Tuesday, October 14, 2014
Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation
I cannot resist the urge to use this space to reflect upon (and perhaps salve) my disappointment in the learning the certiorari petition in Jones v. US, No. 13-10026 — a case in which I wrote this SCOTUS amicus brief in support of cert — came up only one SCOTUS vote short of making it as the petition today was denied over a dissent authored by Justice Scalia and joined by Justices Thomas and Ginsburg. As I briefly explained in this initial post on the cert denial, I find especially notable and troubling that neither Justices Sotomayor and Kagan provided the key single additional vote for cert given that both were in the majority in two recent cases which, I think, further set a foundation for finding constitutional limits on guideline punishment enhancements based on acquitted conduct.
As I have explained in prior posts and in my Jones amicus brief, in Peugh v. United States, 133 S. Ct. 2072 (2013) (authored by Justice Sotomayor), the Supreme Court clarified that Guideline ranges, even though now only advisory after Booker, still have consequential “force as the framework for sentencing” and thus are subject to at least some constitutional limitations on how they are calculated and applied. Id. at 2083-84. And in Alleyne v. United States, 133 S. Ct. 2151 (2013) (with both Justices Sotomayor and Kagan as key votes to reverse a pre-Blakely/Booker precedent), the Supreme Court overturned a prior holding that had failed to recognize that the constitutional protections of the Fifth and Sixth Amendments apply fully not only to facts raising maximum sentences, but whenever the law creates a “linkage of facts with particular sentencing ranges." 133 S. Ct. at 2159-62.
I continue to believe (or at least want to believe) that the huge acquitted conduct guideline punishment enhancements at issue in Jones have to trouble greatly any Justice who truly accepts the Apprendi-Blakely Sixth Amendment jurisprudence, AND who truly believes the advisory federal sentencing guidelines still have constitutionally-significant legal force (as Peugh holds), AND who truly claims the Constitution is concerned with judicial findings of facts that raise punishment floors as well as ceilings (as Alleyne holds). In other words, I continue to believe (or at least want to believe) that Justices Sotomayor and Kagan would be votes to reverse the sentences at issue in a case like Jones if and when cert is ever granted to review huge acquitted conduct guideline punishment enhancements.
So why wasn't cert granted this time around, especially with Justices Scalia, Thomas and Ginsburg vocally in support of such a grant in Jones? As the title of this post is meant to suggest, I think Justices Sotomayor and Kagan may have concluded it would be virtuous and valuable to be passive in this setting, at least for right now, because any extended SCOTUS consideration of extended acquitted guidelines punishment could give Sixth Amendment rights (and SCOTUS itself) an extended black eye (especially if one or both of them might ultimately be inclined to uphold extended acquitted guidelines punishments in Jones).
I have long hoped for and sought a cert grant on acquitted conduct enhancements because I have long believed jurisprudes on both the left and the right will (and should) have a hard time defending, especially in light of the strong jury-rights rhetoric in cases like Apprendi and Blakely, a federal guideline sentencing system that still recommends huge punishment increases based essentially on judicial rejection of a not-guilty jury verdict. (Notably, the only time SCOTUS directly addressed this issue, in the 1997 Watts case, the Court issued a summary reversal to permit acquitted conduct enhancements and thus prevented full briefing or oral argument on the matter.) But yet again because of another cert denial, we will not learn if Justices Breyer and Kennedy (or even CJ Roberts), who in other settings express concerns about prosecutorial power and excessive sentencing, might be cajoled through full briefing and argument to see the constitutional vices of allowing prosecutors and judges to trump juries in the federal sentencing process.
Finally, once one starts thinking about the possibility that Justices Breyer and Kennedy and even CJ Roberts might have been especially eager right now to dodge full consideration of acquitted conduct punishments, it becomes hard to avoid speculating about "long confernce" deals to deny cert and thereby dodge consideration now of other (higher profile) hard constitutionally issues. As all Court-watchers know, the really big cert-denial news after the SCOTUS long conference involved denials in all the same-sex marriage cases from around the country. Dare I show my ignorance about what really goes on behind SCOTUS doors when I wonder if, at least tacitly, a large block of Justices concluded during the long conference that it was in every Justices' interest to be "deeply in denial." Just a (silly?) thought.
Previous related posts on the Jones case:
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
- Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
- Rooting for acquitted conduct petition grant from SCOTUS long conference
- Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
- Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
"Could firing squad make a comeback in Utah, elsewhere?"
The question in the title of this post is the headline of this lengthy new article discussing, yet again, possible alternatives to lethal injection as a means to carry out death sentences. Though covering some familiar ground, this article provides a useful reminder that it has been only a few years since the last firing squad execution in the United States and highlights reasons why states seriously committed to carrying out executions ought to be seriously considering this "classic" execution method again. Here are excerpts:
When Ronnie Lee Gardner was executed by firing squad in 2010 at the Utah State Prison in Draper, more than 59 journalists from news outlets from around the globe descended upon Utah to cover the event. Reporters from Japan and Great Britain called it “a Wild West way of dispatching people” and referenced John Wayne movies.
But as anti-death penalty pharmaceutical companies in Europe refuse to sell the drugs necessary for lethal injections to prisons in the United States and in the wake of botched lethal injection executions in recent months, the firing squad could be making its return to Utah and other places. “I’ve had several states actually call (to ask about the firing squad),” Rep. Paul Ray, R-Clearfield, said. “They asked me not to name them because they don’t want the media circus on it. But they’re in the same boat we are — they can’t get the drugs, either.”
Botched executions involving lethal injections in Arizona, Oklahoma and Ohio earlier this year have led Ray to believe that the method could face constitutional challenges as well. For that reason, he is proposing legislation that would bring back the firing squad as the secondary execution method in Utah, should the primary method, lethal injection, be found unconstitutional or unavailable. “It really won’t do anything,” Ray said. “It’s just the plan B if we need it.”
A law passed in 2004 eliminated death by firing squad in Utah, but those on death row who requested such a death prior to the new law still have the option. Ray said the legislation he is proposing would restore the firing squad as a possible execution method, but eliminate the inmate choice. “It will be lethal injection, and then, if the drugs are not there, or it is unconstitutional, then it will be firing squad,” Ray explained. “There is no option for the inmates.”
Utah's firing squad comprises five riflemen, all certified law enforcement officers, using 30-30 rifles. Four of the guns are loaded with live ammunition and one is loaded with a blank before the officers shoot in unison.
Ray acknowledged that part of the reason the method was eliminated was due to the extra attention that surrounded it. But he said there is always going to be interest around executions, especially among international media. The firing squad may heighten that interest, but Ray doesn't balk at it as an execution method.
“It is actually the most humane,” he said. “The individual is usually dead before they can even hear the gunshot. It’s four bullets to the heart, so it’s not ‘How long did it take for him to die? Could he breathe? Did he feel it?’”
Wyoming Sen. Bruce Burns, R-Sheridan, decided to propose the firing squad as Wyoming’s secondary execution method, because he said it is what he would choose if forced to select to among the alternatives to lethal injection. “It became a matter of personal prejudice and if I was the one that was being executed,” Burns said.
Wyoming’s current backup if lethal injection is unavailable is the gas chamber, which Burns felt was impractical for a number of reasons. For one, the state doesn’t have a gas chamber, and building one — and the possible litigation prompted by a decision to build one — would be expensive. “It would cost millions of dollars to build one,” Burns said. “And sometimes you have to put your own experience into it and I think the gas chamber would be a horrible way to kill somebody.”... “I do like the way Utah did it,” Burns said. “Utah has a very good protocol. If we pass this, I would hope the Wyoming Department of Corrections would look to the protocol that Utah uses.”...
Even before the botched executions, Burns noticed the difficulty getting lethal injection drugs from companies in the European Union. He proposed a bill to implement the firing squad in Wyoming’s legislative session this past January. It didn’t pass, but officials from the Wyoming Department of Corrections came forward and spoke about the difficulties states around the nation are facing when it comes to obtaining drugs for lethal injections, and the Wyoming Legislature’s Judiciary Committee decided to look at the issue. Lawmakers have since decided to sponsor the firing squad bill in the upcoming legislative session in January....
Burns said the the Wyoming Legislature’s Judiciary Committee recently had an extended debate about the death penalty and whether to eliminate it altogether. A proposed bill was even drafted. “It went down and not by a whole lot,” Burns said, before adding that he likes where Wyoming stands now with just one man on death row. “We have 22 people in prison for life without parole, and any one of those 22 could have been a capital case. We haven’t executed anyone since 1992, so we use it infrequently.”
Still, he believes the death penalty is an important tool in the criminal justice system to be used as needed. “I’m not a fan of using it more, but I would like to have it there in reserve for those crimes that are so horrible and so heinous that the person doesn’t even deserve life without parole,” Burns said.
A few recent related and older posts:
- Is nitrogen gas the best modern execution alternative to lethal injection?
- Serious talk about a serious alternative (nitrogen) to lethal injection in Oklahoma
- A worldly perspective on different execution methods
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
- Should problems with lethal injection prompt return of other execution methods?
Does the Constitution limit the age at which a juve killer can be tried as an adult?
The question in the title of this post is promopted by this AP story emerging from Pittsburgh sent my way by a helpful reader. The story is headlined "Boy, 10, Charged As Adult In Death Of 90-Year-Old Woman," and here are the details:
A 10-year-old boy has been charged as an adult in the beating death of a 90-year-old woman over the weekend in northeastern Pennsylvania. Prosecutors in Wayne County said the boy was visiting his grandfather, the caretaker of Helen Novak, in Tyler Hill on Saturday, when county emergency responders got a call reporting her death.
District Attorney Janine Edwards said in a statement that the boy’s mother brought him in to the state police barracks at Honesdale the same afternoon and reported that her son had told her that he had gone into the woman’s room and she yelled at him. The boy told his mother that “he got mad, lost his temper and grabbed a cane and put it around Novak’s throat,” police said. Advised of his rights and interviewed by a trooper, he said he “pulled Novak down on the bed and held the cane on her throat and then punched her numerous times,” authorities said.
State police said the boy told them that he went to his grandfather and told him that the woman was “bleeding from her mouth” but denied he had harmed her, but later told him that he had punched the woman and put a cane around her neck. Police said an autopsy done Monday at Wayne Memorial Hospital in Honesdale indicated blunt force trauma to the victim’s neck, and the death was ruled a homicide....
The boy was charged as an adult with criminal homicide and aggravated assault, with the prosecutor’s office noting that the crime of homicide “is specifically excluded from the juvenile act” and therefore “a juvenile who commits the crime of homicide is charged as an adult.” The boy was held without bail pending an Oct. 22 preliminary hearing.
I am pretty sure that, prior to the Supreme Court's Eighth Amendment ruling in Miller, this 10-year-old killer would have be facing a mandatory LWOP sentence under Pennsylvania law. Now, I believe, state law provides only a mandatory minimum of 20 or 25 years for this kind of killer. Especially for those still troubled by the Miller ruling and eager to have some juve killers get LWOP sentences (such as folks talking here over at Crime & Consequences), I wonder if they would assert that even a kid still in elementary school could and should never even have a chance to live outside a cage for a crime like this.
Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
I am very disappointed to have to report that this morning the Supreme Court denied certiorari review in the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. As I noted in this post last week, Jones v. US, No. 13-10026, was relisted by the Justices after their "long conference." Now today's SCOTUS order list has at the very end the news that cert has been denied in Jones v. US, No. 13-10026, with a three-page dissent from that decision authored by Justice Scalia and joined by Justices Thomas and Ginsburg. Mega-bummer!!!
Here is the bulk of Justice Scalia's dissent from the denial of cert in Jones (with emphasis in the original):
A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.
Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal. See Rita v. United States, 551 U.S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concurring in judgment). If so, their constitutional rights were violated. The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U.S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007). We have held that a substantively unreasonable penalty is illegal and must be set aside. Gall v. United States, 552 U.S. 38, 51 (2007). It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.
For years, however, we have refrained from saying so. In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case. We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness. 551 U.S., at 353; see also id., at 366 (Stevens, J., joined in part by GINSBURG, J., concurring) (“Such a hypothetical case should be decided if and when it arises”). Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range....
This has gone on long enough. The present petition presents the nonhypothetical case the Court claimed to have been waiting for. And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense. Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs. The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions. But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.
On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment rights were not violated. 744 F. 3d 1362, 1369 (2014). We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment — or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.
I am especially disappointed that Justice Scalia and his joiners here could not garner one more vote to grant cert from any of the newer Justices who came on the Court after Blakely and Booker became the Sixth Amendment law of the land. Of course, Justice Alito has frequently shown his disaffinity for expanding the Sixth Amendment rights recognized in those cases. But Chief Justice Roberts joined the Blakely gang in applying (and arguably expanding) Sixth Amendment rights in Cunningham v. California and Justices Sotomayor and Kagan have "shown empathy" for defendants seeking expanded applications of the Sixth Amendment in more recent cases such as Alleyne. As I will explain in a future post, anyone (like me) hoping that Justices Sotomayor and Kagan might end up being even more committed to defendants' procedural rights at sentencing has to be deeply troubled by their disinclination to provide a fourth vote for granting cert in Jones.
Previous related posts on this case and acquitted conduct sentencing enhancements:
- Rooting for acquitted conduct petition grant from SCOTUS long conference
- Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
- Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
- Strong commentary on acquitted conduct sentencing
- Sincere questions about acquitted conduct sentencing
- Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
October 14, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack (0)
Monday, October 13, 2014
Oklahoma AG requests additional delay before state gets back to executions
As reported in this Reuters article, "Oklahoma's attorney general has filed a request to delay three upcoming executions in Oklahoma due to a lack of drugs and to provide more time to implement new lethal injection protocols, according to court documents obtained on Monday." Here is more:
Attorney General Scott Pruitt has asked the Oklahoma Court of Criminal Appeals to delay two executions set for November and one set for December because the state does not have the necessary drugs or the medical personnel to carry out the executions, a filing from last week showed. The drugs used during executions in the United States are under scrutiny after inmates in troubled executions in Ohio, Oklahoma and Arizona took longer than is typical to die and showed signs of distress.
Pruitt requested a Jan. 15 execution date for Charles Warner, convicted of raping and murdering 11-month old Adrianna Walker. Pruitt was scheduled to be executed Nov. 13. His original execution date was April 29, the same night of the botched execution of condemned murderer Clayton Lockett. Lockett's execution prompted the state to delay all executions pending a review and investigation into why it took Lockett over 40 minutes to die....
Richard Eugene Glossip and John Marion Grant were also scheduled for execution in 2014, but Pruitt asked that their executions be set for Jan. 29 and Feb. 19, respectively. Robert Patton, director of the Oklahoma Department of Corrections, issued a statement on Monday supporting the 60-day delay.
Dale Baich, attorney for Warner, issued a statement applauding Pruitt's request, saying more time is needed for the federal courts to review a lawsuit filed by 26 inmates, including Warner, Glossip and Grant. The lawsuit argues that the state is experimenting on death row inmates with untested lethal injection drugs, violating the law’s ban on cruel and unusual punishment.
"Will Oscar Pistorius serve any prison time for killing Reeva Steenkamp?"
The question in the title of this post is the first line of this AP article headlined "Factors that may affect if Pistorius spends time in prison." Because I know very little about South African sentencing law and procedure, I found this AP article quite informative, and here are excerpts:
Judge Thokozile Masipa began hearing testimony Monday before deciding what sentence the double-amputee Olympic athlete should serve. Pistorius was acquitted of murder in Steenkamp's shooting death but convicted of a lesser charge of culpable homicide, or killing Steenkamp through negligence. It has a wide range of possible sentences in South Africa, from a fine and no prison time to as much as 15 years in jail....
Judge Masipa will hear testimony from a small number of witnesses called by the defence and then prosecution before deciding on Pistorius' sentence. The defence began presenting witness testimony on Monday, arguing why the judge should be lenient. Prosecutors could call Steenkamp's family members to show that Pistorius should be sent to prison for years because of the suffering he has caused....
Pistorius' lawyers cited what they say is his remorse and previous good character as reasons for a lenient sentence. Defence lawyers began by calling a psychologist who has counselled the athlete since he killed Steenkamp. Dr. Lore Hartzenberg testified that Pistorius was a "broken man" wracked with grief following the shooting, and had lost his reputation, his friends and his career. The defence hopes her testimony -- which focused on what she said was Pistorius' emotional pain following an accidental killing -- will help persuade Masipa that Pistorius is remorseful, has suffered already and shouldn't be sent to prison because he needs ongoing therapy.
Prosecutor Gerrie Nel countered that Pistorius was "still alive" and Steenkamp wasn't and that should be considered....
Pistorius' work with charities before the Feb. 14, 2013 shooting was listed extensively by his agent, Peet van Zyl, who was also called by the defence. Van Zyl's testimony was designed to paint the Paralympic champion as a generally good person who had no previous criminal record. He also said that Pistorius had lost all his athletics endorsements because of the court case and had already been punished financially.
A social worker from South Africa's department of correctional services was the only one of the three defence witnesses who testified on the first day of the hearing to suggest a sentence. Joel Maringa said three years of "correctional supervision" would be appropriate, where Pistorius would be partly under house arrest and have to do community service, but would also be able to train and attend athletics meets.
Nel fiercely criticized that suggestion, saying it was "shockingly inappropriate" after Pistorius killed someone. The prosecution, which sought a murder conviction, has insisted that Pistorius should go to prison because of the level of negligence he displayed when he fired four hollow-point bullets through a toilet cubicle door in his home and into a small space without checking who was inside.
Masipa's options are wide-ranging: She could order a fine and a suspended prison sentence, meaning the 27-year-old Pistorius spends no time in jail unless he offends again. But she could also sentence him to up to 15 years in prison. In between those two scenarios, Masipa could order he be put under house arrest for a period. Pistorius could apply for parole after serving half of any prison sentence.
Noting how politicians can be pro-life and pro-death (penalty) in Texas
This local story on modern Texas politics, headlined "Being pro-life in gov's race doesn't extend to death row," highlights what concerns about the sanctity of life real mean in the Lone Star State. Here are excerpts:
When Attorney General Greg Abbott talks about his opposition to abortion, he often mentions his Catholic faith. Not so when he talks about his support for the death penalty, whose abolition is advocated by Pope Francis.
“Catholic doctrine is not against the death penalty, and so there is no conflict there,” Abbott, the Republican nominee for governor, said when asked about that point in a meeting with the San Antonio Express-News Editorial Board. The Catholic catechism doesn't exclude the death penalty as an option if that's the only way to defend human lives from an offender, but it says that given current options, such cases “are very rare, if practically non-existent.”
Pope Francis, in reaffirming the church's call to abolish the death penalty last year, asked that such sentences be commuted to a lesser punishment allowing for the offender's reform, the National Catholic Register reported. “The difference, of course, is one between innocent life and those who have taken innocent lives,” Abbott said of his position on abortion versus the death penalty.
A different view on capital punishment would itself be seen as tantamount to a political death sentence in Texas. Abbott's Democratic opponent, Sen. Wendy Davis, also backs the death penalty — even though as a Fort Worth City Council member in 2000 she voted to impose a moratorium on it, and even though the Texas Democratic Party platform calls for substituting life in prison for capital punishment, saying the death penalty is applied disproportionately to the poor and persons of color.
The moratorium didn't pass, and Davis said that the questions prompting her to support it then have largely been answered through such means as advancement in the use of DNA evidence. “Obviously, before we mete out the most serious of punishments, we need to know we've done everything to assure that the person on the receiving end of that punishment is guilty,” Davis told the Express-News Editorial Board in a separate appearance Friday. “We have made some advances in that regard. ... Is there still work to do? Absolutely.”
Both candidates credited work by Sen. Rodney Ellis, D-Houston, on the issue. Abbott cited his efforts with Ellis on legislation to expand DNA testing in death penalty cases. “I know that the only way the death penalty will work is to ensure its absolute accuracy — that everyone who is given the death penalty is guilty of the crime for which they were accused and convicted of committing,” Abbott said.
Being sure can be difficult. In 2010, Anthony Graves became the 12th death-row inmate to be exonerated in Texas, absolved of the 1992 Burleson County murder for which he was convicted. Michael Morton, who served 25 years in his wife's Williamson County murder before being exonerated, told CNN, “I thank God this wasn't a capital case.”...
Abbott and Davis both said if elected, they'll also take care in presiding over executions. “I will ensure that before I ever allow an execution to occur, I will be 100 percent convinced that the person who is being sentenced to the death penalty is guilty of that crime,” Abbott said. Davis said, “As governor, I'll take that very seriously and make sure that before that punishment is meted out that we have done everything we can to answer the questions that need to be answered.”
Sunday, October 12, 2014
"Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw"
The title of this post is the title of this intriguing new paper by U.S. District Judge Mark Bennett. Here is the abstract:
Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random.
Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range.
This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress. It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines. If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.
Documenting a notable California legal crusade against sex offender restrictions
This lengthy local article, headlined "Pair seeks repeal of sex-offender laws in California," provides a detailed review of a notable effort to take down via court challenges local sex offender restrictions. The piece merits a full read, and here are a few highlights:
A crusading civil rights attorney and a registered sex offender have partnered in a legal battle that has prompted dozens of California cities to repeal or revise what the pair believe are unconstitutional ordinances restricting the activities of sex offenders.
Since March, Santa Maria attorney Janice Bellucci and Frank Lindsay, a 62-year-old water-treatment specialist from Grover Beach and registered sex offender for 35 years, have filed 18 lawsuits in federal court challenging ordinances in cities from Stockton down to National City.
To date, Bellucci has settled 15 of the lawsuits, while 38 other cities have avoided litigation by agreeing to repeal their ordinances. Six other cities have voluntarily suspended enforcement of their ordinances, while ordinances in another 18 cities are still under review.
“The way I look at it is that I’m protecting the Constitution of the United States as well as the state of California,” said Bellucci, president of California Reform Sex Offender Laws, a nonprofit she launched three years ago as an affiliate to the national Reform Sex Offender Laws organization.
While Bellucci believes she’s fighting for the rights of oppressed sex offenders, others say she’s endangering the state’s youth. “As an elected official and as a mother, I’m concerned about the health and safety of our young people who don’t have a voice,” said Carson Councilwoman Lulu Davis-Holmes. Carson is one city sued by Bellucci that plans to fight the lawsuit. “Our kids did not make the choice to be molested,” Davis-Holmes said. “I personally think we need to do more to protect those who cannot protect themselves,”
Bellucci’s flurry of lawsuits was prompted by a 4th District Court of Appeal’s decision in January that found sex offender ordinances in Orange County and the city of Irvine cannot impose restrictions more stringent than state law, which only restricts sex offenders who are on parole and whose victims were under the age of 14 from visiting public parks without the express permission of their parole agent.
In addition to the suits she filed with Lindsay, Bellucci has filed two lawsuits on her own, challenging ordinances in Canyon Lake and Commerce. Those complaints do not name Lindsay as a plaintiff because ordinances in those cities do not apply to sex offenders whose convictions are as old as Lindsay’s.
In April, the state Supreme Court declined a petition by the Orange County District Attorney’s Office to review the appellate court ruling, leaving it intact. The appellate court ruling, coupled with the spate of litigation initiated by Bellucci, could have a major impact on the lives of California’s 107,913 registered sex offenders, roughly 14 percent of the nation’s 774,600, as cities and counties are forced to either repeal their ordinances or make them uniform with state law.
This companion article, headlined "Sex-crimes convict says registration has ruined his career, endangered his life?," provides a profile of the sex-offender who is the plaintiff in much of the discussed California sex offender litigation.
Friday, October 10, 2014
Wyoming Supreme Court joins group deciding SCOTUS Miller ruling is retroactive
As reported in this local article, headlined "Casper man convicted of murder as a teenager now has possibility of parole," the Wyoming Supreme Court had a big ruling yesterday on juve life sentences. In Wyoming v. Mares, 2014 WY 126 (Wyo. Oct. 9, 2014) (available here), the Court held that Miller v. Alabama announced a substantive rule that is to be applied retroactively under Teague and also that a Wyoming statute enacted last year making juves parole eligible should be applied retroactively. Here is how the unanimous opinion in Mares gets started:
In 1995, Edwin Mares was convicted of felony murder as a juvenile and sentenced to life in prison, which sentence was by operation of law the equivalent of a sentence of life imprisonment without the possibility of parole. In 2013, Mr. Mares filed a motion, pursuant to Rule 35 of the Wyoming Rules of Criminal Procedure, to correct an illegal sentence. Through that motion, Mr. Mares contended that his sentence of life without the possibility of parole was unconstitutional in light of the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). This Court accepted certification of two questions from the district court. The first question concerns the test to be used in determining the retroactivity of new constitutional rules when a judgment is challenged on collateral review. The second question is whether Miller applies retroactively under our chosen test.
We conclude that as a result of amendments to Wyoming’s parole statutes in 2013, Mr. Mares’ life sentence was changed from one of life imprisonment without the possibility of parole to one of life with the possibility of parole in twenty-five years. This change occurred by operation of the amended law, and the sentence Mr. Mares challenged in his Rule 35 motion therefore no longer exists. We are aware, however, that other collateral challenges to juvenile offender sentences are pending throughout our district courts, and we therefore, in the interests of judicial economy and to avoid conflicting rulings, choose to answer the certified questions. In response to the first certified question, we hold that the proper rule for determining whether a new constitutional rule applies retroactively to cases on collateral review is the test announced by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In response to the second question, we conclude that under a Teague analysis, the rule announced in Miller applies retroactively to cases on collateral review.
Oklahoma has impressive early success with revised earned credit program
This local article, headlined "Most Oklahoma inmates granted early release since March have stayed out of trouble," reports on another positive state criminal justice reform effort. Here are the details:
Santajuan M. Stepney was released from prison in March after serving less than half of a 10-year sentence for possession of marijuana. By mid-July, he was back in prison, this time sentenced to two years for beating his wife in Canadian County.
Stepney, 31, was among about 1,500 inmates granted an early release by the Corrections Department after they had good-behavior credits restored through the once-obscure Earned Credits program. The releases in question began in March, according to the agency.
A state lawmaker recently questioned the program, saying restoration of good-behavior credits and early release is in the name of saving money, while Corrections Department officials have defended its expanded use....
Jerry Massie, a spokesman for the Corrections Department, said Stepney and inmate Brian Harvey, who was granted early release in March, are the only members of the group who’ve returned to prison since being set free under the Earned Credits program....
Last week, Rep. Aaron Stiles told The Oklahoman he believes Robert Patton, who was hired as the Corrections Department’s executive director earlier this year, is directing staff to release inmates by restoring the good behavior credits that had been lost due to infractions while behind bars. Stiles said Patton is doing so to save money as the cash-strapped prison system continues to struggle with tight budgets and overcrowded prisons.
The lawmaker said “several” Corrections Department employees have contacted him about the mass release of inmates with good behavior credits restored. He said some of the employees, who feared speaking openly, “made recommendations that certain people not be released, but they get overruled by upper level DOC administration.”
“It is all about saving money,” Stiles said last week. “They had 1,800 inmates in county backup. So how do you make room for 1,800 prisoners? Release 1,800 convicts early.”
The Earned Credits program has been around about 20 years, officials say, but it’s never been as widely used as it is now. Essentially, the program allows inmates to have good-behavior credits restored if they’ve been lost as a result of misconduct. The program does not apply to inmates who are required to serve a minimum amount of their sentence, such as 85 percent crimes like rape, murder, and many sex crimes.
Terri Watkins, a spokeswoman for the Corrections Department, said increased use of the program isn’t all about saving money. She said it’s part of a series of changes made by Patton, and that those changes will continue in the future.
This partial report about early success with a revised corrections program in one state does not, obviously, prove conclusively that significant early releases can be achieved without a huge public safety impact. Nevertheless, given the ugly reality that recidivism rates for released prisoners can often exceed 40%, the folks in Oklahoma must be doing something right if only less than 0.15% of prisoners released early this year have committed a crime requiring requiring being sent back to prison so far.
October 10, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack (0)
Thursday, October 9, 2014
New survey shows significant and growing support for "eliminating mandatory minimum prison sentences for nonviolent offenders"
As reported via this FAMM news release, which is headlined "New Poll Finds 77% of Americans Support Eliminating Mandatory Minimums for Non-Violent Offenses," there is new polling data suggesting that large and growing percentages of Americans favor mandatory minimum sentencing reform. Here are the basic details:
A new Reason-Rupe Public Opinion Survey finds that 77 percent of Americans support eliminating mandatory minimum sentences for non-violent drug offenses. That number is up from 71 percent in December 2013, the last time Reason-Rupe polled on the question. You can find the full survey results here (PDF); mandatory minimums are question 17.
“Almost three decades have passed since the United States instituted harsh mandatory minimums for non-violent drug offenses. During that time, countless lives have been ruined and countless families destroyed. The American people have noticed, and they want no more of it,” said Julie Stewart, president and founder of Families Against Mandatory Minimums.
The poll question Reason-Rupe posed reads as follows: “Would you favor or oppose eliminating mandatory minimum prison sentences for nonviolent offenders so that judges have the ability to make sentencing decisions on a case-by-case basis?”
Seventy-seven percent of respondents said they favored eliminating mandatory minimums, while only 17 percent of respondents said they were opposed. When Reason-Rupe asked the same question in December 2013, 71 percent of respondents were in favor of eliminating mandatory minimums, and 24 percent were opposed.
Texas succeeds with new laws intended to disrupt school-to-prison pipeline
Discovering the (perhaps somewhat unexpected) success of reforms in (perhaps somewhat unexpected) states is one of the great joys of following closely state-level criminal justice policy and practice. For example, this new local article showcases how Texas is achieving success at addressing problems often stressed by juvenile justice advocates. The piece is headlined "New laws drastically cut prosecutions of Texas students," and here is how it starts:
Working as intended, two state laws passed in 2013 have fueled a larger-than-anticipated 83 percent decline in the number of Texas schoolchildren prosecuted in adult court for infractions such as disrupting a classroom, court figures show. Including other misdemeanor school-based offenses, almost 90,000 juvenile cases were kept out of adult court by the new laws, which were written to encourage schools to handle most behavior problems internally instead of relying on police or the courts, two Texas House committees were told Wednesday.
“We were expecting a drop. I don’t think we were expecting that significant a drop in the first year,” said David Slayton, director of the state Office of Court Administration. The sharp decline in the number of juvenile prosecutions, publicized for the first time at Wednesday’s joint hearing of the House Corrections and Public Education committees, offered early evidence that the laws were working to reduce the number of children saddled with criminal records for relatively minor school offenses, legislators and criminal justice advocates said.
“We have seen major success as a result of the passage of these bills,” said Mary Schmid Mergler with Texas Appleseed, a legal advocacy group. “School discipline had increasingly moved from the schoolhouse to the courthouse, and misbehavior that used to mean a trip to the principal’s office was landing children in court and resulting in criminal convictions,” she said.
The offenses targeted by the laws are prosecuted in municipal and justice of the peace courts — adult settings that lack protections found in juvenile court, such as appointed lawyers and confidentiality rules — and can result in criminal convictions that often make it difficult to find housing, enter college or join the military, Mergler said.
The laws, known as Senate Bills 393 and 1114, barred police officers from writing tickets for Class C misdemeanors that occur on school grounds, though traffic violations are exempt from the ban. Officers also cannot issue citations for school offenses such as causing disruptions in class or on a school bus.
"Fifteen Years of Supreme Court Criminal Procedure Work: Three Constitutional Brushes"
The title of this post is the title of this lovely essay by Daniel Richman now available via SSRN. Here is the abstract:
This essay — written in connection with a French National Research Agency project on “Neo or Retro Constitutionalisms” — is an effort to pull together the last fifteen years of Supreme Court criminal procedure cases expanding constitutional protections. It identifies three different styles: thin and clear doctrinal lines on miniature doctrinal canvases that have only passing connections to criminal justice realities; episodic and self-limiting engagements with a potentially larger regulatory space; and a grand style that hints at sweeping structural ambitions but collaborates with other regulatory authorities.
Readers undoubtedly can come up with more than three styles. But, in any event, the exercise highlights the limited nature of the Court’s work during this period, the limits of formalism, and the need for scholars to disaggregate broad references to “constitutionalism.”
Wednesday, October 8, 2014
Ninth Circuit panel chastises prosecutors for breaching "fast-track" plea agreement
A Ninth Circuit panel has handed down a lengthy, must-read opinion today in US v. Morales Heredia, No. 12-50331 (9th Cir. Oct. 8, 2014) (available here). The start of the opinion should make clear to federal practitioners, especially in border districts, why this case is notable:
Every day along the southwest border, previously deported aliens lacking entry documents are arrested, detained, and charged with illegal reentry. Once convicted, they serve a term of imprisonment, and then are again deported. The numbers are so great that federal prosecutors in these border states began to resort to an efficient means of securing a conviction: a “fast-track” plea agreement that binds the government and the defendant, but not the district judge.
The government secures the benefit of a streamlined process that minimizes the burden on its prosecutorial resources. It need not go before a grand jury to secure an indictment; battle motions, including collateral attacks on the underlying deportation; prosecute a jury trial; or oppose an appeal. The defendant, in turn, waives constitutional and other rights and agrees to a term of incarceration and, often,a term of supervised release ordinarily discouraged by the U.S. Sentencing Guidelines. What is the incentive for the defendant to take this deal? The prosecutor binds his office to recommend a four-level downward departure in the offense level now advised by the Guidelines, and to present a “united front” in favor of a reduced sentence to the district judge. If the judge does not accept this sentence, the defendant may walk away from his guilty plea, and proceedings will begin anew.
Paul Gabriel Morales Heredia (Morales) was one such defendant. But in Morales’s case, the orderly and efficient plea-bargaining process did not play out as intended. The government extended the promise of a reduced prison term with one hand and took it away with the other. The prosecutor’s recommendation of a six-month prison term rang hollow as he repeatedly and unnecessarily emphasized Morales’s criminal history, adding for good measure his personal opinion that “defendant’s history communicates a consistent disregard for both the criminal and immigration laws of the United States.” Morales’s counsel timely objected and sought specific performance of the plea agreement. The district judge denied this relief on the irrelevant ground that the prosecutor’s statements did not influence him. We conclude that Morales is entitled to relief, and we vacate his sentence and remand for further proceedings before a different judge.
Distinctive religious perspective on the drug war for the season
In the wake of the recent Jewish high holy days, I found especially notable and timely this recent commentary appearing in The Forward authored by Hanna Liebman Dershowitz. The piece is headlined "A Drug Policy That Denies Repentance: We Are Ruining The Lives of Small Time Users," and here are excerpts:
We are emerging from the Day of Repentance — a time for contrition for misdeeds, focusing on self-improvement and making a fresh start. But what about people who don’t have the luxury of wiping their slates clean, even for minor transgressions? Are our laws and policies robbing millions of citizens of their own opportunities to turn toward good, to achieve the possibility of teshuvah, atonement, that we claim for ourselves each year?
For decades this country has pursued a policy of mass arrest and imprisonment of people for possessing drugs. The consequences of being prosecuted for simple drug possession — conduct that does not harm other people’s bodies or property — can affect people for the rest of their lives, and wreak untold cost on our country and our society.
A criminal record can cripple job prospects and much more. Individuals with a record are often denied child custody, voting rights, business financing, professional licenses, student loans and public housing....
The United States has a higher level of incarceration than any other country. Today, more than 2.3 million people are behind bars in America. Almost one in four of them are there for drug offenses, many serving extensive mandatory minimum sentences. It is costing us dearly in lives and dollars.
And what has been gained? No appreciable reduction in use or in rates of addiction. By contrast, we have degraded the conditions that promote recovery for those who are addicted — such as access to treatment, access to support networks, gainful employment and education. It feels like we are tearing apart communities when we don’t need to. In 2012, upward of 1.5 million Americans were arrested for drugs. More than 80% of those arrests were for possession of small amounts.
Meanwhile, focusing too much attention on drug possessors often leads to perverse results. For example, in 2008, in California alone, 61,000 people were arrested for possession of small amounts of marijuana; that same year, 60,000 violent crimes in California went unsolved. When drug arrests are made, testing the drugs in crime labs often jumps ahead of testing rape kits and other evidence from violent crimes, because there is a suspect in custody and the courts need evidence to sustain the prosecution. In various ways, the focus on arresting drug users has atrophied our ability to address violent crime and other public safety threats.
Equally troubling, penalties for drug use fall disproportionately on people of color. Arrest rates of African-Americans for marijuana possession (the bulk of drug arrests) are many times higher — in some areas, as much as 10 times higher — than for whites in most United States cities, despite the fact that black and white people use drugs at similar rates. Although they make up 13% of America’s population, blacks make up fully 31% of arrests for drug offenses and more than 40% of incarcerations. A recent study found that prosecutors are twice as likely to pursue a mandatory minimum sentence for blacks as they are for whites. This is about dehumanizing and demoralizing large numbers of citizens and stripping them of their dignity. We as Jews should recognize and strenuously oppose these unfair and discriminatory practices.
Is this how we want our system to respond to this kind of nonviolent conduct? What does it mean to be a law-abiding citizen if a person cannot make the conscious choice to walk a positive path even after a transgression? Continuing consequences, especially for minor nonviolent acts, seem to render hollow the concepts of forgiveness, redemption and community healing.
The implications of policies should be particularly resonant to us during this season of renewal. We have fasted, made our amends and hoped we were inscribed in the book of life. We should abhor a system that erases other people’s chances to atone simply because those people chose an action we have singled out for disdain.
Criticizing the tenure of AG Eric Holder based on the death penalty as a human rights issue
This extended New Republic commentary authored by Mugambi Jouet, somewhat inaccurately titled "What Eric Holder — and Most Americans — Don't Understand About the Death Penalty," takes shots at Holder's specific record on the death penalty:
Attorney General Eric Holder's recent resignation announcement prompted a flurry of assessments on his six years of service under President Obama. He let Wall Street off too easy. He was a hero to the poor. He compromised civil liberties in the name of national security—and defended civil rights better than any attorney general before him. But the debate over Holder’s record has overlooked one of the most important aspects of his legacy. Holder has been profoundly at odds with the rest of the Western world on one of the most significant human rights issues of our time: the death penalty.
All Western democracies except America have abolished capital punishment and consider it an inherent human rights violation. America further stands out as one of the countries that execute the most people. Thirty-nine prisoners were executed by the United States in 2013. While that figure marked a continuing decline in the annual number of U.S. executions, it still placed America fifth worldwide, right behind several authoritarian regimes: China, Iran, Iraq, and Saudi Arabia.
No federal prisoner has been executed since 2003, yet Holder’s decisions could ultimately lead this de facto moratorium to end, as he authorized federal prosecutors to pursue capital punishment in several dozen cases. "Even though I am personally opposed to the death penalty, as Attorney General I have to enforce federal law," Holder has argued. Prosecutors actually have the discretion not to pursue the death penalty at all — at the risk of losing popularity — since enforcing the law does not require pursuing capital punishment as opposed to incarceration....
Holder notably approved the decision to seek the death penalty in the federal trial of Dzhokhar Tsarnaev, who is accused of perpetrating the Boston Marathon bombings of 2013 — and whom a majority of Americans want to be executed. Nevertheless, the state of Massachusetts has abolished the death penalty and only 33 percent of Boston residents support executing Tsarnaev as opposed to sentencing him to life in prison without parole. However, Holder’s decisions supporting capital punishment have hardly been limited to terrorism cases. For example, he authorized the recent decision to seek the death penalty for Jessie Con-Ui, a Pennsylvania prisoner accused of murdering a federal correctional officer....
The death penalty is rarely framed as a human rights issue in America, unlike in other Western democracies. That's partly because the principle of human rights plays a very limited role overall in the legal and political debate in the U.S., where "human rights" commonly evoke foreign problems like abuses in Third World dictatorships — not problems at home.
The situation is different on the other side of the Atlantic, where the European Court of Human Rights tackles a broad range of problems facing European states, from freedom of speech to labor rights, discrimination, and criminal justice reform. National human rights commissions also exist in multiple countries, including Australia, Denmark, France, Germany, and New Zealand. These bodies focus mostly or exclusively on monitoring domestic compliance with human rights standards. On the other hand, the Tom Lantos Human Rights Commission, an arm of the U.S. Congress, focuses on the human rights records of foreign countries.
The relative absence of human rights as a principle in modern America is remarkable given how U.S. leaders actively promoted the concept in its infancy. President Franklin Delano Roosevelt invoked “human rights” in his “Four Freedoms Speech” of 1941. Eleanor Roosevelt was among the architects of the Universal Declaration of Human Rights of 1948. As the human rights movement progressed in later decades, Martin Luther King said in 1968 that “we have moved from the era of civil rights to the era of human rights.”
Even though Holder regards King as one of his models — and despite his proposals to make the U.S. penal system less punitive and discriminatory — the nation’s first black attorney general hardly put human rights at the center of his agenda.
The death penalty is far from the only human right issue where America stands apart from other Western democracies. America effectively has the world’s top incarceration rate, with 5 percent of the world’s population but 25 percent of its prisoners. America is likewise virtually alone worldwide in authorizing life imprisonment for juveniles. Its reliance on extremely lengthy periods of solitary confinement has been denounced by the U.N. Special Rapporteur on Torture. The extreme punishments regularly meted to U.S. prisoners are generally considered flagrant human rights violations in other Western countries. Nevertheless, Holder argued that America has “the greatest justice system the world has ever known.”
By the same token, no other modern Western democracy has gone as far as America in disregarding international human rights standards as part of anti-terrorism measures. This trend has been epitomized by indefinite detention at Guantanamo and the torture of alleged terrorists under the Bush administration. These practices have sharply divided U.S. public opinion but only a segment of Americans have depicted them as “human rights” abuses....
[T]he limited weight of human rights in the U.S. legal and political debate is not without consequences. Human rights are a far stronger basis to oppose practices like the death penalty or torture than the administrative arguments frequently invoked in America. The human rights argument against such practices is largely based on the premise that they violate human dignity....
Holder's narrow focus on problems with the administration of capital punishment suggests that he is among the many U.S. public officials and reformers who believe they have no duty to assess the “moral” issues regarding the death penalty. Whether this stance is justified or not, it seems quite exceptionally American in the modern Western world. Most contemporary European, Canadian, Australian, and New Zealander jurists probably would disagree with the notion that it is not their duty to assess whether executions violate human dignity.
Martin Luther King, who considered the death penalty an affront to human dignity, argued that “a genuine leader is not a searcher for consensus but a molder of consensus.” Perhaps Eric Holder — and his boss, Barack Obama — would have been willing to argue that the death penalty is dehumanizing if they did not fear losing popularity.
Tuesday, October 7, 2014
Rolling Stone laments enduring casualties of drug war's mandatory minimums
Rolling Stone magazine has just published this extensive "special report" titled "The Nation's Shame: The Injustice of Mandatory Minimums." The piece details the stories of seven notable low-level drug defendants serving high-level prison sentences. The piece has this subheading: "For decades, lawyers, scholars, and judges have criticized mandatory drug sentencing as oppressive and ineffective. Yet tens of thousands of nonviolent offenders continue to languish behind bars." And here is a portion of the lead into the seven cases profiled:
Widely enacted in the Eighties and Nineties amid rising crime and racially coded political fearmongering, mandatory penalties — like minimum sentences triggered by drug weight, automatic sentencing enhancements, and three-strikes laws — have flooded state and federal prisons with nonviolent offenders. Intended to ensure uniform discipline, these policies simply shifted discretion to prosecutors. Judges lost latitude to tailor sanctions based on whether someone was a kingpin or courier, for example, while [Professor Mark] Osler says, prosecutors gained "a big hammer. The easy way of doing things is to threaten people with a lot of time, and then plead them out," he says. "But easy and justice don't go together very well."...
[T]he drug war is entrenched in decades of prison buildup. Between 1980 and 2010, state incarceration rates for drug crimes multiplied tenfold, while the federal drug prisoner population ballooned by a factor of 20. Every year, taxpayers shell out $51 billion for drug war spending. Meanwhile, 2.2 million people — or a quarter of the world's prisoners — crowd a system that exacts its harshest toll on the most vulnerable. Racism undermines the justice process from initial stop to sentence, and 60 percent of those incarcerated are people of color. Rates of illiteracy, addiction, and mental illness are disproportionately high.
Amid utter congressional deadlock, sentencing reform is the only issue that has cut across partisan bickering to unite such normally irreconcilable voices as Rand Paul, Dick Durbin, Ted Cruz, Elizabeth Warren, Paul Ryan and John Conyers. Yet the proposed Smarter Sentencing Act, which passed the Senate Judiciary Committee in January, has since run aground. The bill would halve key mandatory minimums, make relief under the Fair Sentencing Act available to 8,800 federal crack defendants locked up before 2010 and save $4 billion in the process. More than 260,000 people have been imprisoned under federal drug mandatory minimums, and more will continue to cycle through the system — even as others are granted clemency — as long as reforms remain stalled. At the state level, reforms without retroactive application strand drug defendants in prison even after the laws that put them there are reassessed as unjust. The following seven cases epitomize the rigid regimes of the past, and the challenges involved in dismantling them.
Arkansas deputy AG cut to pieces while trying to defend prison beard-cutting policies
This morning the Supreme Court head oral argument in a prisoner rights case, and this SCOTUSblog report on the argument from Lyle Denniston suggests it did not go well for one advocate. Here is the start of Lyle's argument recap:
The Supreme Court on Tuesday sent a blunt message to prison officials planning a policy that limits the religious freedom of inmates: it would be important to have a good reason for the restriction before it gets into court. Trying to bolster the rationale at the lectern is not a promising strategy.
A lawyer for Arkansas prison officials found that out in two quick exchanges with Justice Samuel A. Alito, Jr., that came close to collapsing his case.
David A. Curran, a deputy attorney general from Little Rock, arguing for the state in the case of Holt v. Hobbs, took his turn before the Justices after two lawyers on the other side had repeatedly complained that the state simply had no real justification for banning all beards on inmates, even for those who might want insist that they need one for religious reasons.
Curran tried to offer two rationales: the policy keeps prisoners from hiding anything dangerous or illegal in their chin hair, and it helps the guards identify the inmates as they move about in the prison yard or working in the farm fields. (A third rationale, put forward only briefly, is that “prisoners are capable of a lot of mischief.”) But the more he talked, the more the skepticism spread across the bench.
Clearly, though, his worst moments came when Justice Alito quietly probed both of the primary arguments.
As to the contraband-hiding problem, Alito suggested that the prison guards could just hand an inmate a comb and have him run it through the beard, “to see if a SIM card — or a revolver — falls out.” It produced a broad wave of laughter in the courtroom, at the quite ridiculous image of a gun being stashed in a half-inch beard. (There were enough modernists in the audience to know that a SIM card is a tiny electronic chip that identifies the assigned user of a cellphone; cellphones are not allowed in Arkansas prisons.)
As to the altered-identify problem, Alito tried verbally to imagine how an inmate wishing to enter the wrong barracks after a work period outside would — while out in the field — produce a razor, shave the beard, switch photo ID cards with an inmate who looked like him beardless, and go into a barracks different from the one specified on that ID card. That, too, was such a stretch that it taxed credulity.
Other Justices had also given Curran little peace, although the Court’s members did at times make some determined — and mostly frustrated — attempts to define a standard as to when courts should defer to prison officials’ judgment about what is required for prison safety, and a standard to determine when a restriction on religious practice among inmates would go too far.
The title of this post is the title of this notable new article by Gregory Gilchrist now available via SSRN. Here is the abstract:
Jury trials are rare. Almost all criminal cases are resolved by guilty plea, and almost all guilty pleas are secured by prosecutorial offers of leniency. Our system of criminal procedure was developed around the norm of trials, and the shift to resolution-by-plea represents a massive change to the structure of the system.
The dominance of plea bargaining can best be explained by reference to a constitutionalized criminal procedure that renders formal adjudication too costly to provide in most cases. Plea bargaining dramatically enhances the efficiency of our system, serving as a safety valve against costly trials. The transformation of an adjudicatory system of criminal justice to a confessional one, however, generates severe costs for the legal system as a whole.
This article proposes trial bargaining as a new safety valve to counteract the negative consequences plea bargaining. Through the mechanism of waiver — the very tool that makes plea bargaining possible — trial bargaining allows the defendant to waive limited trial rights in exchange for limited leniency. As such, it promises to reinvigorate the jury trial, mitigate the costs of an excessive reliance on plea bargains, and allow a more vibrant and experimental approach to criminal justice than has been realized under our constitutionalized system.