Thursday, December 19, 2013

Death Penalty Information Center releases annual report on capital punishment developments in 2013

This morning, the Death Penalty Information Center released its annual report on death penalty developments under the sparkling title, "The Death Penalty in 2013: Year End Report." The eight-page report is available at this link, and here are its list of "key findings" followed by the first part of the report's conclusion:

The number of executions, the size of death row, and the number of death penalty states all declined in 2013. Death sentences were near their lowest level since the reinstatement of the death penalty in 1976. Even many southern states, including South Carolina, Virginia, Tennessee, and Louisiana, had no death sentences in 2013. With Maryland’s repeal of capital punishment, the number of states without the death penalty grew to 18. Public support for the death penalty is at a 40-year low.

It is likely these trends will continue as more state legislatures consider repealing what has become a very expensive and unpredictable punishment. Nevertheless, over 3,000 people remain on death row, and some states like Florida and North Carolina have taken measures to expand the use of the death penalty.

The problems of mistakes, unfairness, and even the method of execution have exasperated many supporters of the death penalty, contributing to less reliance on capital punishment. Death sentences in Texas have declined by almost 80% since 1999. When examined on a county basis, only 2% of U.S. counties are responsible for the majority of executions and prisoners on death row. Because of restrictions by drug manufacturers, states have been forced to try new combinations of lethal drugs, some obtained from questionable sources, to carry out executions.

Though the DPIC's work is always impacted by its anti-death-penalty perspectives, I am always impressed by and grateful for the various ways the group collected and disseminates important information about the application of the death penalty throughout the United States.

December 19, 2013 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (34) | TrackBack (0)

Wednesday, December 18, 2013

"Plea Bargaining: Some Comparative Observations"

The title of this post is the title of this notable new (and notably short) piece providing a useful perspective on plea bargaining by Jacqueline Hodgson, a UK-affiliated author.  Here is the abstract:

Plea and sentence bargaining is characterized by several general features that we might recognize as common across a range of jurisdictions and procedural traditions.  It requires an admission of guilt from the accused; the accused is offered some reward, incentive or advantage, either in exchange for, or as a result of the plea; and there is some benefit to the criminal justice system -- typically the avoidance of a more lengthy and expensive contested trial.  The point in the criminal process at which these negotiations are initiated, the personnel involved, and the relative incentives and benefits available will of course differ.  In some instances, explicit bargains are struck between prosecutor and defense lawyer; in others, there is direct judicial involvement; and in others, the system benefit may operate as an implicit reward, without any explicit bargaining taking place.

December 18, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack (0)

Task force recommends broad changes to sentencing and corrections in Mississippi

As reported in this local article, headlined "Sweeping prison reforms suggested in Mississippi: More judicial discretion among proposals," there is now big talk about big reforms in The Magnolia State. Here are the details:

A criminal justice task force on Tuesday recommended sweeping reforms to reduce Mississippi’s soaring prison population and costs, standardize sentences and reduce recidivism. “This is the first time in my career — 32 years — that we have taken a comprehensive look at corrections in this state,” said Mississippi Department of Corrections Commissioner Chris Epps. “… We all know the cost of doing nothing.”

The recommendations include providing more discretion for judges to impose alternatives to prison and creating “true minimums” on when violent and nonviolent offenders are eligible for release.  They also call for defining what constitutes violent crime — something officials said isn’t clear in state law.  Proposals also include increasing the threshold from $500 to $1,000 for felony theft and lowering drug sentences for possession of small amounts while cracking down on large drug dealers.

Epps headed the bipartisan, 21-member task force of lawmakers, judges, prosecutors, law enforcement and defense attorneys.  The group, after working for seven months with assistance from the Pew Charitable Trust’s Public Safety Performance Project, developed recommendations for the 2014 Legislature.

Gov. Phil Bryant, Lt. Gov. Tate Reeves, House Speaker pro tem Greg Snowden and others voiced their support for the proposal after the task force adopted it. The task force was created by a bill Snowden authored this year.  Bryant said the reforms “put victims first,” protect public safety and provide “clarity of sentencing.”  Reeves praised the recommendations as “evidence-based, data-driven, fiscally sound criminal justice reforms.”

While the nationwide trend has been lower prison population, Mississippi’s has skyrocketed since it passed some of the toughest “truth in sentencing” laws in the 1990s. The state now has more than 22,600 prisoners and the second-highest incarceration rate in the nation.  Prison costs have risen from $276 million in 2003 to $361 million, with unchecked growth expected to result in 2,000 more inmates and cost taxpayers another $266 million over the next 10 years.

The state has attempted unsuccessfully to reduce prison costs with a patchwork of release policies that created confusion in sentencing and a disconnect between the judges/prosecutors and corrections.  Uncertainty about how long convicts would serve helped push sentence lengths by 28 percent the last decade....

State Sen. Willie Simmons, D-Cleveland, said the proposed reforms are “historical,” and “create a better system as opposed to a build it (prisons) and they will come approach.”

December 18, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

Is there a real problem with animal cruelty federal sentences being way too short?

The question in the title of this post was my reaction to seeing this essay, titled "Vulnerable Victims: Increasing Animal Cruelty Sentences to Reflect Society's Understanding of the Value of Animal Lives," recently posted on SSRN.  Authored by Adam Lamparello and Megan Boyd, here is the abstract for this essay:

More should be done to deter animal cruelty. Crush videos, which depict horrific acts of animal cruelty, should be banned.  The advisory Guidelines range — as well as the five-year statutory maximum sentence for animal cruelty cases — should be substantially increased. Additionally, courts should continue to impose severe sentences upon those who subject animals to senseless and deadly violence.  In so doing, the law will recognize the intrinsic value of animals as conscious, living creatures worthy of legal and constitutional protection.

Candidly, I am not sure I fully understand or approve why many or even any animal cruelty should be prosecuted in federal courts.  Though I can imagine settings in which dog-fighting, cock-fighting and other inter-state economic activities based on animal abuse implicate important federal interests, the underlying animal cruelty strikes me as typically a distinctly local activity that ought generally (if not always) be prosecuted in local courts to better reflect local needs and interests.  My sense is that there are lots of local variations on what is regarded as criminal treatment of animals (e.g., hunting pigeons in a New York City park likely will be viewed by the local community as much different than hunting pheasants in a South Dakota park).  For such behavior, I always think local juries and local judges ought always be the primary, and perhaps the exclusive, assessors of criminality and what constitutes fair and effective punishment.

December 18, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack (0)

Tuesday, December 17, 2013

"Mom's Photos of Kids Rules 'Obsessive' but Not Pornography"

The title of this post is the headline of this interesting report from the New York Law Journal about an interesting state ruling concerning the definition of child pornography.  Here are the details:

Brooklyn Family Court Judge Steven Mostofsky  suggested in a recent decision that he knows what's not pornography when he sees it, and the images a camera-ready Brooklyn mother took of her kids are neither lewd nor obscene.  Rather, Mostofsky said, they are the product of a mom who is perhaps a little too eager to capture the family's Kodak moments.

"Any parent knows that you cannot raise a child without making a mistake in judgment from time to time," Mostofsky wrote in Matter of CW, NN-02628-6/13. "And unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family life."

The case began when a man lost his BlackBerry last April.  The person who found it noticed that there were numerous photographs of naked children and turned it into police.  That resulted in a bench warrant, an investigation by the Brooklyn district attorney and the removal of four children, ranging in age from 7 to 1 based on allegations that the parents had promoted a sexual performance by a child and possessed obscene images.

In one of the photographs, a 4-year-old girl is sleeping, with her legs splayed and her private parts visible. In another, a child is wearing nothing but boots that are far too big. And in another, a child apparently undergoing potty training is depicted in the bathroom with her pants down.  Others show the children playing in the bathtub.

The Brooklyn District Attorney's Office executed a warrant and seized various electronic equipment from the parents' home, but did not charge the parents with a crime. Rather, several months later, the district attorney aided the Administration of Children's Services in filing a child abuse case against the parents based on the same photographs, according to court records.  ACS alleged that the parents had sexually explicit photographs of their children and failed to cooperate with the agency in its investigation.

But at a hearing, there was no indication the children were in any jeopardy, Mostofsky said.  The children's pediatrician, who had cared for the children since birth, said the family was "one of the most normal high functioning families" in his practice and he never saw any signs of abuse.  Even the ACS caseworker testified that the children were not in an imminent danger....

The court dismissed the petition, finding no evidence that the parents violated any laws. Mostofsky said the photographs in question do not meet the definition of lewd and the parents did not promote obscene sexual performances.

December 17, 2013 in Offense Characteristics, Who Sentences? | Permalink | Comments (15) | TrackBack (0)

What are the best and worst drugs for daily use by teens?

The title of this post is the (perhaps silly) question that came to my mind upon reading this new report on some new research headlined "Heavy Pot Use Linked To Memory Loss, Schizophrenia Link."  Here are the basics:

Heavy pot users — smoking marijuana daily for three years — had abnormal changes in their brain structures related to working memory, U.S. researchers say.  Lead study author Matthew Smith, an assistant research professor at Northwestern University Feinberg School of Medicine in Chicago, said poor working memory predicts poor academic performance and everyday functioning.

The groups in the study started using marijuana daily at ages 16 to 17 for about three years.  At the time of the study, they had been marijuana free for about two years. Almost 100 subjects participated, including matched groups of healthy controls, subjects with a marijuana use disorder, schizophrenia subjects with no history of substance use disorders and schizophrenia subjects with a marijuana use disorder. The subjects who used marijuana did not abuse any other drugs, the researchers said.

Of the 15 marijuana smokers who had schizophrenia in the study, 90 percent started heavily using marijuana before they developed the mental disorder. Marijuana abuse has been linked to developing schizophrenia in prior research, Smith said.

“The abuse of popular street drugs, such as marijuana, might have dangerous implications for young people who are developing or have developed mental disorders,” said co-senior study author Dr. John Csernansky of Northwestern University Feinberg School of Medicine and Northwestern Memorial Hospital.

“This paper is among the first to reveal that the use of marijuana may contribute to the changes in brain structure that have been associated with having schizophrenia.”... The paper was published in the journal Schizophrenia Bulletin.

Modern brain science research has long had me convinced that it would be wise for everyone under the age of 25 to avoid all dangerous substances while their brains are still developing.  Consequently, I am not at all surprised by a finding that daily use of marijuana could hurts developing brains.  I wonder, though, whether it is likely to hurt developing brains more than daily use of alcohol or even some prescription drugs.

That said, I hope the relaxation of modern marijuana laws in many jurisdictions will facilitate a lot more serious scientific research on the various potential harms and benefits of the use and abuse of this widely-used and seemingly widely under-researched drug.

Cross posted at Marijuana Law, Policy and Reform.

December 17, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (14) | TrackBack (0)

"We wish you 70 years in prison, we wish you 70 years in prison, and an unhappy new life"

Grinch_mugshotThe title of this post is inspired by this local sentencing story and the song I could imagine in some Texas jurors' heads as they decided to "celebrate" the holiday season by sentencing a woman with a notably long and ugly criminal record to a notably long and harsh prison term.  The story is headlined "Parker County 'Grinch' Sentenced to 70 Years in Prison," and here are the details:

A woman known as the Christmas “Grinch” for stealing Christmas lights from a Parker County family’s home was sentenced to 70 years in prison on Friday after she was convicted of a separate burglary.

Dana Brock, 44, of Hurst, shook her head when the judge read the jury’s sentence. Prosecutors pushed for a long sentence because of her lengthy criminal record.

Brock gained notoriety in December 2012 when she was caught on surveillance video stealing Christmas lights from outside a family’s Aledo home while they were inside sleeping.  She was arrested again in May after she stole a weed wacker and a power washer from another homeowner’s garage.  She also was caught on video in that case.

"One of our deputies who responded out to this case and looked at the surveillance video at the homeowner's house saw her on the video and said, 'Hey, that's the Grinch,’” said assistant Parker County district attorney Jeff Swain.  “He knew right away who it was." A jury deliberated just five minutes before convicting her on Thursday.

In the sentencing phase of her trial, prosecutors pointed to her long criminal history. Brock’s record dates to when she was a 17-year-old and was convicted in Arizona of solicitation to commit murder.  Over the years she also was convicted of credit card abuse, injury to a child, theft, assault, and drug possession.  Instead of two to 20 years in prison for burglary of a habitation, she faced 25 years to life under the "three strikes and you're out" law.

She shook her head as the judge read her 70-year sentence. "A 70-year sentence will knock the air out of your stomach,” said her attorney Raul Navarez.  “She kept asking me, '70 years? Are you serious? 70 years?'  Because 70 years is a pretty harsh sentence for this kind of a deal. And quite frankly, that's what I argued to the jury.  But the jury decided and we have to respect that."

Navarez and prosecutors agree it didn't help her case when jurors saw the video of her stealing Christmas lights.  "When you're known as the Christmas Grinch, people do remember you,” Swain said.

I am unsure whether Texas law ensures that this version of the grinch will have to serve most or nearly all of these 70 years in prison, though this defendant's lengthy record of not-so-petty crimes leads me to be less than too-sympathetic concerning her fate.  That said, if she is really as smart as the "real" Grinch, she probably will be able to figure out some way to catch "affluenza" while serving her time in Texas prisons and thereafter convincingly claims at a parole hearing that her heart and her conscience managed to grow three sizes one day while she was incarcerated.

December 17, 2013 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

National Coalition to Abolish the Death Penalty lists top capital stories from 2013

Regular reasons may recall that I am a sucker for end-of-year lists and reports, and thus I was excited to see that the National Coalition to Abolish the Death Penalty has this extended blog post setting out a view of "important stories from 2013" concerning capital punishment in the United States. Here are the items on the list, and folks should click through to see the explanations provided by NCADP:

I would add to this list the decision of the Supreme Court to finally take up the issue of permissible state procedures for implementing its Atkins Eighth Amendment ruling. But, since we will not get oral argument or a decision in this SCOTUS case until next year, I suppose this is more properly considered a 2014 story.

December 17, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Monday, December 16, 2013

"Vermont's Chief Justice Is Speaking Out Against the Drug War: Is Anyone Listening?"

The title of this post is the headline of this lengthy and notable article I just came across from a Vermont independent paper, Seven Days. Here are excerpts:

In recent weeks, Vermont Chief Justice Paul Reiber has gone public with an unusually assertive critique of the war on drugs and the “tough on crime” approach that has defined criminal justice for decades.

Reiber, who holds an office in which occupants usually avoid saying anything remotely controversial, has stopped short of recommending policy or criticizing any individuals or government bodies.  But in a pair of speeches and a brief interview with Seven Days, he has declared ineffective the current reliance on police and punishment, and touted the merits of treatment-based models for dealing with crime rooted in substance abuse.

“Even with our best efforts, we are losing ground,” Reiber told a crowd at Vermont Law School last month.  “The classic approach of ‘tough on crime’ is not working in this area of drug policy.  The public responds very well to this ‘tough on crime’ message, but that does not mean it’s effective in changing individual behavior.  If the idea is law enforcement alone will slow and eventually eliminate drug use altogether, that isn’t going to happen … The criminal justice system can’t solve the drug problem.”

Experts note that Reiber’s stance isn’t exactly revolutionary, as judges across the country have become more comfortable in recent years speaking publicly about issues affecting the court system.  But, backers say, his entrance into the politically fraught debate about drug policy lends a powerful voice to their cause....

Statistics from the Vermont judiciary show the root of Reiber’s concern.  Felony filings have jumped nine percent in the past four years, and more than half of that spike came in the form of drug cases.  Abuse and neglect cases, meanwhile, are up 33 percent in the same time frame.  While difficult to pinpoint, experts say many of those cases are children suffering at the hands of drug-addicted parents.  (Reiber said he recently observed a day in Addison County juvenile court, where the docket has grown in recent years, and watched parents who are about to be incarcerated give up their parental rights.)

But Reiber’s two speeches covered more than just Vermont’s swollen court docket.  In his Boston speech, Reiber highlighted reforms in Portugal, which in 2001 abolished criminal penalties for possession of all drugs, and replaced incarceration with drug treatment. Vermont’s chief justice called the results of that experiment “astonishing,” citing a study from the libertarian Cato Institute showing that Portugal experienced a large drop in drug use and a spike in the number of people seeking treatment.

During that speech, Reiber even said that American drug courts — in which nonviolent defendants charged with drug possession are diverted out of the court system and given a chance to turn their lives around — don’t go far enough.  Only broader changes, he said, will have an impact....

When asked if he supported a Portugal-style drug legalization in Vermont, Reiber demurred. “That’s not my job. That’s for somebody else to decide,” he said.  But, as he is doubtless aware, Reiber’s job title assures his comments are assigned more importance by both insiders and the public.

December 16, 2013 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

You be the disparity judge: very different prison sentences for (similar?) fruadsters in different courts

One reason I never fully understand nor fully appreciate very aggressive efforts to try reduce sentencing disparities is because I never fully understand nor fully appreciate whether and when very different sentences for somewhat similar crimes represents warranted or unwarranted disparities. And these two notable headlines reporting on two notable white-collar sentences imposed today in two different courtrooms have me thinking about these matters yet again:

Here, respectively, are the basics of the crimes and punishments in these two cases taken from the above-link press accounts, the first of which is a report from a state court in Ohio:

Bobby Thompson, convicted mastermind of a national veterans charity scam that bilked donors out of an estimated $100 million, was sentenced to 28 years in prison this morning by Cuyahoga County Common Pleas Judge Steven Gall.  Thompson is a stolen identity used by John Donald Cody, 67, to set up the U.S. Navy Veterans Association, based in Tampa, which solicited donations in Ohio and 40 other states from 2002-2010.

Gall, who addressed Thompson as Mr. Cody, additionally levied a $6.3 million fine against Thompson, plus a $330,778 judgement to cover the cost of prosecution by the Ohio Attorney General. The judge said factors he considered in determining the sentence included the eight-year duration of Thompson's charity "charade," the amount of money swindled from donors, the efforts Thompson made to hide his identity, and Thompson's lack of remorse or acceptance of responsibility for his actions.

Citing the damage done to veterans who could have been aided by the money that Thompson's charity raised, Gall also ordered that Thompson spend each Veterans Day in solitary confinement for the duration of his prison term....

Prior to the sentencing Joseph Patituce, Thompson's attorney, had suggested a possible sentence of 14 years.  After his client got twice that number, Patituce said Thompson still denies that he committed a crime and will appeal.... Patituce said Thompson's refusal to testify in the trial on his own behalf was pivotal. "If he would have testified the verdict would have been different," Patituce said.

Brad Tammaro, an assistant attorney general prosecuting the case, argued against Patituce's suggested 14-year sentence for Thompson, calling that sentence "totally inappropriate." Tammaro also said that "the evidence in the case demonstrates a complete lack of remorse" on the part of Thompson.

And now, from a federal court in Rhode Island:

A federal judge sentenced a Rhode Island lawyer to six years in prison Monday for his role in a $46 million investment fraud that preyed on terminally ill people, calling him the architect of the scheme and saying he didn't seem to recognize the harm he had caused.

Joseph Caramadre was sentenced in Providence after pleading guilty to wire fraud and conspiracy. His lawyers asked for two years in prison and two years in home confinement. Prosecutors sought 10 years. Judge William E. Smith also ordered Caramadre to perform 3,000 hours of community service to help the elderly and terminally ill. He put off the question of restitution because Caramadre's lawyer has objected to the amount.

Caramadre was a prominent lawyer and philanthropist. Prosecutors say he and former employee Raymour Radhakrishnan paid terminally ill people cash, passing it off as charity, then used their personal information to purchase bonds and annuities that would pay out when the person died.

Caramadre pleaded guilty last year but a few months later tried to withdraw his guilty plea. He testified during a hearing on that request that he had committed perjury when he pleaded guilty, prompting the judge to say at the time: "It's amazing to watch a defendant perjure himself by saying he committed perjury the first time." Smith turned down his request to withdraw his plea in May and ordered him immediately into custody.

On Monday, Caramadre stuck with his contention that the plea was a lie, telling the judge he could not say he was sorry for anything although he felt terrible if some terminally ill people felt the investment strategy was not explained to them. "I wish I could play the game," he said, referring to his lack of contrition.

Still, he said, he took responsibility for his guilty plea. Smith said Caramadre seemed to recognize that people were hurt but didn't seem to recognize that he was the one that hurt them.

To the extent I can understand these stories, it seems that many millions of dollars were lost in the fraud on veterans over many years, whereas apparently a lot less money was lost in the fraud on the terminally ill during a shorter period. Also, of course, one defendant was convicted after a lengthy (state) trial and the other was convicted after a (now regretted) federal plea.

Still, is there really any sound way for anyone to assess whether the huge disparity in these two fraud sentences imposed today, one of which is nearly five times as long as the others, are warranted or unwarranted? More broadly, does anyone think it problematic that one defendant was prosecuted in Ohio state court and thus subject to Ohio's sentencing laws that are much different than the other defendant was subject to as a result of his federal prosecution?

December 16, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (45) | TrackBack (0)

DOJ Inspector General stresses "growing crisis" from growth of federal prison population

Thanks to The Crime Report, I have just come across this recently released memorandum from the US Department of Justice's Inspector General detailing the IG's views on the "six challenges that ... represent the most pressing concerns for the Department." Notably, as the cover letter to the memorandum stresses, concerns about the growth of the prison population is at the very top of the IG's list:

Attached to this memorandum is the Office of the Inspector General's (OIG) 2013 list of top management and performance challenges facing the Department of Justice (Department), which we have identified based on our oversight work, research, and judgment.  We have prepared similar lists since 1998.  By statute this list is required to be included in the Department's Agency Financial Report.

This year’s list identifies six challenges that we believe represent the most pressing concerns for the Department. They are Addressing the Growing Crisis in the Federal Prison System; Safeguarding National Security Consistent with Civil Rights and Liberties; Protecting Taxpayer Funds from Mismanagement and Misuse; Enhancing Cybersecurity; Ensuring Effective and Efficient Law Enforcement; and Restoring Confidence in the Integrity, Fairness, and Accountability of the Department.  While we do not prioritize the challenges we identify in our annual top management challenges report, we believe that one of the challenges highlighted this year, which we also identified in last year’s report, represents an increasingly critical threat to the Department’s ability to fulfill its mission. That challenge is Addressing the Growing Crisis in the Federal Prison System.

The crisis in the federal prison system is two-fold.  First, the costs of the federal prison system continue to escalate, consuming an ever-larger share of the Department’s budget with no relief in sight.  In the current era of flat or declining budgets, the continued growth of the prison system budget poses a threat to the Department’s other critical programs -- including those designed to protect national security, enforce criminal laws, and defend civil rights.  As I have stated in testimony to Congress during the past year, the path the Department is on is unsustainable in the current budget environment. Second, federal prisons are facing a number of important safety and security issues, including, most significantly, that they have been overcrowded for years and the problem is only getting worse.  Since 2006, Department officials have acknowledged the threat overcrowding poses to the safety and security of its prisons, yet the Department has not put in place a plan that can reasonably be expected to alleviate the problem.

Meeting this challenge will require a coordinated, Department-wide approach in which all relevant Department officials -- from agents, to prosecutors, to prison officials -- participate in reducing the costs and crowding in our prison system.  In that respect, the challenge posed by the federal prison system is reflective of all of the challenges on our list: each is truly a challenge to be addressed by the Department as a whole, not just by individual Department components.

As a policy matter, of course, it is not too difficult to devise a set of long-advocated reforms that would effectively help with this crisis: fewer federal drug prosecutions, more use of alternatives to incarceration for low-level federal offenders, greater judicial authority to reduce more unjust crack sentences based on FSA reforms, expanded good-time credits, new earned-time credits, greater use of compassionate release mechanisms, and greater use of executive commutations. The problems is, as a political matter, few in the current Obama Administration seem eager or willing to go beyond just talking the talk about these issues.

December 16, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

Sunday, December 15, 2013

Is a "worst-case scenario" regarding marijuana reform and regulation already emerging in Colorado and Washington?

22353476The question in the title of this post is my reaction to what strikes me as a "Chicken Little" comment appearing in this lengthy New York Times article about marijuana reform in Colorado and Washington.  The article, which started on the front page of Saturday's Times is headlined "In 2 States, Corner Cannabis Store Nears Reality." And here are excerpts that provide some background and context for my query:

Starting early next year, any adult with a craving or curiosity will be able to stroll into a strip mall or downtown shop in Colorado or Washington State and do what has long been forbidden: buy a zip-lock bag of legal marijuana.

After landmark votes made marijuana legal for recreational consumption, users in these two states will no longer need doctors’ notes or medical reasons to buy the drug. Instead, they will simply show identification to prove they are at least 21, and with the cautious blessing of state and federal officials, they will be able to buy as much as an ounce of marijuana and smoke it in their living rooms.

It is a new frontier of drug legalization, one that marks a stark turn away from the eras of “Reefer Madness,” zero tolerance and Just Say No warnings about the dangers of marijuana. But it also raises questions about whether these pioneering states will be able to regulate and contain a drug that is still outlawed across most of the country — although medical marijuana can be sold legally in 20 states and the District of Columbia. The end of the prohibition of alcohol in the 1930s, by contrast, to which some historians and legal scholars are comparing this moment, came all at once across the nation.

On this never-traveled road, the outcome on many fronts is uncertain: Supporters predict an economic boom in new business activity, cannabis tourism and reduced public expense with fewer low-level drug offenders clogging jails and courtrooms.

Elected officials, parents’ groups and police chiefs worry that drug traffickers will exploit the new markets, that more teenagers will take up marijuana, and that two places with reputations for fresh air and clean living will become known as America’s stoner states.

Other states flirting with legalization are watching closely too, not least for the expected windfall in state revenue in stiffly taxing something that has never been taxed at all. Referendum drives modeled on Colorado and Washington are already underway for next year in Arizona, California, Oregon and Alaska, and others are expected to follow in 2016. So the pressures to get it right the first time, local and state officials said, are immense. “We are floating in uncharted waters here,” said Mayor Michael B. Hancock of Denver, where 149 businesses have applied to sell or grow retail marijuana.

Consider, for example, the strangely altered new role of the police, who in Washington are required to make sure all marijuana is of the legal, state-licensed variety. That could make for more crackdowns on illegal grow-and-sale operations, not fewer, a fact highlighted when federal agents raided several dispensaries in Colorado last month, smashing glass and hauling away hundreds of plants.

Practical questions about the legal, workaday drug trade have required reams of rules and regulations to answer: Should it be specifically taxed?... Can people give it away in public parks?...

But most important, Colorado and Washington must show skeptical federal authorities that they can control this new world of regulated marijuana, and keep it from flowing to underage consumers, into other states or into the grip of drug traffickers and violent cartels. Even as the Justice Department announced in August that it would not block states from regulating marijuana, it also warned that their enforcement rules “must be tough in practice, not just on paper.”

“We’re already seeing a worst-case scenario emerging,” said Kevin A. Sabet, an opponent of legalization and the co-founder of Project SAM, Smart Approaches to Marijuana. He said marijuana was already flowing from dispensaries into the hands of teenage users, and he predicted the social costs would only mount in the months ahead.

Though I genuinely hope that marijuana reform is successful in Colorado and Washington because it would provide more evidence that freedom and free markets tend to be superior public policy choices to big government, I am genuinely eager to see sensible and sober assessments of the on-the-ground pros and cons of what these two states are trying. But if anti-reform (or, for that matter, pro-reform) advocates are going to persistently scream that the sky is falling (or that all is nirvana), it is going to end up being very hard to come to a truly sound assessment of whether and how reform can be more or less successful.

December 15, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

In praise of sentencing and drug war coverage at The Atlantic and Reason.com

Thanks especially to columnists like Andrew Cohen and Jacob Sullum, sentencing fans need to make sure to make regular visits to The Atlantic and Reason.com.  Below I provide just a sampling of what has appeared in these spaces over the last week.

From The Atlantic:

From Reason.com:

December 15, 2013 in Death Penalty Reforms, Drug Offense Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (4) | TrackBack (0)

Saturday, December 14, 2013

"Freeing Morgan Freeman: Expanding Back-End Release Authority in American Prisons"

The title of this post is the title of this notable and important new piece by Frank Bowman now available via SSRN. Here is the abstract:

This article, written for a symposium hosted by the Wake Forest Journal of Law & Policy on “Finality in Sentencing,” makes four arguments, three general and one specific.

First, the United States incarcerates too many people for too long, and mechanisms for making prison sentences less “final” will allow the U.S. to make those sentences shorter, thus reducing the prison population surplus.

Second, even if one is agnostic about the overall size of the American prison population, it is difficult to deny that least some appreciable fraction of current inmates are serving more time than can reasonably be justified on either moral or utilitarian grounds, and therefore American criminal justice systems ought to adopt mechanisms for identifying both individuals and categories of prisoners whose terms should be shortened.

Third, it is impossible, or at least unwise, to try to make “final” decisions — at least good final decisions — about how long someone should spend in prison at the beginning of the prison term, at least if that term is supposed to be very long. Thus, in cases where a long sentence is imposed, one ought not make the initial, front-end, judicial sentencing decision “final,” but should instead create mechanisms for one or more later second looks.

After exploring these contentions, I conclude that discretionary early-release mechanisms should be restored where they have been abandoned, and reinvigorated where they have languished. In particular, I propose instituting a discretionary back-end release mechanism for some categories of both federal and state long-sentence prisoners and I explore the political and institutional difficulties of doing so.

December 14, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (12) | TrackBack (0)

New guidelines for sentencing sex offenses promulgated in the UK

This notable new story from across the pond, headlined "Sex offences sentencing overhaul: More emphasis on long-term impact on victims as celebrities have fame used against them," highlights that sentencing rules in other nations also often get ratcheted up following public concern about too lenient sentences in high-profile cases. Here are the basics:

Celebrities who commit sex-offences could see their public image used against them when being sentenced as part of an overhaul of decade-old sentencing guidance for judges in England and Wales. Sex-offenders who are considered to have abused their position of power may be handed longer jail sentences when the guidelines come into effect in April 2014.

Previous “good character” may be considered as an aggravating factor when it has been used to commit a sexual offence, new guidelines drawn up by the Sentencing Council said. The guidelines cover more than 50 offences including rape, child sex offences and trafficking and focus more on the long-term and psychological impact on victims than the previous 2004 guidelines.  They also introduce a higher starting point for sentences for offences such as rape of 15 years.

The new guidance was drawn up by the Sentencing Council after a public consultation and research was undertaken with victims groups, medical practitioners, police, NGOs, magistrates and judges. “Across the justice system, changes have been made to ensure that the alleged offenders' behaviour and the context and circumstances of the incident are scrutinised, rather than the credibility of the victim,” Chief Constable David Whatton, national policing lead for violence and public protection, said....

The guidelines come following a series of high-profile sex offence cases, including revelations about disgraced TV presenter Jimmy Savile, that lead to high numbers of sex attack victims coming forward.  Cases involving grooming gangs in Rochdale and Oxford separately raised questions about social care and attitudes held towards victims....

While the Sentencing Council can recommend a starting point, offenders can still only receive the maximum sentence available at the time the offence was committed.

December 14, 2013 in Advisory Sentencing Guidelines, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Friday, December 13, 2013

"Growing acceptance of marijuana no help to pot convicts serving life in the joint"

The title of this post is the (too clever?) headline of this notable new article from FoxNews.com.  Here are excerpts:

John Richard Knock realizes he’ll likely die in a 12-by-10-foot cell in federal prison. Locked behind bars on a marijuana trafficking conviction, America's growing acceptance of the drug is cold comfort to the 66-year-old who was handed two life sentences, plus 20 years — for a first-time conviction.

“I don’t think about it, I just try and stay healthy,” Knock told FoxNews.com of his sentence via phone from the Allenwood Federal Correctional Complex in Pennsylvania. “I just wish society would look at this and say, ‘Hey is this fair?’”

The sentence makes Knock one of 3,278 prisoners recently identified by the American Civil Liberties Union who are serving life without parole for nonviolent drug and property crimes. Nearly four in every five were convicted of crimes involving drugs, including marijuana.

While Knock, who prosecutors said was part of an international marijuana trafficking scheme, has been serving his time, the drug has become increasingly accepted. Recreational use of marijuana is now legal in Colorado and Washington, and 15 other states have also eased restrictions, most for medical purposes. In October, for the first time, a Gallup poll found that a majority of Americans now favor legalizing the drug after reaching 50 percent in 2011....

But Knock and most others serving life for pot convictions were typically traffickers and not simply users, some experts note. Profiting from drugs — even marijuana — is a far cry from puffing on a joint, they say.

"Those who traffic in illegal drugs, who prey on our nation’s youth with poisons that destroy bodies, minds, and futures, should find no refuge in the criminal justice system," John Walters, who was drug czar under President Bush, wrote in a 2007 report. "Long prison terms, in many cases, are the most appropriate response to these predators."

Knock’s sister, Beth Curtis, started lifeforpot.com two years ago to raise attention to her brother’s plight and other prisoners facing similar fates. She hopes that society's changing views on marijuana could prompt a review of the sentences of her brother and others. “When public opinion reaches some kind of tipping point, I think most lawmakers will jump out in front of the issue,” she said. “I don’t see why they would find any value in continuing to oppose [legalizing marijuana] if their constituents want it legalized.”

Some attorneys contacted by FoxNews.com said Knock’s case is far from unique. Randall Brown Johnston, a Missouri-based criminal defense attorney who formerly worked as a prosecutor, recalled the case of Jeff Mizanskey, who was found guilty of possession of five pounds of marijuana in 1993 and was later sentenced to life without parole. “This was a brutal sentence,” Johnston told FoxNews.com. “Unfortunately, the difference between one judge and another can make all the difference. This judge was particularly harsh and had a reputation for that.”...

But Johnston also hopes the changing opinion of pot can lead to relief for people doing life for marijuana-related crimes. “There’s been a great change in public opinions about marijuana convictions,” he said. “It may take another 10 years for lawmakers to catch up and maybe go back and revisit the severity of the laws. But these laws are on the books right now and these are nonviolent people. It costs a huge amount of money to lock them up and people can go out and commit a murder or rape somebody and be sentenced to less.”...

Knock, meanwhile, takes some comfort from what happens outside of prison, even if it leaves him little hope of being free. His son, Aaron, 22, recently graduated from Columbia University in New York with an engineering degree.

Regular readers will not be surprised to learn that I think the Eighth Amendment can and should be a basis for defendants like Knock and Mizanskey to seek relief from their seemingly extreme LWOP sentences based on the "evolving standards of decency" that is supposed to inform the application of the Cruel and Unusual Punishments clause. Especially if (when?) a majority of states legalize medical and/or recreational marijuana, I think the case for an Eighth Amendment attack on extreme sentences for first-time marijuana dealers should become pretty compelling. But, as regular readers also know, I tend to have a much more dynamic view of how the Eighth Amendment should be understood than the vast majority of judges considering Eighth Amendment claims.

A few recent related posts:

December 13, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Sentences Reconsidered | Permalink | Comments (31) | TrackBack (0)

SCOTUS grants cert to clarify required intent for federal bank fraud

As reported in this SCOTUSblog post, the Supreme Court this afternoon granted cert on two cases, one of which involves the required mens rea for federal bank fraud charges.  Here is part of Lyle Denniston's summary of the case now officially before the Justices:

The Supreme Court agreed on Friday to clarify ... the kind of proof prosecutors must offer to get a conviction for bank fraud under federal law.... The bank fraud case is Loughrin v. United States....

The newly granted case on federal bank fraud involves a man, Kevin Loughrin, who was sentenced to three years in prison for engaging in a scheme to steal bank checks from peoples’ mailboxes, altering them and then using the checks to buy things at retail stores like Target and Wal-Mart, and then returning the merchandise for cash.

Prosecutors charted him with violations of two provisions of bank fraud law: defrauding a financial institution, and obtaining money from financial institutions by fraud. Both were apparently based on evidence that the checks were drawn on Bank of American and Wells-Fargo Bank and on three credit unions.

Loughrin’s lawyers tried to have the jury told that, in order for him to be convicted on either count, there had to be proof that he intended to defraud a bank or other financial institution....

The Tenth Circuit Court rejected his challenge. Under the bank fraud provision on which he was convicted, the Circuit Court ruled, it was enough that Loughrin had sought to defraud someone else — the retail stores — but there was no need for prosecutors to offer evidence of intent to defraud a bank directly.

December 13, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

Splitting 5-4 along party lines, SCOTUS vacates stay to allow Mizzou to complete novel execution

Distracted by other stories yesterday, I only now discovered that the US Supreme Court issued late Wednesday night this order (which, as I will explain below, strikes me as a pretty big deal):

The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit on December 9, 2013, presented to Justice Alito and by him referred to the Court, is granted.

Justice Ginsburg with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting. 

I would deny the application to vacate the stay of execution entered by the Court of Appeals.  See Bowersox v. Williams, 517 U.S. 345, 347 (1996) (GINSBURG, J., dissenting) (“At the very least, before acting irretrievably, this Court might have invited prompt clarification of the Court of Appeals’ [stay] order.  Appreciation of our own fallibility, and respect for the judgment of an appellate tribunal closer to the scene than we are, as I see it, demand as much.”).

The start and end of this lengthy AP article about the execution which followed this SCOTUS ruling accounts for why I think this order is a pretty big deal:

Allen Nicklasson once recalled the "euphoria" he felt after fatally shooting a kindly businessman who stopped to help when he saw Nicklasson's car stalled on Interstate 70 near Kingdom City, Mo., in 1994.

Late Wednesday night, Nicklasson was put to death for Richard Drummond's killing — nearly 23 hours after he was originally scheduled to die. It was the second execution in Missouri in three weeks after a nearly three-year hiatus. Racist serial killer Joseph Paul Franklin was executed Nov. 20.

The executions also were the first since Missouri switched from a three-drug protocol to use of a single drug, pentobarbital. Nicklasson, 41, was pronounced dead at 10:52 p.m. Wednesday, eight minutes after the process began.  His eyes remained closed throughout and he showed little reaction to the drug, briefly breathing heavily about 2 minutes into the process. He offered no final words....

Nicklasson's execution was originally scheduled for 12:01 a.m. Wednesday.  But an appeals court panel granted a stay of execution Monday, citing concerns about his counsel at trial and sentencing in 1996.

When the full appeals court refused to take up the case Tuesday, Missouri Attorney General Chris Koster appealed to the U.S. Supreme Court.  It did not return its 5-4 decision to vacate the stay until 10:07 p.m. Wednesday, with Justices Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting.  Gov. Jay Nixon refused to grant clemency.

Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments.  The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy — the Missouri Department of Corrections declines to say who makes the drug, or where.

My general sense and understanding is that it is relatively rare for the Supreme Court, especially at the last minute, to vacate a lower court's stay in a capital case, especially if and when that stay was entered by a circuit which does not have a long history of getting in the way of state executions.  Moreover, in addition to the legal issues that led to the stay, I think the defendant here was also seeking a stay in order to be able to question and assail Missouri's new lethal injection drugs and method.

Given that the four more liberal Justices were obviously eager to allow the stay of this execution to remain in place, I find it notable and seemingly important that the more conservative Justices were able to get swing Justice Kennedy to vote to vacate the stay and enable the Mizzou execution to be carried out.  Particularly given that, over the last few years, aggressive lower-court litigation has probably played more of a role in reducing the total number of executions than many other factors, I cannot help but wonder if this decision represents a kind of (indirect?) statement by a majority of the Supreme Court that, at least for brutal killers who've already gotten to live on death row for decades, enough is enough.

Especially because this SCOTUS order is only an order and has not generated much attention at all, I may be guilty of trying to make this decision more of a big deal than it is.  Nevertheless, especially as another year filled with capital habeas litigation winds to a close, I cannot help be think this may be an interesting and telling sign of future SCOTUS capital rulings to come.

December 13, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack (0)

How can and should Ohio's justice system deal with merciful elderly aggravated murderer?

John-Wise-web_20120807105809_640_480I suspect many folks engaged in debates over the wisdom of mandatory minimum sentencing provisions at least feel comfortable with the suggestion that persons convicted of first-degree murder ought to always be mandated to serve at least decades in prison.  Indeed, many folks who advocate for the abolition of the death penalty do so by suggesting mandatory LWOP is the right alternative sentence for those deemed the worst kinds of killers under state homicide laws.  Though lots of folks (myself included) are troubled by mandatory long prison terms for lower-level drug or gun offenses, lots of folks (myself included) are much less troubled by some mandatory prison requirements in the sentencing rules for how the justice system responds to the very worst intentional violent crimes.

But the provocative question in the title of this post is prompted by a sentencing story developing today in Ohio, which is explained in this AP report headlined "John Wise, attorney to seek clemency from governor in wife's hospital killing." Here are the details:

A man convicted of fatally shooting his ailing wife in her hospital bed will seek clemency from the governor after his sentencing Friday, even if the judge follows a prosecutor's recommendation for a lighter punishment because of the unique circumstances of the case.

John Wise, 68, has said he shot his debilitated wife out of love in August 2012 after she suffered an aneurysm and appeared to be in pain at an Akron hospital. Mercy is not a defense to a murder charge in Ohio. Wise, of Massillon, was convicted on charges including aggravated murder with a firearm specification, which could carry a life sentence.

Summit County Prosecutor Sherri Bevan Walsh called Wise's actions illegal and dangerous but said the case warrants sentencing leniency.  She has recommended that Wise be sentenced on a lesser crime and get a six-year term. "In light of the unique facts of this case, a shorter prison sentence is just," she said in a statement.

Whatever the sentence, the defense will pursue clemency from the governor and "will be seeking public support from those who sympathize with John and this situation," defense attorney Paul Adamson said in an email.

Judge Mary Margaret Rowlands in Akron has told attorneys the sentence must fit within legal limits. Neither side found previous case law to support the prosecutor's suggestion that the judge could sentence Wise to six years behind bars for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense, Adamson said.

With charges merged for sentencing, it's also possible Wise could get a six-year term if the prosecution asks the judge to sentence him for felonious assault, one of three charges on which he was convicted. April Wiesner, a spokeswoman for the prosecutor, wouldn't say Thursday whether the office intends to pursue that option.

As my first-year Crim Law students know well, "Aggravated Murder" is Ohio's term for first-degree murder and Ohio sentencing law expressly provides that "Whoever is convicted of or pleads guilty to aggravated murder in violation of section 2903.01 of the Revised Code shall suffer death or be imprisoned for life...." Consequently, I am not aware of a sound legal basis for the prosecutor or judge in this case to recommend or impose any sentence other than an LWOP term for the aggravated murder charge. I surmise that the local prosecutor here may be asking for the judge not to sentence on that charge or to have it reduced or dismissed in some way before sentencing.

Ironically, I think the defendant and his lawyer here might want the sentencing judge to feel compelled to impose LWOP and thereby heighten the argument for some kind of clemency relief from Gov. Kasich. If the defendant here gets "only" six years in prison, I suspect it would be much easier for the Governor to leave such a sentence in place and conclude that justice for this murderer has already been tempered by mercy.  Indeed, I am inclined to think that the prosecutor here has decided only to seek a six-year prison term for an aggravated murderer because she hope to bring a function end to this case at sentencing today rather than have to deal with a compelling clemency case if John Wise were to get an LWOP sentence.

UPDATE:  This new AP report indicates that this aggravated murderer somehow received a sentence of only six years' imprisonment, as prosecutors had recommended:

An Ohio man convicted of fatally shooting his ailing wife in her hospital bed was sentenced Friday to six years in prison and plans to seek clemency from the governor....

The sentence issued by Summit County Court of Common Pleas Judge Mary Margaret Rowlands was in line with prosecutors' recommendation that the Massillon man receive a lighter punishment than the minimum 23 years on his most serious conviction, an aggravated murder count.

Holding a cane and wearing a striped jail outfit, Wise remained seated during the hearing. He made a brief statement, choking up as he apologized to his family and his son. He also thanked the prosecutors and the court.

Prosecutors said the case warranted leniency, but they emphasized that Wise's actions were illegal. "It is not our intention to minimize what happened. You cannot bring a loaded gun into a hospital and shoot someone," Summit County Prosecutor Sherri Bevan Walsh said in a statement after the sentencing.

In court, Assistant Prosecutor Brian LoPrinzi told the judge: "We believe that although his motive may have been pure, he was wrong."

Wise's attorney, Paul Adamson, said they will pursue clemency from the governor and create an online petition for supporters to sign. He called the shooting "an aberrational act" for Wise. "I've never represented a finer man," Adamson told the judge. The prosecutor's office said it would oppose any reduction in Wise's punishment.

Among those at the sentencing was Liz Flaker, one of the jurors who convicted Wise after he pursued an insanity defense. She said the jurors, who deliberated for several hours, took two votes. The first was 9-3 in favor of conviction; the second was unanimous. "There was really no split, per se, but I think there were a couple of people that kind of wavered on ... thinking was he insane or was he not insane," Flaker said. "I think the way the law was written for the state of Ohio is a little bit hazy."

Prosecutors had recommended that Wise be sentenced to six years for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense. After neither side found previous case law to support that unusual suggestion, the prosecution instead asked the judge to sentence Wise under his felonious assault conviction with a firearms specification, and the judge did so. Wise also was convicted of aggravated murder with a firearm specification and murder, which could have led to a life sentence.

Police say Wise calmly walked into the hospital room on Aug. 4, 2012, and shot his wife of 45 years at her bedside. She died the next day. Wise told police he intended to kill himself, too, but the weapon jammed.

December 13, 2013 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Thursday, December 12, 2013

New Slate series examines Colorado prelude to pot legalization

Sam Kamin and Joel Warner have launched a new Slate series that is a must-read for any and everyone interested in following Colorado's path-breaking experiences with marijuana legalization. This first piece, headlined "Blazing a Trail: Colorado is about to become the first state in the modern world to legalize marijuana from seed to sale—is it ready?," sets up the themes, and here are excerpts:

On Jan. 1, Colorado will become the first state in the modern world to legalize marijuana from seed to sale. (Uruguay voted on Tuesday to legalize pot, but the law won't be implemented for 120 days. In the Netherlands, marijuana is simply decriminalized, not legal. While Washington state legalized marijuana at the same time Colorado passed Amendment 64, its regulatory system likely won’t be up and running until next summer.) That means Colorado’s lawmakers, businesses, and citizens are facing issues no one has tackled before. How do you legally produce marijuana? What procedures should be put in place for its packaging, transportation, sale, and taxation? How do you keep track of all that pot, and how do you discipline those who run afoul of your regulations? How do you regulate the financing of pot operations, the development of peripheral businesses, the marketing of marijuana to tourists? And how do you keep the whole thing from falling apart? In short, how do you build an entire industry from scratch?

Over the next two months, as Colorado’s legal pot industry opens for business, the two of us — Sam Kamin, a University of Denver law professor, and Joel Warner, a local writer — will look at how Colorado is answering these questions, with the world watching and possibly billions of dollars at stake — not to mention the federal government keeping a close eye on everything. Marijuana, after all, remains a Schedule I drug under the Controlled Substances Act, alongside LSD and heroin. That means Colorado has to figure out a way to abide by its voters’ wish to authorize marijuana’s possession, manufacture, and sale without causing the feds to act on the fact that all of these actions are still punishable by up to life in prison.

We’re beginning our coverage with the most important issue Colorado has had to wrestle with so far: How do you build a regulatory framework for pot? All other decisions on legalized marijuana derive from this one. Pretty much every legal good and service is regulated in one way or another—restaurants are inspected, plumbers are licensed, sodas have to list their ingredients—and marijuana is a psychoactive substance, like cocaine, alcohol, and sleeping pills, so clearly there have to be rules about how it’s used. Even marijuana’s most ardent proponents concede there have to be limits on its sale and usage — children shouldn’t have access to it, people shouldn’t drive under its influence. But the biggest argument of all for marijuana regulation, from the government’s perspective, is taxation. If the state doesn’t know who is selling it, where they are selling it, or who’s buying it and at what price, Colorado can’t make any money off it.

To determine the best way to regulate this new market, a week after the law passed, Colorado Gov. John Hickenlooper formed the Amendment 64 Implementation Task Force comprised of elected officials, stakeholders in the state’s existing medical marijuana industry, and various experts (including one of us—the University of Denver’s Sam Kamin). It was no easy task, especially since Colorado had just over a year to pick a regulatory model, pass legislation implementing it, conduct rulemaking around it, and go through all the licensing and inspections required to implement it by Jan. 1. Compared to how long most governmental processes take, that was a blink of an eye.

Cross posted in part at Marijuana Law, Policy and Reform

December 12, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack (0)

Brave New Death Penalty World: brain scans used to defeat death sentence

This new Wired piece, headlined "Did Brain Scans Just Save a Convicted Murderer From the Death Penalty?" suggests that defense lawyers in a recent federal capital trial devised another clever way to encourage jurors not to return a death verdict.  Here are the basic details:

John McCluskey escaped from an Arizona prison in July, 2010. A few days later, he and two accomplices — one of whom was both his cousin and fiancee — carjacked Linda and Gary Haas, a vacationing Oklahoma couple in their 60s.  McCluskey shot the Haases inside the camping trailer they were towing behind their truck, and set the trailer on fire with their bodies still inside. McCluskey was convicted for the carjacking and two murders in federal court on Oct. 7.

Yesterday the jury charged with deciding his sentence announced that it had been unable to come to a unanimous decision on the death penalty. That means he’ll get life without parole.

Perhaps it’s little wonder the jury couldn’t agree — they’d been given a lot to consider. McCluskey’s defense team had tried to convince them that he has several brain defects that, combined with other factors, contributed to his crimes and should be considered mitigating circumstances. The defense presented the results of several types of brain scans and various psychological tests, as well as testimony from neurologists and other experts....

In the sentencing phase of the trial, McCluskey’s lawyers argued that, as a result of his brain abnormalities — as well as a slew of other unfortunate circumstances ranging from a breech birth, to abuse as a child, to drug and alcohol addiction — he was incapable of “a level of intent sufficient to allow consideration of the death penalty.”  Essentially, they argued that his acts were impulsive, that he would have been incapable of planning such things.

December 12, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack (0)

Killer bride in Montana takes a plea deal to second-degree murder just before jury gets case

3E0237FA0F4888A92E8D34325C05D590_292_292As reported in this new AP article, headlined "Woman in newlywed killing case agrees to plead guilty to second-degree murder," a high-profile federal homicide trial has now ended in a high-profile plea deal. Here are the details:

A federal judge accepted a guilty plea Thursday from a Montana newlywed after she reached a surprise plea agreement and said she pushed her husband from a cliff in Glacier National Park. The development came before a jury was set to begin considering the case against 22-year-old Jordan Graham.

In exchange for the plea to second-degree murder, prosecutors agreed to drop a first-degree murder charge and a count of making a false statement to authorities. First-degree murder means a crime is premeditated.

Graham could face a maximum sentence of life in prison on March 27.

In accepting the plea, District Judge Donald Molloy told Graham to recount exactly what happened the night of July 7 when her husband Cody Johnson, 25, fell to his death in the park.

Graham said she told Johnson that she wasn't happy and wasn't feeling like she should after getting married. She said they argued and at one point he grabbed her by the arm. She said she brushed his hand away and pushed him, with one hand on his arm and one on his back. "I wasn't thinking about where we were ... I just pushed," she told the judge. She said she then drove back to Kalispell without calling for help because she was so afraid she did not know what to do.

Earlier in the day, defense attorneys wrapped up their case without testimony from Graham. Instead, they showed the jurors pictures and videos of Graham smiling as she had her hair done and tried on her borrowed wedding dress, then videos of the June 29 wedding and the couple's first dance.

Those images attempted to chip away at the prosecution's image of Graham as a cold, dispassionate woman who didn't want to marry Johnson, and their contention that eight days later she led him to a dangerous precipice in the Montana park and deliberately pushed him to his death....

Both the prosecution and defense rested their cases Thursday after three and a-half days of testimony.  The plea agreement was reached before closing arguments took place.

As for the statutory sentencing basics, here is the sentencing provision of 18 USC 1111, the federal murder statute: "Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life."  The federal sentencing guideline for second degree murder, 2A1.2, provides a base offense level of 38 and recommends an upward departure if "the defendant's conduct was exceptionally heinous, cruel, brutal, or degrading to the victim." Also, I think there could be (and likely will be?) some sentencing debate over whether an adjustment up for a vulnerable victim or an adjustment down for acceptance of responsibility should be applied.

If we assume the guideline level of 38 sticks (and she has no serious criminal history), the USSG Sentencing Table recommends a prison sentence of 235-293 months (just under 20 to 25 years). I suspect the defense team will likely argue for a downward variance from his range, while perhaps the prosecutors will ask for something toward the top of the range. Thus, I would right now put the (way-too-early) over/under betting line for here federal sentence at 20 years' imprisonment.

Previous related posts:

December 12, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (16) | TrackBack (0)

Texas tough means probation for teen who killed four and injured more while drunk driving?

The question in the title of this post is my reaction to this CNN report headlined "Texas teen Ethan Couch gets 10 years' probation for driving drunk, killing 4." Regular readers know that drunk driving is one notable crime that I fear is consistently under-punished throughout the United States, and the details of this story confirms my fear that elitism and a variety of other potentially pernicious factors may explain why. Here are the details:

To the families of the victims, Ethan Couch was a killer on the road, a drunken teenage driver who caused a crash that left four people dead.

To the defense, the youth is himself a victim -- of "affluenza," according to one psychologist -- the product of wealthy, privileged parents who never set limits for the boy.

To a judge, who sentenced Couch to 10 years' probation but no jail time, he's a defendant in need of treatment.

The decision disappointed prosecutors and stunned victims' family members, who say they feel that Couch got off too easy. Prosecutors had asked for the maximum of 20 years behind bars. "Let's face it. ... There needs to be some justice here," Eric Boyles, who lost his wife and daughter, told CNN's "Anderson Cooper 360" on Wednesday night.

"For 25 weeks, I've been going through a healing process. And so when the verdict came out, I mean, my immediate reaction is -- I'm back to week 1. We have accomplished nothing here. My healing process is out the window," he said.

Lawyers for Couch, 16, had argued that the teen's parents should share part of the blame for the crash because they never set limits for the boy and gave him everything he wanted. According to CNN affiliate WFAA, a psychologist called by the defense described Couch as a product of "affluenza." He reportedly testified that the teen's family felt wealth bought privilege, and that Couch's life could be turned around with one to two years of treatment and no contact with his parents.

Couch was sentenced by a juvenile court judge Tuesday. If he violates the terms of his probation, he could face up to 10 years of incarceration, according to a statement from the Tarrant County Criminal District Attorney's Office. Judge Jean Boyd told the court she would not release Couch to his parents, but would work to find the teen a long-term treatment facility.

"There are absolutely no consequences for what occurred that day," said Boyles. "The primary message has to absolutely be that money and privilege can't buy justice in this country." His wife, Hollie Boyles, and daughter, Shelby, left their home to help Breanna Mitchell, whose SUV had broken down. Brian Jennings, a youth pastor, was driving past and also stopped to help.

All four were killed when the teen's pickup plowed into the pedestrians. Couch's vehicle also struck a parked car, which then slid into another vehicle driving in the opposite direction. Two people riding in the bed of the teen's pickup were tossed in the crash and severely injured. One is no longer able to move or talk because of a brain injury, while the other suffered internal injuries and broken bones.

"There is nothing the judge could have done to lessen the suffering for any of those families," said defense attorney Scott Brown, CNN affiliate KTVT reported. "(The judge) fashioned a sentence that is going to keep Ethan under the thumb of the justice system for the next 10 years," he said. "And if Ethan doesn't do what he's supposed to do, if he has one misstep at all, then this judge, or an adult judge when he's transferred, can then incarcerate him."

Earlier on the night of the accident, June 15, Couch and some friends had stolen beer from a local Walmart. Three hours after the crash, tests showed he had a blood alcohol content of 0.24, three times the legal limit, according to the district attorney's office. "We are disappointed by the punishment assessed but have no power under the law to change or overturn it," said Assistant District Attorney Richard Alpert. "Our thoughts and prayers are with the families and we regret that this outcome has added to the pain and suffering they have endured."

It is very rare, but not impossible, for prosecutors to challenge the sentence on the ground that it was too lenient, CNN legal analyst Sunny Hostin said. "To give him a pass this time given the egregious nature of his conduct -- four deaths -- is just incomprehensible," she said. It is unfair that other young defendants without the same wealth could end up in jail for a lot less, said Hostin, of CNN's "New Day" morning show.

December 12, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack (0)

"Remorse and Demeanor in the Courtroom: Cognitive Science and the Evaluation of Contrition"

The title of this post is the title of this notable new paper by Susan Bandes now available via SSRN. Here is the abstract:

Although there is a rich legal literature on whether remorse should play a role in the criminal justice system, there is far less discussion of how remorse can be evaluated in the legal context — if indeed it can.  There is ample evidence that perceptions of remorse play a powerful role in criminal cases.  Whether a defendant is regarded as appropriately remorseful is often a determinative factor in criminal sentencing, including capital sentencing.  And in capital cases, in which the defendant rarely testifies, the evaluation of remorse may be based entirely on the facial expression and body language of a defendant sitting silently in the courtroom.  Yet the most basic questions about the evaluation of remorse have received little attention: what is it precisely that is being evaluated, and how adept are decision makers at evaluating it?  What criteria are being applied and with what level of consistency and fairness?

There is evidence that the evaluation of remorse is particularly difficult across cultural, ethnic or racial lines, or where juvenile or mentally impaired defendants are being judged. But this troubling evidence leads to several larger questions.  Is remorse (or the lack of remorse) something that can ever be accurately evaluated in a courtroom?  If remorse is not susceptible to courtroom evaluation, is it feasible to bar decision-makers from considering it?  And if evaluation of remorse is a permanent feature of the criminal justice system, what can be done to improve upon an evaluative process that is demonstrably riddled with error and bias?

The article considers these questions in light of findings in three flourishing areas of cognitive science: the field of interpretation of facial expressions and “micro” expressions (expressions difficult for the untrained eye to recognize), the study of the dynamics of empathy and empathic accuracy, and the study of implicit bias.

December 12, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack (0)

Wednesday, December 11, 2013

Massachusetts Supreme Judicial Court suggests gender is important consideration for placement on state sex offender registry

This AP article, headlined "Mass. court overturns escort's sex offender label," reports on a very interesting ruling today by the top state court in Massachusetts.  Here are the basics:

The state’s highest court on Wednesday overturned the classification of a former escort service manager as a low-level sex offender, finding that the state’s Sex Offender Registry Board should have considered research showing women are less likely than men to commit new sex offenses.

The woman, who wasn’t identified in the court’s ruling, pleaded guilty in 2006 to federal charges stemming from her management of an escort service from 2000 to 2002, including one count of transporting a minor to engage in prostitution and one count of sex trafficking of children. She served 17 months in prison while awaiting trial before pleading guilty.

In 2008, the woman requested funds to hire an expert witness, arguing that the board’s guidelines didn’t encompass scientific research on female sex offenders. Her request was rejected by the board. A hearing officer eventually found that she should be classified as a level one sex offender, the lowest level of offender, considered the least likely to reoffend and the least dangerous....

In its ruling Wednesday, the SJC agreed with the woman that the hearing examiner abused his discretion by denying her request for funds for an expert witness who could testify on the subject of how infrequently female sex offenders commit new crimes when compared with men. "We conclude that it was arbitrary and capricious for (the board) to classify Doe’s risk of re-offense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism," Justice Barbara Lenk wrote for the court....

The court also said the board is required to ensure that its guidelines are based on "the available literature."

"We do not purport to suggest a frequency with which the guidelines must be updated, but caution that guidelines that fail to heed growing scientific consensus in an area may undercut the individualized nature of the hearing to which a sex offender is entitled, an important due process right," Lenk wrote.

I was able to access the full text of the opinion in Doe v. Sex Offender Registry Board, No. SJC-11328 (Mass. Dec. 11, 2013), at this link.

December 11, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack (0)

So many notable marijuana stories and so little time to blog 'em all

As my my Marijuana Law, Policy and Reform seminar winds down with students working on final papers, local, state, national and international stories concerning modern marijuana reform efforts is really starting to heat up.  Here are headlines and links from just today's latest news of note:

I would be interested in reader perspectives on which of these stories seems the most notable and/or consequential for sentencing law and policy in particular or for American criminal justice more generally.

Cross posted in part at Marijuana Law, Policy and Reform

December 11, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

"Take Action: National Call-In Day for Sentencing Reform TODAY"

The title of this post is the heading of an e-mail I received this morning from The Sentencing Project.  Here is the body of the e-mail request for action:

After decades of "get tough" rhetoric, Republicans and Democrats in Congress are finally coming together to say “enough.”

This week, the U.S. Senate is scheduled to take up legislation to address our unjust and racially discriminatory sentencing laws. One of the bills expected to be considered at this week's Senate Judiciary Committee hearing, the Smarter Sentencing Act (S. 1410), takes two significant steps forward.  First, it reduces overly harsh penalties for drug offenses and allows judges greater flexibility in sentencing. Second, it extends the more equitable crack cocaine provisions of the Fair Sentencing Act retroactively to individuals serving prison terms under the now discredited 100-to-1 quantity disparity -- a disparity that has had a devastating impact on African American communities.

We need your help. On Wednesday, Dec. 11, civil rights and criminal justice advocates, faith-based groups, and others are joining together to tell their Senators to support sentencing reform.

To join this effort, please call the Senate switchboard TODAY at 202-224-3121 and ask to be connected to each of the Senators from your state. When you are connected, urge your Senator to address unjust sentences and racial disparities in the criminal justice system by supporting the Smarter Sentencing Act, S. 1410.

By modernizing drug sentencing polices and giving federal judges more discretion in sentencing, we can take smart and targeted steps to reduce skyrocketing prison populations and reduce racial disparities in sentencing.

I have tended to be cynical and pessimistic about the import and impact of these kinds of call-in days, but folks who know a lot better than me have reported that they can be quite valuable and consequential.

December 11, 2013 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Unanimous win for Kansas on Fifth Amendment issue in Cheever

The Supreme Court this morning handed down its first criminal law opinion in a case that was fully briefed and argued this Term.  This unanimous ruling in Kansas v. Cheever starts and ends this way:

The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .”  The question here is whether the Fifth Amendment prohibits the government from introducing evidence from a court-ordered mental evaluation of a criminal defendant to rebut that defendant’s presentation of expert testimony in support of a defense of voluntary intoxication.  We hold that it does not....

We hold that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence.

The judgment of the Kansas Supreme Court is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

December 11, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8) | TrackBack (0)

Poland asks Connecticut not to send murderer to death row

I just saw this intriguing domestic death penalty story from Connecticut with a notable international spin.  The piece is headlined "Poland's president challenges state's death penalty," and here are excerpts:

In what could spark an international incident, the president of Poland is demanding the state not execute a former Trumbull man for the terrifying 2006 murders of a city woman, her 9-year-old daughter and a Milford landscaper.

"We strongly believe the death penalty should not be imposed," Agniestka Torres, vice consul and head of the legal section for the Polish consulate general in New York, told Hearst Connecticut Newspapers. "It doesn't matter what crimes he committed."

The government of the Republic of Poland this week notified Gov. Malloy and the Chief State's Attorney Kevin Kane that it objects to Richard Roszkowski -- whose parents were Polish -- getting the death penalty. Torres said the appeal comes directly from their president, Bronislaw Komorowski, who recently signed a law banning the death penalty in all circumstances.

Roszkowski was born in the U.S., but both his parents, who are now dead, emigrated from Poland and Roszkowski visited Poland when he was a child. "As far as we are concerned Mr. Roszkowski is a Polish national and is covered by our laws," Torres said....

This latest development adds to an already controversial status for the state's death penalty. In the last 60 years only one person, convicted serial killer Michael Ross, has been executed in this state and that was in February 2005.

Last year Malloy, an opponent of the death penalty, signed a law abolishing it for any new crimes. However, the law left in place the 10 men currently on death row. That portion of the law is currently under appeal.

Last week jury selection was completed for the death penalty hearing against the 48-year-old Roszkowski. His hearing is set to begin Jan. 7.

In May 2009 a Bridgeport jury found Roszkowski guilty of two counts of capital felony, three counts of murder and one count of criminal possession of a firearm for the Sept. 7, 2006, shooting deaths of 39-year-old Holly Flannery, her daughter, Kylie, and 38-year-old Thomas Gaudet.

Although the same jury that convicted Roszkowski of the crime subsequently found he should get the death penalty, the verdict was overturned on a technicality and a new penalty hearing was ordered. At least one of the jurors selected for the new death penalty hearing appears to be of Polish heritage....

Roszkowski's lawyers did not deny he killed the victims but presented nationally recognized medical experts and death penalty opponents who testified Roszkowski has brain damage caused by earlier car crashes, hepatitis and long-term drug use.  The families of the victims declined comment because they are expected to testify in the upcoming hearing.

Among other interesting questions raised by this story concerns whether and how the defense lawyers for this mass murderer ought to be able to bring up these international issues during the penalty trial. Could and should Roszkowski's lawyers be able to argue to the jurors that sentencing Roszkowski to death would cause an international incident and hurt US-Polish relations? Could and should Roszkowski's lawyers be able to have members of the Polish consulate general testify for the defense at the penalty trial?

December 11, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (23) | TrackBack (0)

Tuesday, December 10, 2013

Are cool secret compartments another casualty of the drug war?

The somewhat silly question in the title of this post is my response to this somewhat silly Slate piece sent my way by a helpful former student.  The piece by Justin Peters, Slate's crime correspondent, is headlined "We Are Now Criminalizing Awesome Secret Compartments. What Is Wrong With This Country?" and here are excerpts (with links included):

I have been obsessed with hidden compartments since I was a kid.  As a child, I was delighted to learn that it was possible to conceal your valuables inside a hollowed-out book. (For more on this topic, consult the valuable Wikipedia article “Concealing objects in a book.”)...

If we can agree that there’s nothing lamer than an inept secret compartment, let’s also stipulate that there’s nothing more impressive than a good one.  These days, the best secret compartments are usually found in vehicles, where they are often used by criminals to conceal drugs, weapons, or other contraband.  The most sophisticated of these “traps” look like the sort of thing you’d see in spy movies.  Earlier this year in Wired, sometime Slate contributor Brendan I. Koerner wrote about Alfred Anaya, a California man who was among the best trap-car builders in the land.  Anaya built intricate, almost undetectable secret compartments that could only be opened by hitting various buttons and switches in succession. Koerner mentions one trap installed behind the back seat of a truck, “which Anaya had rigged with a set of hydraulic cylinders linked to the vehicle’s electrical system. The only way to make the seat slide forward and reveal its secret was by pressing and holding four switches simultaneously: two for the power door locks and two for the windows.” The man was some sort of genius.

He was also, allegedly, a criminal, at least in the eyes of the Drug Enforcement Administration.  According to the DEA, much of Anaya’s business came from drug traffickers who used his “trap cars” to smuggle illegal narcotics cross-country.  Though Anaya was not involved in the drug business himself, and took pains to avoid asking his clients about why they needed his compartments, the feds claimed he was an active conspirator all the same.  A jury agreed, and Anaya is now serving a more-than-20-year sentence in federal prison.

While, as Koerner notes, it’s not a federal crime to build a hidden vehicular compartment, some states are passing laws that effectively make it a crime to have one installed.  In 2012 Ohio passed a law making it a felony to knowingly build or install a trap “with the intent to facilitate the unlawful concealment or transportation of a controlled substance.” Intent is a malleable concept, though, and it can be troublesome from a civil-liberties standpoint. A week before Thanksgiving, Ohio state troopers arrested a man named Norman Gurley for having a secret compartment in his car.  Though the compartment was completely empty, troopers still claimed that Gurley had intended to use it to smuggle illegal drugs. “Without the hidden compartment law, we would not have had any charges on the suspect,” a Highway Patrol lieutenant said after Gurley’s arrest.

Other people have already weighed in on why exactly that’s so problematic, and I won’t belabor the points that they have so capably made. All I’m going to say is that it strikes me as a damn shame, and somewhat un-American, to criminalize the sort of ingenuity you need to build a good trap-car.  I have no problem with cops arresting people who build pathetic hidden compartments; those artless people deserve their fates. And if you’re caught concealing substantial quantities of illegal drugs, well, the fact that you may have violated a hidden-compartment law is probably the least of your worries.  But merely conceiving of and installing a good one ought to be celebrated, not criminalized. Who says America doesn’t build things anymore?

December 10, 2013 in Drug Offense Sentencing | Permalink | Comments (3) | TrackBack (0)

"Harsh Sentences Are Killing the Jury Trial"

The title of this post is the headline of this forceful commentary at The Atlantic authored by Andrew Guthrie Ferguson.  Here are lengthy excerpts from a piece that merits a full read:

[T]he Human Rights Watch Report, “An Offer You Can’t Refuse,” confirms that harsh sentencing laws have undermined the American jury system.  On average, 97 percent of defendants plead guilty in federal court.  For crimes that carry a minimum mandatory sentence, going to trial has simply become too risky. As Human Rights Watch reports: “Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty.”

This risk goes well beyond the traditional trade-offs.  Plea offers have been around since the 1800s and are a well-established and necessary part of criminal practice. But the new mandatory minimums and sentencing enhancements have given federal prosecutors new power to coerce pleas and avoid trials.  A prosecutor can now give a minor drug dealer this choice: “Plead guilty to a reduced charge, or go to trial and risk sentencing that will put you in jail for decades.” It’s not hard to understand why so many defendants — whether innocent, guilty, or not quite as guilty as charged — are taking the first option....

But, there is a secondary cost that is less often discussed but equally damaging to the criminal justice system.  Harsh sentencing laws are killing the jury trial.  And without trials, citizens have no say in the criminal justice system.

It is no accident that the jury trial is the only constitutional right to make a repeated appearance in the original Constitution and the Bill of Rights.  The founding fathers considered criminal juries to be the best mechanism for checking the power of judges and lawyers.  By interposing citizens between a prosecutor and a conviction, the constitutional system protected individual liberty.  This is not to say that colonial juries did not convict people quite regularly, and quite harshly.  But when they did, citizens, not prosecutors, were the ones condemning the law breakers.  It was this local, public participation that gave legitimacy to the larger system.

The modern domination of plea bargains has excised the role of the citizen-juror.  Without trials, citizens do not learn about what is happening in the criminal justice system, and they have no way of taking part in it.  Instead of seeing the consequences firsthand, ordinary Americans must rely on research reports and news stories.  This practice disconnects the people from their own democratically enacted laws, precluding them from evaluating these elective choices.

Unlike trials, plea bargains take place in secret, away from public scrutiny.  They involve negotiations between repeat players in the system — the lawyers.  And for many types of crimes, the bargains are influenced by federal policies, not local ones.  Thus, the jury system — with its emphasis on local authority and public participation — has been replaced with a system as insular as it is broken....

The push for jury trials in the Bill of Rights came from citizens — not judges, politicians, or prosecutors.  In fact, the perceived lack of citizen involvement in the legal system almost derailed the original Constitution, as Anti-Federalists saw it as a threat to their liberty.  Concerned citizens wrote, organized, and protested on behalf of their own role in the justice system.  They won, and that victory can still be read in the Sixth Amendment, which promises in rather emphatic terms that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”

Today, Americans of all political persuasions should embrace a greater role for juries, at least when it comes to federal prosecutions.  After all, Tea Party conservatives believe in local, accountable government, while progressive liberals believe in an equitable system of justice. More jury trials will mean more ordinary people engaged in the legal system — more citizens involved in their government. The result will not only be consistent with the original design of the Constitution but, like the jury system, itself, will encourage more local, democratic, participatory engagement with our government and its policies.

A few recent and older related posts on modern prosecutors and plea practices:

December 10, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (24) | TrackBack (0)

Some final squabbling over some of the final executions slated for 2013

This new Reuters piece, headlined "Oklahoma to execute inmate; Missouri execution stayed," provides a run down of some of the final aspects of some of the final executions scheduled for 2013.  Here are the details:

Oklahoma on Tuesday was scheduled to execute a man convicted of raping and murdering two elderly women in the 1980s, while a federal appeals court panel has stayed a Missouri execution planned for hours later.

Missouri appealed the 2-1 ruling by the Eighth Circuit U.S. Court of Appeals panel to stay the execution of Allen Nicklasson, 41, who was found guilty of killing a stranger who offered him roadside assistance.  Nicklasson has raised claims that his trial and appeals counsel were ineffective.  The full Eighth Circuit was expected to hear arguments and rule Tuesday morning on the state's request to lift the stay of Nicklasson's execution, which is set for early Wednesday at a Missouri prison.

The Missouri Department of Corrections is proceeding with its plans for the execution unless instructed differently by the state attorney general, spokesman Mike O'Connell said. Oklahoma is scheduled to execute Ronald Clinton Lott, 53, by lethal injection at a state prison after 6 p.m. Central Time (0000 GMT) on Tuesday.

If carried out, the executions of Lott and Nicklasson would be the 37th and 38th in the United States this year, according to the Death Penalty Information Center.

Lott was convicted of raping and killing Anna Laura Fowler, 83, in 1986 and Zelma Cutler, 90, in 1987 in their Oklahoma City homes after DNA evidence linked him to the crimes.... Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott. Miller was released in 1998.

Lott would be the fifth man executed in Oklahoma in 2013. The state is also scheduled to execute Johnny Dale Black, 48, on December 17 for his conviction in the 1998 stabbing death of Ringling, Oklahoma, horse trainer Bill Pogue.

In the Missouri case, Nicklasson was found guilty of murder for the August 1994 shooting of motorist Richard Drummond, who stopped on a highway to help Nicklasson and two other men whose car had broken down. The men had burglarized a home where they stole guns and ammunition before their vehicle broke down. When Drummond stopped to offer a ride, the men abducted him, took him to a wooded area and shot him in the head, according to court records. One of the men, Dennis Skillicorn, was executed in 2009. The other man, Tim DeGraffenreid, was 17 at the time. He pleaded guilty to second-degree murder and received a reduced sentence.

Nicklasson and Skillicorn were also convicted of killing an Arizona couple while they were on the run after killing Drummond. Nicklasson would be the second person executed in Missouri this year.

Nicklasson had been scheduled to die October 23, but Missouri Governor Jay Nixon halted the execution due to broad criticism over the state's planned use of the drug propofol, widely used as an anesthetic in medical procedures. The case is one of many caught up in a nationwide debate over what drugs can or should be used for executions as capital punishment opponents pressure pharmaceutical companies to cut off supplies of drugs for executions. Missouri in November used pentobarbital, a short-acting barbiturate, mixed by a compounding pharmacy to execute serial killer Joseph Paul Franklin.

Because the executions discussed in this piece are the only ones likely to be carried out this month, it appears very likely that there will be less than 40 executions in the United States in 2013. This is only the second time in nearly two decades in which there were less than two score execution throughout the nation, and the last time (in 2008) no executions had been carried out for the first three months of the year as everyone awaited a result in Baze concerning the constitutionality of lethal injection protocols.

December 10, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack (0)

Monday, December 9, 2013

"The Third Amendment, Privacy and Mass Surveillance"

I try to avoid too much blogging in this space about police practices and related pre-conviction criminal justice issues.  Nevertheless, I have long been saddened by the fact that, especially after Heller, the Third Amendment to the Constitution never gets the love and attention so often bestowed on its near-by neighbors.  Consequently, I was excited to see, and thus could not resist posting, this notable new piece of Third Amendment scholarship (with the title that titles this post) authored by Steven Friedland.  Here is the abstract:

We live in an era of mass surveillance. Advertisers, corporations and the government engage in widespread data collection and analysis, using such avenues as cell phone location information, the Internet, camera observations, and drones. As technology and analytics advance, mass surveillance opportunities continue to grow.

The growing surveillance society is not necessarily harmful or unconstitutional. The United States must track people and gather data to defend against enemies and malevolent actors. Defenses range from stopping attempts to breach government computers and software programs, to identifying and thwarting potential terroristic conduct and threats at an embryonic stage.

Yet, without lines drawn to limit mass data gathering, especially in secret, unchecked government snooping likely will continue to expand. A sitting Secretary of State even recently acknowledged that the government has “sometimes reached too far” with its surveillance. The stakes for drawing lines demarcating privacy rights and the government’s security efforts have never been higher or more uncertain.

This paper argues that the forgotten Third Amendment, long in desuetude, should be considered to harmonize and intersect with the Fourth Amendment to potentially limit at least some mass government surveillance. While the Fourth Amendment has been the sole source of search and seizure limitations, the Third Amendment should be added to the privacy calculus because it provides a clear allocation of power between military and civil authorities and creates a realm of privacy governed by civil law.

Consequently, in today’s digital world it would be improper to read the words of the Third Amendment literally, merely as surplusage. Instead, the Amendment’s check on government tyranny should be viewed as restricting cybersoldiers from focusing surveillance instrumentalities on and around private residences or businesses in an intrusive way – or using proxies to do so -- that would serve as the functional equivalent of military quartering in the civil community.

December 9, 2013 in Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack (0)

Ins't home confinement for only three months and a small fine insufficient punishment for a felony false imprisonment charge?

The question in the title of this post is my reaction to this new CNN report headlined "Ex-San Diego Mayor Bob Filner sentenced to home confinement, fines."  Here are the details:

Former San Diego Mayor Bob Filner was sentenced Monday to 90 days in home confinement, three years probation, and a series of fines totaling about $1500 as part of a plea deal.

The 71-year-old pleaded guilty in October to kissing or grabbing three women at campaign events or at City Hall -- one a felony false imprisonment charge, the other two misdemeanor battery charges.  The three women were among 19 who accused him of offensive behavior during his tenure as mayor and as a congressman....

GPS monitoring will track his whereabouts during his confinement.  He'll be allowed to go out for medical and therapy appointments, religious services, and meetings tied to his probation.  He'll also be allowed to leave his apartment but stay within the apartment complex....

[T]he prosecution said Filner's behavior harmed the women and the city. Referring to the three women as Jane Does 1, 2, and 3, the state said Filner humiliated, scared, embarrassed, sexualized and devalued them.  Prosecutors also noted that after taking part in two weeks of treatment earlier this year, Filner still denied his crimes "and insisted that he was the victim of a lynch mob."

Filner's attorneys said they did not dispute any of the facts stated by the prosecution. None of the victims chose to be in court for the sentencing.

The felony charge said Filner used force to restrain a woman at a fund-raising event March 6. The misdemeanor charges say he kissed a woman on the lips without her consent at City Hall on April 6 and grabbed a woman's buttock after she asked to have her picture taken with him at a rally on May 25....

Under the plea deal, which was announced in October, Filner would be prohibited from ever seeking or holding public office again, the attorney general's office said.  Filner also would not be able to vote, serve on a jury or own a firearm while on probation. Filner also will have to give up pension credit for his time in the mayor's office after March 6, the date of the first offense.

I am not intimately familiar with all the details of all the unlawful intimate and too-familiar behavior of the former mayor of San Diego. But the fact that this plea deal included a felony count proposed by state prosecutors and accepted by the state court judge suggests that many responsible folks think Filner should be foreover branded a felon. In light of that conclusion, I have a hard time seeing the "slap on the wrist" punishment here to be reasonably sufficient, especially if prosecutors had solid evidence that Filner abused more than a dozen women and that "Filner humiliated, scared, embarrassed, sexualized and devalued" his many victims.

I am not sure if this (seemingly too) lenient sentence for Filner was baked into the plea deal or the result of a sentencing judge not being too troubled by Filner's many crimes.  Whatever the reality, if the victims truly suffered the way the prosecutor asserted, I am sorry for them that they were not there to speak at Filner's sentencing and that their harm may seem disvaluaed by this outcome.  That said, perhaps many of Filner's victims are mostly interested in a huge tort payday, so maybe at least some of them are content with Filner having resources to pay them in a civil suit rather than a huge fine to the state as part of his punishment.

December 9, 2013 in Scope of Imprisonment, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack (0)

Seeking pre-trial sentencing views in high-profile federal murder prosecution of homicidal bride

Graham cliffIn part because federal jury trials for traditional common-law crimes are rare, and especially because this case has already garnered considerable media attention, I am likely to follow closely the high-profile federal murder trial starting today in Montana.  This AP article, headlined "Jury selection begins in newlywed murder trial," provides the basics and sets up the sentencing query of this post:

Jury selection gets underway Monday in the murder trial of a newlywed bride accused of pushing her husband to his death in Glacier National Park just days after their wedding. Jordan Graham has pleaded not guilty to charges of first-degree murder, second-degree murder and making a false statement to authorities in the death of Cody Johnson.

Graham, 22, and Johnson, 25, had been married for eight days when they argued over her doubts about the marriage, prosecutors said.  She texted a friend that she planned to confront Johnson about those doubts the night of July 7.

Graham's trial in U.S. District Court in Missoula is expected to last one to two weeks with dozens of friends, acquaintances and expert witnesses — though no eyewitnesses — scheduled to testify.

Federal prosecutors will attempt to convince jurors that Graham deliberately pushed Johnson to his death, then made up a story about how he was last seen driving off with friends.  Graham's federal public defenders will ask jurors to believe that while Graham thought she married too young, she loved Johnson and was only trying to remove his hand from her arm when he fell off the steep cliff.

Witnesses will describe Graham as a naive, immature and shy woman who deals better with the children she watched over as a day care worker than with most adults, federal public defender Michael Donahoe wrote in his trial brief.  Johnson liked to race cars, drink beer, play softball and hang out with friends, and he changed for Graham when they began dating, Donahoe wrote.  Johnson started going to church and stopped most of his drinking, Donahoe wrote.

Graham may have had misgivings about getting married too young, but that doesn't prove she intended to kill Johnson, Donahoe wrote.  Federal prosecutors have mostly circumstantial evidence in their case to prove the killing was premeditated, he wrote.

Assistant U.S. Attorney Zeno Baucus wrote in his own brief that the killing was premeditated, which can be proven by circumstantial evidence.  That circumstantial evidence — or the "surrounding circumstances" before, during and after Johnson's death — is needed because Graham and Johnson were the only direct witnesses to what happened on the cliff, he wrote.  Graham had told Johnson before the wedding that she had a "surprise" planned for him later that day, Baucus wrote.

After she pushed him, she didn't call police or seek any assistance. Instead, she began sending text messages to friends, planting stories about Johnson's disappearance and talking about her dance moves, Baucus wrote.  Graham initially told investigators that Johnson had driven away with friends the night of July 7.  Three days later, she led park rangers to his body so the search would be called off "and the cops will be out of it," according to prosecutors' court filings....

In the recorded portion [of a police interview], Graham said she and Johnson argued about whether they should have waited longer to get married, and they took that argument from their Kalispell home to Glacier park, according to a transcript.  Graham said Johnson grabbed her arm at one point.   She said she knocked his arm off and pushed him in one motion, causing him to fall from a steep cliff near the Loop trail.  "I think I didn't realize that one push would mean for sure you were over," Graham said, according to the transcript.

As I review these facts, it seems that there is essentially no dispute that Graham pushed her husband off a cliff to his death.  At issue at trial is only what her mens rea was at the time of this push, which in turn will determine whether she is guilty of murder, manslaughter or perhaps not guilty of any homicide charge.

Given these realities, I am eager to hear now some reader perspective on what would be appropriate sentencing outcomes if we assume the best and/or assume the worst about this defendant's mens rea.  If a jury were to conclude she was a premeditated, purposeful killer of her new husband and thus convicts this defendant of first-degree murder, do folks think an LWOP sentence would be justified?  Alternatively, if a jury concludes that the cliff push was a terrible, but still blameworthy, mistake and thus convicts this defendant of involuntary manslaughter, do folks think a short or lengthy prison sentence would be appropriate?

Previous related post:

December 9, 2013 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (26) | TrackBack (0)

Sunday, December 8, 2013

Victims provide some recent historical perspectives on two worst crimes in recent American history

As regular readers may know, I am a huge believer in having criminal justice systems give special attention to victims' interests, rights and perspectives (in part because I believe actual victims, generally speaking, are often interested in a much more dynamic and sophisticated government response to wrong-doing than just the lock-em-up-and-throw-away-the-key attitudes too often claimed to be in their interest by politicians and prosecutors).  For that reason, I am always pleased when victim-oriented matters become big legal cases (as with the SCOTUS Paroline case concerning restitution for child porn victims), and also when the media gives special and extended attention to crime victims.

For these (and other) reasons, I am pleased and intrigued to see today's New York Times has these two extended articles discussing victims' perspectives on two of the worst crimes in recent American history:

I have long felt very fortunate that I personally have only been the victim of relatively minor property crimes (though I do have a number of family members and friends who have had their lives shattered by serious violent crimes). I also feel very fortunate to live in a society that, at least in some high-profile settings for some victims, seeks to be attentive to the unique needs and enduring challenges that all too many crime victims face.

December 8, 2013 in Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack (0)

Saturday, December 7, 2013

"How should states decide if someone convicted of a crime has an intellectual disability, when the answer means life or death?"

The title of this post is the first sentence of this lengthy USA Today article headlined "Supreme Court to revisit death penalty for mentally disabled."  Here is more from an effective review of the challenging capital procedure issues now before SCOTUS:

In its 6-3 decision in Atkins v. Virginia, authored by Justice John Paul Stevens, the court prohibited states from executing anyone with "mental retardation."  Mental health professionals define it as substantial limitations in intellectual functions such as reasoning or problem-solving, limitations in adaptive behavior or "street smarts," and evidence of the condition before age 18.  (Mental retardation is the term used in law, but most clinicians and The Associated Press refer to the condition as intellectual disability.)

After the decision, most states stuck with the three-pronged clinical definition, but Florida, Georgia, Mississippi and Texas set their own standards. Under Florida's law, if you have an IQ over 70, you're eligible for execution regardless of intellectual function or adaptive behavior.

Freddie Lee Hall, who has been on Florida's death row for more than 30 years and scored in the mid-70s on IQ tests, is arguing the state's standard amounts to unconstitutional punishment.  Most likely, the case won't result in a dramatic shift in national criminal justice policy, but will further clarify who should and should not be eligible for execution, said Ronald Tabak, an attorney who has represented multiple clients with intellectual disabilities and chairs the American Bar Association's death penalty committee....

The court's makeup has shifted since the 2002 Atkins decision.  But if the justices split along ideological lines, the vote could favor Hall, assuming that swing vote Justice Anthony Kennedy sides with Hall, as he did with Atkins in 2002.  Arguments are set for March 3.

Similar cases are percolating beyond Florida.  In Georgia, death row inmate Warren Hill is fighting execution based on substantial evidence that he is intellectually disabled. In Texas, where the courts use an anecdotal seven-part test largely based on the characteristics of the fictional character Lennie from John Steinbeck's novel "Of Mice and Men" to determine intellectual disability, multiple prisoners have been executed in recent years even when they've scored well below 70 on IQ tests.

Last year, Texas executed Marvin Wilson, who was convicted of murder in 1994, even though he had an IQ of 61.  In 2010, Virginia executed Teresa Lewis for her role in a murder-for-hire scheme, even though she had an IQ of 72 and her co-conspirators admitted Lewis did not plan the murder....

Still, the Atkins decision has had an impact on executions. At least 98 people have had their death sentence changed since 2002 by proving that they were intellectually disabled, according to data from the Death Penalty Information Center.  By their count, in the 18 years before the Atkins decision, at least 44 people who likely suffered from intellectual disabilities were executed.

December 7, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (19) | TrackBack (0)

Friday, December 6, 2013

Federal judge in Washington finds Sixth Amendment violations from cuts to local public defender programs

As reported in this AP piece, a pair of "Washington cities have systematically violated the constitutional rights of poor defendants to effective legal representation, a federal judge ruled Wednesday, blaming city officials for being 'willfully blind' to the effects of their cost-cutting." Here is more about what seems to me to be a landmark ruling handed down earlier this week:

The state chapter of the American Civil Liberties Union sued the Skagit County towns of Mount Vernon and Burlington two years ago, alleging that public defenders there were so overworked that they amounted to little more than "a warm body with a law degree."

U.S. District Judge Robert Lasnik agreed. He issued a ruling Wednesday, following a two-week trial in June, that could have broad ramifications for how cities provide legal help to the poor: "In the state of Washington, there are undoubtedly a number of municipalities whose public defense systems would, if put under a microscope, be found wanting," he wrote.

The judge ordered the cities to hire a part-time public defense supervisor to oversee whether poor defendants are receiving adequate legal counsel, saying "the court has grave doubts regarding the cities' ability and political will to make the necessary changes on their own."

Lawyers involved said they believed it was the first time in the nation's history a federal court had appointed such a supervisor to oversee a public defense agency. Sarah Dunne, the ACLU of Washington's legal director, said in an emailed statement she was thrilled to see the ruling this year, which marks the 50th anniversary of the U.S. Supreme Court's decision in Gideon v. Wainright that the right to counsel applies in state courts as well as federal ones....

Andrew Cooley, who represented the cities, said he was gratified the judge did not impose a case-load limit on their public defenders. The state Supreme Court has adopted such standards as it wrestles with how to improve the representation of indigent defendants, but they aren't scheduled to take effect until January 2015.

He also said the cities have doubled their public-defense budget since the lawsuit was filed, and it remained unclear whether officials could stomach spending any more. Instead, Burlington and Mount Vernon might simply disband their municipal courts, leaving Skagit County District Court to handle those cases.

Lasnik noted that two lawyers who formerly handled public defense cases for the cities each took on about 1,000 cases a year from 2009-2011 and often spent less than an hour per case. There was almost no evidence they investigated their clients' cases, met with their clients confidentially, or performed any legal analysis of the cases, the judge said.

Instead, they simply assumed police had done their jobs correctly. "The services they offered to their indigent clients amounted to little more than a 'meet and plead' system," he wrote....

Ironically, Lasnik said the failings of the public defenders in Mount Vernon and Burlington didn't necessarily result in their clients getting worse deals. With a note of chagrin, he said the penny-pinching of city administrators faced with tough budgetary times had also hit prosecutors, who in turn offered "overly lenient plea deals."

But that's not the point, Lasnik said: "Advising a client to take a fantastic plea deal in an obstruction of justice or domestic violence case may appear to be effective advocacy, but not if the client is innocent, the charge is defective, or the plea would have disastrous consequences for his or her immigration status."

The 23-page ruling in Wilbur v. City of Mount Vernon, No. C11-1100RSL (D. Wash. Dec. 4, 2013), is available at this link and it concludes with this poetic paragraph:

It has been fifty years since the United States Supreme Court first recognized that the accused has a right to the assistance of counsel for his defense in all criminal prosecutions and that the state courts must appoint counsel for indigent defendants who cannot afford to retain their own lawyer.  The notes of freedom and liberty that emerged from Gideon’s trumpet a half a century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that reduce the promise to a hollow shell of a hallowed right.

December 6, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Thursday, December 5, 2013

Remarkable new HRW report details massive "trial penalty" due to mandatory minimums in federal system

2013-US-plea-graphicAs highlighted in this press release discussing a new important report, in federal courts "drug offenders convicted after trial receive sentences on average three times as long as those who accept a plea bargain, according to new statistics developed by Human Rights Watch."  Here is more from the press release about the report and its findings:

The 126-page report, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty,” details how prosecutors throughout the United States extract guilty pleas from federal drug defendants by charging or threatening to charge them with offenses carrying harsh mandatory sentences and by seeking additional mandatory increases to those sentences.  Prosecutors offer defendants a much lower sentence in exchange for pleading guilty.  Since drug defendants rarely prevail at trial, it is not surprising that 97 percent of them decide to plead guilty.

“Prosecutors give drug defendants a so-called choice -- in the most egregious cases, the choice can be to plead guilty to 10 years, or risk life without parole by going to trial,” said Jamie Fellnew, senior advisor to the US Program at Human Rights Watch and author of the report.  “Prosecutors make offers few drug defendants can refuse.  This is coercion pure and simple.”...

In one of hundreds of cases Human Rights Watch reviewed, Sandra Avery, a small-time drug dealer, rejected a plea of 10 years for possessing 50 grams of crack cocaine with intent to deliver. The prosecutor triggered a sentencing enhancement based on her prior convictions for simple drug possession, and she was sentenced to life without parole.

In addition to case reviews, the report is also based on numerous interviews with federal prosecutors, defense attorneys, and judges.  It also includes new statistics developed by Human Rights Watch that provide the most recent and detailed measure of what the report calls the “trial penalty” -- the difference in sentences for drug defendants who pled guilty compared with those for defendants convicted after trial.  The trial penalty is, essentially, the price prosecutors make defendants pay for exercising their right to trial. “Going to trial is a right, not a crime,” Fellner said. “But defendants are punished with longer sentences for exercising that right.”

Prosecutors are able to impose the trial penalty because judges have been reduced to virtual bystanders in cases involving mandatory sentences.  When prosecutors choose to pursue mandatory penalties and the defendant is convicted, judges must impose the sentences.  They cannot exercise their traditional role of tailoring sentences to each defendant’s conduct and culpability and of making sentences no longer than necessary to serve the purposes of punishment....

The new statistics Human Rights Watch developed for the report, based on raw federal sentencing data for 2012, include the following:

• The average sentence for federal drug offenders who pled guilty was five years, four months; for those convicted after trial the average sentence was sixteen years.

• For drug defendants convicted of offenses carrying mandatory minimum sentences, those who pled guilty had an average sentence of 82.5 months compared with 215 months for those convicted after trial, a difference of 11 years.

• Among drug defendants with prior felony convictions, the odds of receiving a sentencing enhancement based on those convictions was 8.4 times greater for those who went to trial than for those who pled guilty.

• Among drug defendants with a gun involved in their offense, the odds of receiving the statutory gun sentencing enhancement were 2.5 times greater for those who went to trial than for those who pled guilty.

December 5, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (49) | TrackBack (0)

"Treating Juveniles Like Juveniles: Getting Rid of Transfer and Expanded Adult Court Jurisdiction"

The title of this post is the title of this notable new piece by Christopher Slobogin which I just noticed via SSRN. Here is the abstract:

The number of juveniles transferred to adult court has skyrocketed in the past two decades and has only recently begun to level off.  This symposium article argues that, because it wastes resources, damages juveniles, and decreases public safety, transfer should be abolished.  It also argues that the diminished culpability rationale that has had much-deserved success at eliminating the juvenile death penalty and mandatory life without parole for juveniles is not likely to have a major impact on the much more prevalent practices of transferring mid- and older-adolescents to adult court and expanding adult court jurisdiction to adolescents; neither the law nor developmental science justifies the conclusion that juvenile offenders deserve significant mitigation in the non-capital context.

If instead juvenile justice is reconceptualized as a preventive mechanism rather than a punishment regime (as laid out in the book I co-authored, "Juveniles at Risk: A Plea for Preventive Justice"), transfer becomes much less alluring.  If the primary goal of juvenile justice is public safety, with retribution conceived as an important goal only to the extent that recognizing it is necessary to ensure systemic legitimacy, then maintaining an adult court option for juveniles (and imposing long sentences on them) becomes unnecessary and counterproductive.  Appended to this article is another article, written for the ABA’s Criminal Justice Magazine, that fleshes out how a risk management regime would work in a prevention-oriented juvenile justice system

December 5, 2013 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack (0)

Yet another effective review of the child porn restitution challenges facing SCOTUS

I have already blogged some previews of the fascinating Supreme Court case of Paroline v. United States even though oral argument is still six weeks away because the issues strike me as so interesting and dynamic.  (The parties' main briefs and now lots of amicus briefs are now available via SCOTUSblog on this Paroline case page.)  And I suspect we are seeing other notable coverage of the case already because lots of others are also intrigued by the issues and arguments now before the Justices in Paroline.  The latest example comes via Emily Bazelon here at Slate, and it is headlined "Paying Amy: Doyle Paroline owned two pornographic pictures of an 8-year-old girl. How much should he have to pay?" Here are a few excerpts (with cites to some of the filed briefs):

In January, the Supreme Court will hear the appeal of Doyle Randall Paroline, who was caught with two pictures of Amy among 280 illegal images and was found liable by the U.S. Court of Appeals for the 5th Circuit for the full amount of the restitution Amy, who is now 24, has claimed. The 5th Circuit said it was up to Paroline — not Amy — to find the other men who could also be on the hook for restitution and go after them for contributions. The legal theory is called joint and several liability. It’s the way courts deal with pollution cases in which a bunch of defendants all dump toxic waste into a single lake. A plaintiff sues one wealthy company for all the damages, and then that defendant has to sue other companies to share the costs.

Is this how Congress intended victims to recover from sex offenders when it passed [the Violence Against Women Act] in 1994?...

Of the eight appeals courts that have heard challenges by men like Paroline, only the 5th Circuit agreed entirely with Amy’s theory of recovery.  The Department of Justice also disagrees with a key to it, saying that joint and several liability doesn’t apply in these cases.  But a bipartisan group of U.S. Senators have filed a brief before the Supreme Court arguing that Congress wanted to give Amy an easy path to restitution. VAWA could “hardly be clearer,” say the senators (roll call: Orrin Hatch of Utah, Dianne Feinstein of California, Charles Grassley of Iowa, Edward Markey of Massachusetts, John McCain of Arizona, Patty Murray of Washington, and Charles Schumer of New York)....

Five appeals courts have said they doubted that victims like Amy can win more than nominal restitution.  Two others let her keep awards of only $10,000 or less. She has been able to collect larger amounts only from men who have agreed to settle or waived their right to appeal.  The senators, though, say that all these courts got it wrong and the 5th Circuit got it right.  They quote Vice President Joe Biden, chief architect of the VAWA, who called it “the most victim-friendly bill [the Senate] ever passed.”  And they provide an important piece of history about how VAWA was drafted....

Here’s the clearest way to think about how and why Amy and other victims like her should win restitution.  Their trauma can’t be neatly parceled out among the individual men convicted for possessing their pictures.  But the harm is crystal clear in the aggregate.  And so Paroline and other defendants shouldn’t be relieved of their obligation to pay “simply because Amy would continue to suffer harm if there were one less child-pornography consumer in the world,” as the Department of Justice puts it. This makes sense to me: You can’t let each viewer off the hook because he is merely one small part of the whole.

How much does each viewer who is convicted have to pay?  The Department of Justice argues — vaguely and without any basis I can see in VAWA — that each defendant should pay restitution in an amount greater than zero but less than the whole.  Courts should use their discretion to pick some place in the middle, the government says.  It rejects the idea of joint and several liability as “practically unworkable” and “unduly harsh.”

If Paroline had to pay millions of dollars for his two pictures of Amy, then yes, that would be unfair.  But that’s not how joint and several liability works. It works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants.  Then it would be up to those men to find the others who are also legally responsible.  This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts.  If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.

Money can make a huge difference for victims of sexual abuse.  For Amy and Nicole, it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times.  Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution.  The Supreme Court should too.  And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.

A few prior posts on Paroline:

December 5, 2013 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack (0)

Wednesday, December 4, 2013

"How Bureaucrats Stand in the Way of Releasing Elderly and Ill Prisoners"

The title of this post is the headline of this notable new ProPublica piece about (the paucity of) compassionate release in the federal criminal justice system.  Here are excerpts:

The government has long been criticized for rarely granting compassionate release. This August, Attorney General Eric Holder announced the Justice Department would try to change that by expanding criteria for who can apply.

Under the new guidelines, compassionate release can be granted not just to prisoners who have terminal illnesses, but also to those with debilitating conditions.  Prisoners who need to serve as caregivers for family members may now also seek reductions in sentencing.  And for the first time, elderly federal inmates who aren’t necessarily dying or incapacitated can apply to be let out early.

Holder touted the compassionate release initiative as one way to cut down on the “astonishing” federal prison population, which has grown by nearly 800 percent since 1980.

But even if the changes enable more inmates to apply for compassionate release, prison officials still have almost total discretion over who is approved.  A federal prison’s warden, as well as the Bureau of Prisons’ regional director and central office must sign off on an inmate’s application before it is passed on to a judge.  Any of those officials can reject applications for a number of reasons, from a perceived risk of recidivism to concern for what’s best for a prisoner’s child....  There is no process for inmates to appeal those decisions in court.

Many advocates say they expect eligible inmates will remain behind bars despite the changes.  “I don’t believe it’s going to change at all,” said lawyer Marc Seitles, whose client was denied release despite terminal cancer.  “It’s still the same people making decisions.”

In September, Bureau of Prisons Director Charles Samuels said he predicted expanding eligibility would result in the “release of some non-violent offenders, although we estimate the impact will be modest.”  (The agency declined to make Samuels available for comment to ProPublica.)

As of October 29, The Bureau of Prisons had approved and passed along 50 compassionate release requests to judges this year. That’s up from 39 in 2012 and 29 in 2011. It’s impossible to know if the overall rate of approval has increased, as the federal Bureau of Prisons hasn’t released the number of inmates who have applied.

The Bureau says it recently started to track inmate requests, after an Inspector General report earlier this year excoriated the department for failing to do so. The report also found most inmates didn't even know the program existed.

The expansion of compassionate release was motivated in part by the rising number of sick and elderly inmates incarcerated in the U.S. As of 2011, there were over 26,000 inmates over 65 in state and federal custody. And as the elderly population in prison grows, so do their medical bills. Housing an inmate in a prison medical center costs taxpayers nearly $60,000 a year — more than twice the cost of housing an inmate in general population.

Many lawyers and prisoner advocates have said the “jailers are acting as judges” by rejecting most compassionate release cases without ever passing them onto the courts for a final decision. “The Bureau of Prisons should be letting judges have the opportunity to decide every time extraordinary and compelling reasons come to their attention, and [they are] not doing that,” said federal public defender Steve Sady, who has written extensively on the issue and represented clients requesting early release. “We believe that, under the statute, the sentence is for the judge to decide.”

Prisons spokesman Edmond Ross said in an emailed statement that “Congress gave the [Bureau of Prisons] authority” to decide which inmates should be granted release. “Review includes deliberation on the most important factor, ensuring that an inmate's release would not pose a danger to the safety of any other person or the community,” he said. “This must be considered before any request is submitted to a court.”

Mary Price, general counsel for Families Against Mandatory Minimums, says prison officials are ill-equipped to make those kinds of decisions. Prison officials’ “job is to keep people locked up. Identifying people who should no longer be incarcerated is just not what they do,” she said....

Prisoner advocates at Human Rights Watch and other organizations have proposed allowing inmates to go before a judge to appeal rejections. “Unless there’s an institutional change or a criteria that they have to follow, this will never change,” Seitles said.

December 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18) | TrackBack (0)

Interesting split DC Circuit opinions about challenging prior convictions and supervised release conditions

While I was spending all my extra time yesterday reviewing the big Blewett en banc Sixth Circuit decision (basics here and here), the DC Circuit handed down two little penal decision concerning relatively technical aspects of modern federal sentence in US v. Martinez-Cruz, No. 12-3050 (DC Cir. Dec. 3, 2013) (available here) and US v. Malenya, No. 12-3069 (DC Cir. Dec. 3, 2013) (available here).

Federal sentencing practitioners ought to check out both rulings for the merits, and others may be interested in the lengthy dissenting opinions in each case authored by Judge Kavaugh. Indeed, to provide a summary of each ruling, I will us the first paragraph of the Judge's dissents.

In Martinez-Cruz
KAVANAUGH, Circuit Judge, dissenting: As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme Court opinions.  This case is controlled by at least the music, if not also the words, of the Supreme Court’s decision in Parke v. Raley, 506 U.S. 20 (1992).  There, the Supreme Court made clear that the defendant in a recidivist sentencing proceeding may be assigned the burden of proof when challenging the constitutionality of a prior conviction that is being used to enhance or determine the current sentence.  Consistent with Parke v. Raley, every court of appeals to consider the question has reached that same conclusion.  By ruling otherwise here, the majority opinion, in my view, both deviates from Supreme Court precedent and creates an unwarranted circuit split.
In Malenya:
KAVANAUGH, Circuit Judge, dissenting:  Malenya, then a 41-year-old man, attempted to have sex with someone he knew to be 14.  Malenya’s attempt was thwarted only because the 14-year-old’s mother fortuitously intercepted explicit text messages Malenya sent to the 14-year-old.  For his conduct, Malenya ultimately pled guilty and received a relatively short prison sentence of one year and a day in prison, followed by three years of supervised release with certain special conditions attached.  On appeal, Malenya objects to the special conditions imposed by the District Court and asks that they be vacated.  The majority opinion vacates the special conditions.  With one exception, I would affirm the special conditions.  I therefore respectfully dissent. 

December 4, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack (0)

"The wrong people decide who goes to prison"

The title of this post is the headline of this notable new CNN commentary authored by US DIstrict Judge Mark Bennett and Prof. Mark Osler.  Here are some of the on-the-mark views coming today from these Marks:

Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law.  Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors. After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.

This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion.  It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.

The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.

After nearly 30 years, we know how Congress' experiment turned out, and the results are not good.  Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way.  Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities....

Let's look at just one way that prosecutors exercise this discretion: the enhancement of narcotics sentences under 21 U.S.C. 851, or proceedings to establish prior convictions. These enhancements, at a minimum, double a drug defendant's mandatory minimum sentence and may raise the maximum possible sentence....   [O]ur analysis of the way these enhancements have been used reveals a deeply disturbing dirty little secret of federal sentencing: the stunningly arbitrary application of these enhancements by prosecutors within the Department of Justice.

The numbers tell the story. Our home states are fairly typical in their wild disparities: A federal defendant in Iowa is more than 1,056% likely to receive a 851 enhancement than one in Minnesota. Nor are these Midwestern neighbors an anomaly. In the Northern District of Florida, prosecutors apply the enhancement 87% of the time, but in the bordering Middle District of Georgia, they are used in just 2% of relevant cases.

There is also breathtaking disparity within federal district within the same state (PDF). For example, in Florida, prosecutors in the Northern District apply the enhancement 87% of the time, but in the Southern District, it is used only 14% of the time.  In the Eastern District of Tennessee, offenders are 3,994% more likely to receive an enhancement than in the Western District of Tennessee.  In the Eastern District of Pennsylvania, a defendant is 2,257% more likely to receive the enhancement than in the Middle District of Pennsylvania. The disparities are startling.

In August, Attorney General Eric Holder announced steps to establish more discipline within the Department of Justice in how this discretion is used.  It is a promising step but only that: a step. It is unclear how firm the attorney general is willing to be in tracking and constraining the use of this kind of discretion by prosecutors in different areas.

The larger lesson, and the more important one, is that after nearly 30 years, we still have gross and tragic disparities in federal sentencing, with the added burden of too many people put in prison, caused by mandatory sentencing and harsh sentencing guidelines. Tentative steps at reform will not be enough.  It is time for a radical rethinking of the project as a whole and a recognition that this grand experiment in shifting discretion to prosecutors has failed.

December 4, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

Interesting (similar?) accounts of distinct forms of tough justice being reconsidered

Yesterday's New York Times had two distinct pieces telling similar types of stories about the review and reconsideration of tough sanctions that have not always worked out ideally.  Here are the headlines and links, with just a bit of excerpted  content:

"Seeing the Toll, Schools Revise Zero Tolerance":

Faced with mounting evidence that get-tough policies in schools are leading to arrest records, low academic achievement and high dropout rates that especially affect minority students, cities and school districts around the country are rethinking their approach to minor offenses.

"Born of Grief, ‘Three Strikes’ Laws Are Being Rethought":

To most of the world – back in 1992 and even now — Mike Reynolds’s effort to keep repeat violent offenders locked up for life after the murder of his 18-year-old daughter, Kimber, in Fresno, Calif., was a non-event, not the opening salvo of what would become a barrage of state laws and referendums eventually known as the “Three Strikes and You’re Out” movement....

A few noted criminologists predicted at the time that “three strikes” laws, which would sweep the nation, were unlikely to have much effect on crime, would fill the nation’s prisons to bursting and would satisfy frustrated voters at the expense of bad public policy. They were largely ignored. As this Retro Report points out, California voters eventually concluded that its three strikes law was excessive in its zeal and financial burden, and last year they amended the law that Mr. Reynolds had put before them two decades earlier.

December 4, 2013 in Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Tuesday, December 3, 2013

Doesn't the Sixth Circuit Blewett majority opinion contradict SCOTUS precedent that the Eighth Amendment evolves?

Though lacking time to fully consume all the opinions in today's lengthy Sixth Circuit en banc ruling in Blewett (basics here), I did this morning find time to read the discussions of Eighth Amendment issues because they are relatively brief and cursory.  And, as the the title of this post reveals, I  believe that the majority's treatment of the Eighth Amendment is wrong and contradicts clear Supreme Court precedent concerning the evolving nature of the Constitution's prohibition of cruel and unusual punishments.

Here are the key passages from the majority's (far too brief) discussion of Eighth Amendment issues that have me all worked up (with cites left out but emphasis in the original):

Even if the Fair Sentencing Act applies only to individuals sentenced after its effective date and even if § 3582(c)(2) does not convert the Act into a retroactive change to these mandatory minimums, the Blewetts claim that the Constitution’s equal-protection and cruel-and-unusual-punishment principles give them relief.  Long before the passage of the Fair Sentencing Act, our court and others repeatedly rejected similar constitutional challenges to the crack and powder cocaine sentencing disparities....

Congress’s mitigation of the crack and powder disparities does not weaken these precedents; it strengthens them.  Besides, the Blewetts cite no cases that call these conclusions into question....

Turning to another part of the Constitution, the Blewetts and Judge Merritt (with support from Judge Moore’s opinion) contend that the Eighth Amendment prohibits the continued imprisonment of a defendant sentenced under the old mandatory minimum laws.  Yet they cannot contend that their 10-year sentences were cruel and unusual when imposed.  After all, the Supreme Court has upheld a mandatory minimum of life without parole for possession of 672 grams of cocaine without intent to distributeHarmelin v. Michigan, 501 U.S. 957 (1991).  The Blewetts’ crimes are less serious in one respect (they possessed less cocaine), but more serious in two others (they possessed with intent to distribute and they had prior felony drug convictions).  Harmelin precludes the conclusion that the Blewetts’ much shorter mandatory minimum sentences were cruel and unusual.

The Blewetts persist that their sentences became cruel and unusual when Congress passed the Fair Sentencing Act.  But the Eighth Amendment is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted, a theory that would have the perverse effect of discouraging lawmakers from ever lowering criminal sentences.  Withholding the benefits of a change from previously sentenced defendants at a any rate is not “unusual”; it is the general practice in federal sentencing, as Dorsey and § 109 confirm.

With all due respect to the Sixth Circuit and the author of this opinion (whom I know well and respect greatly), these passages seem deeply misguided in light of the evolving nature of the Eighth Amendment and the importance of objective factors in assessing the Amendment's evolution that have been repeatedly stressed by the Supreme Court.

To begin, it is just flat out wrong that Congress's decision to repeal the Blewetts sentences makes stronger prior rejections of their Eighth Amendment claims. The Supreme Court's Eighth Amendment ruling in Atkins stressed that legislative decisions by states to repeal the death penalty for mentally retarded defendants showed that society's view had evolved so that in 2002 it was unconstitutional to execute the mentally retarded even though the Court had held in 1989 in Penry that the Eighth Amendment did not preclude such executions. In other words, there is clear Supreme Court precedent demonstrating legislative repeal(s) of a punishment makes a defendant's Eighth Amendment claims stronger, not weaker.

In addition, the question here (as it was in Atkins and all other Eighth Amendment cases) is not just "when" a sentence might have become unconstitutional, but rather whether an extreme punishment is cruel and unusual now. Thus, it is misguided to assert that the Blewetts claim "that their sentences became cruel and unusual when Congress passed the Fair Sentencing Act" back in 2010.  Rather, the issue needing to be resolved under the Eighth Amendment is whether now, in December 2013, after Congress passed the FSA in 2010 repealing the sentences being served by the Blewetts, AND after the US Sentencing Commission made lower guidelines retroactively available to tens of thousands of more serious crack offenders (and Congress approved that decision), AND after thousands of judges have lowered the sentences of thousands of more serious crack offenders by an average of more than two years, AND after the US Attorney General has given major speeches and issued new policies assailing the application of mandatory minimums in these kinds of cases, whether it is now cruel and unusual that only less serious crack offenders like the Blewetts do not even get a chance to ask a judge to have their sentences lowered.

My view on these issues is, of course, deeply biased by my involvement in this case in which I authored a brief for NACDL explaining why I think the Blewetts' sentences are unconstitutional under the Eighth Amendment.  The reason I come to this view is because I take very seriously the Supreme Court's frequent and repeated admonition that Eighth Amendment's prohibition of cruel and unusual punishments evolves.  I fully understand those who disagree with this jurisprudential approach to the Eighth Amendment and who advocate that the Supreme Court no longer analyze and apply the Amendment this way.  But, as an inferior court, the Sixth Circuit has to follow even parts of SCOTUS precedent it does not like.  In this case, however, it seems the Sixth Circuit was content just to ignore that precedent rather than consider it honestly and seriously.

December 3, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (20) | TrackBack (0)

In lengthy split opinions, en banc Sixth Circuit rejects all efforts to give any relief to pre-FSA crack defendants still serving mandatory minimums

The Sixth Circuit this morning has handed down a lengthy set of opinion in the closely-watched Blewett litigation. All the opinions, which can be accessed here, run a full 79 pages.  It appears the vote to reject providing any relief to pre-FSA defendants still serving now-repealed mandatory minimums was 10-7, and here is the complicated accounting of the votes and opinions:

SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J., BOGGS, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN and KETHLEGE, JJ., joined, and MOORE, J., join ed in the result. MOORE, J. (pp. 21–33), delivered a separate opinion concurring in the judgment. MERRITT, J. (pp. 34–37), delivered a separate dissenting opinion, in which DONALD J., joined. COLE, J. (pp. 38–43), delivered a separate dissenting opinion. CLAY, J. (pp. 44–58), delivered a separate dissenting opinion, in which DONALD, J., joined. ROGERS, J. (pp. 59–67), delivered a separate dissenting opinion, in which WHITE and STRANCH, JJ., joined, MERRITT, J., joined in part, and COLE, J., joined except for the last paragraph. WHITE, J. (pp. 68–79), delivered a separate dissenting opinion.

I am not at all surpsised by the line-up here, which notably seems to go down party lines save for Clinton appointees Judges Gilam and Moore with the Republican-appointee-heavy marjority, and Bush appointees Judges Rogers and White voting with the Democratic-heavy dissenting minority.  Here is how the opinion of the Sixth Circuit majority ends:

At the end of the day, this is a case about who, not what — about who has authority to lower the Blewetts’ sentences, not what should be done with that authority. In holding that the courts lack authority to give the Blewetts a sentence reduction, we do not mean to discount the policy arguments for granting that reduction.  Although the various opinions in this case draw different conclusions about the law, they all agree that Congress should think seriously about making the new minimums retroactive.  Indeed, the Fair Sentencing Act, prospective though it is, dignifies much of what the Blewetts are saying as a matter of legislative reform and may well be a powerful ground for seeking relief from Congress. Yet the language of the relevant statutes (the Fair Sentencing Act, § 109 and § 3582(c)(2)) and the language of the relevant decisions (Dorsey, Davis and Harmelin) leave us no room to grant that relief here. Any request for a sentence reduction must be addressed to a higher tribunal (the Supreme Court) or to a different forum altogether (the Congress and the President).

Especially because I have a very busy teaching week, I am unlikely to find the time to read and assess these opinions in full for a little while.  Moreover, because I have a much more robust view of the limits of the Eighth Amendment than most members of the federal judiciary, I suspect I will not be moved by how the majority disposed of this matter with reference to Harmelin and other cases which do not involve the sui generis reality of sustaining lengthy federal prison terms that have been resoundly and repeatedly rejected and disavowed by all other branches of the federal government and by all the states in the Union as well. 

December 3, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Calling out DOJ for talking the talk, but not walking the walk, on mandatory minimums

Andrew Cohen has this lengthy and effective new piece via The Atlantic highlighting a case in the SCOTUS cert pool that highlights the ways federal prosecutors are able to use mandatory minimums to force judges to impose lengthy prison terms for drug offenders. The piece's headline and sub-head highlight its themes: "Attorney General Mean What He Says About Sentencing Reform?: Eric Holder has spent a great deal of time and energy lately advocating for reforms to mandatory minimum sentences. So why is the federal government trying to stiff Clarvee Gomez in court?".  And here is how piece starts and concludes:

When the justices of the United States Supreme Court confer Friday morning to consider new cases they will have the opportunity to accept for review a dispute that tests not just the meaning of their own recent Sixth Amendment precedent but the viability of a major new policy initiative implemented this summer by the Justice Department to bring more fairness to federal sentencing while reducing the terrible costs of prison overcrowding.

In Gomez v. United States, a Massachusetts case, the justices have been asked to determine whether they meant what they wrote about juries and drug sentences in Alleyne v. United States, decided just this past June, and at the same time whether Attorney General Eric Holder meant what he said, in August, when he promised to curb the ways in which his federal prosecutors abuse "mandatory minimum" sentences in drug cases to obtain guilty pleas (or higher sentences).

The justices should accept this case for review. And the Court should affirm the just principle that a man cannot constitutionally be sentenced based upon charges that are not brought or upon facts a jury does not even hear. But even if the justices aren't willing to muster up that level of indignation, they ought to at least take the opportunity to call out federal prosecutors for saying one thing in front of the microphones and another in court papers....

The government's positions in this case — both the tactics employed by Gomez's prosecutors and the arguments made now by federal attorneys — are utterly inconsistent with the much-publicized policies the Attorney General himself promulgated this summer....

Even after the Court's mandate in Alleyne, even after the Attorney General's pointed memorandum, even after all the public speeches about sentencing reform, federal attorneys still are trying to argue that the result in the Gomez case is both fair and constitutional. It is neither and the Supreme Court ought to say so — or at least expose the incoherence and hypocrisy of the government's position. If true sentencing reform is going to come it's going to come one case at a time — and this is as good a case as any to start.

December 3, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Monday, December 2, 2013

Another preview of Paroline via the New York Times

As I noted in this post a few weeks ago, oral argument in the fascinating Supreme Court case of Paroline v. United States is not until January.  But the parties' opening briefs, all of which are now in and are available via SCOTUSblog on this Paroline case page, already provide a full review of the challenging issues that restitution sentences for child porn downloading victims presents for the Justices.   Adam Liptak in this new New York Times piece, headlined "Evaluating the Liability of Viewers of Child Pornography," effectively reviews the issues and arguments now before the Justices in Paroline:

The notices arrive almost every day. They tell a young woman named Amy, as she is called in court papers, that someone has been charged with possessing child pornography.  She was the child.  “It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it,” Amy, then 19, wrote in a 2008 victim impact statement. “It’s like I am being abused over and over and over again.”

Next month, the Supreme Court will consider what the men who took pleasure from viewing Amy’s abuse must pay her.  Images of Amy being sexually assaulted by her uncle are among the most widely viewed child pornography in the world.  They have figured in some 3,200 criminal cases since 1998.

Amy is notified through a Justice Department program that tells crime victims about developments in criminal cases involving them.  She has the notifications sent to her lawyer. There have been about 1,800 so far.  Her lawyer often files a request for restitution, as a 1994 law allows her to do.  Every viewing of child pornography, Congress found, “represents a renewed violation of the privacy of the victims and repetition of their abuse.”

Amy’s losses are in most ways beyond measure, but some of them can be calculated in dollars.  She has found it hard to hold down a job. She needs a lifetime of therapy. She has legal bills. Her lawyers say it adds up to about $3.4 million.  The question for the justices is how to allocate that sum among the participants in the sordid marketplace for pictures of her.

One of those men is Doyle R. Paroline, who was caught with 280 images of children, including toddlers, being sexually abused.  Two of the pictures were of Amy. The 1994 law allows victims of child pornography to seek the “full amount” of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million....

Mr. Paroline was sentenced to two years in prison, but the trial judge, Leonard Davis, did not order him to give Amy anything.  The link between Amy’s losses and what Mr. Paroline did, Judge Davis said, was too remote.  The United States Court of Appeals for the Fifth Circuit, in New Orleans, disagreed and awarded Amy the $3.4 million she sought. Mr. Paroline should pay what he could and seek contributions from his fellow wrongdoers if he thought it too much, the court said, relying on the legal doctrine of “joint and several” liability....

Mr. Paroline said the ruling was deeply unfair.  “An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate to the offense conduct,” he told the Supreme Court.  Requiring him to seek payment from his fellow sex offenders, he added, “would create a procedural nightmare.”

Amy’s lawyers countered that it should not be her burden to pursue her abusers over “decades of litigation that might never lead to a full recovery.”  She has received restitution in 180 cases so far, she told the justices, and has recovered a little more than 40 percent of her losses.

The Justice Department took a middle ground before the Supreme Court, saying that Amy deserved something from Mr. Paroline, but that $3.4 million was too much.  The right amount, the department’s lawyers said, was “somewhere between all or nothing.” They did not specify what Mr. Paroline’s share might be, saying the trial court should decide. 

A few prior posts on Paroline:

December 2, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack (0)

A must-read issue of the FSU Law Review for sentencing fans

Thanks to being sent a reprint of one article from the Summer 2013 issue of the Florida State University Law Review, I happened to discover that Issue 4 of Volume 40 of this august journal actually has three must-read pieces for sentencing fans.  Two of these pieces (one article, one note) concern the Supreme Court's recent Eighth Amendment jurisprudence, and the other provides a proposed solution to one of the thorniest doctrinal problems concerning the federal sentencing guidelines.   All three look great, and here are their titles with links in the order they appear within the issue:

December 2, 2013 | Permalink | Comments (0) | TrackBack (0)