Saturday, October 18, 2014

Reviewing concerns about the efficacy and fairness of sex offender registried

AlJazeera America has this lengthy new piece about sex offender registries headlined "Sex-offender laws are ineffective and unfair, critics say: Experts say public registries don't reduce assault — and sex offenders are increasingly challenging the rules in court." Here are excerpts:

Few groups are as widely despised as sex offenders.  Activities prosecuted as sex offenses vary by state, but can include public urination, consensual sex between teenagers, streaking, prostitution, downloading child pornography and rape.  In some states, law-enforcement officials distribute flyers to notify neighbors of registrants’ convictions. Some registrants are prohibited from using the Internet.  In 2010, the U.S. Supreme Court ruled that indefinite detention at psychiatric hospitals — or “civil commitment” — of sex offenders is constitutional.

The first law requiring sex offenders to register publicly and for life was passed in California in 1947 and targeted gay men, according to Andrew Extein, executive director of the Center for Sexual Justice.  But many of today’s laws have their origins in the late 1970s, when feminists and social conservatives worked together to publicize high-profile “stranger danger” attacks on children, says Roger Lancaster, anthropology professor at George Mason University and author of “Sex Panic and the Punitive State.”

Beginning in the mid-1990s, several laws went into effect that changed how sex-offense cases were prosecuted.  In 1994, states were required to create databases of sex offenders.  Two years later, Megan’s Law, named for a 7-year-old in New Jersey who was brutally raped and murdered by a neighbor with two previous sex convictions, allowed states to make those registries public.  States passed their own versions of the law; in some cases, they required that neighbors be notified of paroled offenders’ previous convictions.  Later laws moved those sex-offender databases online, created a national registry, required lifetime registration of people 14 years old and up and imposed harsh mandatory minimum sentences for crimes involving children.

But almost 20 years after the passage of Megan’s Law, criminologists and judges, along with a burgeoning movement of sex-offender registrants and their families, are challenging not only the constitutionality of the laws but their effectiveness in reducing sexual assault. In January, a California court ruled in favor of a paroled sex offender who had argued that city and county “child-safety zone” ordinances prohibiting people in the registry from using parks, beaches and similar recreation areas were an unconstitutional form of banishment.  In April, the state Supreme Court upheld the ruling by declining to review it.

Thirty-three states have opted out of at least some aspects of the law that brings registries online.  Many, like New York, take issue with the 2006 federal law that requires states to list every person convicted of a sex offense on a public registry.  Some, like Maryland, are considering removing the names of people who committed less serious offenses.

Critics say the registries’ emphasis on public tracking of sex offenders after their release from prison does not make people safer.  Ninety-five percent of those arrested for sexual offenses have no prior convictions.  Recidivism rates are low: A study conducted by the Canadian government looked at data from 10 studies on sex-offender recidivism in Canada, the United Kingdom, Wales and the United States and found that “after 15 years, 73% of sexual offenders had not been charged with, or convicted of, another sexual offence.”

In most sex-abuse cases — 93 percent, according to a Department of Justice report — the child knows the perpetrator.  Nearly half of abusers are family or extended-family members.  A 2008 American Psychological Association report concurs: “Despite the public perception that sex offenders are strangers stalking playgrounds and other areas where children congregate, the majority of offenses occur in the victim’s home or the home of a friend, neighbor, or relative.”

A 2008 Justice Department study examined recidivism among sex offenders before and after the law requiring community notification.  “Megan’s Law showed no demonstrable effect in reducing sexual re-offenses,” it concluded.

Says a 2009 report by Princeton University and the Brookings Institution: “None of these high-profile strategies has been built on empirical evaluation, and virtually all have gone to national scale without research or even much pilot testing.”

What registration laws do is make it nearly impossible for those listed to find or keep jobs and housing, advocates say.  Residency restrictions in California have created a housing crisis for convicted sex offenders. According to the California Sex Offender Management Board, the number of homeless registrants has increased 217 percent, to 6,500, over the past eight years....

Supporters of registering and limiting the movement of paroled sex offenders, including Tony Rackauckas, one of the first district attorneys in California to support countywide child-safety zones, however, are not persuaded by these arguments and say the registries do prevent attacks. “We’re not going to know how many kids were not molested or groomed for later sexual contact as a result of this law,” he told The New York Times.

October 18, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack (0)

With DAG James Cole also stepping down, new appointments will remark DOJ

DownloadAs detailed in this Los Angeles Times article, "Deputy Attorney General James M. Cole said in an interview Thursday that, like his boss, he will soon leave the Justice Department." Here is more about the emptiness at DOJ and DAG Cole's work and legacy:

The coming departure of Cole, who for four years has been the day-to-day boss of the department, adds to a growing leadership vacuum at the federal government’s top law enforcement agency. Atty. Gen. Eric H. Holder, Jr. announced last month that he would leave as soon as a successor is confirmed, though the Obama administration has so far not announced a replacement.

At least half a dozen other top positions at Justice, including the associate attorney general, the No. 3 job, are currently filled with acting appointees.

Cole said he was particularly proud of his efforts to take a softer federal approach to enforcement of federal marijuana laws, a project to encourage nonviolent prisoners serving long drug sentences to apply for a presidential commutation, and prosecution of Credit Suisse bank and individual Swiss bankers for helping U.S. citizens evade taxes.

He has also been closely involved in Holder’s “smart on crime” initiative to reduce the prison population and the large proportion of African Americans in federal prisons.

Cole said he expected to leave in early January, after someone has been chosen to take his place, on a permanent or acting basis.

October 18, 2014 in Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Friday, October 17, 2014

"Cities Look for Ways to Get Free of Empty Jails"

The title of this post is the headline of this intriguing Wall Street Journal piece from earlier this week, which carried the subheading "Drop in Crime and Lighter Sentences Swell the Number of Jails for Sale."  Here are excerpts:

After rising rapidly for decades, the number of people behind bars peaked in 2009 and has been mostly falling ever since. Inmates at federal and state prisons stood at 1.57 million in 2013, down 2.7% from a peak of 1.62 million in 2009, according to the Bureau of Justice Statistics.

In some states, the decline has been more pronounced, including New York, which saw an 8.8% decline in federal and state inmates, and California, which saw a 20.6% drop. The inmate population in city and county jails has also fallen, even as some states have shifted prisoners to those facilities....

The incarceration rate is declining largely because crime has fallen significantly in the past generation. In addition, many states have relaxed harsh sentencing laws passed during the tough-on-crime 1980s and 1990s, and have backed rehabilitation programs, resulting in fewer low-level offenders being locked up. States from Michigan to New Jersey have changed parole processes, leading more prisoners to leave earlier. On a federal level, the Justice Department under Attorney General Eric Holder has pushed to reduce sentences for nonviolent drug offenders.

While the reduction in crime and incarceration has many social benefits, municipalities are having a tough time finding new uses for prisons. Old office buildings can be converted to apartment buildings or hotels. Outdated government buildings can be used for retail or as schools. Even some prisons, mainly those with historic architecture and located in city centers, have been converted in recent years to hotels, including Boston’s Charles Street Jail, which is now known as the Liberty Hotel.

But most prisons are drab structures located in rural areas, offering few opportunities for reuse. The result is that the number of prison properties on the market is rising. New York state has closed 17 prisons and juvenile-justice facilities since 2011, following the rollback of the 1970s-era Rockefeller drug laws, which mandated lengthy sentences for low-level offenders.

So far, the state has found buyers for 10 of them, at prices that range from less than $250,000 to about $8 million for a facility in Staten Island, often a fraction of what they cost to build. It hopes to sell most of the remainder.

In Texas, where more nonviolent offenders are being put in rehabilitation programs, the state has closed three prisons since 2011. Among them is a 1,060-bed facility called the Central Unit that the city of Sugar Land is seeking to buy from the state and convert to an aviation-focused business park, given its proximity to an airport.

October 17, 2014 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack (0)

ProPublica urges next AG to "Fix Presidential Pardons"

The title of this post is drawn from the headline of this strong new piece from the Editor-in-Chief of ProPublica. The full headline and subheadline provides the basics: "For the Next Attorney General, a Modest Suggestion: Fix Presidential Pardons; More than two years ago, a ProPublica series showed that white applicants were far more likely to receive clemency than comparable applicants who were black. Since then, the government has spent hundreds of thousands of dollars on a study, but the pardons system remains unchanged." And here are a few excerpts from a piece that is styled as an open letter to the next Attorney General:

Dear Possible Attorney General Nominees (You Know Who You Are),...

More than two years ago, ProPublica reporters Dafna Linzer and Jennifer LaFleur revealed that white applicants were nearly four times as likely to receive a presidential pardon as were comparable African Americans. The story appeared on the front page of The Washington Post, our publishing partner. I know, I know, this seems improbable but LaFleur spent many months doing a statistical analysis that eliminated every other factor we could imagine that might explain this disparity. We sent our findings and methodology to several leading experts in the field. All agreed that race was the only factor driving the vast difference. We published our methodology and you can read it here. Linzer's reporting on the pardons process suggested that it was far more subjective than you might have thought. We wrote about how race creeps into decision-making even when no one is overtly biased. It's worth a look.

Given the starkness of these findings, we at ProPublica thought, naively, that your predecessor and his boss would move immediately to address this problem. As I'm sure you're aware, a president's authority to grant pardons is one of the only unchecked powers in our constitutional system of checks and balances. When it comes to pardons, President Obama can do whatever he wants.

We were told by several political insiders that the pardon stories did not prompt reform because of their timing. They appeared in late 2011, just as the president was gearing up for what was expected to be a bruising campaign for a second term. It was not considered the politically ideal moment for the nation's first African-American president to make the justice system fairer for people of color. And so the government did what it so often does in such circumstances: It commissioned a study to see if our findings were correct....

If history is any guide, you'll be getting a tsunami of pardon requests in the last months of the administration. It might be nice to have come up with some serious reforms by then to fix a process that is so demonstrably flawed. There are lots of ideas about what could done, from setting up an independent pardons commission to taking the pardons office out of the Justice Department.

Good luck with the confirmation hearings. And remember, two years can fly by a lot quicker than you'd ever imagine....

Best Regards,

Stephen Engelberg/Editor in Chief, ProPublica

October 17, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Thursday, October 16, 2014

"Is Hillary Clinton ready for marijuana's 2016 push?"

The title of this post is the headline of this notable and lengthy new CNN article.  Here are excerpts:

When Hillary Clinton graduated from Wellesley College in 1969 -- where the future first lady and Secretary of State says she did not try marijuana -- only 12% of Americans wanted to legalize the drug.  In 45 years, however, the tide has changed for legalization: 58% of Americans now want to make consumption legal, two states (Colorado and Washington) already have and two more states (Oregon and Alaska) could join them by the end of the year.

Despite their growth in approval, many activists see 2014 as a smaller, but important, step to their end goal.  It is 2016, when voters will also have to decide who they want in the White House, that marijuana activists feel could be the real tipping point for their movement.

"There will certainly be even more on the ballot in 2016," said Tamar Todd, director of marijuana law and policy and the Drug Policy Alliance.  "More voters coming to the polls means more support for marijuana reform and in presidential election years, more voters turn out."

Demographics and money are also an important consideration.  Big donors who are ready to fund pro-legalization efforts are more loose with their money in presidential years, according to activists, while Democrats and young people are more likely to turn out. This means legalization activists will be better funded to reach the nearly 70% of 18 to 29 year old Americans who support legalization.

On paper, activists feel their plan will work. But it is one yet to be decided factor -- who Democrats will nominate for president in 2016 -- that could throw a wrench into their push. Clinton is the prohibitive favorite for the Democrats' nomination, but to many in the marijuana legalization community, she is not the best messenger for their cause.

"She is so politically pragmatic," said Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws.  "If she has to find herself running against a conservative Republican in 2016, I am fearful, from my own view here, that she is going to tack more to the middle. And the middle in this issue tends to tack more to the conservative side."...

Clinton has moved towards pro-legalization, though. Earlier this year, during a town hall with CNN, she told Christiane Amanpour that she wants to "wait and see" how legalization goes in the states before making a national decision. At the same event, she cast some doubt on medical marijuana by questioning the amount of research done into the issue.

Later in the year, Clinton labeled marijuana a "gateway drug" where there "can't be a total absence of law enforcement."

"I'm a big believer in acquiring evidence, and I think we should see what kind of results we get, both from medical marijuana and from recreational marijuana before we make any far-reaching conclusions," Clinton told KPCC in July. "We need more studies. We need more evidence. And then we can proceed."

This is more open, however, than in 2008 when Clinton was outright against decriminalization, a step that is less aggressive than legalization. Despite warming on the issue, Clinton's position is concerning to activists like St. Pierre because he feels they are far from solid. "If reforms keep picking up... the winds in our sails are clear," he said. "But if we lose one of more or all of those elections this year, cautious people around her could make the argument that this thing has peaked and you now have to get on the other side of it."

Cross-posted at Marijuana Law, Policy & Reform

October 16, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Author John Grisham says "we've gone nuts with this incarceration" of child porn downloaders

One of my (many) wonderful students alerted me to this notable UK press piece reporting on an interview with famous law author John Grisham who had some interesting (and likely-to-be-controversial) comments about tough sentencing for those who download child porn.  The article is headlined "John Grisham: men who watch child porn are not all paedophiles," and here are excerpts:

America is wrongly jailing far too many people for viewing child pornography, the best-selling legal novelist John Grisham has told The Telegraph in a wide-ranging attack on the US judicial system and the country's sky-high prison rates. Mr Grisham, 59, argued America's judges had "gone crazy" over the past 30 years, locking up far too many people, from white collar criminals like the businesswoman Martha Stewart, to black teenagers on minor drugs charges and — he added — those who had viewed child porn online.

"We have prisons now filled with guys my age. Sixty-year-old white men in prison who've never harmed anybody, would never touch a child," he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week.  "But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn."

The author of legal thrillers such as The Firm and A Time to Kill who has sold more than 275m books during his 25-year career, cited the case of a "good buddy from law school" who was caught up in a Canadian child porn sting operation a decade ago as an example of excessive sentencing.  "His drinking was out of control, and he went to a website. It was labelled 'sixteen year old wannabee hookers or something like that'. And it said '16-year-old girls'.  So he went there. Downloaded some stuff — it was 16 year old girls who looked 30.

"He shouldn't ’a done it.  It was stupid, but it wasn't 10-year-old boys.  He didn't touch anything.  And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people — sex offenders — and he went to prison for three years."

"There's so many of them now.  There's so many 'sex offenders' — that's what they're called  — that they put them in the same prison.  Like they're a bunch of perverts, or something; thousands of ’em.  We've gone nuts with this incarceration," he added in his loft-office in Charlottesville, Virginia.

Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise.  "I have no sympathy for real paedophiles,” he said, "God, please lock those people up.  But so many of these guys do not deserve harsh prison sentences, and that's what they're getting," adding sentencing disparities between blacks and whites was likely to be the subject of his next book.

There are currently some 2.2m people in jail in the US — or more than 750 per 100,000 population — which makes the US by far the heaviest user of prison sentences in the world. By contrast, Britain imprisons just 154 per 100,000 population.  However Mr Grisham’s remarks are likely to anger child-rights campaigners that over the past decade have successfully lobbied the US Congress to demand tougher sentences for those who access child pornography online.

Since 2004 average sentences for those who possess — but do not produce — child pornography have nearly doubled in the US, from 54 months in 2004 to 95 months in 2010, according to a 2012 report by the U.S. Sentencing Commission. However the issue of sex-offender sentencing has sparked some debate in the US legal community after it emerged that in some cases those who viewed child porn online were at risk of receiving harsher sentences than those who committed physical acts against children.

A provocative article in the libertarian magazine Reason headlined "Looking v Touching" argued last February that something was "seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children".  And in January this year the US Supreme Court was unable to resolve a debate over whether a man who viewed images of a child rape should be as liable to pay the same financial compensation to the victim as the original perpetrator of the crime.

UPDATE: As I expected, John Grisham's child porn sentencing comments has stirred controversy and he has already issued a formal apology.  This CNN story provides the basics of the early aftermath:

Those comments and the nature in which Grisham discussed the very serious issue of child pornography incited a flood of hurt, disappointed and angry reactions from fans.

"The day that you came out in an interview and said that watchers of child porn get too stiff of a penalty for it (you said 10 years was too much) makes you someone that I cannot support nor no longer want to read," a reader named Kendra Benefield Lausman shared on Grisham's Facebook page; another posted that she's taken her entire Grisham library to her "burn barrel" with the intent to set the books on fire.

"How do you think child porn is made?" a poster named John Kelly asked on Grisham's page. "Someone is still getting hurt you imbecile. I'm sad to say that I will never purchase, nor consume, one of your books ever again. I am disgusted."

After the uproar began, Grisham issued an apology.

"Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography -- online or otherwise -- should be punished to the fullest extent of the law," the author said in a statement. "My comments made two days ago during an interview with the British newspaper The Telegraph were in no way intended to show sympathy for those convicted of sex crimes, especially the sexual molestation of children. I can think of nothing more despicable. I regret having made these comments, and apologize to all."

That may not be enough for some of his former followers. "You clearly said in the interview that people (like your drunk friend) who look at child porn don't deserve severe punishment," Facebook user Raylene Jolly Wheeler posted in response to Grisham. "Not sure how you can backtrack that statement."

October 16, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing, Second Amendment issues, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack (0)

"Risk and Needs Assessment: Constitutional and Ethical Challenges"

The title of this post is the title of this timely and notable new paper by Melissa Hamilton recently posted on SSRN. Here is the abstract:

Across jurisdictions, the criminal justice system is enamored with the evidence-based practices movement.  The idea is to utilize the best scientific data to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations according to risk and criminogenic needs.  Risk-needs tools now inform a variety of criminal justice decisions, ranging from pre-trial outcomes, to sentencing, to post-conviction supervision. While evidence-based methodologies are widely exalted as representing best practices, constitutional and moral objections have been raised.

Risk-needs tools incorporate a host of constitutionally and morally sensitive factors, such as demographic and other immutable characteristics.  The constitutional analysis herein engages equal protection, prisoners’ rights, due process, and sentencing law.  In addition, the text examines the philosophical polemic aimed uniquely at sentencing as to whether risk should play any role at all in determining punishment.

The Article then appraises potential alternatives for risk-needs methodologies if the concerns so raised by critics prove legitimate.  Any option comes with significant consequences.  Retaining offensive variables incites political and ethical reproaches, while simply excising them weakens statistical validity of the underlying models and diminishes the promise of evidence-based practices.  Promoting an emphasis on risk at sentencing dilutes the focus of punishment on blameworthiness, while neglecting risk and needs sabotages a core objective of the new penological model of harnessing the ability to identify and divert low risk offenders to appropriate community-based alternatives.

October 16, 2014 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (5) | TrackBack (0)

Wednesday, October 15, 2014

Will Eric Holder still be Attorney General well into 2015?

The question in the title of this post is prompted by this recent press report that "President Obama plans to wait on nominating a new attorney general to replace Eric Holder until shortly after the November election." Here is more on the slow pace of Holder's departure from the Office of Attorney General: 

A source close to the process on Tuesday confirmed to Fox News that the president plans to wait until after the Nov. 4 midterm elections. The source said the administration considers the appointment to be serious and wants to wait so the nomination doesn’t get mired in election-year politics. Democrats reportedly had asked the president to hold off until after Nov. 4.

But some Senate Republicans wanted Obama to wait until the new Senate is seated in January to name his pick to succeed Holder. By naming a nominee shortly after the election yet before the new year, the White House would be putting his or her confirmation in the hands of some lawmakers who are not returning in 2015 -- and thus no longer accountable to voters. Further, the White House would be handing the nomination to a Democrat-controlled Senate, despite the possibility that control of the Senate could flip to Republicans in January.

Sen. Ted Cruz, R-Texas, has warned that confirming Holder’s successor before a new Congress is sworn in “would be an abuse of power that should not be countenanced."...

White House Press Secretary Josh Earnest, asked about the timing, said Tuesday that it will take a "little bit of time" to choose the right nominee for the job. But he urged the Senate to "act quickly and in a bipartisan fashion to confirm that person."

The lame duck timetable covers just seven legislative calendar weeks, not accounting time off for holiday recesses. But the White House has pointed out there is precedent for such a move. The day after the 2006 midterm, President George W. Bush nominated Robert Gates as secretary of defense and he was confirmed in less than a month with bipartisan support.

A few recent related posts:

October 15, 2014 in Who Sentences? | Permalink | Comments (0) | TrackBack (0)

"Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane"

The title of this post is the title of this notable new paper by Brandon Buskey and Daniel Korobkin now available via SSRN. Here is the abstract:

This Article proposes a framework establishing that the United States Supreme Court’s decision in Miller v. Alabama, which forbids states from automatically sentencing juveniles to life imprisonment without any meaningful opportunity for release, must apply retroactively to hundreds of juveniles whose convictions and life sentences were already final at the time of the decision.  Such a framework is timely and critical. Although the lower state and federal courts are almost evenly divided on the question, the Supreme Court has yet to settle the divide.

The Article reviews how, absent guidance from the Supreme Court, a host of states, led recently by Michigan, have invoked the Miller majority’s statement that it was merely requiring states to follow a "certain process" before sentencing a juvenile to life imprisonment without parole.  By this reasoning, Miller is not retroactive under the Supreme Court’s federal retroactivity doctrine established by Teague v. Lane.  The Court has always applied new substantive rules retroactively under Teague, while it has never done so for a new procedural rule.

The Article rejects this "process" language as a basis for resolving whether Miller is retroactivity.  It concludes that Miller in fact has little to do with process and is instead primarily concerned with sentencing outcomes for youth.  In striking down mandatory life without parole for juveniles, Miller adapted the individualized sentencing requirement from Woodson v. North Carolina, which invalidated the mandatory death penalty.  This individualized sentencing requirement obligates states to always offer juveniles a sentencing outcome carrying the possibility of release and to consider the essential, mitigating fact of youth before imposing an irrevocable life sentence.  These obligations are inherently substantive. By contrast, Miller’s alleged procedural component is undefined and collateral to its substantive altering of juvenile sentencing. Miller therefore announces a substantive rule that must apply retroactively.

October 15, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack (0)

Tuesday, October 14, 2014

AG Eric Holder officially says federal prosecutors should no longer require defendants to "waive their right to bring future claims of ineffective assistance of counsel"

I have long thought it both bad policy and ethically suspect to expect or require criminal defendants to waive future rights (as opposed to current rights) in a plea agreement.  Consequently, I am very pleased to see this new press release coming the the US Department of Justice, titled "Attorney General Holder Announces New Policy to Enhance Justice Department's Commitment to Support Defendants' Right to Counsel." Here are the details (with my emphasis added):

Attorney General Eric Holder, along with Deputy Attorney General James M. Cole, announced today that the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel.  The new policy bolsters the department’s commitment to ensuring that individuals are ably represented as they face criminal charges and marks the Attorney General’s latest step to reform the criminal justice system.

“Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel,” said Attorney General Holder. “Under this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.  I am confident in the ability of our outstanding prosecutors to ably and successfully perform their duties without the use of these waivers, as the vast majority of them already do.  Moving forward, I am certain that this more consistent policy will help to bring our system of justice closer in line with our most fundamental values and highest ideals.”...

Deputy Attorney General Cole unveiled the new policy through a memorandum to all federal prosecutors and through a conference call today. Prior to today’s action, 35 of the department’s 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel. While the department believes such waivers are legal and ethical, the new policy will create a uniform policy for all U.S. Attorneys to follow.

The memo directs federal prosecutors to no longer ask defendants to waive future claims of ineffective assistance of counsel in plea agreements. It also instructs prosecutors to decline to enforce waivers that have already been signed in cases where defense counsel provided ineffective assistance resulting in prejudice or where the defendant’s ineffective assistance claim raises a serious issue that a court should resolve.

As noted in this prior post, a few months ago the the Supreme Court of Kentucky unanimously rejected a challenge by the federal government to Kentucky Bar Association Ethics Opinion stating that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.  Thus, I think DOJ is still on shaky ground when it asserts a belief that such waivers "are legal and ethical," but this suspect view becomes a lot less worrisome if the feds no longer plan to use such waivers nand also will not seek to have them enforced.

Kudos to AG Holder and others in DOJ for making the sounder ethical and policy approach to this significant matter now official DOJ policy.  And, notably, those who regard national consistency in federal sentencing policy and practice to be important should also welcome this universal policy decision coming from Main Justice.

UPDATE: The one-page memo referenced in this press release can be downloaded here:  Download DOJ Policy on Waivers of Claims of IAC

October 14, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

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:

October 14, 2014 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

"Could firing squad make a comeback in Utah, elsewhere?"

1424181The 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:

October 14, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack (0)

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.

October 14, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack (0)

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:

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.

October 13, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

"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.

October 13, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

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.”

October 13, 2014 in Death Penalty Reforms, Religion, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

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.

October 12, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

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.

October 12, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack (0)

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.

October 10, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)