Thursday, March 8, 2018

Via executive order, Prez Trump creates new Federal Interagency Council on Crime Prevention and Improving Reentry

Images (8)As reported in this Axios piece, "President Trump on Wednesday launched, by executive order, the Federal Interagency Council on Crime Prevention and Improving Reentry." Here is more:

The president enacted the council with the aim of reducing crime while looking for ways to "provide those who have engaged in criminal activity with greater opportunities to lead productive lives."...

“We applaud President Trump for following through on his stated commitment to reducing crime, reforming our prisons and rehabilitating individuals who are hungry for a second chance,” [said] Mark Holden, general counsel at Koch Industries who recently launched the Safe Streets and Second Chances prison reform initiative, told Axios. Holden said he is particularly encouraged that Jared Kushner will be one of the co-chairs.

While she thinks this is a good step from the administration, Inimai Chettiar, director of the justice program at the Brennan Center for Justice told Axios, "there can be no real criminal justice reform without reducing the number of people entering prison. The President and Attorney General are attempting to kill bipartisan sentencing reform in Congress, and offering incremental reentry reforms instead."...

The executive order calls for "mental health, vocational training, job creation, after-school programming, substance abuse, and mentoring," for inmates. "Incarceration is necessary to improve public safety, but its effectiveness can be enhanced through evidence-based rehabilitation programs." The order asks for a report from the council within 90 days that will outline a timeline for ways to reduce crime and recidivism.

The council will be co-chaired by Jared Kushner, Attorney General Jeff Sessions and the Assistant to the President of Domestic Policy Andrew Bremberg.  The council will include the heads of: The Department of the Treasury, the Department of the Interior, the Department of Agriculture, the Department of Commerce, the Department of Labor, the Department of Health and Human Services, the Department of Housing and Urban Development, the Department of Education, the Department of Veterans Affairs, the Office of Management and Budget, and the Office of National Drug Control Policy.

The executive order asks for ways to reduce recidivism and better re-entry for those coming out of the criminal justice system, but does not suggest looking at changes to sentencing guidelines. 

The full Executive Order creating the Federal Interagency Council on Crime Prevention and Improving Reentry can be accessed at this link. The first section of the EO provides as follows:

Section 1. Purpose. The Federal Government must reduce crime, enhance public safety, and increase opportunity, thereby improving the lives of all Americans. In 2016, the violent crime rate in the United States increased by 3.4 percent, the largest single-year increase since 1991. Additionally, in 2016, there were more than 17,000 murders and nonnegligent manslaughters in the United States, a more than 20 percent increase in just 2 years. The Department of Justice, alongside State, local, and tribal law enforcement, has focused its efforts on the most violent criminals. Preliminary statistics indicate that, in the last year, the increase in the murder rate slowed and the violent crime rate decreased.

To further improve public safety, we should aim not only to prevent crime in the first place, but also to provide those who have engaged in criminal activity with greater opportunities to lead productive lives.  The Federal Government can assist in breaking this cycle of crime through a comprehensive strategy that addresses a range of issues, including mental health, vocational training, job creation, after-school programming, substance abuse, and mentoring. Incarceration is necessary to improve public safety, but its effectiveness can be enhanced through evidence-based rehabilitation programs.  These efforts will lower recidivism rates, ease incarcerated individuals’ reentry into the community, reduce future incarceration costs, and promote positive social and economic outcomes.

I am not going to get too excited by this new Council until I see what kind of "recommendations for evidence-based programmatic and other reforms" appear in the various reports it is tasked to issue. But this order provides still more reason to believe that the Trump White House wants to (and wants to be able to claim) it is doing something productive in the arena of criminal justice reform.

Notably, President Barack Obama formally acted in a fairly similar manner via this Presidential Memorandum in late April 2016 discussing "Federal Interagency Reentry Council." That memorandum noted that "in 2011, the Attorney General formed the Federal Interagency Reentry Council, a Cabinet-level working group dedicated to the rehabilitation and reintegration of individuals returning to their communities from prisons and jails" and said the 2016 memorandum was being issued to "ensure that the Federal Government continues the important work of this council and builds on its successes." This new Executive Order by Prez Trump formerly states that it revokes Prez Obama's 2016 memorandum, but in substance it looks quite similar.

March 8, 2018 in Collateral consequences, Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Wednesday, March 7, 2018

"Plea Bargaining: From Patent Unfairness to Transparent Justice"

The title of this post is the title of this new paper now appearing on SSRN authored by Mirko Bagaric, Julie Clarke and William Rininger. Here is its abstract:

The United States is in the midst of an unprecedented mass incarceration crisis.  It imprisons more of its citizens than any other country — and by a considerable margin.  It is now widely acknowledged that there is no community dividend stemming from an overly punitive sentencing system.  Over-incarceration does not make the community safer and diverts billions of dollars annually from productive social services, such as health and education.  Lawmakers have failed to find overarching solutions to this crisis. This Article proposes to change that paradigm by offering concrete reforms to a key failing of the sentencing system.

Emerging evidence suggests that one of the main reasons for the mass incarceration crisis relates to the dysfunctional plea bargaining process, in which the prosecution has the stronger negotiating power and often uses it to press for harsh penalties.  The reality is that most defendants in the United States do not receive a trial, let alone a fair one.  Their fate is determined by a negotiation with a prosecutor. More than ninety percent of all criminal matters in the United States are finalized in this manner.   There is a wide-ranging consensus that this process is flawed. It results in a large portion of defendants receiving harsher penalties than is commensurate with the seriousness of their offense. Sometimes it also leads to defendants who are innocent pleading guilty, in order to avoid the uncertainty of a trial.  The process is especially unfair on minority groups, with evidence establishing that African Americans in particular, receive harsher penalties than similarly situated white defendants.

This Article proposes reforms to the plea bargaining process that will demonstrably and profoundly reshape the framework for plea negotiations.  The central plank of the proposed reform is to shift more discretion and power from prosecutors, who invariably agitate for tougher sentences, into the hands of (impartial) sentencing judges.  This can be achieved by conferring a discount to offenders who plead guilty.  The size of the discount should be up to thirty percent.  A similar system already operates effectively in Australia.  In addition to this, defendants who plead guilty in circumstances when there is a weak prosecution case (and who are tenably innocent) should receive a discount of up to seventy-five percent.  This proposal would considerably reduce incarceration numbers in a way that does not compromise community safety and preserves the cost-saving benefits of the current plea bargaining process.  The reform will also reduce the discriminatory operation of the sentencing system against offenders who come from socially and economically deprived backgrounds.

March 7, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Another sad account of how US Bureau of Prisons administers compassionate release program

The Marshall Project and the New York Times have this lengthy new piece about the ugly administration of the federal compassionate release program by the US Bureau of Prisons. At the Marshall Project, the piece has this full headline summarizing its content: "Old, Sick and Dying in Shackles: 'Compassionate release' has bipartisan support as a way to reduce the federal prison population and save taxpayer money. New data shows that it’s rarely used." Here are excerpts:

Congress created compassionate release as a way to free certain inmates, such as the terminally ill, when it becomes “inequitable” to keep them in prison any longer.  Supporters view the program as a humanitarian measure and a sensible way to reduce health care costs for ailing, elderly inmates who pose little risk to public safety.  But despite urging from lawmakers of both parties, numerous advocacy groups and even the Bureau of Prisons’ own watchdog, prison officials use it only sparingly.

Officials deny or delay the vast majority of requests, including that of one of the oldest federal prisoners, who was 94, according to new federal data analyzed by The Marshall Project and The New York Times.  From 2013 to 2017, the Bureau of Prisons approved 6 percent of the 5,400 applications received, while 266 inmates who requested compassionate release died in custody. The bureau’s denials, a review of dozens of cases shows, often override the opinions of those closest to the prisoners, like their doctors and wardens.

Advocates for the program say the bureau, which oversees roughly 183,000 inmates, denies thousands of deserving applicants. About half of those who died after applying were convicted of nonviolent fraud or drug crimes. “It makes sense to release prisoners who present very little danger to society. It’s the humane thing to do, and it’s the fiscally responsible thing to do,” said Senator Brian Schatz of Hawaii, a Democrat. “The Bureau of Prisons has the theoretical authority to do this, but they basically do none of it.”

Case files show that prison officials reject many prisoners’ applications on the grounds that they pose a risk to public safety or that their crime was too serious to justify early release. In 2013, an inspector general reported that nearly 60 percent of inmates were denied based on the severity of their offense or criminal history. The United States Sentencing Commission has said that such considerations are better left to judges — but judges can rule on compassionate release requests only if the Bureau of Prisons approves them first.

Late last month, Schatz introduced legislation — co-sponsored with Senators Mike Lee of Utah, a Republican, and Patrick Leahy of Vermont, a Democrat — that would let prisoners petition the courts directly if the bureau denies or delays their requests.

Many are turned down for not meeting medical requirements. [Kevin] Zeich, who was serving 27 years for dealing methamphetamine, requested compassionate release three times, but was repeatedly told he was not sick enough. On his fourth try, his daughter, Kimberly Heraldez, finally received a phone call in March 2016 saying her father would soon be on a plane, headed to her home in California. Early the next morning, she was awakened by another call. Her father had died....

Compassionate release dates back to an overhaul of federal sentencing laws in the 1980s. While abolishing federal parole, Congress supplied a safety valve, giving judges the power to retroactively cut sentences short in “extraordinary and compelling” circumstances. But a court could do so only if the Bureau of Prisons filed a motion on an inmate’s behalf. For years, the agency approved only prisoners who were near death or completely debilitated. While nonmedical releases were permitted, an inspector general report found in 2013, not a single one was approved over a six-year period.

The report said the program should be expanded beyond terminal illness cases and used more frequently as a low-risk way to reduce overcrowding and health care spending. The Bureau of Prisons widened the criteria to explicitly include inmates over 65 and those who are the sole possible caregiver for a family member.  Then Attorney General Eric H. Holder, Jr., promoted the changes as part of his “Smart on Crime” initiative to “use our limited resources to house those who pose the greatest threat.

”But the bureau, which is part of the Justice Department, has yet to fully embrace those changes. Of those inmates who have applied for nonmedical reasons, 2 percent (50 cases) have been approved since 2013, according to an analysis of federal prison data.  And although overall approval numbers increased slightly between 2013 and 2015, they have since fallen.

At a 2016 sentencing commission hearing, Bureau of Prisons officials said they believed the program should not be used to reduce overcrowding.  And even the principal deputy assistant to Holder, Jonathan Wroblewski, said the program was not an “appropriate vehicle for a broad reduction” in the prison population.  “Every administration has taken the position that part of our responsibility is to ensure that public safety is not undermined,” he said.

After the hearing, the commission released new guidelines encouraging prison officials to determine only whether inmates fit the criteria for release — that is, if they are old enough, sick or disabled enough, or if they are the sole possible caregiver for someone on the outside. Whether the prisoner poses a risk to the public should be left to a judge to decide, the commission said.

Mark Inch, who was appointed director of the Bureau of Prisons by Attorney General Jeff Sessions last August, has made no public statements about the program. The bureau declined to make Inch available for an interview and did not respond to emailed questions.

As this article indicates, there are bills now pending in Congress that would in various ways address deficiencies in the current compassionate release mechanisms. This is on of many reasons I am hopeful (but not optimistic) that folks on both sides of the aisle in Congress will try hard in the coming weeks to get at least some form of prison reform legislation to Prez Trump's desk. A revised and expanded compassionate release mechanism could and should help hundreds, perhaps thousands, of federal prisoners, particularly those who have likely already served a very long time in federal prison and who pose little or no risk to public safety.

A few recent of many prior related posts:

March 7, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

"Lethal Rejection: An Empirical Analysis of the Astonishing Plunge in Death Sentences in the United States from Their Post-Furman Peak"

The title of this post is the title of this interesting new paper by David McCord and Talia Roitberg Harmon now available via SSRN. Here is the abstract:

The authors gathered information on 1665 death-eligible cases nationwide for three years at decade intervals: 1994, 2004, and 2014.  In 517 cases death sentences were imposed; in 311 cases sentencers spared the defendants from death sentences, and in 837 cases prosecutors spared defendants from death sentences.  The Article proceeds in three Parts. Part I explains the methodology for unearthing relevant data and preparing it for analysis.  Part II analyzes declines in death sentences due to decreasing death eligibility, that is, fewer murderers over time meeting the criteria that made death a sentencing option.  Four reasons are examined: fewer death-eligible murders, the United States Supreme Court’s exemptions of juveniles who were less than eighteen years of age at the time of the commission of the murder, and persons with intellectual disability (known to the law as the “mentally retarded”); and the abolition of the death penalty in several states.  This Part concludes that about half of the decline in death sentences is attributable to decreased death-eligibility, mostly due to the steep decrease in the number of death-eligible murders.

Part III examines increasingly narrower perceptions of death-worthiness, that is, the evolution in attitudes among prosecutors and sentencers toward deeming fewer among the many death-eligible defendants worthy of death sentences.  This Part requires the most complicated analysis because unlike death-eligibility decisions, which are dictated by law, death-worthiness decisions emerge from an opaque brew of many factors, including, but not limited to, resource differentials among jurisdictions, prosecutorial attitudes, the wishes of the murder victim’s survivors, defense counsel performance, public opinion, and sentencer reactions.  But while death-worthiness decisions are often opaque in individual cases, each case generates empirical data from which patterns may be discerned. Part III uses such data to analyze ten questions and arrive at tentative answers:

• Did the advent of life-without-parole (hereinafter “LWOP”) reduce death sentences in jurisdictions where it was added as an option? (only in Texas)

• Did sentencers become more reluctant to return death sentences? (no)

• Were death sentences decreasingly imposed in less aggravated cases and increasingly imposed in more aggravated cases? (to some extent)

• Did presentation of greater numbers of mitigating factors conduce to fewer death sentences? (no)

• Did robbery during a murder became a less powerful aggravator? (yes)

• Did 18-to-20 year-olds benefit from a ripple effect from the exemption of juveniles? (yes)

• Did death sentences become less common in multiple perpetrator cases? (yes)

• Did low population counties increasingly drop out of death sentencing? (yes)

• Did low revenue counties increasingly drop out of death sentencing? (no) and

• Did a few traditionally high-volume death sentencing counties skew the figures by cutting back on the use of the death penalty due to local political factors? (yes)

March 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, March 6, 2018

Noting the focus on prosecutor elections as new front in criminal justice reform efforts

This new McClatchy article, headlined "Progressive groups investing in district attorney races as path to criminal justice reform," highlights the new focus on DA elections within the broader modern criminal justice reform movement. Here is how the piece starts:

The American Civil Liberties Union, backed by millions in funding from billionaire Democratic donor George Soros, is investing resources and applying organizational muscle in local district attorney races in 2018.

The ACLU is among a variety of organizations working to elect prosecutors willing to jumpstart a laundry list of criminal justice reforms, including an overhaul of the pretrial bail bond system. It received a $50 million grant from Soros’ Open Society Foundations in 2014.

Now, in this year’s elections, the organization is planning voter education and outreach campaigns in district attorney races in California, Florida, Maine, Massachusetts, Minnesota, Oklahoma, Oregon, Vermont and possibly North Carolina and Missouri.

The group hasn’t determined which local races will be targeted, but it will focus on contests in big cities with large jail populations that feed the state prison system, said Taylor Pendergrass, senior campaign strategist for the ACLU’s Campaign for Smart Justice.  More than 1,000 local prosecutors are up for election in November, according to the group. “We’re just recognizing how powerful district attorneys are in shaping criminal justice policies, both at the local level, but also at the statehouse,” Pendergrass said. “The lobbying power of prosecutors is really a substantial force almost everywhere we want to see change made in the criminal justice system.”

The ACLU doesn’t endorse political candidates. Instead, it said the objective is to raise awareness about criminal justice issues of concern to the organization, its members and the voting public.  But Soros-funded super PACs and advocacy groups have helped elect a growing number of progressive district attorneys who now serve metro areas such as Chicago, Denver, Houston, Philadelphia and Orlando. And it’s looking to add more in 2018.

The Color of Change Political Action Committee, which has also received Soros funding, is urging black voters to support Democratic candidate Elizabeth Frizell for Dallas County District Attorney in Texas.  A former state district judge, Frizell has called for special prosecutors to investigate shootings by police.  She also supports replacing cash bail bonds with a pretrial release system based on factors such as the type of offense, the facts of the case and the defendants’ likelihood to re-offend and return to court.

An African American, Frizell reflects a new wave of ethnically diverse, activist district attorney candidates, many of whom support policies such as diversion programs for minor drug offenders, reentry programs for people leaving prison and reducing disparities that disproportionately impact poor and minority defendants in the courts.

March 6, 2018 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Federal prosecutors seeking (way-below-guideline) sentence of 15 years for "Pharma Bro" Martin Shkreli

As reported in this new Reuters piece, "U.S. prosecutors on Tuesday said former drug company executive Martin Shkreli should spend at least 15 years in prison after being convicted of fraud, saying his lack of remorse and respect for the law justified a long time behind bars." Here is more, with a final point stressed for commentary:

The request by the Department of Justice came three days before Shkreli’s scheduled sentencing by U.S. District Judge Kiyo Matsumoto in Brooklyn federal court. Prosecutors called Shkreli “a man who stands before this court without any showing of genuine remorse, a man who has consistently chosen to put profit and the cultivation of a public image before all else, and a man who believes the ends always justify the means.”

Shkreli, 34, had requested a 12-to-18-month term following his conviction last August for lying to investors about the performance of his hedge funds MSMB Capital and MSMB Healthcare, and conspiring to manipulate the stock price of the drug company Retrophin Inc. Known as “Pharma Bro,” in part for his ability to attract attention, Shkreli is perhaps best known for raising the price of the anti-parasitic drug Daraprim by more than 5,000 percent in 2015, while serving as chief executive of Turing Pharmaceuticals, now called Vyera Pharmaceuticals....

Shkreli has been in jail since September, when Matsumoto revoked his bail after he offered social media followers $5,000 for a hair from former U.S. presidential candidate Hillary Clinton. On Monday, Matsumoto ordered Shkreli to forfeit $7.36 million of ill-gotten gains. She said he may be forced to give up assets such as a Picasso painting and a one-of-a-kind Wu-Tang Clan album if he cannot find the money....

In a letter to the judge last week, Shkreli said he accepted that he had made “serious mistakes,” but still considered himself “a good person with much potential.”

But prosecutors said that while in jail, Shkreli has privately expressed disdain for his conviction and the judicial process, providing further evidence he does not deserve mercy. It cited a January email conversation where Shkreli allegedly wrote “fuck the feds” and expressed hope for a big tax refund because only his “liquid money” was affected by the forfeiture. “Shkreli’s email communications confirm that any remorse he may express publicly is a carefully constructed facade,” prosecutors said.

A 15-year term is shorter than the minimum 27 years recommended under federal guidelines. Brafman has called that length “draconian and offensive.”

There is much in this story and in this high-profile sentencing that merits commentary, but I am especially struck by the decision by federal prosecutors to request a sentence here that is more than a decade below the advisory guideline range.  Recall that the May 2017 Sessions Memo said federal prosecutors "should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate."  This high-profile case is still more proof that federal prosecutors recognize that the applicable federal sentencing guidelines for at least some fraud offenses are not reasonable and can be unreasonable extreme by more than a decade.

Prior related posts:

March 6, 2018 in Federal Sentencing Guidelines, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission releases 2017 Annual Report and Sourcebook of Federal Sentencing Statistics

2017-sourcebook-image_cropVia email, I just received this notice from the US Sentencing Commission about the publication of lots of new federal sentencing data:

Just Released

The United States Sentencing Commission’s 2017 Annual Report and 2017 Sourcebook of Federal Sentencing Statistics are now available online.

The Annual Report provides an overview of the Commission’s activities and accomplishments in fiscal year 2017.

The Sourcebook of Federal Sentencing Statistics presents tables, figures, and charts on selected district, circuit, and national sentencing data for fiscal year 2017. The Commission collected and analyzed data from more than 311,000 court documents in the production of this year’s Sourcebook.

I fear I won't be able to find all the time I would like to churn over all the notable data in these reports.  But I can already see from the start of the 2017 Annual Report some noteworthy data points, embedded in this overview of modern federal sentencing realities (with my emphasis added):

The Commission's data collection, analysis, and reporting requirements are impacted by the high volume of cases sentenced in the federal system annually. The Commission received approximately 310,000 documents for the 66,873 individual original sentencings that occurred in FY 2017.  To put this caseload in perspective, in FY 1995, the Commission received documentation for 38,500 original sentencings.  Select highlights from FY 2017 data are outlined below:

  • In FY 2017, the courts reported 66,873 felony and Class A misdemeanor cases to the Commission. This represents a decrease of 869 cases from the prior fiscal year.

  • The race of federal offenders remained largely unchanged from prior years.  In FY 2017, 53.2 percent of all offenders were Hispanic, 21.5 percent were White, 21.1 percent were Black, and 4.2 percent were of another race.  Non-U.S. citizens accounted for 40.7 percent of all offenders.

  • Drug cases accounted for the largest single group of offenses in FY 2017, comprising 30.8 percent of all reported cases. Cases involving immigration, firearms, and fraud were the next most common types of offenses after drug cases. Together these four types of offenses accounted for 82.4 percent of all cases reported to the Commission in FY 2017.

  • Among drug cases, offenses involving methamphetamine were most common, accounting for 34.6 percent of all drug cases.

  • Drug sentences remained relatively stable across all drug types in fiscal year 2017.  The average length of imprisonment increased slightly from FY 2016 in cases involving methamphetamines, from 90 months to 91 months, and also in marijuana cases, from 28 months to 29 months. In fiscal year 2017, 44.2 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty.

Overall, 79.8 percent of all sentences imposed in FY 2017 were either within the applicable guidelines range, above the range, or below the range at the request of the government.  Slightly less than half (49.1 percent) of all cases were sentenced within the guidelines range, compared to 48.6 percent in FY 2016.  In FY 2017, 20.1 percent of the sentences imposed were departures or variances below the guideline range other than at the government’s request, compared to 20.8 percent in fiscal year 2016.

March 6, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Monday, March 5, 2018

Making a fulsome case on the merits against sex offender registries

This morning, the US Supreme Court granted cert in Gundy v. US to consider whether Congress's delegation to the attorney general the power to issue regulations interpreting the federal Sex Offender Notification and Registration Act violates the nondelegation doctrine. That grant on that issue right has Con Law fans buzzing. But sentencing fans more interested in the substance of sex offender registries will want to check out this new commentary by Jesse Kelley in The Hill under the headline "The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal." Here are excerpts:

The Bureau of Justice Statistics reports that at least 95 percent of all state prisoners will be released from prison at some point. However, convicted sex-offenders almost exclusively face the vengeful, additional punishment of registration under the Sex Offender Registry and Notification Act (SORNA).

Generally, under SORNA, an individual who is required to register as a sex offender must register at least once a year; report any change of address within as little as three days; produce vehicle information, a recent photograph and a DNA sample; and abide by stringent residency restrictions, which can force individuals out of urban areas, away from family and into unemployment.

SORNA violates our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.....

The Pennsylvania Supreme Court ruled that the state’s version of SORNA violates juvenile offenders’ due process rights because the requirements of satisfying SORNA assume that a juvenile will commit some sex offense in the future without giving him or her the opportunity to challenge that assumption. Equity demands assigning this same ruling to adult reporting requirements.

Another element of due process known as “double jeopardy” appears in the Fifth Amendment and protects an individual from being prosecuted for the same offense twice. It also bars multiple punishments for the same crime. Individuals convicted of crimes who have faced incarceration and then must begin sex registry-reporting are certainly being punished repeatedly.

SORNA requirements punish ex-offenders by inflicting upon them tangible, secondary punishments, like the inability to qualify for housing and increased difficulties securing employment. These secondary punishments effectively banish ex-offenders to a modern leper colony by not only removing re-entry resources but also by affirmatively ostracizing those attempting to rebuild a life after incarceration.

In addition to violating double jeopardy, repeated punishments violate the Eighth Amendment by imposing cruel and unusual punishment. The government is prohibited from imposing a criminal sentence that is either vindictive or far too harsh for the crime committed. Incarceration is intended to be a punishment and a deterrence, so any subsequent punishment can only be vindictive. After incarceration, an ex-offender’s privacy is significantly diminished by the requirement to report one’s name, address, photo, employment status and provide a DNA sample.

Last fall, a federal judge found that the Colorado sex offender registry’s punitive impact outweighed any value it might have had in protecting the public and concluded that registration violates the prohibition against cruel and unusual punishment. As the judge specifically stated, “This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten [sex offenders] with punishment disproportionate to the offenses they committed.”

As Clarence Darrow famously said, “You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.” Protecting the constitutional rights of everyone, even those convicted of sex offenses, is of the upmost importance for protecting our freedom. Therefore, both legislators — by way of developing and amending laws — and judges — via hearing arguments and creating case law — must re-examine SORNA in order to preserve liberty and uphold the Constitution.

March 5, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (9)

Spotlighting the modern realities and challenges of geriatric executions

Adam Liptak has this new Sidebar piece in the New York Times headlined "Too Old to Be Executed?  Supreme Court Considers an Aging Death Row." Here is how the piece gets started:

The nation’s death rows are starting to look like geriatric wards. Condemned inmates in many states are more likely to die of natural causes than to be executed.  The rare ones who are put to death often first spend decades behind bars, waiting.

It turns out that executing old men is not easy.  In November, Ohio called off an attempt to execute Alva Campbell, 69, after the execution team could not find a suitable vein into which to pump lethal chemicals.  The state announced that it would try again in June 2019, by which time he would have been 71.

But Mr. Campbell suffered from what one judge called an “extraordinary list of ailments.”  He used a walker, could barely breathe and relied on a colostomy bag.  He was found lifeless in his cell on Saturday, having died in the usual way, without government assistance.

In Alabama last month, state officials called off the execution of Doyle Lee Hamm, 61, also because they could not find a suitable vein. Mr. Hamm has at least two kinds of cancer, cranial and lymphatic, and he may not have long to live with or without the state’s efforts.

Last week, the Supreme Court agreed to hear the case of another Alabama inmate, Vernon Madison, 67, who suffers from dementia and cannot remember the crime that sent him to death row.  The court, which has barred the execution of juvenile offenders and the intellectually disabled, is now turning its attention to old people.

Prior related posts:

March 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

SCOTUS grants cert on structural SORNA issue and Justice Sotomayor dissents in capital case with IAC issues

The Supreme Court has been mulling over a number of cases that would, if cert were granted, be of great interest to sentencing fans. But the Justices, via today's new SCOTUS order list, did not grant (or deny) cert on any blockbusters. Here is the SCOTUSblog accounting of what sentencing fans did get today:

The second grant is Gundy v. US, but only limited to the fourth question presented by the petition: whether Congress's delegation of power to the attorney general to issue regulations interpreting the Sex Offender Notification and Registration Act violates the nondelegation doctrine....

The non-delegation challenge to SORNA is (1) more plausible than most non-delegation challenges because of the criminal context; but (2) would be the first non-delegation challenge that has prevailed at the Court in a very long time. And it would blast a giant hole in SORNA.

Justice Sotomayor dissented from the denial of review in Wessinger v. Vannoy, a capital case involving an attorney's duties to conduct a mitigation investigation when the court has denied funds for expert assistance.

Justice Sotomayor's solo dissent in Wessinger ends this way:

The Court’s denial of certiorari here belies the “bedrock principle in our justice system” that a defendant has a right to effective assistance of trial counsel, and undermines the protections this Court has recognized are necessary to protect that right. Martinez, 566 U.S., at 12. Indeed, the investigation of mitigation evidence and its presentation at sentencing are crucial to maintaining the integrity of capital proceedings.  The layers of ineffective assistance of counsel that Wessinger received constitute precisely the type of error that warrants relief under this Court’s precedent.  Yet, Wessinger will remain on death row without a jury ever considering the significant mitigation evidence that is now apparent. Because that outcome is contrary to precedent and deeply unjust and unfair, I dissent from the denial of certiorari.

March 5, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

"Sixth Amendment Sentencing after Hurst"

The title of this post is the title of this notable new article authored by Carissa Byrne Hessick and William Berry available via SSRN. Here is the abstract:

The Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized.  At times the doctrine has expanded—invalidating sentencing practices across the country — and at times it has contracted — allowing restrictions on judicial sentencing discretion based on findings that are not submitted to a jury. Hurst represents another expansion of the doctrine.  Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a judge may impose a higher sentence must be submitted to a jury and proven beyond a reasonable doubt.  This reading invalidates several state capital sentencing systems and several non-capital systems, and it would require dramatic changes to federal sentencing as well.

March 5, 2018 in Blakely in the Supreme Court, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, March 4, 2018

Noting lengthy struggles in California over the definition of a violent crime

Federal sentencing practitioner know all too well how hard it can be to clearly define what offenses qualify as a "crime of violence" or a violent felony. And while the federal jurisprudence over this issue can be hellish, states can struggle with similar issues in various contexts.  This new Los Angeles Times article, headlined "How a list of 23 crimes now dominates California's debate over prison punishment," explains:

Consider the last two years of debate over what should, and should not, be a "violent" crime. That debate begins with the index of crimes in section 667.5 of the California Penal Code. The list was first enacted in 1976, and has been tinkered with so many times it's hard to say whether it's a fair representation of the most heinous crimes.

Here's why that matters: The list is now a key part of determining which California prison inmates are eligible for early parole under Gov. Jerry Brown's 2016 ballot measure, Proposition 57. A legal fight over how to interpret the ballot measure could become a potent political issue.

Brown signed the law creating the original list of violent crimes during his first tour of duty as governor. It's since been amended or expanded 38 times, the last effort in 2014. Eight specific offenses or crime categories were in the original version. Now, there are 23 crimes. The list almost doubled in size in just the five years between 1988 and 1993.

So what's included? Some violent crimes are relatively straightforward — murder, attempted murder, voluntary manslaughter, robbery, kidnapping. (Kidnapping, interestingly, was dropped from the list in 1977 with no noteworthy explanation and added back in 1991.) Some additions, like the inclusion of carjacking in 1993, were sparked by news events. A prosecutor told The Times that year that classifying the crime as "violent" would give "local district attorneys another weapon in their arsenal to attack this epidemic."

Voters opted to tweak the law twice, making substantial changes that weren't well publicized in those elections. Proposition 21 in 2000 removed the long-standing focus on specific kinds of robberies — those in someone's home and involving a "deadly or dangerous weapon" — and instead made "any robbery" a violent crime. In 2006, voters added more definitions of sex crimes.

And yet other crimes have long been sliced relatively thin. Only specific circumstances in the case of rape or first-degree burglary are on the list of violent crimes. It's doubtful, as a result, that the 23 offenses cover everything the average Californian would think of as being "violent."

This might not be a pressing issue if not for the changes brought on by Brown's 2016 ballot measure, which expanded parole opportunities to those serving time for a "nonviolent felony offense." That phrase is brand new, and Proposition 57 placed the term in the California Constitution.

It's unclear, though, whether "nonviolent felony offense" is just another way of saying any crime that's not on the list of violent crimes. A Sacramento Superior Court judge last month rejected that idea. At the same time, the judge ruled that some convicted sex offenders — who the Brown administration has deemed ineligible under Proposition 57 — should be considered for release because they weren't convicted of one of the 23 crimes.

Judge Allen Sumner's ruling seemed to hint that current law is full of knots crying out to be untangled. He wrote that "it is by no means clear what the voters understood, or intended, the term 'nonviolent' to mean."

Some prior related posts:

March 4, 2018 in Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2)

Saturday, March 3, 2018

Jim DeMint explains how "core of conservatism" at core of South Carolina's leadership on criminal justice reform

Jim DeMint, a former US Senator from South Carolina, has recently become of significant conservative voice in support of various criminal justice reforms. His latest commentary, appearing here under the headline "How Jim DeMint wants SC lawmakers to redefine ‘tough on crime’," links conservative principles and recent reforms and proposals in the Palmetto State. Here are excerpts:

The core of conservatism is the dignity of every individual and the value of every life.  That’s why we talk about individual freedom, self-reliance and personal responsibility. Conservatives fight for limited government to preserve these sacred goals.  And that’s why we care about prison reform.  The values conservatives hold dear are jeopardized when prisons fail to deliver results.  We owe it to victims, law enforcement and the citizens of our communities to act.

In 2010, South Carolina showed the nation how a conservative state can lead on criminal justice reform.  Back then, we stood squarely at a crossroads.  Our prison population was growing at an unsustainable rate, and we were forecasting the need to burden our taxpayers by building more prisons.  We had to take action.  The Palmetto State could go to an old playbook of tough on crime: incarcerate more, spend more and break an already strained budget.  Or we could redefine what it means to be “tough on crime” by adopting smart policies aimed at keeping people safer, reintegrating citizens into the community and taming expensive correctional spending.

Fortunately, state leaders chose a new direction.  S.1154 addressed the enormous number of people churning in and out of our prisons for low-level nonviolent crimes and violations of supervision conditions.  They also established the Sentencing Reform Oversight Committee, made up of legislators, stakeholders and policy experts, to track the law’s performance and make ongoing recommendations for reform in the future.

The results were transformative.  Our violent and property crime decreased by 16 percent, and recidivism dropped by 10 percent.  Our prison population dropped by 14 percent. As a result, we have shut down seven facilities and saved taxpayers nearly half a billion dollars.  Today, based on this innovative approach and the tireless efforts of the men and women at the departments of Corrections and Parole and Probation Services trusted with its implementation, more people are returning to their families and communities and becoming productive, tax-paying citizens.

As reforms outperformed our expectations, skeptics became believers, and practitioners in courtrooms and the corrections system have built a culture of following evidence-based practices.

Still, our prisons are understaffed and struggle with a growing threat of violence within facilities. Therefore, we should pursue evidence based-reform that we know can deliver results. Prison resources should be spent on those who pose a threat to public safety and are not wasted denying liberty to those who can be safely supervised in the community....

Nearly 80 percent of the prison population is still incarcerated for non-violent offenses.  Those convicted are staying in prison too long, nearly a third longer than in 2010.  Our system drains $500 million from taxpayers and has a negative impact on families and communities.  There are also gaps in supervision best-practices that don’t meet the high standard we should hold ourselves to.

March 3, 2018 in Elections and sentencing issues in political debates, State Sentencing Guidelines | Permalink | Comments (2)

With death of Alva Campbell, Ohio need no longer worry about trying to execute ill prisoner after first botched attempt

As reported in this local article, "Alva Campbell, "an inmate on Ohio’s death row who had his scheduled execution halted in November after a medical team could not find an accessible vein for the lethal injection, has died." Here is more:

Franklin County Prosecutor Ron O’Brien said the office of Gov. John Kasich notified him that Campbell died early Saturday of natural causes . No other information was available, and the Ohio Department of Rehabilitation and Correction could not immediately be reached.

Campbell, 69, was a twice-convicted killer, one that O’Brien has often called the “poster child” for the death penalty. Campbell was on parole from another murder conviction when, on April 2, 1997, he killed 18-year-old Charles Dials.  At that time, Campbell was on his way to court to face a series of armed-robbery charges but had been faking paralysis. When he was taken to the courthouse, he sprang from his wheelchair, seized a deputy’s gun and carjacked Dials outside.  The two drove around Columbus for hours before Campbell forced Dials onto the floor of his truck and executed him. Campbell was sentenced to die for that.

Over the years, authorities objected to and grumbled about Campbell’s attempts to delay the justice that a judge and jury had ordered for him.  Upon hearing of Campbell’s death Saturday, O’Brien said, “Due to 20 years of frivolous post-conviction litigation, he successfully ran the clock out on justice due to the state and the victim’s family.”

After the failed execution in November, Campbell’s attorneys had said it was unlikely he could live to see another execution attempt.  They said he suffered from a host of serious cardiopulmonary problems and ailments.  He was returned to Death Row.

Recent prior related posts:

March 3, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

Friday, March 2, 2018

"The State of Justice Reform 2017"

Download (11)The title of this post is the name of this terrific new resource created by the Vera Institute of Justice. The resource is packed with lots and lots of notable content and links, and here is how it is explained on its "About" page: 

Like many justice reform organizations, Vera is often asked, “What are the latest and most interesting developments in the field?” This question has grown more common as more and more people confront the need to improve the nation’s broken justice system and want to help.

We endeavor in this report to provide the beginning of an answer, limiting our scope (mostly) to 2017, the first year of a new administration — one pushing a “law and order” platform — and covering most, but not all, areas of justice reform.

Vera’s task was to determine which of the thousands of changes to policy, practice, and legislation should be covered in this annual recap.  To discern what should be included, we first asked Vera’s own internal experts to weigh in and identify what they felt was most important to cover in their subject areas. “Importance” was defined by the following criteria:

  • the potential impact of a reform;
  • the degree of change from past practice or norms; and/or
  • the degree to which the field or the media is looking to a reform as a promising or leading practice to improve systems.

Using this definition, “importance” can be positive or negative, supportive or hostile to reform. The report thus focuses on both the best and the worst of 2017.

After hearing from Vera’s own experts, we reached outward, crowdsourcing suggestions from Vera’s Facebook and Twitter followings.  Vera also invited 30 external experts to review drafts of specific sections, who are gratefully acknowledged under “Contributors.”  Finally, Vera is issuing this as a digital report to allow for ongoing feedback and contributions, with the hope that this dialogue will add even more to the collective knowledge base about the year that was.

All parts of this terrific resource are worth checking out, and these parts should be of particular interest to sentencing fans:

The State of Jails: Reformers Look to Jails as a Key to Ending Mass Incarceration

The State of Youth Justice: As Youth Incarceration Drops, Racial Disparities Persist

The State of Sentencing & Decriminalization: While Federal Sentencing Reform Efforts Look Bleak, States Push Ahead

The State of Prisons: States Take on Prison Reform

The State of Reentry: For Those Rejoining Society, a Multitude of Obstacles Persist

March 2, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Lots of notable reaction to Prez Trump's nominations to the US Sentencing Commission

As reported in this prior post, Prez Trump yesterday announced these notable new nominations to the US Sentencing Commission.  Usually, only hard-core sentencing nerds like me play much attention to USSC nominations, but this slate of nominees, especially the nomination of Bill Otis, has led to some notable media attention.  Here are some of the commentary I have already seen: 

From The Daily Caller, "Trump's Sentencing Commission Nominees Show He May Not Be That Angry At Jeff Sessions"

From Mother Jones"'I Live to Put People in Jail': Here Are Trump's Nominees for the US Sentencing Commission"

From Reason, "Trump Nominates Man Who Called for Abolishing US Sentencing Commission to US Sentencing Commission"

From Slate, "Trump picked a mass-incarceration advocate obsessed with 'black-on-black' crime for a job setting federal sentences"

From Splinter, "Trump Nominates the Last Person You'd Ever Want to Help Oversee the Criminal Justice System"

And perhaps best highlighting how this one nomination is not like the others, here is the text of this press release from Families Against Mandatory Minimums released just a few hours after Prez Trump announced his new USSC picks:

FAMM president Kevin Ring issued the following statement on William Otis, one of four nominees put forward today by the Trump administration for the U.S. Sentencing Commission, the administrative body that writes and updates the federal sentencing guidelines used to sentence more than 70,000 people each year in federal courts:

FAMM has never taken a position before on U.S. Sentencing Commission nominees, but we feel compelled to change that policy in light of today’s announcement.  Mr. Otis’s outdated views are well-known and well-documented.  This is not a person who will be guided by evidence and data.  The Senate should reject this nomination.

Prior related post:

March 2, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (20)

Thursday, March 1, 2018

"Wrong Turn on the Ex Post Facto Clause"

The title of this post is the title of this notable new paper authored by Paul Reingold and Kimberly Thomas now available via SSRN. Here is the abstract:

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime.  But deciding what constitutes an increase in punishment can be tricky.  At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause.  At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post Facto Clause.  Because the harm is identical and lies at the core of what the Ex Post Facto Clause is supposed to protect against, we think the asymmetry is mistaken.

Parole is an integral part of punishment: it determines how much time people will serve on their sentences.  Until the 21st century, black-letter law forbade even modest parole changes that were adverse to prisoners.  If a change in the parole regime might lead to longer sentences, then courts insisted that the change be applied prospectively only.  Over the last two decades, relying on language in two US Supreme Court parole cases decided in 1995 and 2000, the lower courts have shifted parole–ex post facto doctrine by 180 degrees.  Prisoners can no longer prevail even when the change in the state parole regime is almost certain to lead to significantly longer sentences.

In the context of parole, the courts have repudiated past doctrine and strayed far from the purposes of the Ex Post Facto Clause.  In this article, we review the history, show how the current case law is misguided and illogical, and put forward a new framework that would restore the Ex Post Facto Clause to its rightful place.

March 1, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Prez Trump talks up "very strong" criminal penalties "with respect to the pushers and to the drug dealers"

In this post from a few days ago, I noted a report that Prez Trump has been known privately to give "a passionate speech about how drug dealers are as bad as serial killers and should all get the death penalty."  Now, as reported here by CBS News under the headline "Trump brings up death penalty for drug dealers, suing drug companies at opioids summit," Prez Trump has brought his thinking into the public discourse:

President Trump made an unexpected appearance at a White House summit on the opioid crisis Thursday afternoon, floating penalties for "opioid companies" and tougher punishments for drug dealers, noting that some countries have the "ultimate penalty."

"The administration's gonna' be rolling out policy over the next three weeks and it'll be very, very strong," the president said. "I've also spoken with Jeff (Sessions) about bringing a lawsuit against some of these opioid companies. I mean, what they're doing and the way, the distribution. You have people who go to the hospital with a broken arm and the come out addicted. They're addicted to painkillers, and they don't even know what happened."

"So we're going to very much, you know, as you know, I think we've been more involved than any administration by far. It's a problem that's growing.  And drugs are a similar but different problem in the sense that we have pushers, and we have drug dealers that don't — I mean, they kill hundreds and hundreds of people.  And most of them don't even go to jail. You know, if you shoot one person, they give you life, they give you the death penalty. These people can kill 2,000, 3000 people, and nothing happen to them. And we need strength with respect to the pushers and to the drug dealers. And if you don't do that, you're never going to solve the problem."

"Some countries have a very, very tough penalty, the ultimate penalty," the president said.  "And by the way, they have much less of a drug problem than we do.  So we're going to have to be very strong on penalties.  Hopefully we can do some litigation against the opioid companies."

A video of Prez Trumps comments are available at this link via CNN.  Yikes!

Prior related post:

March 1, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Prez Trump makes (tough) nominations to US Sentencing Commission

Though there is much talk these days of Prez Trump and AG Jeff Sessions being at odds, the President today announced these new nominations to the US Sentencing Commission that I suspect are very much to the liking of Attorney General Sessions.  Here are the basics, with lots of commentary to follow (in this post and perhaps others):

Today, President Donald J. Trump announced his intent to nominate the following individuals to the United States Sentencing Commission:

If confirmed, Judge William H. Pryor Jr. of Alabama will serve as the Chairman of the United States Sentencing Commission. Judge Bill Pryor serves as a Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, and as Acting Chairman of the United States Sentencing Commission....

If confirmed, Judge Luis Felipe Restrepo of Pennsylvania will serve as a Commissioner of the United States Sentencing Commission. Judge Phil Restrepo serves as a Circuit Judge of the United States Court of Appeals for the Third Circuit. Judge Restrepo was appointed to the Third Circuit in 2016 by President Barack Obama. Prior to his elevation to the Third Circuit, Judge Restrepo served for two and a half years as a United States District Judge for the Eastern District of Pennsylvania, a post to which he was also nominated by President Obama. Prior to his service on the United States District Court, Judge Restrepo served for seven years as a United States Magistrate Judge, practiced privately, and served as an Assistant Federal Public Defender in the Eastern District of Pennsylvania.

If confirmed, Judge Henry E. Hudson of Virginia will serve as a Commissioner of the United States Sentencing Commission. Judge Henry Hudson serves as a United States District Judge for the Eastern District of Virginia. Judge Hudson was appointed to the United States District Court bench in 2002 by President George W. Bush. Before his appointment to the Federal bench, Judge Hudson served as a Virginia circuit judge for Fairfax County, Director of the United States Marshals Service, as the Senate-confirmed United States Attorney for the Eastern District of Virginia, and as the elected Commonwealth’s Attorney for Arlington County, Virginia.

If confirmed, William Graham Otis of Virginia will serve as a Commissioner of the United States Sentencing Commission. Bill Otis serves as an Adjunct Professor of Law at Georgetown University Law Center. Before joining the faculty at Georgetown, Mr. Otis served in the Federal Government for 29 years. Over this period, Mr. Otis served as Counselor to the Administrator of Drug Enforcement Administration during the George W. Bush presidency, as an Assistant United States Attorney and Chief of the Appellate Division of the United States Attorney’s Office for the Eastern District of Virginia (under both Democrat and Republican Administrations), and as Special Counsel to President George H.W. Bush.

Regular readers may recall this post from August 2017 linking to a Wall Street Journal article reporting that "Attorney General Jeff Sessions is urging the White House to nominate a federal judge and tough-on-crime ex-prosecutor once nicknamed “Hang ’Um High” Henry Hudson" to the USSC.  But regularly readers are likely even more familiar with the name Bill Otis, because he was once a regular commentor on this blog and has long been a prominent person who prominently shares his (tough-on-crime) sentencing perspectives in many media.  I have to guess that AG Sessions was also happy to see Bill's name on this list as well (and I have already noticed on twitter a few folks who are not happy to see Bill's name on this list).  I am personally very friendly with Bill Otis (and his famous wife), and we have spent considerable time disagreeing on many sentencing matters without being too disagreeable. 

I also suspect AG Sessions is also quite pleased to see his Alabama pal, Judge Bill Pryor, getting officially tapped to serve as Chair of the US Sentencing Commission (which he has been serving as in the acting capacity for over a year).  I have long been intrigued and impressed by Judge Pryor's views on a range of sentencing issues, and I have been particularly pleased with the many kinds of new data reports the USSC has been producing during his short time as Chair.

Last but not least, though I do not know too much about Judge Luis Felipe Restrepo, I am pleased to see a former defense attorney named to the USSC to balance out all the potent new prosecutorial perspectives.  I am not sure if this "slate" of nominations have already been in some way blessed or vetted by key members of the Senate Judiciary Committee, but I am sure that the nomination of Judge Restrepo may well be intended as, and may rightly be seen as, one way to get Senators on both sides of the aisle to be comfortable with all of these nominees. 

March 1, 2018 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Will strong religious liberty advocates rally for Mennonite investigator jailed for refusing to testify in Colorado capital case?

The question in the title of this post is prompted by this remarkable story from the Denver Post headlined "Mennonite investigator sent to jail after refusing to testify in Robert Ray death penalty hearing: Lawyer for Greta Lindecrantz says she is being punished for long-standing religious beliefs." Here are the basics:

A 67-year-old Mennonite woman spent a second day in the Arapahoe County jail Tuesday after she refused to testify for the prosecution in a death penalty case. Greta Lindecrantz on Tuesday morning was found in contempt of court after she told District Judge Michelle Amico she would not answer questions in the witness stand because of her religious beliefs. Lindecrantz has been called to testify on behalf of the prosecution in an appeals hearing for Robert Ray, who was sentenced to death in 2009 for ordering the murder of Javad Marshall-Fields and Vivian Wolfe, who were witnesses in another murder case.

Lindecrantz worked as an investigator for Ray’s defense team, but those attorneys have not called her as a witness. However, the prosecution wants to question her about her work during the investigation and original trial, said her attorney, Mari Newman. All of her work already is a part of the official court record and there really is no reason for her to take the stand again, she said.

Lindecrantz sat in the courtroom wearing an orange jumpsuit with her hands shackled as Newman argued that she should be released because she is being punished by the courts for religious beliefs. Testifying would go against her moral and religious views, Newman said. “Imprisonment has not been effective,” Newman said. “It will not be effective tomorrow.”

But Amico said she had made her decision and was sticking to it. She told Newman she could appeal to a higher court. Until then, Lindecrantz would go back to jail. “It was a difficult decision for the court to make (Monday),” Amico said. Newman had asked for a lesser punishment, but Amico responded, “How would less punishment be effective? I’ve imposed jail and she’s still refusing to testify.”

After the hearing, Newman gathered on the courthouse lawn with Lindecrantz’s husband, Dave Sidwell, and supporters from the metro area’s two Mennonite congregations. “She has a fundamental religious belief against the killing of other human beings and specifically against state-sanctioned killing in the form of the death penalty,” Newman said. “She has refused to testify as a witness called by the prosecution — and the reason, the one and only reason she’s refused to testify, is because to do so would violate her firmly held religious beliefs against the death penalty.”

Because of her religious conviction, Lindecrantz has two choices — stay in jail or abandon her faith, Newman said. On Monday night, Lindecratz was in a cell with nine women, some of whom were sick all night because they were detoxing from drugs. Lindecrantz is old enough to be those women’s mothers, she said. “For the court to imprison her until she is broken, until her will is broken, and she abandons her faith and her view that she cannot participate in state-sanctioned killing is an abomination,” Newman said.

Sidwell, who also is a Mennonite, said he supported his wife’s stand, saying they both were adamantly opposed to the death penalty. “She’s not going to change her mind,” Sidwell said. “It’s, to me, a pointless pursuit.”

The Rev. Vern Rempel, pastor of Beloved Community Mennonite Church in Englewood, said he counseled Lindecrantz over the weekend about what she would do when called to the stand Monday morning. Those discussions included figuring out a way that Lindecrantz could comply with the courts without betraying her religious conviction. On Sunday, the congregation gathered around Lindecrantz to pray over the decision. “On Sunday, she said she had clarity and was ready to do this,” he said. “Really, we felt the strength of her commitment.”

Mennonite opposition to the death penalty dates to 1525, Rempel said. “This is not something that is not a mood of Greta’s,” he said. “Or a fancy. Or something she’s making up. It has been a lifetime commitment for her.”

While Lindecrantz is spending her second night in jail, the legal drama has been playing since Jan. 20, when Newman first filed a motion in an attempt to keep her client off the witness stand. But Amico repeatedly denied the motion, saying in an order written on Feb. 16 that allowing people to refuse to participate in death penalty cases on religious grounds would disrupt the justice system. Religious-based capital defense teams would be able to refuse to follow proceedings, rules and laws based on those grounds, Amico wrote. It would create an “absurd and unworkable result” for death penalty cases in Colorado.

Because of the politics involved, I am inclined to guess that the folks who eager to support, on religious liberty grounds, those resisting laws restricting displays of religious items on public lands or laws concerning certain medical procedures will not be quite as quick to get behind this particular form of legal resistance based on sincere religious beliefs. (And, by the same political token, I suspect those usually critical of legal resistance based on religious liberty claims may not be so critical of the claim in this setting.)

March 1, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Religion, Who Sentences? | Permalink | Comments (11)

"The Politics of Prosecution: Examining the Policymaking Role of Prosecutors"

The title of this post is the title of this new paper available via SSRN authored by Abhinav Sekhri. Here is the abstract:

This short paper focuses on prosecutors in the federal setting and contributes to this growing field of scholarship.  Through the lens of Prosecutorial Agreements in the sphere of corporate criminal liability, I demonstrate that prosecutors engage in important policy making exercises.  I argue that this analysis helps better understand the constrains in which prosecutorial discretion is exercises, and here I suggest how such an analysis offers a more nuanced reading of the prosecutorial charging practices in corporate crime over the last two decades.  I conclude by suggesting that examining the policymaking potential of prosecutors merits great attention today, as the importance of these actors within the criminal justice system is being appreciated beyond legal spheres.

March 1, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, February 28, 2018

Senator Grassley talking up Senate vote on his SRCA bill along with any prison reform bill lacking sentencing reforms

As reported in this post, the White House yesterday signaled its disaffinity for key parts of the Sentencing Reform and Corrections Act when an official was quoted as saying the "sentencing reform part still does not have a pathway forward to getting done."   But Senate Judiciary Committee Chair Chuck Grassley is seemingly not prepared to give up on his bill, as detailed in this new press article headlined "Grassley: I'll fight for sentencing reforms."  Here are the key details:

U.S. Sen. Chuck Grassley, R-Iowa, pledged Wednesday to fight for a criminal justice proposal that includes reducing certain mandatory prison sentences, and he raised the prospect of blocking a package of related reforms the White House and congressional Republicans are said to be interested in if he can't get an agreement....

Late Tuesday, the White House expressed interest in proposals to reduce recidivism among offenders, but not changes to sentences. A White House official who wasn't identified said the sentencing reform piece "does not have a pathway forward to getting done," according to several news reports. Senate Majority Leader Mitch McConnell, R-Kentucky, also is said to be an obstacle to getting the legislation to the floor.

On a conference call with Iowa reporters Wednesday, Grassley disputed the idea his bill can't pass and said with Democrats and Republicans, there are at least 60 votes for his proposal. The bill passed the Senate Judiciary Committee two weeks ago on a 16-5 bi-partisan vote.

Grassley said people pushing for a narrower approach just want to get a bill passed. "Well, if they take up prison reform, they’re going to have to have 60 votes to get prison reform up.  And I’ll bet we’ve got, if all the Democrats go along with me, we can stop that from coming up until we get a deal to get a vote on my sentencing reform," Grassley said.

Grassley, who chairs the Senate Judiciary Committee and has been a key figure in getting the Trump administration's court picks through the confirmation process, said he planned to talk to Durbin first before deciding whether to take that route....

On the conference call Wednesday, Grassley said the chances for his proposal, at the moment, aren't very good.  But he said he isn't going to give up.  "This would be a bipartisan policy win for the administration. And it seems like a no-brainer to me."  He said he hasn't spoken to President Trump about the proposal yet.

A few prior related posts:

February 28, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

"Pharma Bro" Martin Shkreli, facing decades under guidelines, seeks prison sentence of 12-18 months

As reported in this Reuters article, "Martin Shkreli, the former drug company executive convicted of defrauding investors in two hedge funds he ran, has asked a federal judge to sentence him to 12 months to 18 months in prison, much less than suggested federal guidelines."  Here is more:

Shkreli, 34, has been in jail since September, when U.S. District Judge Kiyo Matsumoto revoked his bail after he offered a $5,000 bounty for a strand of Hillary Clinton’s hair in a Facebook post.  Matsumoto is scheduled to sentence him on March 9.

Shkreli’s lawyers said in a court filing on Tuesday that a sentence of 27 years or more calculated using federal guidelines would be “draconian and offensive.” The filing included a letter from Shkreli, asking the judge for leniency.  “I accept the fact that I made serious mistakes, but I still believe that I am a good person with much potential,” he said.

In addition to the prison sentence, they proposed Shkreli complete 2,000 hours of community service and undergo court-mandated therapy....

Shkreli, nicknamed “Pharma Bro,” raised the price of anti-infection drug Daraprim by over 5,000 percent in 2015 while he was chief executive officer of Turing Pharmaceuticals.  A jury found him guilty last August of unrelated securities fraud charges.  They determined that he lied to investors about the performance of his hedge funds, MSMB Capital and MSMB Healthcare.  He also was found guilty of conspiring to manipulate the stock price of a drug company he founded, Retrophin Inc.

Shkreli’s investors eventually came out ahead after he paid them in shares of Retrophin, and in some cases through settlement agreements and consulting contracts with the company, according to testimony at trial.  However, Matsumoto ruled Monday that he would still be held responsible for defrauding investors out of millions of dollars, because he secured their investments through fraud.

Shkreli’s lawyers said in the filing that he made mistakes when communicating with his investors not because he wanted to steal from them, but because he “could not bring himself to admit failure.”  They also tried to counter the view that Shkreli was the “greedy Pharma Bro.” They pointed to his work at Retrophin to develop a drug for a rare childhood degenerative disease called PKAN that was used to treat some patients in Cyprus, as well as online relationships he has maintained with patients.  Even the controversial Daraprim price hike was meant to fund research into rare diseases, they said.

The filing included dozens of letters supporting Shkreli, including from family members and a former Turing employee who praised his “altruistic passion.”

Prior related post:

February 28, 2018 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1)

Entire First Circuit urges Supreme Court to revisit Harmelin's limits on Eighth Amendment challenges to extreme adult prison sentence

A helpful reader made sure I did not miss the remarkable opinion emerging yesterday from the First Circuit in the form of a very lengthy concurrence in the denial of rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here). Last year I noted the panel opinion in this case in this post titled "Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant."  Interestingly, this time around all the First Circuit judges seem to be on the same page, deciding they lack authority to find Wendell Rivera-Ruperto's extreme sentence unconstitutional, but urging the Supreme Court to revisit the precedent they see as standing improperly in their way.

Judge Barron's lengthy opinion is a must-read for Eighth Amendment fans, and it defies ready summary.  To begin, Judge Barron explains why the analytical framework set by Solem v. Helm, 463 U.S. 277 (1983) would lead him to "find that Rivera's mandatory, more-than-century-long sentence was grossly disproportionate and thus in violation of the Eighth Amendment."  But, continues Judge Barron, judges must further consider Harmelin v. Michigan, 501 U.S. 957 (1991), and "the Harmelin concurrence controls the outcome here, and ... does so by limiting our inquiry to a consideration of only Solem's first criterion."  And, according to Judge Barron, ultimately judges "have no choice but to approve mandatory 'forever' sentences under § 924(c) so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin." 

After intricate analysis of these and other Eighth Amendment and related precedents, this remarkable opinion (which, again, was joined by all the First Circuit judges), concludes this way:

Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind.  He does so not because the legislature had authorized its imposition and a judge had then considered all of the aggravating and mitigating circumstances and determined that this sentence was appropriate.  He does so only because Congress has been deemed to have made a blanket judgment that even an offender like Rivera -- who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim -- should have no hope of ever living free.  And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself punishes nearly the same or seemingly worse conduct more leniently.

Almost three decades have now passed since the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmarks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to address a newly concerning crime problem.  In those intervening decades, virtually no jurisdiction has been willing to replicate that state's experiment.  In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it.  And yet the Harmelin concurrence still controls.

In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under § 924(c) that -- due to their cumulative length -- necessarily results in the imposition of a mandatory sentence of life without parole.

February 28, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Trump White House expresses opposition to sentencing reform part of SRCA of 2017

Given that the Sentencing Reform and Corrections Act of 2015 could not even get very far in Congress despite the support of then of the President and Attorney General, I have never been all that optimistic about the prospects for the 2017 version of this bill.  Attorney General Sessions has been against it from the get-go, and this new report from the The Hill indicates that the White House has now put its opposition forward.  Here are the details:

The White House on Tuesday said it sees no path forward for legislation to reduce mandatory minimum prison sentences, instead throwing its support behind measures aimed at reducing recidivism rates. "The conclusion we reached was that, at this time, it's appropriate for us to go forward with prison reform," a senior administration official said.

The White House's position represents a major setback for Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who has been working to move his criminal justice reform bill through Congress after it stalled last session.

The Senate Judiciary Committee advanced the Sentencing Reform and Corrections Act to the floor by a 16-5 vote earlier this month over the objections of Attorney General Jeff Sessions and a few GOP members on the committee....

A senior White House official said the administration respects Grassley’s efforts, but sees no path forward for sentencing reform. "The sentencing reform part still does not have a pathway forward to getting done," the official said. "And so what we see now is an environment where the prison reform does have enough support to get done. And we think that by maybe doing this in smaller bits and pushing the prison reform now, we think this has a better chance of getting done."

A second official said the White House is instead focused on prison reform legislation like Rep. Doug Collins's (R-Ga.) bipartisan Prison Reform and Redemption Act. That bill, co-sponsored by nine Democrats and seven Republicans, allows prisoners to serve the final days of their sentences in halfway houses or home confinement if they complete evidence-based programs while in prison that have been shown to reduce recidivism rates.

Prison programming could include everything from job and vocational skills training to education and drug treatment. "I think that that is a good basis that we can look at and start with," the second senior White House official said of Collins's bill. “I do think that as the conversation continues over the coming weeks, there might be additions, changes, amendments, and we want to go through the regular order committee processes. But I do think that that's a big piece of legislation to look at as a starting point."

A source familiar with the talks with the White House told The Hill in January that Collins’s bill is expected to be marked up in the House Judiciary Committee before the first quarter ends in April. Senate Majority Whip John Cornyn (R-Texas) and Sen. Sheldon Whitehouse (D-R.I.) have introduced similar legislation in the Senate.

Taylor Foy, a spokesman for Grassley, said the chairman is focused on passing sound policy, not the path of least resistance. "Bipartisan support continues to grow in the Senate for comprehensive criminal justice reform, which includes providing additional discretion for judges at sentencing for lower level, non-violent drug crimes," he said. "Chairman Grassley’s broadly bipartisan Sentencing Reform and Corrections Act is cosponsored by nearly a quarter of the Senate. Our office continues to have productive conversations with the White House on this issue.”

A senior White House official said President Trump is planning to sign an executive order Wednesday to revamp the Federal Reentry Council and move it from the Department of Justice to the White House. Under the Obama administration, the interagency council worked to reduce recidivism and improve employment, education, housing, health and child welfare outcomes, according to the Department of Justice website.

The White House said Tuesday it sent a list of legislative principles for reform efforts to Congress. In addition to effectively using government resources to reduce crime and incentivize re-entry programs, the White House wants Congress to expand access to prison work programs. It also wants lawmakers to evaluate and facilitate public and private partnerships that improve pre- and post-release employment opportunities for inmates.

I am disappointed but not especially surprised that the White House is indicating that it is only willing to support a more modest prison reform bill rather than all the significant sentencing reforms that appear in the SRCA.  Prez Trump has to date only voiced support for prison reform efforts, and he has formally and informally talked up a "tough and tougher" approach to sentencing drug dealers.  Those eager to see reductions in federal drug sentences should likely be grateful many leading GOP legislators favor such reforms because otherwise Prez Trump might well be actively advocating for enhancing the severity of federal drug sentences.  

I have long been saying that, for various reasons and for lots of offenders, significant prison reform could end up even more consequential than some proposed sentencing reform.  Thus, I sincerely hope that everyone interested in the kinds of reforms that the SRCA represent will be prepared to get behind the Prison Reform and Redemption Act (PRRA) and work to make it as effective and expansive and consequential as possible.  Some version of the PRRA looks now to be the only significant federal criminal justice reform proposal with a realistic chance of becoming law in 2018. 

It has already been nearly a decade since we have seen anything close to significant legislative reforms benefiting federal defendants or prisoners. (I am thinking of the 2010 Fair Sentencing Act as the last big legislative change, though the 2014 "Drugs-2" guideline amendment was also a very big deal.)  I want to believe that the passage of something like the PRRA could help create new momentum for a range of reforms bog and small in Congress and elsewhere, and so the fact that the White House is endorsing some reform efforts is still encouraging despite its discouraging view of the SRCA.

A few prior related posts:

February 28, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

New Buried Alive Project taking on LWOP sentences for federal drug offenses

An important new effort to take a hard look and extreme federal sentences recent launched under a (great) fitting name: The Buried Alive Project.  Here is how the project's website explains its basic mission:

The Buried Alive Project works to raise awareness and help eliminate life without parole sentences for federal drug offenses through transformative legislation and litigation.  We use statistics and stories to educate the public and amplify the voices of those directly impacted.  The human element is rarely addressed but necessary to drive change needed to reform the criminal justice system.  By engaging people across the country, this project will harness America’s collective interest, passion, and direct experience of this issue into concrete change.

The Dallas Morning News has this Q&A with Brittany Barnett, a lawyer who help found the Buried Alive Project.  Here is an excerpt:

Who are some of the individuals who remain buried alive by this sentencing?

Alice Johnson, a 62-year-old grandmother and great-grandmother from Memphis, is serving her 21st year of a life without parole sentence for her role in a non-violent drug conspiracy.  Like Sharanda [Jones], this is Ms. Alice's first ever conviction — felony or otherwise. Absolutely no aspect of her offense was violent.

Ms. Alice, who has served one-third of her life in prison, has an outstanding record of achievement in prison and works diligently to prove she is deserving of a second chance at life. A life without parole sentence demands a special kind of courage — the ability to act with grace and dignity in a totally degrading situation. Ms. Alice epitomizes this special kind of courage.

Keeping Alice in prison for the rest of her life serves no useful purpose to her or society. We cannot barter human lives for sake of appearing tough on crime. It is an utter waste of human life and taxpayer dollars.

February 28, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, February 27, 2018

"The State of the Death Penalty Decline"

The title of this post is the title of this notable new paper now available via SSRN authored by Brandon Garrett and Ankur Desai.  Here is the abstract:

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s.  In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty.  What explains this remarkable and quite unexpected trend?

In this Article, we present new analysis of state-level legislative changes that might have been expected to impact death sentences.  First, life without parole (LWOP) statutes, now enacted in nearly every state, might have been expected to reduce death sentences because they give jurors a non-capital option at trial.  Second, legislatures have moved, albeit at varying paces, to comply with the Supreme Court’s holding in Ring v. Arizona, which requires that the final decision in capital sentencing be made not by a judge, but by a jury.  Third, states at different times have created state-wide public defender offices to represent capital defendants at trial.  In addition, the decline in homicides and homicide rates could be expected to contribute to the decline in state-level death sentencing.

We find that contrary to the expectations of many observers, changes in the law such as adoption of LWOP and jury sentencing, did not consistently or significantly impact death sentencing. The decline in homicides and homicide rates is correlated with changes in death sentencing at the state level.  However, this Article finds that state provision of capital trial representation is far more strongly and robustly correlated with reduced death sentencing than these other factors.  The findings bolster the argument that adequacy of counsel has greater implications for the administration of the death penalty than other legal factors.  These findings also have implications beyond the death penalty and they underscore the importance of a structural understanding of the Sixth Amendment right to counsel in our system of criminal justice.

February 27, 2018 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (14)

SCOTUS finally resolves Jennings v. Rodriguez, ruling Ninth Circuit erred when deciding detained aliens have a statutory right to periodic bond hearings

The Supreme Court granted cert in Jennings v. Rodriguez nearly two years ago, but the case got set for re-argument this Term and now has finally resulted in an opinion concerning certain procedural rights for detailed aliens.  The full Jennings opinion is lengthy and intricate, and the opinion for the Court authored by Justice Alito sets up the discussion this way:

In this case we are asked to interpret three provisions of U.S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings.  All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention.  But by relying on the constitutional-avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue.

Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems.  But a court relying on that canon still must interpret the statute, not rewrite it.  Because the Court of Appeals in this case adopted implausible constructions of the three immigration provisions at issue, we reverse its judgment and remand for further proceedings.

I believe the context and content of the majority's ruling likely mean the Jennings decision will not have many big implications outside the immigration detention setting. But Justice Breyer's lengthy dissenting opinion discusses bail and due process more broadly, and his closing sentiments highlights why a ruling the other way in Jennings might have been significant for a broad array of criminal defendants:

The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required.  Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail.  Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings.  I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Circuit imposed.

The bail questions before us are technical but at heart they are simple.  We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.”  We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation.  And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail.  It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right.  I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail.  I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.

February 27, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Monday, February 26, 2018

Split California Supreme Court holds 50-year sentence for juve kidnapper violates the Eighth Amendment after Graham

This afternoon, the Supreme Court of California issued a 93-page opinion in California v. Contreras, No. S224564 (Cal. Feb. 26, 2018) (available here), which extends the limits that the Supreme Court's Eighth Amendment ruling in Graham places on juvenile sentencing for non-homicide crimes. Here is how the majority opinion, authored by Justice Liu, gets started:

Defendants Leonel Contreras and William Rodriguez were convicted in a joint trial of kidnapping and sexual offenses they committed as 16 year olds. Rodriguez was sentenced to a term of 50 years to life, and Contreras was sentenced to a term of 58 years to life.  We granted review to determine whether the sentences imposed on these juvenile nonhomicide offenders violate the Eighth Amendment as interpreted in People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero) and Graham v. Florida (2010) 560 U.S. 48 (Graham).  We hold that these sentences are unconstitutional under the reasoning of Graham.

The lead dissenting opinion, authored by Chief Justice Cantil-Sakauye, gets started this way:

I respectfully dissent. The majority’s erroneous interpretation and extension of Graham v. Florida (2010) 560 U.S. 48 (Graham) yield a result the Graham court did not intend — the categorical condemnation of all sentences in which juvenile offenders convicted of nonhomicide crimes will serve a term of 50 years or greater. At the same time, the majority fails to properly account for legislation and regulations that afford defendants William Rodriguez and Leonel Contreras an initial opportunity for parole no later than when they reach the age of 60.  These measures take defendants’ sentences outside of Graham’s purview even under the majority’s mistaken approach to that decision. Defendants’ sentences do not violate the Eighth Amendment to the United States Constitution, and I would so hold.

Because this ruling appears to rest squarely on application of the Eighth Amendment of the US Constitution rather than on the parallel provision in article I, section 17 of the California Constitution, it would seem the state of California could seek to appeal this expansive application of the Graham ruling to the US Supreme Court. It will be interesting to see if California pursues an appeal and what might become of it were the state to do so.

February 26, 2018 in Assessing Graham and its aftermath, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

At just what level of Dante's Inferno does modern ACCA jurisprudence reside?

Dante_s_inferno_by_somnium_maris-d68js14The silly question in the title of this post is my silly reaction to a not-so-silly ruling from a Fourth Circuit panel today flagged for me by a helpful reader.  I will get to that ruling in a minute, but first I must spotlight this website's helpful explanation of the circles of hell set forth in Dante's Inferno:

The Levels of Hell

In Dante's Inferno, Hell is described as having 9 different levels, or circles, each lower than the last.  As one descends into the depths of hell, he comes closer to the 9th circle where Satan himself resides.  Each level of hell is reserved for different types of sinners, and different punishments are inflicted on the damned depending on the nature and severity of their sin.  The greater their sin, the lower the level to which they are condemned to spend eternity.

Notably, the "seventh level of hell is reserved for those who are guilty of violence, whether it be against themselves, property, nature, or other people."  I suppose that would be the fitting level for locating the modern federal court jurisprudence over application of the Armed Career Criminal Act because what is typically debated within this jurisprudence is whether a defendant's prior conviction qualities as a "violent felony." 

But, in referencing Dante's Inferno, I am really thinking about federal criminal practitioners and federal judges who must feel like they are dropping through various levels of hell as they sort through various intricate precedents to try to figure out what is and what is not a "violent felony" for ACCA purposes.  Last week I noted here a big split Fifth Circuit en banc ruling holding that Texas burglary convictions do not serve as predicates for the Armed Career Criminal Act.  Today, it is a Fourth Circuit panel ruling that has my ACCA head hurting; US v. Middleton, No. 16-7556 (4th Cir. Feb. 26, 2018) (available here), gets started this way:

Jarnaro Carlos Middleton was sentenced as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).  Middleton challenges the district court’s determination that his prior conviction for South Carolina involuntary manslaughter qualifies as a violent felony under the ACCA.  Due to the idiosyncrasies of the Supreme Court’s “categorical approach,” the ultimate issue in this case is whether selling alcohol to a minor involves the requisite use of violent force.  We conclude that it does not and reverse.

Critically, there is no suggestion in this opinion that Jarnaro Carlos Middleton's conviction for involuntary manslaughter had anything to do with selling alcohol to a minor.  But a 1992 opinion of the Court of Appeals of South Carolina upholds an involuntary manslaughter conviction involving selling alcohol to a minor, and that fact ends up shaping whether Jarnaro Carlos Middleton faces a 15-year statutory mandatory minimum or a 10-year statutory mandatory maximum for the federal crime of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).  Somewhere Franz Kafka (as well as Dante Alighieri) is blushing.  And if the realities of the majority opinion does not whet your ACCA appetite, Middleton comes with a partial concurrence that starts this way:

The majority concludes that a conviction for South Carolina involuntary manslaughter does not categorically qualify as a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i).  While I agree with that conclusion, I hesitate to join the majority’s analysis.  In my view, our recent decisions in In re Irby, 858 F.3d 231 (4th Cir. 2017), and United States v. Reid, 861 F.3d 523 (4th Cir. 2017), undermine the majority’s reasoning that South Carolina involuntary manslaughter can be committed with de minimis force and by simply causing injury without using force.  Nevertheless, I would hold that South Carolina involuntary manslaughter cannot be an ACCA predicate because, although the ACCA force clause requires a higher degree of mens rea than recklessness, an individual can be convicted of involuntary manslaughter in South Carolina based on reckless conduct.  Therefore, while I write separately as to Part II.B, I concur in part and concur in the judgment reversing the denial of habeas relief.


February 26, 2018 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)

Alabama joins Ohio as only modern state to truly botch an execution

As long time readers know, I try to draw a distinction between ugly and botched executions: ugly executions are those that do not go smoothly, but still result in the condemned prisoner ending up dead (as in Oklahoma in 2014); botched execution are those that involve prison official actively seeking to complete an execution and ultimately failing.  Leaving aside a botched electrocution in Louisiana in the 1940s, my own state of Ohio had the distinction of being the only jurisdiction with a modern botched execution history and, as noted here, has had two inmates return to death row after failed lethal injection attempts.

But now, as this NBC News piece details, Alabama is clearly a new player in this sad universe as details of its execution efforts last week are emerging.  The press report is headlined "Lawyer describes aborted execution attempt for Doyle Lee Hamm as ‘torture’," and here are some details (as well as a reminder Ohio is still beating Alabama in botched executions) :

An Alabama execution team left a death-row inmate with more than a dozen puncture marks in his legs and groin and may have penetrated his bladder and femoral artery before the lethal injection was called off, the prisoner's attorney said Sunday. "This was clearly a botched execution that can only be accurately described as torture," attorney Bernard Harcourt said in a statement after a doctor examined his client, convicted murderer and cancer survivor Doyle Lee Hamm, in prison.

State officials did not respond to a request for comment following the examination. Last week, they said that after the execution started late Thursday because of last-minute appeals, the team wasn't sure it could find a good vein before the death warrant's midnight expiration. "I wouldn't necessarily characterize what we had tonight as a problem," Corrections Commissioner Jeff Dunn told reporters at the time.

Afterward, Harcourt went to federal court and convinced a judge to permit a doctor of his choosing to examine Hamm, who has been on death row for 30 years for the 1987 murder of a motel clerk. The attorney said that while Hamm was strapped to the gurney, the IV team "simultaneously worked on both legs at the same time, probing his flesh and inserting needles."

"The IV personnel almost certainly punctured Doyle’s bladder, because he was urinating blood for the next day," he said. "They may have hit his femoral artery as well, because suddenly there was a lot of blood gushing out. There were multiple puncture wounds on the ankles, calf, and right groin area, around a dozen." During the execution, Hamm "was lying there praying and hoping that they would succeed because of the pain, and collapsed when they took him off the gurney," Harcourt said. In addition to the puncture marks, Hamm has bruising and swelling in his groin and pain from his abdomen to upper thigh, the lawyer said. He was still limping on Sunday....

Before Thursday, Harcourt had warned that due to Hamm's history of drug abuse and his illnesses, it would be impossible to find good veins to deliver the deadly drugs. A judge ruled the execution could proceed as long as the IV wasn't inserted in Hamm's arms. The U.S. Supreme Court, with three justices dissenting, then declined to stop the lethal injection.

Prison officials have given few details about what went on in the death chamber before Hamm got a reprieve. Dunn told reporters Thursday that he did not think the trouble the team had finding a vein would prevent the state from killing Hamm in the future.  "The only indication I have is that in their medical judgement it was more of a time issue, given the late hour," the commissioner said.

Harcourt wanted to examine the execution chamber and the notes prison workers took during the procedure, but the judge turned him down.  The judge did, however, order the Department of Corrections to preserve the notes and any other material from the execution try, including the clothing Hamm was wearing.

Hamm is not the first inmate to survive an execution attempt because of bad veins.  Three months ago, Ohio called off the execution of Alva Campbell after the medical team tried for 30 minutes to find an access point without success.  And in 2009, another Ohio inmate, Romell Broom, was spared after the execution worked for two hours to insert a needle. In appeals, he argues a second attempt would constitute cruel and unusual punishment.

February 26, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

"Divided Justice: Trends in Black and White Jail Incarceration 1990-2013"

The title of this post is the title of this notable new report released today by the Vera Institute of Justice.  This Vera webpage provides this overview and a key takeway:


Recent data analyses on jail incarceration — taken from Vera’s Incarceration Trends tool — reveal that although significant racial disparities still exist between black and white jail incarceration rates, incarceration rates for black people are declining, while rates for white people are rising.  This report dives into the data on black and white incarceration trends from 1990 to 2013, and poses several questions for further exploration that might explain why these rates are shifting.  However, the report also argues that we need more data to fully understand the causes and consequences of racial disparities in incarceration — and to begin enacting more race-conscious jail reduction efforts.

Key Takeaway

While black incarceration rates have declined — and white incarceration rates have risen — over the past several decades, the lack of complete and accurate data prevents effective analyses of the causes and drivers of these trends and on racial disparities more broadly in the justice system.

February 26, 2018 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

SCOTUS takes up Alabama case concerning competency to be executed while again turning away post-Hurst capital challenges

The US Supreme Court issued this order list this morning, and capital punishment followers will find a few SCOTUS cert decisions of note.  First, the Court granted certiorari in Madison v. Alabama, No. 17-7505, and the docket number here is quite important because Vernon Madison had two notable cert petitions pending: Madison v. Alabama, 17-7505, which was granted raises asked whether Alabama may "execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense?";  Madison v. Alabama, 17-7535, which was denied raised the issue of whether Alabama could move forward with the execution of a defendant whose death sentence result from the state's now-abolished practice of judicial override.

The death sentencing procedural issue that the Supreme Court decided not to take up in Vernon Madison's case is, of course, yet another off-shoot of what I have long called the "post-Hurst hydra."  After the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe the multi-headed, snake-like litigation destined to develop in various ways in various courts as state and federal judges tried to make sense of just what Hurst must mean for past, present and future capital cases.  I am further reminded of that hydra because today's SCOTUS order list concluded with two short dissents from the denial of certiorari authored by Justices Breyer and Sotomayor in two Florida capital cases.  Justice Sotomayor's dissent is a bit longer and joined by Justice Ginsburg and includes these passages:

Dale Middleton and Randy Tundidor were sentenced to death under a Florida capital sentencing scheme that this Court has since declared unconstitutional.  See Hurst v. Florida, 577 U. S. ___ (2016).  Relying on the unanimity of the juries’ recommendations of death, the Florida Supreme Court post-Hurst declined to disturb the petitioners’ death sentences, reasoning that the unanimity ensured that jurors had made the necessary findings of fact under Hurst.  By doing so, the Florida Supreme Court effectively transformed the pre-Hurst jury recommendations into binding findings of fact with respect to the petitioners’ death sentences.

Having so concluded, the Florida Supreme Court continually refuses to grapple with the Eighth Amendment implications of that holding.  If those then-advisory jury findings are now binding and sufficient to satisfy Hurst, petitioners contend that their sentences violate the Eighth Amendment because the jury instructions in their cases repeatedly emphasized the nonbinding, advisory nature of the jurors’ role and that the judge was the final decisionmaker.  This Court has unequivocally held “that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U. S. 320, 328–329 (1985).

February 26, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Sunday, February 25, 2018

"The Perverse Power of the Prosecutor"

The title of this post is the title of this notable new commentary authored by John Pfaff in the journal Democracy. The piece asks this question in a subheadline: "How responsible are prosecutors for holding back progressive criminal justice reform?". And here is how it starts:

One of the more important shifts in criminal justice reform over the past five or so years has been a growing awareness of just how powerful and influential prosecutors truly are. Perhaps startled to find themselves under such attention after decades of little to no scrutiny, prosecutors are now pushing back.  One common rebuttal prosecutors make is that they don’t actually have that much power.  It is the legislature, they argue, which passes the laws and thus really calls the shots.  Prosecutors simply impose what the legislature enacts.

Such claims, however, are quite disingenuous, since they conveniently overlook one of the most important sources of prosecutors’ power: their oversized influence over the legislative process.  District attorneys are not passive players in the politics of crime, sitting idly by awaiting their orders from on high.  In states from Pennsylvania to Louisiana to California, district attorneys aggressively, and effectively, lobby against reforms they dislike and for new laws that they do.  Louisiana recently adopted an expansive criminal justice reform bill, but the final version was significantly watered down from the original proposal, almost entirely due to aggressive and effective lobbying by the state’s district attorneys.  And in Pennsylvania the House of Representatives recently passed a bill (which still languishes in the Senate) reinstating drug-focused mandatory minimums that had been invalidated by the state’s supreme court; despite a majority of voters of all ideological stripes opposing the bill, it passed unanimously thanks to the concerted efforts of the state’s prosecutors.

In other words, as reformers start to pay closer attention to the power of prosecutors, they need to keep their eyes not just on how prosecutors have driven up incarceration rates in their day-to-day decisions — like deciding how many people to charge with felony charges or what type of sentence to impose on them during plea bargaining — but also on how they shape the broader politics of criminal justice.  Many former prosecutors are now judges and legislators, and current district attorneys frequently work hard to impose tougher laws and to stifle reform.  Regulating prosecutors will require looking at not just their direct powers, but their significant indirect political influence as well.

February 25, 2018 in Who Sentences? | Permalink | Comments (11)

Prez Trump reportedly "would love to have a law to execute all drug dealers here in America"

The quoted portion of the title of this post comes from this new Axios report by Jonathan Swan headlined "Trump privately talks up executing all big drug dealers." The piece is notable for more than just the death penalty talk, and here are extended excerpts:

In Singapore, the death penalty is mandatory for drug trafficking offenses.  And President Trump loves it.  He’s been telling friends for months that the country’s policy to execute drug traffickers is the reason its drug consumption rates are so low.  "He says that a lot," said a source who's spoken to Trump at length about the subject. "He says, 'When I ask the prime minister of Singapore do they have a drug problem [the prime minister replies,] 'No. Death penalty'."

But the president doesn't just joke about it. According to five sources who've spoken with Trump about the subject, he often leaps into a passionate speech about how drug dealers are as bad as serial killers and should all get the death penalty.  Trump tells confidants a softer approach to drug reform — the kind where you show sympathy to the offenders and give them more lenient sentences — will never work. He tells friends and associates the government has got to teach children that they'll die if they take drugs and they've got to make drug dealers fear for their lives.

Trump has said he would love to have a law to execute all drug dealers here in America, though he's privately admitted it would probably be impossible to get a law this harsh passed under the American system.

Kellyanne Conway, who leads the White House's anti-drug efforts, argues Trump's position is more nuanced, saying the president is talking about high-volume dealers who are killing thousands of people. The point he's making, she says, is that some states execute criminals for killing one person but a dealer who brings a tiny quantity of fentanyl into a community can cause mass death in just one weekend, often with impunity.

Trump may back legislation requiring a five-year mandatory minimum sentence for traffickers who deal as little as two grams of fentanyl.  Currently, you have to deal forty grams to trigger the mandatory five-year sentence. (The DEA estimates that as little as two milligrams is enough to kill people.)...

Conway told me this kind of policy would have widespread support. “There is an appetite among many law enforcement, health professionals and grieving families that we must toughen up our criminal and sentencing statutes to match the new reality of drugs like fentanyl, which are so lethal in such small doses,” she said. "The president makes a distinction between those that are languishing in prison for low-level drug offenses and the kingpins hauling thousands of lethal doses of fentanyl into communities, that are responsible for many casualties in a single weekend."

Trump wants to get tough on drug traffickers and pharmaceutical companies. Stay tuned for policy announcements in the not-too-distant future. Trump and some of his advisers are discussing whether they might adopt other aspects of Singapore's "zero tolerance" drug policies, like bringing more anti-drug education into schools.

Notably, Section 109 of the Sentencing Reform and Corrections Act of 2017 that just recently passed through the Senate Judiciary Committee includes a five-year mandatory consecutive term of imprisonment for dealing fentanyl.  So the report that "Trump may back legislation requiring a five-year mandatory minimum sentence for traffickers who deal as little as two grams of fentanyl" may be a reference to this provision of the SRCA or it might be a reference to another piece of proposed legislation.  Either way, it would seem that Prez Trump is now inclined to embrace a punitive mind-set for dealing with the nation's drug problems (though, as this old press story reveals, he once previously said "you have to legalize drugs to win that war ...  to take the profit away from these drug czars.")

February 25, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

What a difference a DA can make: new Philly District Attorney taking new approach to juve lifer resentencings

This recent local article, headlined "Why Philly DA Krasner could let 180+ juvenile lifers out of prison early," reports on the impact the recently elected Philadelphia prosecutor is having local cases demanding resentencing in the wake of the Supreme Court's Eighth Amendment ruling in Miller. Here are the details:

Philadelphia has sentenced more teens to life in prison with no chance of parole than any other jurisdiction in the world — and that meant it had the largest number to resentence after the U.S. Supreme Court two years ago ruled that its 2012 ban on mandatory life-without-parole sentences for minors must be applied retroactively.

As of this week, 127 out of approximately 315 juvenile lifers from Philadelphia have been resentenced. For those whose cases are still in process, the election of District Attorney Larry Krasner appears to have immediately and dramatically changed the outlook.

It means new deals are already on the table for 17 who had rejected offers made under the previous District Attorney’s Office, which mostly stuck close to current state sentencing guidelines that set minimums at 35 years to life for first-degree murder and 30 to life for second-degree murder. The latest offers make all but two of the lifers eligible for parole right away; it would also keep them all on parole for life. Some set minimums as low as 21 years for first-degree murder.

As for the remaining resentencings, Krasner said he intends to consider each case individually. Rather than relying on the sentencing guidelines, he said he would look to the historical, national and international context that has made Pennsylvania second in the nation in imposing life-without-parole sentences. “We are being consistent as we do our duty, which is to consider all these unique factors in resentencing,” he said. “It’s worth bearing in mind that Pennsylvania is an extreme outlier in excessive sentencing, and the United States is an extreme outlier in excessive sentencing.”

What’s unclear, however, is whether a Philadelphia judge will sign off on those agreements. At a recent status hearing, Common Pleas Judge Kathryn Streeter-Lewis, who is in charge of approving agreements in juvenile-lifer cases, asked the district attorney to submit briefs defending the deals’ legality in light of precedent-setting rulings by Pennsylvania’s appellate courts in the case of Qu’eed Batts, an Easton man who was 14 when he participated in a gang-related execution. In his case, the court acknowledged each judge has discretion to craft individualized minimum sentences, but said “sentencing courts should be guided” by current state law. “I understand that there is a different administration,” she said, but added, “Some of these [offers] are very much below the guidelines the decision required. … I’m going to need some reasons.”

One such case involved Avery Talmadge, who’s been locked up 22 years and was offered a time-served deal that — in a departure from past practice for the District Attorney’s Office — contemplates whether the original conviction was even appropriate. “The case was a street fight that turned into a shooting,” Assistant District Attorney Chesley Lightsey told Streeter-Lewis. “The [DAO’s internal resentencing] committee believes this is closer to a third-degree, though it was a first-degree conviction.” She said he also had an excellent prison record, reflecting the Supreme Court’s underlying rationale that kids, while impulsive and immature, also have a great capacity for rehabilitation.

Bradley Bridge of the Defender Association, which represents many of the lifers, believes the new offers will withstand judicial scrutiny — and that of the public. Krasner, he said, “sees the dangers of overincarceration and has come up with a meaningful solution.  He has reevaluated offers and, consistent with the protection of the public, has recognized that new offers can take into account to a more significant degree the juvenile’s growth while in prison.”...

Krasner said offers he’s approved so far have included minimums ranging between 40 years and just under 20 years.  He declined to specify a floor for minimum sentences. “I see no arbitrary number. We are approaching this the way the Anglo-American court system has approached these for centuries: on a case-by-case basis.”

February 25, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

"Solitary Troubles"

The title of this post is the title of this notable new paper authored by Alex Reinert available via SSRN. Here is the abstract:

Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. In recent years, the use of extreme isolation in our prisons and jails has been questioned by correctional officials, medical experts, and reform advocates alike.  Yet for nearly the entirety of American history, judicial regulation of the practice has been extremely limited.  This Article explains why judges hesitate to question the use of solitary confinement, while also providing a path forward for greater scrutiny of the practice.

February 25, 2018 in Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (1)

Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz

The New York Times has this lengthy new article exploring some particulars and players involved in the possible capital prosecution in Florida of teenage mass murderer Nikolas Cruz. I recommend the full piece, headlined "After a Massacre, a Question of One More Death: The Gunman’s," and here are excerpts:

Among the suspects on the list of the country’s 10 worst mass shootings, Nikolas Cruz is alone in one thing: He was taken alive.  His arrest raises the rare prospect of a death penalty trial for a massacre, a huge undertaking with far-reaching consequences for all involved. Some would not be satisfied without an execution, while for others the trial itself would bring anguish.

The chief prosecutor here in Broward County has said that the killing of 17 people at a high school on Valentine’s Day “certainly is the type of case the death penalty was designed for.”  A trial may be the only opportunity to lay bare all of the facts.  But it would also likely be televised and followed by lengthy appeals, provoking years of public agony, as well as sustained attention for Mr. Cruz, who has already confessed.

Over years of mass shootings, from a university campus in Huntsville, Ala., to a movie theater in Aurora, Colo., prosecutors have struggled with this conundrum, testing political winds, spending days talking with survivors and families of the dead and reflecting on the intersection between morality and the oath of office.

Even Broward County’s public defender, whose office is representing Mr. Cruz and who wants to save his life, readily acknowledges the wrenching emotions that are part of a case that is only beginning. “If it were my daughter, I would want to personally kill my client, make no mistake about it,” said Howard Finkelstein, the public defender, an elected position. Later, though, he said that perhaps he would “try to go on and build a future. I don’t know what I would do. I just don’t know.”

Already, Mr. Finkelstein’s office has offered a way to avoid a trial: Mr. Cruz’s guilty plea in exchange for a punishment of 17 consecutive life sentences without parole. But Mr. Finkelstein recognizes that for some victims, that might not be enough: “I’m a father. I don’t know whether I would take my offer.”

Relatives of the victims of the massacre at Marjory Stoneman Douglas High School in Parkland, Fla., have not yet made their feelings about the death penalty widely known.  And it is not clear where Michael J. Satz, Broward County’s prosecutor, is in his deliberations.  He declined to comment.  Mr. Satz, who was elected state attorney when Gerald R. Ford was president, is regarded as a hard-edged prosecutor, but he is still likely to consider an array of factors, including the odds of persuading a jury.

Although jurors condemned men for massacres in Charleston, S.C., where nine churchgoers were killed, and at Fort Hood, Tex., where there were 13 fatalities, they spared the life of the Aurora gunman who killed 12, citing his history of mental illness. In the Huntsville shooting, the prosecutor said his conversations with the families of the victims were a reason he did not seek execution.

George Brauchler, the lead prosecutor in the Aurora case, said he had engaged in “serious soul-searching” about whether to pass up a plea deal and seek the death penalty. “This is as much a moral decision as it is a decision about justice, and that is not an easy decision to make,” he said....

A crucial consideration in potential capital cases, prosecutors and defense lawyers said, is whether failing to seek the death penalty in a mass shooting would set a precedent, making it more difficult to seek it in cases with lower death tolls. In Charleston, the federal government had a sharp internal debate, and met with resistance from family members of victims, before it decided to seek the death penalty against Dylann S. Roof....

For defense lawyers seeking to spare their client’s life, an appeal to efficiency is one of the few cards they can play — particularly when, as Mr. Finkelstein says, the “case is not a whodunit.” Expecting that Mr. Satz will seek the death penalty, Mr. Finkelstein and his deputies are already preparing for a “long, arduous legal battle” and intend to concentrate on jury selection. Because juries must unanimously recommend death sentences in Florida, a single juror could prevent execution. Mr. Finkelstein said the defense would likely focus on mental health and the accumulation of failures by government agencies to stop Mr. Cruz from opening fire....

In Florida, where 347 people are on death row after an execution on Thursday night, state law spells out a roster of aggravating factors and mitigating circumstances that jurors may consider in capital cases.  Aggravating factors, at least one of which must be proven for someone to be eligible for a death sentence, include a finding that a defendant “knowingly created a great risk of death to many persons” or that a homicide was “committed in a cold, calculated and premeditated manner.”

Mitigating circumstances, like a defendant’s age and whether he or she was under the “influence of extreme mental or emotional disturbance” at the time of the crime, can legally tilt jurors toward a punishment of life in prison.  Mr. Finkelstein made plain that he is dreading any trial here, and not just for legal reasons. In his dimly lit office, he raspily declared a hope that “divine intervention” would persuade Mr. Satz to avoid a trial and an airing of the tragic details.

Prior related post:

February 25, 2018 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (2)

Saturday, February 24, 2018

Notable video from American Conservative Union: "Unshackled - America's Broken Justice System"

Speakers such as Prez Trump and the head of the NRA got the most attention at this year's annual Conservative Political Action Conference (CPAC) received the most attention, but Friday's CPAC agenda included a General Session panel titled "Second Chance: The Conservative Stance on Criminal Justice Reform" as well as a breakout sessions titled "Dignity for Incarcerated Women: Is it Really Necessary to Shackle Women in Labor?." I have been noting in recent years the intriguing criminal justice reform programming appearing on the CPAC agenda, and now I see that the Center for Criminal Justice Reform of the American Conservative Union Foundation has a notable new video with conservative leaders discussing why modern criminal justice reform is a core conservative concern:

February 24, 2018 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Friday, February 23, 2018

Interesting sentencing details as former Trump campaign official Rick Gates pleads guilty and faces significant prison time

In this post from October following their indictment, I highlighted that former campaign officials for Prez Trump, Paul Manifort and Rick Gates, could be facing very significant prison terms in light of the charges and potentially applicable sentencing guidelines. Today, as reported here by BuzzFeed News, "Rick Gates, a former Trump campaign aide and longtime associate of former Trump campaign chair Paul Manafort, pleaded guilty on Friday in the criminal case brought by special counsel Robert Mueller's office." And the BuzzFeed News report includes these interesting legal and practical sentencing particulars:

The two counts in the new criminal information each have a maximum penalty of five years in jail. According to Gates' plea agreement with the special counsel's office, he faces an estimated sentencing guidelines range of between 57 and 71 months in jail and a fine between $20,000 and $200,000; those numbers could change when the guidelines range is ultimately calculated, the judge noted.

Gates' lawyer Thomas Green told the judge that he reserved the right to argue for a lower sentence based on Gates' "disproportionate conduct" as compared to Manafort. Gates has agreed to cooperate with the special counsel's office. If prosecutors determine he has "provided substantial assistance," they have agreed to file a motion asking for a downward departure from the sentencing guidelines range. When Gates is sentenced, the government will dismiss the remaining counts in the original indictment as well as the new charges filed in Virginia.

As part of the plea deal, Gates agreed to delay his sentencing to give him time to cooperate. Asked how far out into the future the judge should set a deadline for the government to update the court on the status of the case, special counsel prosecutor Andrew Weissmann suggested three to four months. US District Judge Amy Berman Jackson set a deadline for a status report for May 14.

Gates spoke little during the plea hearing. He and Green declined to speak with reporters after the hearing as he exited the courthouse and got into a car.  He'll remain free pending sentencing, albeit subject to continued GPS monitoring and certain limits on his ability to travel beyond his home city of Richmond, Virginia.  He also had to agree to forfeit certain assets if he fled or failed to show up to court.

The folks at Lawfare have Gates's superseding criminal information and plea agreement now posted at this link. That agreement explains the ways in which the parties determine that "the applicable Guidelines Offense Level will be at least 25" which means the "estimated Sentencing Guidelines range is 57 months to 71." The plea agreement also speaks to potential departure arguments this way:

Your client agrees that, solely for the purposes of calculating the applicable range under the Sentencing Guidelines, a downward departure from the Estimated Guidelines Range set forth above is not warranted, subject to the paragraphs regarding cooperation below and the argument that the Guidelines do not adequately reflect the defendant's role in the offense.  Accordingly, you will not seek any departure or adjustment to the Estimated Guidelines Range set forth above, nor suggest that the Court consider such a departure or adjustment for any other reason other than those Specified above.  Your client also reserves the right to disagree with the Estimated Guideline Range calculated by the Office.  However, your client understands and acknowledges that the Estimated Guidelines Range agreed to by the Office is not binding on the Probation Office or the Court.  Should the Court or Probation Office determine that a different guidelines range is applicable, your client will not be permitted to withdraw his guilty plea on that basis, and the Government and your client will still be bound by this Agreement.

February 23, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (12)

Only one of three planned executions completed: Florida carries out death sentence, Texas Gov commutes at last minute, and Alabama misses deadline

As noted in this prior post, yesterday there were executions scheduled in Alabama, Florida and Texas. If all three had been carried out, it would have marked first time in eight years that three killers were all executed on the same day. But, and the press stories below detail, only Florida completed its planned execution:

Texas: "Gov. Greg Abbott commutes death sentence minutes before Bart Whitaker's scheduled execution":

Kent Whitaker was praying when he got the news: The governor had spared his son. In an unexpected last-minute decision, Gov. Greg Abbott granted clemency to the Sugar Land man slated for execution Thursday, just minutes before he was to be strapped to the gurney in Huntsville.

Thomas "Bart" Whitaker was sent to death row for targeting his own family in a 2003 murder-for-hire plot aimed at landing a hefty $1 million inheritance.

Florida: "Eric Branch's last words target governor, AG: 'Let them come down here and do it'":

Convicted murderer Eric Branch used his final moments before he was executed to make a political statement, falling into unconsciousness as he shouted "murderers" between blood-curdling screams on the execution gurney.

The state of Florida carried out the execution of Branch, 47, on Thursday evening at the Florida State Prison in Raiford — roughly 335 miles from where he abducted, sexually assaulted and killed University of West Florida student Susan Morris as she was leaving a night class in January 1993.

Branch, who was on death row for nearly 25 years, was pronounced dead of a lethal injection at 6:05 p.m. Central Standard Time.

Alabama: "Execution of Alabama inmate Doyle Lee Hamm called off"

Doyle Lee Hamm survived his date with the executioner Thursday, as Alabama was unable to begin the procedure before the death warrant expired at midnight.

It was after 11:30 p.m. when word came that the execution had been called off. Alabama Department of Corrections Commissioner Jeff Dunn said medical personnel had advised officials that there wasn't enough time to ensure that the execution could be conducted in a humane manner. However, Dunn declined to detail the exact medical factors behind the decision, and said he didn't want to characterize them as a problem.

Hamm, 61, was convicted of killing Cullman hotel clerk Patrick Cunningham in January 1987. Recent appeals in his case involved the question of whether cancer had left him healthy enough to be executed without excessive suffering. His advocates had argued that his veins were in such bad shape that it wouldn't be possible for the state to carry out its lethal injection protocol cleanly.

One of Hamm's attorneys, Bernard Harcourt, was among those waiting outside death row at Holman Correctional Facility near Atmore. Afterward, via Twitter, he speculated that "they probably couldn't find a vein and had been poking him for over 2 1/2 hours."

Also worth noting is that the Alabama inmate's appeals to the Supreme Court generated some comments from some Justices detailed in this order: Justice Breyer issued a short statement respecting the denial of a stay which spoke to the defendant's lengthy time on death row; Justice Ginsburg issued a dissent, which Justice Sotomayor joined, expressing concerns "about how Hamm’s execution would be carried out."  Since the execution was not carried out, it will be interesting to see now if and when courts get asked again to scrutinize Alabama's execution plans and protocols.

February 23, 2018 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (2)

Thursday, February 22, 2018

"A Pound of Flesh: The Criminalization of Private Debt"

The title of this post is the title of this notable new big ACLU report. Here part of its executive summary:

An estimated 77 million Americans — one in three adults — have a debt that has been turned over to a private collection agency. Thousands of these debtors are arrested and jailed each year because they owe money. Millions more are threatened with jail. The debts owed can be as small as a few dollars and can involve every kind of consumer debt, from car payments to utility bills to student loans to medical fees.  These trends devastate communities across the country as unmanageable debt and household financial crisis become ubiquitous, and they impact Black and Latino communities most harshly due to longstanding racial and ethnic gaps in poverty and wealth.

Debtors’ prisons were abolished by Congress in 1833 and are thought to be a relic of the Dickensian past.  In reality, private debt collectors — empowered by the courts and prosecutors’ offices — are using the criminal justice system to punish debtors and terrorize them into paying even when a debt is in dispute or when a debtor has no ability to pay.

The criminalization of private debt happens when judges, at the request of collection agencies, issue arrest warrants for people who failed to appear in court to deal with unpaid civil debt judgments. In many cases, the debtors were unaware they were sued or had not received notice to show up in court.  Tens of thousands of these warrants are issued annually, but the total number is unknown because states and local courts do not typically track these orders as a category of arrest warrants.

In a review of court records, the ACLU examined more than 1,000 cases in which civil court judges issued arrest warrants for debtors, sometimes to collect amounts as small as $28.  These cases took place in 26 states — Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Washington, and Wisconsin — and Puerto Rico and the Northern Mariana Islands.

Even without arrest warrants, the mere threat of jail can be effective in extracting payment — even if that threat is legally unfounded. In the case of debts involving bounced checks, private collection companies now have contracts with more than 200 district attorneys’ offices that allow them to use the prosecutor’s seal and signature on repayment demand letters.  It’s estimated that more than 1 million consumers each year receive such letters threatening criminal prosecution and jail time if they do not pay up.  But review of company practices has documented that letters often falsely misrepresent the threat of prosecution as a means of coercing payments from unknowing consumers.

February 22, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Florida Supreme Court finds that state's Miller fix statute to death with Eighth Amendment problems has Alleyne Sixth Amendment problem

The Florida Supreme Court issues an interesting ruling today dealing with juvenile sentencing in Williams v. Florida, No. SC17-506 (Fla. Feb 22, 2018) (available here). Here are the basics from the start of the ruling: 

This case is before the Court for review of the decision of the Fifth District Court of Appeal in Williams v. State (Williams II), 211 So. 3d 1070 (Fla. 5th DCA 2017).  In its decision, the Fifth District ruled upon the following question certified to be of great public importance:


Id. at 1073. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we hold that Alleyne requires a jury to make the factual finding, but conclude that Alleyne violations are subject to harmless error review. Where the error cannot be deemed harmless, the proper remedy is to resentence the juvenile offender pursuant to section 775.082(1)(b)2., Florida Statutes (2016).

As the opinion goes on to explain, the statute here was passed when Florida had to comply with the Supreme Court's Eighth Amendment Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The statute provides that a finding that "a juvenile offender actually killed, intended to kill, or attempted to kill the victim leads to a minimum forty-year sentence with a sentence review after twenty-five years — whereas a finding that the offender did not actually kill, intend to kill, or attempt to kill the victim results in there being no minimum sentence and a sentence review after fifteen years."

The Florida Supreme Court was unanimous here in concluding that this statute has to comply with Alleyne's Sixth Amendment ruling that jury trial rights extend to any fact that raises a binding minimum sentence.  Hard-core sentencing proceduralists might still want to check out the Court's discussion, especially because there is an interesting partial dissent that starts this way:

I agree with the majority that under Alleyne v. United States, 570 U.S. 99 (2013), the factual findings provided for in section 775.082(1)(b), Florida Statutes (2016), must be made by the jury and that the absence of such jury findings in this case requires reversal of the sentence imposed under section 775.082(1)(b)1. and resentencing in the trial court.  But I dissent from the majority’s direction regarding the remand, which requires imposition of the less severe sanction available under the statute.  Because the issue of the remedy on remand has not been briefed in this case, I would simply direct remand for resentencing rather than preclude jury proceedings that might result in imposition of the more severe sentence under the statute.

February 22, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

How many of the executions scheduled today in Alabama, Florida and Texas will be completed?

The question in the title of this post is prompted by this Reuters article which begins, "Alabama, Florida and Texas plan to execute inmates on Thursday and if carried out, it would be the first time in eight years that three people on death row have been executed on the same day."  Here is more about what could be a busy day in both courts and execution chambers:

But in each state there are reasons why the executions could be halted, including an unprecedented clemency recommendation in Texas, where all three of this year’s U.S. executions have been carried out.

In Florida, questions were raised about holding an execution based on a majority, not unanimous, jury decision. In Alabama, lawyers have said the death row inmate is too ill to be executed.

Alabama plans to execute Doyle Hamm, 61, at 6 p.m. local time for the 1987 murder of motel clerk Patrick Cunningham.

Hamm’s lawyers have said he has terminal cancer, adding years of intravenous drug use, hepatitis C, and untreated lymphoma have made his veins unstable for a lethal injection. However, a court-appointed doctor examined Hamm on Feb. 15 and found he had “numerous accessible and usable veins in both his upper and lower extremities,” according to court filings.

Texas plans to execute Thomas Whitaker, 38, for masterminding a 2003 plot against his family in which his mother Tricia, 51, and brother Kevin, 19, were killed.  His father Kent Whitaker was shot in the chest and survived.  The father, 69, a devout Christian and retired executive, has said he forgives his son and his family does not want him to be executed. In a clemency petition, he said if the death penalty is implemented, it would make his pain worse.

On Tuesday, the Texas paroles board in a unanimous decision recommended clemency, largely based on the request of a victim’s forgiving family.  Republican Governor Greg Abbott has final say, and has not yet announced if he plans to halt the execution.

Florida plans to execute Eric Branch, 47, for the 1993 murder of University of West Florida student Susan Morris. Lawyers for Branch appealed to the U.S. Supreme Court on arguments including that the court has previously blocked a Florida provision that allows executions for a non-unanimous jury decision and it should do so again in this case.

February 22, 2018 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

"These guidelines exist in some kind of middle universe that I don't understand..."

1204504745fullresThe title of this post is one of my (many) favorite lines appearing in this Supreme Court oral argument transcript from yesterday's proceedings in Rosales-Mireles v. United States.  The case addresses whether a (small) guideline error will usually satisfy the plain error standard for correction of an error raised only on appeal, and I highly recommend that sentencing fans read the entire transcript.  There are too many amusing and interesting flourishes throughout the transcript to cover them all here, but this one little passage from early in the second part of the argument that provides a flavor of the overall direction of Justices' approach to this case:

JUSTICE KAGAN:  Mr. Ellis [Assistant to the Solicitor General arguing for the prosecution], Justice Gorsuch, when he was a judge, wrote this opinion which I'm sure you've read many times, and I just want to quote one sentence from it and then ask you what you think about it because he basically, you know, suggests why you maybe lose.

This rev up to a question from Justice Kagan is only one of many part of the transcript that leads me to think basically, you know, the government is going to lose this case. Evan Lee in his SCOTUSblog preview of the Rosales-Mireles argument highlighted effectively why this case is sure to be an up hill climb for the government, and little in this transcript suggests otherwise.

I have not yet noted who spoke the line I have used in this title of this post, and I suppose at this point it would be fun to encourage readers to guess.  I suspect hard-core Court watchers with sentencing affinity may readily be able to figure out who said this, but arguably any and every Justice (and any and every judges and any and every practitioner) sometimes feels that, post-Booker, the guidelines exist in some kind of "middle universe." 

At the risk of making inappropriate suggestions, I do think the Justice who spoke this particular line might be able to engender a special kind of new fandom if in the future he were to suggest that the federal sentencing guidelines "exist in some kind of Middle Earth." With a single line, J.R.R. Tolkien fans might start showing up at US Sentencing Commission hearings as well as giving this Justice the kinds of adoration some colleagues get. And then my students will finally understand why I often walk around clutching the US Sentencing Guidelines Manual saying "My Precious."

UPDATE: I see that Evan Lee now has this "Argument analysis" up at SCOTUSblog under the heading "Justices hint at categorical approach to correcting forfeited Sentencing Guidelines errors." Here is how it starts:

Sometimes, an appellate court uses oral argument to help it decide who ought to win.  Other times, the justices know who will win, and oral argument becomes an opportunity for the judges to use counsel as a sounding board as to how the opinion should be written. W ednesday’s Supreme Court oral argument in Rosales-Mireles v. United States had the earmarks of the latter.

February 22, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Wednesday, February 21, 2018

Former federal judge explains how severe sentencing and mandatory minimums prompted his resignation

Last year I remember reading this local article about former US District Judge Kevin Sharp leaving the federal bench after only six years.  The former judge's complaints about mandatory minimum sentencing realities were partially spelled out in that article, but now I see this notable new Cato piece titled "Powerless on the Bench" which reprints Sharp's accounting for his decision.  I recommend the piece in full, and here are excerpts:

Like a lot of judges who take the bench, I had limited experience in criminal law.  Criminal law is fairly simple — much simpler than the tax code or some of the other things that I had done.  But it soon became the hardest thing I did on the bench.  In civil cases, my rulings generally concerned money.  But in criminal cases, when I said the “sentence is imposed as stated,” somebody was placed in handcuffs and led away by a U.S. marshal.

Early on, I sentenced a young man, Antonio, who was 27.  He was charged as a felon in possession of a firearm.  He had been convicted of two armed robberies at 17 years old.  At 27, Antonio is doing what we all hope a criminal defendant does after being convicted: he gets a job.  He is in contact with his family.  He does not do drugs . He does not drink.  But Antonio had been doing one thing that he should not have been.

Antonio was driving down the street and, without being too graphic, he and his girlfriend were engaged in an activity that caused him to cross slightly over the double-yellow line. The police saw it and pulled him over.  The police suspected his girlfriend was a prostitute, so they split Antonio and his girlfriend up and asked them questions. The police realized based on her answers that she in fact was Antonio’s girlfriend. Then, the police said, “OK, we are going to let you go.  Oh, by the way, do you mind if we search your car?” Antonio, forgetting that he had an unloaded pistol under the front seat of his car, responded, “No, go ahead.”

Antonio was charged with being a felon in possession of a firearm.  Because he was convicted as an adult in his prior crimes, his mandatory minimum sentence was 15 years.  I read his case and thought this could not be right.  Fifteen years? What are “mandatory minimums”?  I did not fully understand what they were at the time.  I spent the next several days trying to figure out how to get around the minimum sentence — it cannot be done.

Regrettably, I did what I had to do.  I sentenced Antonio to 15 years.  I thought to myself, “What in the world are we doing?  Why would the government take away my ability to fashion a fair sentence?  I know what a judge is supposed to consider in determining how to fashion a sufficient sentence.  What I have done is in no way, shape, or form an appropriate sentence.”

Several years later, I had the same conversation with myself.  This time, the case involved a 22-year-old kid, Chris Young.  He was caught up with a group of members of the Vice Lords, a gang known for running cocaine and crack through middle Tennessee.  Chris was not a member of this gang.  He was an aspiring rapper who would hang out with members of the Vice Lords because one of the gang members had a studio. He was occasionally asked to make crack, but he did not know how.

Chris was arrested as part of a 30-person indictment for drug conspiracy.  Chris was such a minor player in the drug conspiracy — he did not even know how to make crack.  I think the only reason the DEA arrested him was because he happened to be at a gas station when they took down the Vice Lords’ leader.  He was at the wrong place with the wrong group at the wrong time.  The only evidence showing Chris’s connection to the gang were tapes from their wiretaps where Chris is talking to the gang’s leader about how he cannot figure out why the crack he has cooked did not turn out right.  The leader gets frustrated and finally says, “I’ll just come over and do it myself.”  That was basically the extent of it.

The prosecutor told Chris, “You can plead guilty, and we will give you twelve years.”  Chris is 22 and thinks, “12 years, no! I’m so minor in all of this, I will go to and win at trial.”  His lawyer convinces him that he should not go to trial, given his two prior drug convictions (one for less than half a gram of crack, which is about a sugar packet of crack) and the penalty he could face if convicted again — a mandatory life sentence.  At this point, the prosecutor changes his mind and says, “12 years was last week’s price — this week’s price is 22 years, and if you turn this down, next week’s price may be higher.”  A 22-year-old, Chris thought, “22 years is life! I’ll take my chances at trial.” Only three people of this 30-person group arrested, by the way, went to trial.  Everybody else pled guilty.  At trial, these three people, who happened to also be the lowest members of this conspiracy, all got life in prison.  Every single one of them.  Yes, the Vice Lords were selling a lot of drugs, but not Chris, and not the other two defendants who also decided to go to trial.  They all are behind bars for life.

Chris Young grew up in the projects, did not know his father, and saw his mother in and out of jail for her drug addiction.  When his mother had been sent to jail, Chris and his brother would stay in the house without electricity, water, or money for food.  They would eat out of garbage cans or ask neighbors to give them food.  When they were tired of the way that they smelled, they asked neighbors if they could take a shower.  This is how Chris grew up.  His brother eventually died.  It is unclear as to whether he committed suicide or was murdered.  I could not consider any of his hardships.  I could only look at how he was charged, and his charges led to his mandatory life sentence....

Members of Congress, in their desire to be elected and reelected, often show how tough on crime they can be, and they say, “Look, mandatory minimums are necessary so that we can take discretion away from the judges.”  But these legislators have not taken away discretion, they have just moved it to the prosecutor, who has a dog in the hunt.  If somebody said, “Well wait a minute, let’s not allow the prosecutor to do it but the defense counsel,” they would say “You’re insane!  Why would you do that?”  My position, then, is why would you give discretion to the prosecutor?

Because of the way that I grew up, as I saw criminal defendants come through my court, I would think about how I may have gone to high school or have worked at an oil refinery with these people.  These were real people who faced real consequences.  And, despite my position, I was told what to say.  I was just a messenger.  And I thought to myself, “Somebody else can be a messenger.  If real change is going to be made, then I need to do that on the other side of the bench.  Sure, I am giving up a lifetime appointment, but am I going to walk in here every day and do things that I do not think are just? The government can pay me for life to do that, but that is not enough for me.  The government does not pay me enough for this — I cannot be paid enough to do this.”

February 21, 2018 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (7)

SCOTUS issues opinions on fees for prisoner suits and the impact of guilty pleas

The Supreme Court this morning handed down four new opinions in argued cases, and these two should be of interest to criminal justice fans:

Murphy v. Smith: "GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, THOMAS, and ALITO, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined." From the start and end of the opinion for the Court:

This is a case about how much prevailing prisoners must pay their lawyers. When a prisoner wins a civil rights suit and the district court awards fees to the prisoner’s attorney, a federal statute says that “a portion of the [prisoner’s] judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.” 42 U. S. C. §1997e(d)(2). Whatever else you might make of this, the first sentence pretty clearly tells us that the prisoner has to pay some part of the attorney’s fee award before financial responsibility shifts to the defendant. But how much is enough? Does the first sentence allow the district court discretion to take any amount it wishes from the plaintiff ’s judgment to pay the attorney, from 25% down to a penny? Or does the first sentence instead mean that the court must pay the attorney’s entire fee award from the plaintiff ’s judgment until it reaches the 25% cap and only then turn to the defendant? ....

At the end of the day, what may have begun as a close race turns out to have a clear winner. Now with a view of the full field of textual, contextual, and precedential evidence, we think the interpretation the court of appeals adopted prevails. In cases governed by §1997e(d), we hold that district courts must apply as much of the judgment as necessary, up to 25%, to satisfy an award of attorney’s fees.

Class v. United States: "BREYER, J., delivered the opinion of the Court, in which ROBERTS, C.J., and GINSBURG, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. ALITO, J., filed a dissenting opinion, in which KENNEDY and THOMAS, JJ., joined."  From the start of the opinion for the Court:

Does a guilty plea bar a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates the Constitution?  In our view, a guilty plea by itself does not bar that appeal.

For a host of reasons, Class is much more consequential, and I hope to find some time to blog more about the opinion in the days ahead. In the meantime, I welcome comments on both the substance and division of the Justices in this latest SCOTUS activity.

February 21, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Texas board recommends clemency for condemned killer for first time in over a decade

As reported in this local article, headlined "In rare move, Texas parole board recommends clemency for death row inmate Thomas Whitaker," the state which executes the most murderers in modern times is the locale for a rare clemency recommendation for the next scheduled to die. Here are the details:

In an exceedingly rare move, the Texas Board of Pardons and Paroles voted Tuesday to recommend a lesser sentence for a death row inmate facing execution.

The board voted unanimously in favor of clemency for Thomas Bartlett Whitaker, a man who is set to die on Thursday evening. The decision now falls on Gov. Greg Abbott, a Republican who can approve or deny the recommendation to change Whitaker’s death sentence to life in prison. The last time the board recommended clemency for a death row inmate was in 2007.

Abbott said at a political rally Tuesday night that he and his staff would base his decision on the facts, circumstances and law. “Any time anybody's life is at stake, that's a very serious matter,” Abbott said. “And it deserves very serious consideration on my part.”

Whitaker, 38, was convicted in the 2003 murders of his mother and 19-year-old brother as part of a plot to get inheritance money. His father, Kent Whitaker, was also shot in the attack but survived and has consistently begged for a life sentence for his son.

“Victims’ rights should mean something in this state, even when the victim is asking for mercy and not vengeance,” Kent Whitaker said at a press conference at the Texas Capitol just before the board’s vote came in.

Keith Hampton, Thomas Whitaker's lawyer, choked up when announcing to the family and the press that the board had recommended clemency. Kent Whitaker's wife cried out and grabbed Whitaker, who let out a sob and held his head in his hands. “Well, we’re going to the governor’s office right now,” Hampton said.

In December 2003, Thomas Whitaker, then 23, came home from dinner with his family knowing that his roommate Chris Brashear was waiting there to kill them, according to court documents. When they entered the house, Brashear shot and wounded Thomas’ father and killed his mother, Patricia, and 19-year-old brother, Kevin. Suspicion turned toward Whitaker in the murder investigation the next June, and he fled to Mexico, according to court documents. He was arrested more than a year later, and his father begged the Fort Bend County District Attorney’s Office not to seek the death penalty.

Whitaker offered to plead guilty to two life sentences, but the prosecution rejected the offer, saying Whitaker wasn’t remorseful and was being manipulative, court records show. They sought the death penalty, and in March 2007, they got it. Brashear was given a life sentence.

Fred Felcman, the original prosecutor in the case, said Tuesday that the parole board made its decision only because of the father’s forgiveness and seemingly didn't take into account the large number of other people affected by the murders, including the victims, the county, the jury and Patricia’s family. He said the board also disregarded testimony from psychiatrists and their own investigators who said Whitaker was manipulative. “I’m trying to figure out why [the board members] think they should commute this, and why the governor should even give it a second thought,” said Felcman, who is first assistant district attorney at Fort Bend County....

Attached to Whitaker’s petition to the board were letters from former prison guards and at least seven death row inmates who thought the condemned man deserved the lesser sentence of life in prison. Kent Whitaker said Tuesday that the guards said he was never a threat, and one said he’d be an asset in general population.

Death row inmates attested to Whitaker’s helpful presence in a prison environment, saying he encouraged them to better themselves, helped those with mental illness and could easily calm inmates down. William Speer, who has been on death row since 2001 for a prison murder, wrote in 2011 that the prison system needs more men like Whitaker to keep other inmates calm. “Of all the people I have met over the years Thomas Whitaker is the person I believe deserves clemency the most,” Speer wrote, according to the petition. “He is one of the best liked inmates on this farm by the guards and other inmates, and he has worked the hardest to rehabilitate himself.”...

Despite the board’s surprise recommendation on Tuesday afternoon, Whitaker was still scheduled for execution on Thursday after 6 p.m. If Abbott rejects the recommendation and the Supreme Court justices dismiss his appeals, he will become the fourth man executed in Texas — and the nation — in 2018. There are three other executions scheduled in Texas through May.

Prior related post:

February 21, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, February 20, 2018

Split en banc Fifth Circuit holds that Texas burglary convictions do not serve as predicates for federal Armed Career Criminal Act

I long ago gave up trying to keep up with all the intricate litigation and jurisprudence in circuit courts dealing with predicate offenses that can trigger the severe mandatory minimum sentences of the Armed Career Criminal Act.  But every so often, a big ACCA ruling comes down the pike, and today is one of those days as an en banc Fifth Circuit, splitting 8-7, has decided Texas burglary convictions cannot serve as an ACCA predicate.  The majority ruling by Judge Higginbotham in US v. Herrold, No. 14-11317 (5th Cir. Feb. 20, 2018)  (available for download below), gets off to this interesting start and then summarizes its holding 30+ pages later:

Three decades ago, Congress set the courts upon a new course for the sentencing of federal defendants, moving away from a long-in-place system that gave wide discretion to federal judges to impose sentences from nigh no prison time to effective life sentences.

But this discretion was not so wide in practice as in appearance — the judge’s sentence gave way when the prisoner left the court for prison.  The total time served by the prisoner was on his arrival determined in the main by a parole commission.  The commission determined release dates, and in a rough and crude way — relative to the work of the Sentencing Commission — anticipated the system now in place by using a scoring system that looked in part to a defendant’s criminal history.  In response to charges from the Left of disparate and from the Right of anemic sentencing, and thus with the support of both ends of the political spectrum, Congress shifted the focus to a defendant’s individual circumstances on the one hand and mandatory minimum sentences tailored to particular crimes on the other.  With much work from its newly erected Sentencing Commission, nourished by reflection, essential empirical study, and judges tasked with applying its regulations, this reform effort appears to now be understood by bench and bar, enjoying a measure of well-earned credibility.  Yet its relatively calibrated system of adjustments struggles with rifle-shot statutory efforts deploying an indeterminate calculus for identification of repetitive, sentence-enhancing conduct that add on to the sentence produced by the guidelines, such as the Armed Career Criminal Act. In setting a federal criminal sentence the district judge looks, in part, to both the number and type of a defendant’s prior convictions, a task complicated by the statute’s effort to draw on criminal conduct bearing differing labels and boundaries set by the various states.  Today, we continue to refine our efforts....

To summarize, the burglary provisions encoded in Texas Penal Code §§ 30.02(a)(1) and (3) are indivisible. Texas Penal Code § 30.02(a)(3) is nongeneric because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.  For these reasons, Herrold’s ACCA sentence enhancement cannot stand. We VACATE and REMAND to the district court to resentence him in accordance with our decision today. 

A lengthy dissent authored by Judge Haynes provides a succinct account of why this ruling is a big deal (and could be SCOTUS bound):

The majority opinion upends years of well-settled law. Just over a year ago, this court confirmed that Texas Penal Code § 30.02(a) is a divisible statute, and the Supreme Court denied certiorari.  United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017). The effect of the majority opinion, in addition to unsettling established precedent, is to render all burglary convictions in the second-most populous state in the country nullities as far as the ACCA is concerned.  That is no small thing. In just a single year, Texans reported 152,444 burglaries, all of which now escape the ACCA’s reach. See TEX. DEP’T PUB. SAFETY, CRIME IN TEXAS 2015 6 (2015),  From this misguided determination, I respectfully dissent.

Download Herrold slip op

February 20, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Notable account of a notable juror whose note had a notable impact on a scheduled Ohio execution

Prior posts here and here discussed a letter from a former juror in an Ohio capital case that prompted Governor John Kasich to grant a reprieve based on mitigating evidence that the juror said would have changed his vote at the penalty phase.  This story is told in full form in this new local article, headlined "This man stopped a Cincinnati killer's execution. Here's why he did it." Here are excerpts:

Ross Geiger isn’t some kind of activist when it comes to the death penalty. He’s never organized a candlelight vigil or stood outside a prison protesting an execution. He wants to be clear about that. “Everybody thinks I’m a crusader or something,” Geiger said. “They think I have no sympathy for the victims. That’s just not true.”

Yet Geiger did something last week that anti-death penalty activists rarely do. He stopped an execution. Earlier this year, the Loveland man wrote a letter to Gov. John Kasich because he was worried about the case of Raymond Tibbetts, a Cincinnati man who beat to death his wife, Sue Crawford, and stabbed to death his landlord, Fred Hicks, on the same day in 1997.

Geiger’s letter carried weight with Kasich, who delayed Tibbetts’ Feb. 13 execution until at least October, because Geiger served on the jury that convicted Tibbetts and recommended his death sentence....

Records related to Tibbetts’ clemency case with the parole board showed far more detail about Tibbetts’ background than was presented at the trial, Geiger said. He’d been abused as a child, put into foster care as a toddler and endured years of abuse and neglect, along with his siblings, the records showed.

At the trial, the jurors heard from a psychiatrist who’d examined Tibbetts, but no other witnesses. No family members. No other mental health professionals. None of the people Geiger found in the clemency paperwork. “I was astounded by the amount of material that was available (for the trial) that I never saw,” Geiger said. “There was an obvious breakdown in the system.”

The more he thought about it, Geiger said, the more upset he got. “The state had a duty to give me access to the information I needed to make the best decision I could,” he said. “It’s like if you have to take a big test, but you were deprived of the textbook.”

Geiger thought a long time about what he should do. He’s not a rabble rouser by nature. He’s raised two kids in suburban Cincinnati and works in the financial world. He considers himself a libertarian and said he was a rock-solid Republican at the time of the trial. He said he’s not opposed to the death penalty and he doesn’t believe he’s second-guessing the decision he made as Juror No. 2 in Tibbetts’ case. Given what he knew at the time, he said, the decision he made was correct.

But now he believes there is more he should have known. “I don’t really view it as changing my mind because the information wasn’t available at the time I was asked to make the decision,” Geiger said. “Based on the information available now, I don’t think justice was served in the case of Tibbetts.”

The appeals courts did not agree. A divided U.S. 6th Circuit panel ruled against Tibbetts, concluding any evidence the jurors didn’t hear would have been insufficient to change their minds about Tibbetts’ “moral culpability for such a brutal and horrific crime.” Prosecutors also have dismissed Geiger’s concerns. They say trials can’t be retried over and over every time a juror has second thoughts about a decision.

Kasich isn’t necessarily convinced, either. His reprieve gives the parole board time to reconsider clemency, but guarantees nothing. The execution still is set for Oct. 17.

Asked how he’d feel if Tibbetts died on that day, Geiger struggled to answer. He said he believes he did his job 20 years ago at the trial, and he believes he’s doing the right thing now by speaking up. “My motivation in writing that letter wasn’t to save an individual’s life,” Geiger said. “My prime motivation was to point out the errors.

“If we are going to trust the state to be our agents to execute people, then the state has a duty to get it right.”

Prior related posts:

February 20, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)