited the writings of Charles Dickens and 19th century Supreme Court opinions that recognized “even for prisoners sentenced to death, solitary confinement bears ‘a further terror and a peculiar mark of infamy.’”
Sentencing judges and the high court have largely ignored the issue, Kennedy said, focusing their attention on questions of guilt or innocence or on the constitutionality of the death penalty. “In a case that presented the issue, the judiciary may be required,” he wrote, “to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”
Amy Fettig, an attorney for the ACLU’s National Prison Project, said Kennedy's comments came as a welcome surprise. “It’s a remarkable statement. The justice is sending a strong signal he is deeply concerned about the overuse and abuse of solitary confinement,” she said.
States such as Virginia and Texas routinely put death-row inmates in solitary confinement, she said. “They are automatically placed there. It has nothing to do with their being violent or their level of dangerousness,” she said. This month, a federal judge in Virginia is weighing a “cruel and unusual punishment” claim brought by inmates on death row there, she noted.
Kennedy usually joins with the court’s conservatives in cases involving crime and punishment, but he has also voiced concern over prison policies that he deems unduly harsh. These include life terms for juveniles and long mandatory prison terms for nonviolent drug crimes. Four years ago, he spoke for a 5-4 majority that condemned overcrowding in California’s prisons and said it resulted in unconstitutionally cruel conditions....
Kennedy's comments drew a short, but sharp retort from Justice Clarence Thomas. “The accommodations in which Ayala is housed are a far sight more spacious than those in which his victims … now rest. And, given that his victims were all 31 years or age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth,” Thomas wrote.
Sunday, June 21, 2015
Great new USSC report (with some not-so-great data) on "Alternative Sentencing in the Federal Criminal Justice System"
The US Sentencing Commission released last week this notable new report on titled "Alternative Sentencing in the Federal Criminal Justice System." (Notably, the report itself shows a cover date of May 2015, but I am pretty sure it was just posted last week on the USSC's website.) Here is how the USSC itself briefly describes its new (data-heavy) document:
As a supplement to the Commission's 2009 publication, this report examines more recent trends in the rates of alternative sentences and examines how sentencing courts use their discretion to impose alternative sentences.
This 30+ page report has lots of data about when and how federal judges impose alernative sentences in the post-Booker era. The data could (and perhaps should) be assessed in a variety of different ways, but I found at least some of these data realities somewhat discouraging. In particular, these passages from this USSC Alternative Sentencing report caught my eye, and they reflect data that I found at times a bit surprising and at times more than a bit depressing:
Although most federal offenders were not convicted of an offense carrying a mandatory minimum penalty, alternative sentences are imposed for only small proportion of federal offenders not convicted of such an offense. ...
During the past ten years, the proportion of United States citizen federal offenders eligible for alternative sentences (i.e., those offenders with sentencing ranges in Zones A, B, or C and who were not statutorily ineligible) decreased slightly from 27.6 percent in 2005 to 24.6 percent in 2014....
In contrast to the moderate decrease in the proportion of offenders eligible for alternative sentences (with sentencing ranges in Zones A through C), there was a larger decrease in the proportion of those offenders actually sentenced to an alternative. The proportion of eligible offenders sentenced to an alternative decreased from 71.9 percent to 65.0 percent during that time period....
Though relatively modest, there has been a clear trend of a decreased rate of alternative sentences during the past ten years.... Rates of alternative sentences decreased regardless of whether offenders were sentenced within or below the guideline range.... Despite the increased discretion that courts have used to vary from the guidelines after Gall, the data seem to demonstrate that courts are not using that discretion to impose alternative sentences at a greater rate.
Black and Hispanic offenders consistently were sentenced to alternatives less often than White offenders. The data indicate some differences in criminal history and offense severity that provide some insight to this finding. Black offenders had more serious criminal history scores compared to the other groups....
[F]emale offenders were sentenced to alternatives at higher rates than male offenders. This difference is especially apparent for offenders with sentencing ranges in Zone B, in which 75.4 percent of female offenders were sentenced to alternatives compared to 55.9 percent of male offenders.
In general, alternative sentences were imposed for more than half of offenders in each age group. Excluding offenders under the age of 21, there was a clear trend of increasing rates of alternatives as the age of the offender increased, and this trend was consistent across the sentencing zones.
June 21, 2015 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)
"Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective"
The title of this post is the title of this significant new article by Rishi Batra recently posted to SSRN. Here is the abstract:
There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely.
By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates both advantages and disadvantages of judicial participation in the plea process. Most importantly, it makes five recommendations for how states can involve judges in the plea process to retain the advantages while minimizing the disadvantages of judicial participation: having a separate judge or magistrate judge manage the plea process, recording plea bargains for future review, ensuring judges take a facilitative role during the plea process, involving defendants in the process where possible, and holding plea bargains in an informal setting.
Saturday, June 20, 2015
The Economist explains "how to make America’s penal system less punitive and more effective"
This notable new piece from the print edition of The Economist, headlined "Jailhouse nation: How to make America’s penal system less punitive and more effective," provides advice from across the pond about how the US ought to reform its criminal justice system to address mass incarceration. Here are excerpts:
More and more Americans accept that the harm caused by mass imprisonment now exceeds its benefits. Hillary Clinton, whose husband’s 1994 crime bill filled many a cell, has now changed her mind. On the right, fiscal conservatives decry the burden on taxpayers, while Christians talk of mercy. Rick Perry, a former governor of Texas and a Republican presidential candidate, boasts of his record of closing three prisons in his state. Nationwide, the incarcerated population appears to have plateaued; it should be sharply reduced.
A good start would be to end the war on drugs, which would do less harm if they were taxed, regulated and sold in shops, not alleys, as marijuana is in Colorado and Washington state. In fact, the drug war is already ebbing: in 1997 drug offenders were 27% of all prisoners; now they are around 20%. That could be cut to zero if drugs were legalised.
The next step would be to amend or repeal rules that prevent judges from judging each case on its merits, such as state and federal “mandatory minimum” sentences and “three strikes” rules that compel courts to lock up even relatively minor repeat offenders for most of their lives. New York has dramatically reduced its state-prison population this way. Prosecutors there have in effect been told to limit the number of people they imprison, giving them an incentive to lock up only the most dangerous. Prosecutors have long had huge discretion in which charges they bring; those in New York now use police intelligence to help them decide. If the man in the dock seems relatively harmless, they go easy on him; if they know him to be a career criminal who has remained free because he intimidates witnesses, they throw the book at him. Crime has fallen in New York. There has been no backlash among voters.
Reducing the prison population to European levels is probably impossible, for America is still a much more violent place, even if most districts are reasonably safe. There are roughly 165,000 murderers in American state prisons and 160,000 rapists. If America were to release every single prisoner who has not been convicted of killing or raping someone, its incarceration rate would still be higher than Germany’s.
But still, America does not need to lock up every violent criminal for as long as it does — which is longer than any other rich country. Some 49,000 Americans are serving life without the possibility of ever being released. (In England and Wales the number is just 55.) Such harshness is unnecessary. A 50-year sentence does not deter five times as much as a ten-year sentence (though it does cost over five times as much). Money wasted on long sentences cannot be spent on catching criminals in the first place, which is a more effective deterrent.
Reform is hard. Prosecutors and judges are often elected in America; many woo votes by promising to be tougher than their predecessors. Politicians who are seen to be soft on crime run a risk....
Nonetheless, the big fall in crime in the past two decades means that Americans are now less afraid than they were, and more open to reform. Californians voted last year in a referendum to downgrade several non-violent felonies to misdemeanours. Other states are experimenting with better education in prisons (so that ex-convicts have a better chance of finding work), and drug treatment or GPS-enabled ankle bracelets as alternatives to incarceration. Some are also trying to improve prison conditions, not least by curbing assaults and rapes behind bars. The aim of penal policy should be harm reduction, not revenge. Tighter gun laws might help, because guns can turn drunken quarrels into murders; alas, that is politically improbable for now. There is no single fix for America’s prisons, but there are 2.3m reasons to try.
Despite statutory repeal, capital defenders say they need to keep representing Nebraska condemned
Some of the challenging issues facing Nebraska lawyers in the aftermath of the state's legislative repeal of the death penalty are on display in this notable local article headlined "John Lotter's lawyers argue they must stay on case because death penalty issue isn't settled." Here are the details:
Legal arguments over Nebraska’s death penalty repeal have quickly emerged in a federal court case involving one of the state’s death row inmates. Two Kansas City attorneys argued this week that John Lotter’s death sentence was negated by the Nebraska Legislature’s May 27 repeal of capital punishment.
But lawyers Rebecca Woodman and Carol Camp said their client remains under threat of execution while a referendum petition drive attempts to overturn the repeal law and Gov. Pete Ricketts pushes for the lethal injections of Lotter and the nine other men on death row. For that reason, the attorneys asked to remain assigned to Lotter’s case.
“Although Mr. Lotter asserts that the U.S. and Nebraska Constitutions would bar his execution even if the governor and his group were able to repeal the repeal, it is clear the governor will keep attempting to execute him until the courts definitively say he may not. That moment has not yet arrived,” the attorneys stated in a court brief filed in U.S. District Court in Lincoln.
In response, Assistant Nebraska Attorney General James Smith argued that only the Nebraska Board of Pardons has the authority to commute a death sentence under the state’s Constitution. Smith contended lawmakers passed flawed legislation by including intent language that says the repeal should apply to the existing death row inmates. “If the act was an unconstitutional power grab by the Nebraska Legislature, Lotter’s final death sentence remains in effect,” Smith said in his brief....
Lotter, 44, has spent 19 years on death row for a New Year’s Eve 1993 triple homicide near Humboldt. One of the victims was targeted for being transgender, which inspired the film “Boys Don’t Cry.” Lotter lost his previous appeals before state and federal courts. That makes him and Carey Dean Moore — convicted of killing two Omaha cab drivers in 1979 — the top candidates for execution depending on what happens with the repeal law.
As of now, however, Nebraska lacks the means to carry out an execution. Two of the three drugs required in the state’s lethal injection protocol have expired, and federal officials have said they will block the state’s attempt to import at least one of the drugs.
Woodman and Camp, who work with the Death Penalty Litigation Clinic, pointed out that no other state has executed an inmate after repealing the death penalty. To do so “would represent the sort of random, arbitrary, purposeless extinction of human life that the Eighth Amendment forbids,” they said in their brief. The two have asked U.S. District Senior Judge Richard Kopf to allow them to continue to represent Lotter while the status of the death penalty remains uncertain. They indicated Lotter has been pursuing constitutional claims never before litigated that would invalidate his death sentence.
"Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights"
The title of this post is the title of this interesting and important new article by Sarah French Russell recently posted to SSRN. Here is the abstract:
Across the country, states are grappling with how to comply with the U.S. Supreme Court’s recent decision in Miller v. Alabama, which held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. Following Miller, it appears a sentencer may impose life without parole on a juvenile homicide offender only in those rare instances in which the sentencer determines, after considering the mitigating qualities of youth, that the juvenile’s crime reflects “irreparable corruption.” Courts are preparing to conduct resentencing hearings in states nationwide, and new cases where juveniles face the possibility of life in prison are entering the courts.
Yet courts and scholars have not addressed a fundamental question: Who is the sentencer? Can a judge decide that a particular juvenile should die in prison or does the Constitution give juveniles the right to require that a jury make that determination? Courts and state legislatures responding to Miller have assumed that a judge can impose life without parole on a juvenile, as long as the judge has discretion to impose a less severe sentence. But viewing Miller in light of the Supreme Court’s recent Sixth Amendment jury right jurisprudence raises questions about the role of the jury in these post-Miller sentencing hearings.
In particular, does an Eighth Amendment limit on a sentence operate in the same way as a statutory maximum sentence and set a ceiling that cannot be raised absent a jury finding? If so, a jury must find the facts beyond a reasonable doubt that expose a juvenile to life without parole. Understanding how the Court’s recent Sixth and Eighth Amendment cases interact has broad implications for how sentencing authority is allocated not only in serious juvenile cases but also in our justice system more widely.
Friday, June 19, 2015
Split Eleventh Circuit panel discusses reasonableness review at great length
More than a full decade after the Supreme Court's Booker decision, federal circuit courts and judges continue to struggle with their post-Booker responsibility to review sentences for reasonableness. That struggle is on full display today in the lengthy Eleventh Circuit panel ruling in US v. Rosales-Bruno, No. 12-15089 (11th Cir. June 19, 2015) (available here). The start of Chief Judge Carnes' opinion for the Court provide a crisp outline of the "sole issue" before the appellate court:
This is the second appeal to come before us involving a sentence imposed on Jesus Rosales-Bruno because of his conviction for illegally reentering the United States in violation of 8 U.S.C. § 1326. In the first appeal we vacated his original sentence after concluding the district court had erred in finding that his prior Florida conviction for false imprisonment qualified as a “crime of violence” conviction for enhancement purposes under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v. Rosales-Bruno, 676 F.3d 1017, 1024 (11th Cir. 2012) (Rosales-Bruno I). That error had increased Rosales-Bruno’s advisory sentencing guidelines range to 70 to 87 months, and the district court had sentenced him to 87 months imprisonment.
On remand, the district court recalculated Rosales-Bruno’s advisory guidelines range without the crime of violence enhancement, which lowered it to 21 to 27 months imprisonment. After considering the sentencing factors in 18 U.S.C. § 3553(a), however, the court varied upward from the guidelines range, again imposing an 87-month prison term. That sentence was 60 months above the high end of Rosales-Bruno’s revised guidelines range but 33 months below the statutory maximum of 120 months imprisonment. The sole issue in this appeal is whether that sentence is substantively unreasonable.
Chief Judge Carnes thereafter has a 50-page explanation for why he thinks the sentence is substantively reasonable. In turn, Judge Wilson need 40 additional pages to provide a contrary view on the reasonableness of this sentence. The dissent starts this way:
For illegally reentering the United States, a crime with no statutory minimum and a base Guidelines range of 0–6 months, Rosales-Bruno was sentenced to more than 7 years in prison. In imposing this sentence, the district court more than tripled the upper end of the applicable Guidelines range. The justifications supporting this major variance are insufficient, and this sentence — the product of a clear error in judgment — is “greater than necessary to comply with the purposes set forth” in 18 U.S.C. § 3553. See United States v. Irey, 612 F.3d 1160, 1187, 1189 (11th Cir. 2010) (en banc). Therefore, I dissent.
Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
The question in the title of this post is a question I have raised with some folks over at Crime and Consequences, and this new New York Times article reports that it is one that the Governor of South Carolina might now be thinking a lot about. The NYTimes article is headlined "Governor Calls for Charleston Shooting Suspect to Face Death Penalty," and here are excerpts:
South Carolina’s governor on Friday called for the 21 yearold man who is suspected of killing nine people in one of the South’s most historic black churches to face the death penalty.
“This is a state that is hurt by the fact that nine people innocently were killed,” Gov. Nikki R. Haley said, adding that the state “absolutely will want him to have the death penalty.” The governor, who spoke on NBC’s “Today” show, described Wednesday’s shooting rampage as “an absolute hate crime.”
“This is the worst hate that I’ve seen — and that the country has seen — in a long time,” she said. “We will fight this, and we will fight this as hard as we can.”
Her comments came hours before the suspect, Dylann Storm Roof, a white man who returned to Charleston under heavy guard on Thursday night after his arrest in North Carolina, was expected to go before a judge on Friday afternoon for a bond hearing, where he will hear the charges against him. Mr. Roof, who friends said had a recent history of expressing racist opinions, is widely expected to be prosecuted for murder, an offense that can carry the death penalty in this state. Greg Mullen, the chief of police in Charleston, has called the shooting a hate crime, and Attorney General Loretta E. Lynch said the Justice Department was investigating that possibility....
On Thursday, President Obama spoke of the shooting and lamented what he called the easy access to guns, an issue he has tried and failed to address with legislation. “At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries,” Mr. Obama said. He added: “It is in our power to do something about it. I say that recognizing the politics in this town foreclose a lot of the avenues right now. But it would be wrong for us not to acknowledge it. And at some point it’s going to be important for the American people to come to grips with it.”
In the interview on Friday, Ms. Haley, a strong proponent of gun rights, deflected a question about whether the shooting would change her position on the issue. “Anytime there is traumatic situation, people want something to blame. They always want something to go after,” she said. “There is one person to blame here. We are going to focus on that one person,” she added, referring to Mr. Roof....
In downtown Charleston, there was already talk of the longterm anxiety the shooting might stir. “The question that I have is, is it going to happen again?” said Jeremy Dye, a 35-year-old taxi driver and security guard from North Charleston who said he knew three people who were killed. “It’s always going to be fear. People in Charleston are going to have that fear now forever. It’s not going to wash away. They’re going to be worried about, ‘O.K., when’s the next church going to get hit?’ ”
Because I share Gov Haley's view that this is the worst hate crime that the country has seen in a long time, and because I am especially eager to figure out how best to recognize and respect the real fear that this incident produces "forever" for so many folks, I think I would answer the question in the title of this post with the answer BOTH.
For many reasons, I think it would send an especially potent and powerful message of condemnation for both South Carolina and the Federal Government to bring capital charges against Dylann Storm Roof. Though I am not sure at this early stage of the investigation if I would want both SC and the feds moving forward with a capital prosecution all the way through a trial at the same time, I am sure that this is a kind of crime comparable in various ways to the Oklahoma bombing that prompted various dual state and federal prosecutions of the perpetrators. For me, the symbolic value and statement of having capital charges brought against Roof in both state and federal courts is worth seriously considering.
"Vermont's Prison Chief Says It's Time to Decriminalize Drug Possession"
The title of this post is the headline of this intriguing new article from an independent paper in Vermont. Here is how the lengthy article gets started:
Vermont Department of Corrections Commissioner Andy Pallito recalled spotting a young woman on a prison tour; he knew she was addicted to heroin, but she wasn't getting treated for it. On another occasion, a former inmate who served five years on a marijuana conviction described his crime to Pallito as "possession of a vegetable."
Pallito has struggled over the years to rein in a DOC budget that has exploded along with the inmate population. All of that has led him to a conclusion shared by few in his field: Pallito believes that possession of all drugs should be decriminalized and that the War on Drugs should be declared a failure, he told Seven Days. The man who supervises Vermont's 1,900 prison inmates believes that many of them shouldn't be behind bars, and that incarceration sets them up for failure.
"Possession of drugs for personal utilization — if somebody is not hurting anyone [else], that should not be a criminal justice matter," Pallito, 49, said in an interview at his Williston office. "I don't think anybody can say that putting somebody with an addiction problem through the corrections system is a good idea."
The DOC commissioner has been following news reports from Portugal, which in 2000 decriminalized all drugs and has since recorded declines in drug abuse and overdose deaths. He's decided it's a brave example that Vermont should emulate. "We should go to the Portugal model, which is to deal with the addiction and not spend the money on the criminal justice system," Pallito said. "We spend so much money on corrections that could be done differently. The only way to do it is spend less on corrections and more on treatment."
Pallito may be the first head of a state prison system to publicly advocate against the prosecution of users of heroin, cocaine and other street drugs. He knows of no one among his peers who has stepped forward. Organizations that question the War on Drugs, such as Law Enforcement Against Prohibition — a group of former and current police officers — have not claimed any state corrections administrators as supporters. "When you're a corrections commissioner, most people think you're tough on crime, law and order, and I am — for certain crimes," Pallito said. He believes that possession of marijuana should be legal, in any quantity. Possession of all other drugs, provided they are in small quantities for personal use, should not result in a criminal charge but rather a small civil fine, along with a mandate to undergo treatment. In essence, he'd treat all drugs in a way that is consistent with Vermont's 2013 marijuana decriminalization law, which stipulates that people found with one ounce or less face a $200 fine but no criminal charge.
Pallito stressed two points: Drug dealers should still face criminal charges. And decriminalization should not happen overnight — there aren't enough drug-treatment providers to handle the effects of such a switch. He would go even further in decriminalizing drug-related activity. The many people who are charged with drug-addiction-related property crimes, such as theft, would not face prison time.
Currently, more than 500 of Vermont's 1,900 inmates are in custody for either property crimes or drug possession. Two of those are being incarcerated for marijuana possession. Freeing such inmates would dramatically reduce the prison population, saving the state several million dollars annually and enabling it to end the controversial program that ships 300 overflow inmates to privately run out-of-state prisons.
Further, Pallito said, decriminalization would allow people to take advantage of effective treatment programs and to avoid criminal convictions that prevent them from rebuilding their lives. "I think you will find a lot of people in the criminal justice system who have been there for a number of years understand its faults most acutely," said Chittenden County State's Attorney T.J. Donovan, who seemed a little taken aback by news of Pallito's stand. "The best policy is front-end work, and Andy sees that, and it's consistent with his progressive ideology."
Thursday, June 18, 2015
In aftermath of prison escape, NY legislator suggests microchip tracking implants for violent offenders
As reported in this local piece, headlined "N.Y. State Senator Proposes Using GPS Implants To Track Violent Convicts," a high-profile prison escape has now prompted a high-tech proposed solution to prison escapes. Here are the details:
Bloodhounds and expensive manhunts are so yesterday when it comes to hunting escaped prisoners. That’s the opinion of one lawmaker, who says the state should explore implanting tiny GPS devices under convicts’ skin. Others say microchipping criminals could have multiple uses, CBS2’s Marcia Kramer reported Tuesday.
“If you’ve got convicted murderers, the type of people these two men are, that it would make some good sense at that level that we should have something that we could track them,” said State Sen. Kathy Marchione, R-Saratoga. With 800 law enforcement officials still unable to pick up the trail of escaped murderers Richard Matt and David Sweat, the suggestion from Marchione to implant microchips in people convicted of serious crimes is picking up steam.
“I’m in favor of it, but I do think there have to parameters with respect to the crime itself. I wouldn’t do it for arson, which falls under the violent, but I would do it for aggravated rape and murder,” said Paul Viollis, a security expert and former investigator in the Manhattan District Attorney’s Office. “I see the public safety value in it, not just from an escape standpoint but also from an inmate-control perspective within the institution,” said Jon Shane, a professor at John Jay College.
The New York Civil Liberties Union said microchipping inmates is unconstitutional. “It sounds like a knee-jerk reaction. They should plug the security inside prisons,” said NYCLU Executive Director Donna Lieberman. “As a constitutional matter, it won’t survive a challenge because it’s an invasion of body autonomy.”
Shane, a former cop, said it might pass constitutional muster if the chip was removed if and when a prisoner is released. “Removing it when they are paroled, those sorts of things, transitioning from a microchip to an ankle monitor, are all going to have to be explored,” Shane said.
There’s also the question of whether the microchip could be cut out the minute the inmate escaped. Experts say the chips would be embedded in the neck, underneath six or seven layers of skin. So simply cutting it out without medical assistance would pose a significant health risk, Kramer reported.
I tend to favor at least the considerationof new technologies and technocorrections, so I personally would endorse this kind of innovation. I would especially endorse this kind of technocorrections if it might provide a ready means to give better-behaving prisoners more freedom and liberty while they are imprisoned without crating any risks to general public safety.
Criminal law geek overload as SCOTUS clears most (but not most consequential) of its criminal docket
As the posts preceding this one reveals, the US Supreme Court this morning largely ruined my plans to spend much of the next 80 hours obssessing over one of my favorite summer sporting events. They did so by handing down four "meaty" criminal law opinions, all of which appears to include an array of doctrinal and dicta nuances that likley will prove to be blogworthy in the days ahead. I will collect here all the prior posts (which have links to the opinions) in order to help those keeping score to see that criminal defendants prevailed in two cases and lost in two cases:
From a way-too-quick assessment of these rulings, I sense that Clark is the biggest deal both as a matter of constitutional jurisprudence and as a matter of day-to-day criminal trial practice. But, because the Confrontation Clause has generally been deemed inapplicable in sentencing proceedings, hard-core sentencing fans might find a lot more of interest in the other rulings.
Also noteworthy, as the title of this post highlights, still outstanding from the Justices are the two cases I have been following most closely this term: Glossip concerning execution protocols and Johnson concerning the constitutionality and application of the federal Armed Career Criminal Act. I have long assumed and expect that we would not get a ruling in Glossip until the very end of the month, and I now am thinking there is a good chance we might get Johnson as early as next week.
SCOTUS unanimously rules for federal defendant on mens rea issue in McFadden CSA case
The US Supreme Court has just handed down its opinion in the Federal criminal case of McFadden v. US, No. 14-348 (S. Ct. June 18, 2015) (available here). Justice Thomas wrote the opinion for the Court, which garnered no dissents but generated a short concurrence by the Chief Justice. The Court's opinion begins this way:
The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially similar to those listed on the federal controlled substance schedules, 21 U.S.C. § 802(32)(A), and then instructs courts to treat those analogues, if intended for human consumption, as controlled substances listed on schedule I for purposes of federal law, §813. The Controlled Substances Act (CSA) in turn makes it unlawful knowingly to manufacture, distribute, or possess with intent to distribute controlled substances. § 841(a)(1). The question presented in this case concerns the knowledge necessary for conviction under § 841(a)(1) when the controlled substance at issue is in fact an analogue.
We hold that § 841(a)(1) requires the Government to establish that the defendant knew he was dealing with “a controlled substance.” When the substance is an analogue, that knowledge requirement is met if the defendant knew that the substance was controlled under the CSA or the Analogue Act, even if he did not know its identity. The knowledge requirement is also met if the defendant knew the specific features of the substance that make it a “‘controlled substance analogue.’” § 802(32)(A). Because the U. S. Court of Appeals for the Fourth Circuit approved a jury instruction that did not accurately convey this knowledge requirement, we vacate its judgment and remand for that court to determine whether the error was harmless.
SCOTUS rules 5-4 for state capital defendant in Brumfield v. Cain, and 5-4 against state capital defendant in Davis v. Ayala
The US Supreme Court has just handed down its opinion in the state capital case of Brumfield v. Cain, No. 13-1433 (S. Ct. June 18, 2015) (available here). Justice Sotomayor wrote the opinion for the Court, which divided 5-4 on the case. The Court's opinion begins this way:
In Atkins v. Virginia, 536 U.S. 304 (2002), this Court recognized that the execution of the intellectually disabled contravenes the Eighth Amendment’s prohibition on cruel and unusual punishment. After Atkins was decided, petitioner, a Louisiana death-row inmate, requested an opportunity to prove he was intellectually disabled in state court. Without affording him an evidentiary hearing or granting him time or funding to secure expert evidence, the state court rejected petitioner’s claim. That decision, we hold, was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d)(2). Petitioner was therefore entitled to have his Atkins claim considered on the merits in federal court.
Justice Thomas authored a lengthy dissent which ends with a picture and starts this way:
Federal collateral review of state convictions interrupts the enforcement of state criminal laws and undermines the finality of state-court judgments. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) addresses that interference by constraining the ability of federal courts to grant relief to state prisoners. Today, the Court oversteps those limits in a decision that fails to respect the Louisiana state courts and our precedents. I respectfully dissent.
Just a few minutes later, the US Supreme Court handed down its opinion in the state capital case of Davis v. Ayala, No. 13-1428 (S. Ct. June 18, 2015) (available here). Justice Alito wrote the opinion for the Court, which divided 5-4 on the case. The Court's opinion begins this way:
A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala’s application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit’s decision was based on the procedure used by the trial judge in ruling on Ayala’s objections under Batson v. Kentucky, 476 U.S. 79 (1986), to some of the prosecution’s peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes outside the presence of the defense so as not to disclose trial strategy. On direct appeal, the California Supreme Court found that if this procedure violated any federal constitutional right, the error was harmless beyond a reasonable doubt. The Ninth Circuit, however, held that the error was harmful.
The Ninth Circuit’s decision was based on the misapplication of basic rules regarding harmless error. Assuming without deciding that a federal constitutional error occurred, the error was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d).
Justices Kennedy and Thomas wrote interesting off-topic concurrences, which I will discuss in a separate post. More on point is the chief dissent in Ayala authored by Justice Sotomayor, which starts this way:
At Hector Ayala’s trial, the prosecution exercised its peremptory strikes to dismiss all seven of the potential black and Hispanic jurors. In his federal habeas petition, Ayala challenged the state trial court’s failure to permit his attorneys to participate in hearings regarding the legitimacy of the prosecution’s alleged race-neutral reasons for its strikes. See Batson v. Kentucky, 476 U.S. 79, 97–98 (1986). The Court assumes that defense counsel’s exclusion from these proceedings violated Ayala’s constitutional rights, but concludes that the Ninth Circuit erred in granting habeas relief because there is insufficient reason to believe that counsel could have convinced the trial court to reject the prosecution’s proffered reasons. I respectfully dissent. Given the strength of Ayala’s prima facie case and the comparative juror analysis his attorneys could have developed if given the opportunity to do so, little doubt exists that counsel’s exclusion from Ayala’s Batson hearings substantially influenced the outcome.
SCOTUS narrows reach of Confrontation Clause via Ohio v. Clark
The US Supreme Court has just handed down its opinion in the state criminal case of Ohio v. Clark, No. 13-1352 (S. Ct. June 18, 2015) (available here). Justice Alito wrote the opinion for the Court, which garnered no dissents but did prompt separate concurrences by Justices Scalia (joined by Justice Ginsburg) and Justice Thomas. The Court's opinion begins this way:
Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town. A day later, teachers discovered red marks on her 3-year-old son, and the boy identified Clark as his abuser. The question in this case is whether the Sixth Amendment’s Confrontation Clause prohibited prosecutors from introducing those statements when the child was not available to be crossexamined. Because neither the child nor his teachers had the primary purpose of assisting in Clark’s prosecution, the child’s statements do not implicate the Confrontation Clause and therefore were admissible at trial.
Notably, Justice Scalia's concurrence reads a lot more like a dissent, as evidenced by this passage early in his opinion:
I write separately, however, to protest the Court’s shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington, 541 U.S. 36 (2004). For several decades before that case, we had been allowing hearsay statements to be admitted against a criminal defendant if they bore “‘indicia of reliability.’” Ohio v. Roberts, 448 U.S. 56, 66 (1980). Prosecutors, past and present, love that flabby test. Crawford sought to bring our application of the Confrontation Clause back to its original meaning, which was to exclude unconfronted statements made by witnesses — i.e., statements that were testimonial. 541 U.S., at 51. We defined testimony as a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact,’” ibid.—in the context of the Confrontation Clause, a fact “potentially relevant to later criminal prosecution,” Davis v. Washington, 547 U.S. 813, 822 (2006).
Terrific Marshall Project coverage of "How Germany Does Prison"
Among the great stuff at The Marshall Project these days is a series of original pieces authored by Maurice Chammah as he and a delegation of American officials tour the German prison system. So far there have been three daily reports, and here are the full headlines and links:
Here is an excerpt from the second of these pieces, which highlights themes of the series:
[I]t was clear that this trip would be as much about the United States as about Europe. Germany’s system of sentencing (15 years is the longest most people go to prison here unless they are demonstrably dangerous) and incarceration (open, sunny prisons, full of fresh air, where prisoners wear their own clothes) serves as a reference point for reflecting on the punitive mentality that has come to define the U.S. justice system....
On Monday, as we visited Heidering Prison.... Bernie Warner, the corrections secretary of Washington, noticed the faint smell of smoke — all the prisoners can smoke here, unlike their counterparts in the U.S. Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. They have privacy—correctional officers knock before entering. Prisoners wear their own clothes, and can decorate their space as they wish. They cook their own meals, are paid more for their work, and have opportunities to visit family, learn skills, and gain education. (Inmates are required to save money to ensure that they are not penniless upon release.)
There are different expectations for their corrections officers — who are drawn primarily from the ranks of lawyers, social workers, and mental health professionals to be part of a "therapeutic culture" between staff and offenders — and they consequently receive more training and higher pay. There is little to no violence — including in communal kitchens where there are knives and other potentially dangerous implements. And the maximum time inmates spend in any kind of punitive solitary is eight hours.
"Find a [security] camera,” Gregg Marcantel, the corrections secretary of New Mexico, said as he walked through the prison’s main corridor. “There aren’t any!” When he heard that prisons in Berlin have 33 physicians to care for 4,200 inmates, Marcantel’s response was a hearty, “Good God!” That’s a ratio of about 1 doctor for 127 prisoners. In Virginia's state system, according to a recent count, there was one doctor for every 750 inmates. We walked through pristine white cells that looked more like dorm rooms at a liberal arts college than the steel and concrete boxes most U.S. prisoners call home. The toilets and sinks were white and ceramic, nothing like the stainless steel bowls bolted to the wall in many U.S. prisons (Heidering Prison opened in 2013, but such toilets have been installed in older prisons as well). Most prisoners have knives and forks in their cells. Though the prisoners cannot access the Internet, they have telephones in their rooms, and they can call anyone — even the media. “We have nothing to hide,” Detlef Wolf, vice governor for Heidering Prison, said with evident pride....
Administrators here freely work terms like “human rights” and “dignity” into speeches about their prison system, and Germans appear to view people who commit crimes as medical patients (the word “prognosis” came up a lot to describe the status of an inmate). There is little stigma after prisoners finish their sentences — employers in Germany generally do not ask job applicants if they have a criminal record, according to Michael Tonry, a University of Minnesota professor on the trip who’s studied corrections systems in the U.S. and Europe. In some cases, the cultural norms were so foreign that it was pretty much impossible to imagine them taking root in the U.S.
Once the shock wore off, the questions came, and they reflected the political and professional concerns of those doing the asking. Many of the leaders here who have been elected or appointed — including Marcantel of New Mexico and Jeff Rosen, the elected district attorney in Santa Clara, California — wanted to know about victims. Do their desires for retribution play any role in sentencing here? (In the U.S., they are often allowed to read “victim impact statements” before juries assess punishment, and prosecutors often consult with them). Do sensational murders lead to the passage of more punitive laws?
The Germans had trouble making sense of these questions. There were a lot of blank stares. In Germany, prosecutors and judges are not elected. As career civil servants, they are insulated from public opinion. Their work is more “technical,” said Gero Meinen, who directs the prison system in Berlin. The role is to protect the rational system of correction — which aims to restrict freedom the least amount necessary — from the retributive impulses that individual victims and society in general might feel. Now it was the Americans’ turn for blank stares.
Besides the surprise, other emotions lingered just below the surface. A few travelers were skeptical, and will be looking for ways in which things might be worse than they appear throughout the rest of the week.
New ACLU lawsuit assails public defender system in Idaho
This new AP piece, headlined "ACLU Sues Idaho in Push to Improve Public Defender System," reports on a notable new civil rights lawsuit in the Gem State. Here are the details:
A national civil liberties group has brought its fight to overhaul the criminal defense system for low-income defendants to Idaho with a lawsuit that says the state hasn't done enough to make sure poor people are being fairly represented.
The American Civil Liberties Union contends state officials have known for several years that overwhelming case loads, underfunded budgets and a patchwork system that varies county by county prevent defendants from receiving adequate legal representation guaranteed by the U.S. Constitution.
Idaho officials, including the governor and attorney general, declined to comment Wednesday on a case that continues a national push for the ACLU....
The organization has brought similar lawsuits in several states recently, reaching settlements in New York and Washington after the U.S. Justice Department intervened on the ACLU's behalf and state officials agreed to sweeping reforms.
The Idaho case names four plaintiffs who say they've spent months in jail without speaking to their court-appointed attorneys or that their cases weren't properly reviewed, and the organization is seeking class-action status so the case will apply to all low-income defendants in the state. The filing asks a state judge to order Idaho officials to implement a better system....
Lawmakers and a special Criminal Justice Commission have examined the issue, but the ACLU says meaningful changes haven't been made. For their part, legislators created the Idaho Public Defense Commission last year. Members have been asked to create standards, training programs and a data collection system and to keep lawmakers informed about any problems. The ACLU says that's not enough. "Astoundingly, the State failed yet again in the recently concluded 2015 legislative session to fund or improve its public-defense system," ACLU-Idaho attorney Ritchie Eppink wrote in the lawsuit.
Members of the Public Defense Commission were named as defendants in the lawsuit, along with Republican Gov. C.L. "Butch" Otter and the state. Ian Thompson, the commission's executive director, declined to comment on the case, though he said members will discuss it during a meeting Thursday.
A copy of the ACLU lawsuit can be accessed at this link via the ACLU website.
Wednesday, June 17, 2015
Federal district judge declares unconstitutional Minnesota sex offender civil commitment program
As reported in this AP piece, today brought a big (but not entirely unexpected) federal court ruling concerning constitutional challenges to Minnesota's civil commitment program for sex offenders. Here are the basics:
A federal judge has ruled that Minnesota's sex offender treatment program is unconstitutional, but has deferred any immediate action to await further proceedings on a remedy. U.S. District Judge Donovan Frank largely sided with the more than 700 residents who were civilly committed to the Minnesota Sex Offender Program after they completed their prison sentences.
Their lawyers argued during a nearly six-week bench trial in February and March that the program is unconstitutional because nobody has ever been fully discharged from it, even those thought to be at low risk of committing new crimes. The state says it has improved the program, including moving more patients through treatment and perhaps toward provisional release.
Frank is calling on Minnesota government's top leaders to personally appear in court to help come up with an alternative structure to a sex offender confinement program. Frank listed Gov. Mark Dayton, House Speaker Kurt Daudt and Senate Majority Leader Tom Bakk among those he wants to take part in a remedies phase that will start on Aug. 10. Frank says stakeholders must fashion a suitable remedy to avoid having the entire program be eliminated and resulting in the release of civilly committed offenders currently in secure facilities.
In Wednesday's ruling, the judge lays out more than a dozen conditions for a restructured program, including that less-restrictive alternatives be implemented and new evaluation and discharge procedures be developed. Throughout his 76-page ruling, Frank says elected officials have been reluctant to modify the indefinite confinement of more than 700 sex offenders out of political fear. But Frank says "politics or political pressures cannot trump the fundamental rights" of those in the program. He stressed that the U.S. Constitution "protects individual rights even when they are unpopular."
Gov. Mark Dayton says there won't be immediate changes to the Minnesota Sex Offender Program in response to a federal judge's ruling that it's unconstitutional. In a statement that was released Dayton said, "We will work with the Attorney General to defend Minnesota's law."
Dan Gustafson, the attorney who brought the class action suit on behalf of the Minnesota Sex Offender Program clients said he is not surprised by the judge's ruling. He said that he advised his clients to be patient because the remedies will take time to create and not all of the clients will be getting out.
The full 76-page ruling, in a case that still clearly is nowhere close to finished, is now available at this link.
Constitution Project gets 130 former judges, prosecutors and law enforcement officials on letter advocating for SSA
As reported here by The Constitution Project, "former judges and prosecutors from across the country are urging Congress to adopt the Smarter Sentencing Act." Specifcally, The Constitution Project organized "130 former judges, prosecutors and law enforcement officials" to sign this notable letter "delivered to members of the House and Senate Judiciary Committees on June 16."
As The Constitutional Project notes, included among "those signing the letter are Judge William S. Sessions, former director of the FBI; former state attorneys general from Illinois, Pennsylvania, Tennessee and Virginia; and former state Supreme Court justices from Florida, Georgia, Mississippi, Montana and Texas." And here is how the letter gets started:
As former judges, prosecutors and law enforcement officials, we write to express our support for critical reforms to federal sentencing contained in the Smarter Sentencing Act of 2015 (SSA), S.502/H.R.920. This bill is an important step in promoting public safety and addressing unintended and expensive consequences of existing federal sentencing laws.
Nationwide, law enforcement has made significant progress in curbing violent crime in our communities. At the federal level, we trust Congress to address the parts of our sentencing policies that are simply not working. Presently, mandatory minimum drug sentences unnecessarily apply to a broad sweep of lower level offenders. These include low-level, nonviolent people whose involvement in the offense is driven by addiction, mental illness, or both. Drug offenders are the largest group of federal offenders sentenced each year, now comprising nearly half of the federal prison population. Moreover, individuals most likely to receive a mandatory minimum sentence were street-level dealers, not serious and major drug dealers, kingpins, and importers. Indeed, of the 22,000 federal drug offenders last year, only seven percent had a leadership role in the crime and 84 percent did not possess or use guns or weapons. The U.S. Sentencing Commission and other experts have found little deterrent value in sentencing low-level offenders to lengthy mandatory minimum prison terms.
Additionally, over the past three decades, our spending on federal incarceration has increased by over 1100 percent. Despite this massive investment by taxpayers, federal prisons are now at 128 percent of their capacity, undermining staff and inmate safety and prisoner rehabilitation, as well as reducing the resources available for law enforcement and crime prevention. Incarceration and detention costs have nearly doubled over the last ten years, with the Bureau of Prisons’ (BOP) budget at its current level of $7.2 billion in the President’s Fiscal Year 2016 budget request. As a nation, we are expending enormous amounts of money, but failing to keep pace with our growing prison population.
Maintaining the status quo in federal sentencing policy is both fiscally imprudent and a threat to public safety. We are deeply concerned that spending on incarceration has jeopardized funding for some of our most important law enforcement priorities. The BOP budget now accounts for approximately a quarter of the U.S. Department of Justice’s (DOJ) discretionary budget, potentially undermining other DOJ law enforcement priorities. Indeed, in 2014, the BOP’s budget grew at almost twice the rate of the rest of the Department of Justice. With more resources going to incarcerate nonviolent offenders, funding for federal investigators and prosecutors is threatened. U.S. Attorneys’ Offices and the Drug Enforcement Administration have already lost hundreds of positions and resources for state and local law enforcement have significantly decreased. Law enforcement will continue to maximize its resources to keep our communities safe, but Congress created our sentencing scheme and needs to act to help solve these problems
As Gov Jindal talks up sentencing reform and medical marijuana in Iowa, should we wonder what "The Donald" has to say on these issues?
The question in the title of this post captures some notable news from the GOP campaign trail this week. The seemingly more serious news is discussed in this NOLA.com article, headlined "Bobby Jindal talks medical marijuana, sentencing reform with The Des Moines Register." Here are the details from that report:
Gov. Bobby Jindal doubled down on his commitment to sign two pieces of state legislation related to marijuana during a video interview with The Des Moines Register. "We are going to sign both bills. They've made it through the process. They are going to make to my desk in the next few days," Jindal told The Des Moines Register....
Jindal backs legislation to establish a framework for access to medical marijuana in Louisiana. Technically, medical marijuana has been legal in the state for years, but there's never been rules written to regulate growing, prescribing or dispensing it. The new law, should Jindal sign it, would set up those regulations. "Look, if it is truly tightly controlled and supervised by the physicians, I'm ok with that," Jindal said.
The governor also said he would approve a bill that reduces maximum sentences allowed for many types of marijuana offenders. As governor, Jindal said he has increased penalties for people who violent offenders -- sex crime perpetrators and others -- but is in favor of reducing penalties for people who commit nonviolent crimes. "At the federal level, I think there is a bipartisan effort to look at sentencing reform. I think that makes sense," Jindal said.
But, perhaps unsurprisingly, a decision by a high-profile individuals to throw his hat in the GOP presidential ring has garnered the most media attention this week. And this ABC News report highlights some reasons why Donald Trump's views on sentencing and marijuana reform may really be consequential in the coming months:
[T]here’s a slice of voters, not insignificant in the Republican primary race, who despise Washington and politicians more broadly. Every candidate likes to try to channel that, but none bring the bluster that Trump does.... Trump is a sideshow, but one whose act will spill on to the main stage, particularly if he earns a debate invitation or three....
From Facebook: “In the 24 hour period between 12:01 a.m. ET June 16 and 12:01 a.m. ET June 17, 3.4 million people on Facebook in the U.S. generated 6.4 million interactions (likes, posts, comments, shares) related to Donald Trump and his announcement. Note: over the last 90 days, conversation about The Donald has been generated by an average of about 39,000 unique people per day.”
Tuesday, June 16, 2015
Notable new data and other recent posts from Marijuana Law, Policy and Reform
I am pleased to see that the growing state, national and interenation marijuana reform movement is leading to much more research on marijuana use and law enforcement activities (in Colorado and elsewhere). I have revently reported on some notable new research at Marijuana Law, Policy and Reform, and here are links to those posts (and a few other recent posts of note):
- Colorado Supreme Court affirms statutory interpretation permitting dismissal of medical marijuana user
"The Death Penalty Is Cruel. But So Is Life Without Parole."
The title of this post is the headline of this notable new New Republic commentary by Stephen Lurie. Here are excerpts of a piece that echoes my oft-stated and enduring concern that LWOP punishments should garner a lot more attention from the anti-death penalty crowd:
Prison cells don’t attract many spectators, but executions have always drawn crowds. Paradoxically, the names and identities of death row inmates only come to matter when their execution had been scheduled: from impending death we take a sudden interest in life.
Despite the incongruity, this isn’t all that surprising. Twenty-first century America is still susceptible to the time-honored spectacle of state-sanctioned death, even if much of the attention now scrutinizes, rather than cheers, the practice. Recently, there have been many stories typical of the current fascination with American capital punishment, most notably Ben Crair’s piece in this magazine and Jeffrey Stern’s in The Atlantic. Like other recent examinations of the death penalty, both accounts focus specifically on the act of execution by lethal injection; each covers botched executions and the question of cruel and unusual punishment in the death chamber itself....
For Stern and Crair, as well as many human rights-minded activists and advocates, the death chamber is a potent and useful example of inhumanity. Other, newer abolitionists—like the legislators in Nebraska that voted to abolish the death penalty there last month—focus on the act of execution as well. While the death chamber is itself horrific, abolitionists would be remiss to ignore the more common punishment: the immense cruelty of a prisoner’s long wait for execution. The “death row phenomenon” and associated prison conditions cause significant psychological and physical harm; a so-called “death before dying” is both internationally condemned and domestically pervasive. If the end to capital punishment in the U.S. is based on concern for human beings — whether in a religious or moral sense — the reform movement must be concerned with the prison conditions left when death is not on the table.
Executions of any kind are exceedingly rare, so much so that death row itself appears to be the real punishment for the vast majority of inmates. There are just over 3,000 people awaiting execution in United States prisons. In 2013, the latest year for which the Bureau of Justice Statistics has data, there were 39 executions. That is just more than the 31 inmates who died before their scheduled executions; it is just less than the 44 death row convictions or sentences overturned that year....
Because solitary confinement is the de facto housing for American death row convicts, and because excruciating delays are par for the course, international observers have considered U.S. capital punishment inhumane enough to delegitimize its practice entirely. In his report to the UN General Assembly in 2012, Juan Méndez (the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or Punishment) suggested that the realities of imperfect executions and death row conditions almost unavoidably run afoul of the international prohibition against human mistreatment. “Solitary confinement, in combination with the foreknowledge of death and the uncertainty of whether or when an execution is to take place, contributes to the risk of serious and irreparable mental and physical harm and suffering to the inmate,” Méndez writes. “Solitary confinement used on death row is by definition prolonged and indefinite and thus constitutes cruel, inhuman or degrading treatment or punishment or even torture.”...
Nearly every prisoner faces an abrogation of his or her 8th Amendment protections against cruel and unusual punishment; only a small few face the added cruelty and indignity of a botched execution. What about the pain of a cramped concrete cell, of shackling and restraints, attempts at self-harm, inedible food, existential fear, depression, and deprivation of any human contact? If there is concern is over fair treatment of human beings sentenced to death, it’s unwise, from a strategic standpoint, to continue ignoring the majority of their lives. Campaigns based on claims of cruel and unusual treatment would not rely on staying the execution of a single individual, but rest on the indefinite torture of thousands. That would be powerful.
Moreover, the instances of death penalty abolition that do not consider the background conditions for capital punishment invariably leave immense cruelty in its place. Nebraska’s legislation is typical in this regard: All death sentences become sentences of life imprisonment without the possibility of parole (LWOP). The de facto alternative for states that abolish the death penalty, LWOP actually retains many of the worst conditions of confinement described above, as well as still effectively sentencing the prisoner to death. It is in almost every way a death row, and as such is also an internationally condemned practice.
It’s for this reason that some, like Andrew Dilts, an assistant professor of political theory at Loyola Marymount University, refer to current forms of death penalty abolition as “death penalty replacement,” the same result but with the added effect that prisoners lose even more legal protections. As Dilts writes in the new volume Death and Other Penalties: Philosophy in a Time of Mass Incarceration, these alternative sentences appease the “almost fetishistic levels” of concern over execution while it “effectively deflects attention away from the moment of death, even though death is necessarily a part of the sentence.” In addition, whereas “the Court requires strict review of offender qualifications, strict procedural guidelines, extended appeals processes, and additional standards of heightened scrutiny…the same procedural and substantive protections are simply not applied” to life sentences. The result, ultimately, is simply a “dramatic reduction of appellate rights” for inmates that are still condemned to die; it’s a slower death with even less of a chance for redemption. While the conversion of these sentences might lessen some of the specific psychological traumas related to the death row phenomenon, it does not address the expected use of solitary confinement or other inhumane treatment. There is nothing in an execution-focused narrative that would lead to the transformation of these conditions: It might, rather, cement them as appropriate penal policy.
Monday, June 15, 2015
Perspectives on Clemency Project 2014 from federal prisoners and an advocate for them
Regular readers know I have given lots of space recently to coverage and criticism of federal clemency efforts. I am pleased to continue now with a guest post via Beth Curtis, a prisoner advocate who runs the website Life for Pot. Beth sent this extended commentary my way under the heading "Inspired by the Dialogue between Margaret Colgate Love here and Mark Osler here on Douglas Berman’s Blog Sentencing Law and Policy":
At the launch of Clemency Project 2014 [CP-14], Craig Cesal, a non-violent marijuana offender on the Life for Pot site and his cell mate Samuel Edmonson a non-violent cocaine offender were both talking about and working on petitions for commutation. Both Craig and Samuel had sentences of life without parole and had nothing to lose.
The two cell mates had a discussion about whether or not they should file their own petitions just in case there were going to be commutations before attorneys from The Clemency Project 2014 could prepare one for them. Craig argued that the project had said there was no reason for filing on your own, as the criteria was different and it would probably have to be done again. Samuel on the other hand decided that he should be sure he had a petition in the Pardon Attorney’s office and in February of 2014, he filed a brief petition for commutation that he did himself.
Very early in the process both of these offenders were assigned pro bono attorneys from the same law firm. Samuel and Craig had initial contacts with their pro bono attorneys, but after that contact they were not contacted again and did not know if any work was being done.
In March of 2015 Samuel received a commutation for his life sentence from President Barack Obama based on the petition he filed himself.
We were interested in this because there were only three life for pot inmates that we knew of who had been assigned pro bono attorneys and they only had initial contacts. We contacted inmates and suggested that they begin preparing their own Clemency Petitions and file them, we don’t know if CP-14 will be able to overcome the cumbersome procedure.
In March of 2015 Larry Duke, a 68 year old non-violent marijuana offender with a sentence of life without parole was released. Larry’s immediate release was pursuant to 18 USC 3582(c)(1)(A)(i). The “extraordinary and compelling reasons” for the release was Larry’s status as an elderly inmate. Although Larry is over 65 he is also the healthiest of those on the Life for Pot site. Larry had a contact from a pro bono attorney through Clemency Project 2014. We called his attorney who did not know he had been released.
We started getting questions about the process for Reduction in Sentence [RIS] from non-violent marijuana offenders. They wanted to know if they should file for sentencing relief even though they had filled out a survey to request an attorney through Clemency Project 2014.
These are not legal questions, but questions about procedure and we sought answers from an attorney with CP–14. It was their considered opinion that the elder inmates should not file for RIS until CP–14 had completed the process as clemency might be held up until the (CR/RIS) was resolved.
Inmates found that BOP facilities were not aware of the elderly, over the age of 65, criteria for applying for RIS. This remedy has seldom been used and “extraordinary and compelling reasons” were interpreted by the BOP as being almost lifeless chained to a hospital bed.
How much hope should we have for this process? Was Larry Duke’s release singular, or will this be the beginning of an accelerated process? We would like to know.
The hope and promise of Clemency Project 2014 is like a breath of air for these nonviolent inmates who will be behind bars till they die if no one exercises compassion, mercy and justice. We’re listening carefully to the dialogue between Mark Osler and Margaret Love about the hope and promise for relief.
We are in the 18th month since the launch of the project and yet only two inmates have been released through this apparently clogged tunnel to freedom. Much has been written in support of clemency and its use to address serious facility overcrowding and sentencing disparity. Information about progress is scant and prisoners, their families and advocates worry about the progress and the will of the Administration.
Lately these public discussions by well-known clemency advocates pondering the most effective way to deal with the over incarceration gives us hope. Margaret Colgate Love and Mark Osler’s point counter point about it on the blog Sentencing Law and Policy by Douglas Berman gave us insight. I believe these discussions are helpful but not a substitute for more transparency and concrete information given to the inmates, their families and advocates about procedure and progress. We need to respect these vulnerable non-violent citizens.
It would be an insensitive travesty if this program that was announced with such fanfare and gave such hope to thousands of inmates, their family and friends and advocacy groups did not fulfill the promise of compassion and mercy. These non-violent incarcerated people are accustomed to broken promises, but this one can be easily fulfilled by a bold administration with the courage of their stated convictions. For years, nonviolent inmate advocates have felt that bi-partisan support would be the key to this realignment of positions and lead to fiscal responsibility and compassion. Bipartisan support has arrived and we have the promise, it just needs to be fulfilled.
Some prior related posts:
- Extraordinary review of messiness of Prez Obama's clemency push
- Senator Grassley queries DOJ concerning its work with Clemency Project 2014
- NACDL explains the massive work behind Clemency Project 2014
- Defender hiccup or major headache for Clemency Project 2014?
- Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people
- ProPublica urges next AG to "Fix Presidential Pardons"
- Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
- Might Charles Koch put big money behind big reform of federal clemency process?
- Professor Mark Osler's informed perspective on recent federal clemency developments
- Former Pardon Attorney: "A Modest Proposal to Expedite the Administration's Clemency Initiative"
"Beyond the Numbers: Toward a Moral Vision for Criminal Justice Reform"
The title of this post is the title of this short paper by Seth Mayer and Italia Patti recently posted to SSRN. Here is the abstract:
The diverse coalition of activists trying to cut the prison population has thus far failed to articulate a coherent moral foundation for criminal justice reform. Since the various constituents of this coalition support reform for different reasons, it may seem savvy to avoid conversation about moral questions.
We argue, however, that failing to work toward developing a moral basis for reform puts the coalition at risk of repeating the failures of the sentencing reform movement of the 1970s and 1980s. This initially promising movement culminated in the passage of the widely disliked and deeply flawed United States Sentencing Guidelines. We lay out and analyze the downsides of avoiding moral discourse in criminal justice reform movements and argue for more collaboration and dialogue between moral thinkers and activists.
Ron Paul at Townhall: "Death Penalty is Big Government at Its Worst"
Former Texas congressman Ron Paul has this notable new anti-death penalty commentary now up at Townhall. Here are excerpts:
Nebraska's legislature recently made headlines when it ended the state's death penalty. Many found it odd that a conservatives-dominated legislature would support ending capital punishment, since conservative politicians have traditionally supported the death penalty. However, an increasing number of conservatives are realizing that the death penalty is inconsistent with both fiscal and social conservatism. These conservatives are joining with libertarians and liberals in a growing anti-death penalty coalition.
It is hard to find a more wasteful and inefficient government program than the death penalty. New Hampshire recently spent over $4 million dollars prosecuting just two death penalty cases, while Jasper County in Texas raised property taxes by seven percent in order to pay for one death penalty case! A Duke University study found that replacing North Carolina's death penalty would save taxpayers approximately $22 million dollars in just two years....
Despite all the time and money spent to ensure that no one is wrongly executed, the system is hardly foolproof. Since 1973, one out of every ten individuals sentenced to death has been released from death row because of evidence discovered after conviction. The increased use of DNA evidence has made it easier to clear the innocent and identify the guilty. However, DNA evidence is not a 100 percent guarantee of an accurate verdict. DNA evidence is often mishandled or even falsified. Furthermore, DNA evidence is available in only five to 10 percent of criminal cases.
It is not surprising that the government wastes so much time and money on such a flawed system. After all, corruption, waste, and incompetence are common features of government programs ranging from Obamacare to the TSA to public schools to the post office. Given the long history of government failures, why should anyone, especially conservatives who claim to be the biggest skeptics of government, think it is a good idea to entrust government with the power over life and death?...
As strong as the practical arguments against the death penalty are, the moral case is much stronger. Since it is impossible to develop an error-free death penalty system, those who support the death penalty are embracing the idea that the government should be able to execute innocent people for the "greater good." The idea that the government should be able to force individuals to sacrifice their right to life for imaginary gains in personal safety is even more dangerous to liberty than the idea that the government should be able to force individuals to sacrifice their property rights for imaginary gains in economic security.
Opposition to allowing the government to take life is also part of a consistent pro-life position. Thus, those of any ideology who oppose abortion or preemptive war should also oppose the death penalty. Until the death penalty is abolished, we will have neither a free nor a moral society.
I cannot help but wonder if Ron Paul's son, Senator and GOP Prez-candidate Rand Paul, shares these (conservative?) perspectives on the death penalty and might even espouse some anti-death-penalty sentiments on the campaign trail in the future.