Monday, November 18, 2013

Justice Sotomayor calls for Alabama's capital sentencing system to get a "fresh look"

SCOTUS wrapped up its formal November activities with an order list this morning that included two dissents from denials of cert in state criminal cases.  SCOTUSblog here reports on these basics:

Among cases the Court declined to hear was a challenge to Alabama’s death sentencing scheme, filed by an inmate who was given such a sentence by the judge even though the jury had voted eight to four against that punishment.  Justice Sonia Sotomayor, in a twelve-page dissent most of which was joined by Justice Stephen G. Breyer, said that the Court should take a new look at Alabama’s capital punishment approach.  It is now the only state where judges have imposed death sentences contrary to advisory verdicts recommended by juries.   In a part of the opinion that Justice Breyer did not join, Justice Sotomayor argued that the Alabama approach may violate a string of modern Court rulings enhancing the role of juries in the sentencing process.  She wrote as the Court denied review in Woodward v. Alabama (13-5380).

The Court’s denial of review in two other cases drew dissenting opinions or separate statements by Justice Samuel A. Alito, Jr.   One was Rapelje v. McClellan (12-1480), a test of federal courts’ power in habeas cases to defer to summary rulings by state courts in criminal cases.  Justice Antonin Scalia joined the Alito dissent in that case.

The case concerning Justice Alito has more to do with habeas review than sentencing issues, but the case concerning Justice Sotomayor has to be right in the wheel-house of sentencing fans.  Here is how Justice Sotomayor's dissenting opinion (which has a graph in the middle) gets started and concludes:

The jury that convicted Mario Dion Woodward of capital murder voted 8 to 4 against imposing the death penalty.  But the trial judge overrode the jury’s decision and sentenced Woodward to death after hearing new evidence and finding, contrary to the jury’s prior determination of the same question, that the aggravating circumstances outweighed the mitigating circumstances.  The judge was statutorily entitled to do this under Alabama law, which provides that a jury’s decision as to whether a defendant should be executed is merely an “advisory verdict” that the trial judge may override if she disagrees with the jury’s conclusion. In the last decade, Alabama has been the only State in which judges have imposed the death penalty in the face of contrary jury verdicts.  Since Alabama adopted its current statute, its judges have imposed death sentences on 95 defendants contrary to a jury’s verdict. [FN1] Forty-three of these defendants remain on death row today.  Because I harbor deep concerns about whether this practice offends the Sixth and Eighth Amendments, I would grant Woodward’s petition for certiorari so that the Court could give this issue the close attention that it deserves....

[FN1] A list of these 95 defendants sentenced to death after a jury verdict of life imprisonment is produced in an appendix to this opinion. By contrast, where juries have voted to impose the death penalty, Alabama judges have overridden that verdict in favor of a life sentence only nine times.

Eighteen years have passed since we last considered Alabama’s capital sentencing scheme, and much has changed since then.  Today, Alabama stands alone: No other State condemns prisoners to death despite the considered judgment rendered by a cross-section of its citizens that the defendant ought to live.  And Apprendi and its progeny have made clear the sanctity of the jury’s role in our system of criminal justice. Given these developments, we owe the validity of Alabama’s system a fresh look.  I therefore respectfully dissent from the denial of certiorari.

November 18, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack (0)

"The Jurisprudence of Death and Youth: Now the Twain Should Meet"

The title of this post is the title of this notable new article by Janet Hoeffel now available on SSRN. Here is the abstract:

The Supreme Court recently married its "death is different" death penalty jurisprudence and its burgeoning "children are different too" jurisprudence to apply Eighth Amendment death penalty jurisprudence to juvenile non-death sentences in Graham v. Florida and Miller v. Alabama.  This Article argues that the (practically non-existent) jurisprudence of juvenile transfer should travel further down this comparative road paved by the Court and insist that juvenile transfer proceedings be subject to the same scrutiny exercised over capital punishment proceedings.  While Eighth Amendment process need not be literally incorporated into juvenile transfer proceedings, it should be adopted through the Due Process Clause.

The parallels between the death penalty and juvenile transfer are striking.  Both involve a decision to expose a person to the most severe set of penalties available to the relevant justice system: a death sentence for adults in adult court; a transfer to adult court for youth in juvenile court.  The decision to send an adult to his death is a decision to end his life; the decision to send a juvenile to adult court is a decision to end his childhood.  Both decisions signify a life not worth saving, and therefore, both decisions are to apply to the "worst of the worst."  As a result of the finality and seriousness of their consequences, both processes should require the strictest of procedures for reliable imposition of those consequences.

While the Court’s jurisprudence on procedures for imposing death is not a model, the Court has, at least, worked both to narrow who is subject to the death penalty and to reduce the potential for arbitrary and capricious imposition of death through procedures for guided discretion.  The lessons learned in that context can be applied to improve juvenile transfer procedures that allow transfer of a child to adult court based on the unfettered and arbitrary discretion of a judge or, worse, a prosecutor.  Furthermore, death penalty jurisprudence applied in capital cases, and as applied in Graham and Miller, leads to the conclusion that juvenile transfer laws allowing automatic transfer of a child to adult court, without an individualized consideration, violates due process.

November 18, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Are special jail facilities for veterans (and other special populations) key to reducing recidivism?

The question in the title of this post is prompted by this notable Los Angeles Times article headlined "Separate jail facilities seek to cut recidivism rates among veterans." Here are excerpts:

The N-Module-3 housing wing at the San Diego County Jail was recently repainted red, white and blue.  Brightly colored paintings now hang on the walls: one of the Statue of Liberty, another of the U.S. flag, and one of a screaming eagle landing with talons outstretched.  Hanging from the ceiling are the service flags of U.S. military branches and the POW/MIA flag.

The paintings and the flags are key to a program begun this month that aims to reduce recidivism among veterans who have slipped into the criminal justice system after leaving the structured world of military service.

Thirty-two veterans serving sentences or awaiting trial have volunteered to live in the module separate from the other prisoners and participate in classes meant to increase their chances of making a law-abiding return to civilian life.  "We're all dedicated to making this work, nobody wants to go back," said Jeremy Thomas, 22, who served with the Marines in Afghanistan and lost his left hand when a roadside bomb exploded.

Each of the veterans has agreed to take classes Monday through Friday from 7 a.m. to 2:30 p.m. to assist with problems of post-traumatic stress disorder, anger management, substance abuse, parenting and other issues.  "We hope that by putting them together we can rekindle that esprit de corps they had when they were serving their country," said San Diego County Sheriff Bill Gore, whose department runs the jails. "It's a great population to work with."

The program was spurred both by a sense of obligation toward the veterans and also an increased need to reduce recidivism to accommodate the state's prison realignment program that threatens to overwhelm the capacity of local jails.  "We've got to do things differently," Gore said....

Nationwide, a small but growing number of jails have housing and programs specifically targeting veterans, an effort that the VA encourages and supports by forming partnerships with local law enforcement.  "Being treated as a veteran reminds them of a time when their lives made sense and they deserved the respect of others," VA Secretary Eric Shinseki, a retired Army general, told a recent convention of the American Correctional Assn.

An estimated 1 in 9 prisoners in the U.S. is a military veteran, according to the Department of Justice.  But only 1 in 6 is being helped by the VA with the challenge of resuming life after incarceration, said Shinseki, who has vowed to get more help for those veterans.

The California prison system does not house veterans separately from other prisoners but does encourage formation of veterans-only discussion groups at its 34 institutions, a spokesman said.  VA "reentry specialists" regularly meet with prisoners on the verge of being released to tell them of benefits and therapy programs.

In Los Angeles County, where the Sheriff's Department runs the largest jail system in the country, 291 prisoners are housed in veteran-only dorms where they participate in programs including Alcoholics Anonymous and Narcotics Anonymous and classes in art, computers and relationship counseling.

One of the oldest and most successful of the veterans-behind-bars programs is run by the San Francisco Sheriff's Department at its jail in San Bruno. Begun in 2010, the San Francisco program houses 48 veterans in a separate "pod" where they can receive help from specialists from the VA and the Bay Area nonprofit group Swords to Plowshares....

Most of the jail deputies are volunteers who preferred working with the veterans. "In here, the staff is totally different than out there," said inmate Kimbra Kelley, 49, a former Marine.

There are incentives for inmates to participate, seemingly small to outsiders but very large in the life of the incarcerated: pillows, more television time, more time in the exercise yard, extra mattresses, an extra visit each week from family members, access to a vending machine and, soon, a microwave oven. "This is the future, gentlemen: incentive housing," sheriff's Lt. Steven Wicklander told the inmates during a visit this month.

If any of the 32 veterans quits attending the classes and stays in his cell, he can be returned to general population. There's a waiting list among the 270 veterans in county custody to transfer to N-Module-3.  "We were given an opportunity, and we're going to hold on to it for dear life," said Dana Mulvany, 42, who served in the Navy.

November 18, 2013 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (13) | TrackBack (0)

Sunday, November 17, 2013

Cyber-criminal/hacktivist gets max federal sentence of 10 years after guilty plea

As reported in this Rolling Stone piece, headlined "Cyber-Activist Jeremy Hammond Sentenced to 10 Years In Prison: The hacker, who pleaded guilty in May, is given the maximum sentence by a federal judge," a high-profile on-line criminal got a big-time sentence in federal court late last week.  Here are the details and some context:

Cyber-activist Jeremy Hammond was sentenced to 10 years in federal prison ... by Judge Loretta A. Preska in a federal courtroom in lower Manhattan for hacking the private intelligence firm Stratfor.  When released, Hammond will be placed under supervised control, the terms of which include a prohibition on encryption or attempting to anonymize his identity online.

Hammond has shown a "total lack of respect for the law," Judge Preska said in her ruling, citing Hammond's criminal record — which includes a felony conviction for hacking from when he was 19 — and what she called "unrepentant recidivism." There is a "desperate need to promote respect for the law," she said, as well as a "need for adequate public deterrence."

As Hammond was led into the courtroom, he looked over the roughly 100 supporters who had shown up, smiled, and said, "What's up, everybody?"  Prior to the verdict, he read from a prepared statement and said it was time for him to step away from hacking as a form of activism, but recognized that tactic's continuing importance.  "Those in power do not want the truth exposed," Hammond said from the podium, wearing black prison garb.  He later stated that the injustices he has fought against "cannot be cured by reform, but by civil disobedience and direct action."  He spoke out against capitalism and a wide range of other social ills, including mass incarceration and crackdowns on protest movements.

The Stratfor hack exposed previously unknown corporate spying on activists and organizers, including PETA and the Yes Men, and was largely constructed by the FBI using an informant named Hector Monsegur, better known by his online alias Sabu. Co-defendants in the U.K. were previously sentenced to relatively lighter terms. Citing Hammond's record, Judge Preska said "there will not be any unwarranted sentencing disparity" between her ruling and the U.K. court's decision....

Hammond's defense team repeatedly stressed that their client was motivated by charitable intentions, a fact they said was reflected in his off-line life as well. Hammond has previously volunteered at Chicago soup kitchens, and has tutored fellow inmates in GED training during his incarceration.

Rosemary Nidiry, speaking for the prosecution, painted a picture of a malicious criminal motivated by a desire to create "maximum mayhem," a phrase Hammond used in a chat log to describe what he hoped would come from the Stratfor hack.  Thousands of private credit card numbers were released as a result of the Stratfor hack, which the government argued served no public good.

Sarah Kunstler, a defense attorney for Hammond, takes issue with both the prosecution and judge's emphasis on the phrase "maximum mayhem" to the exclusion of Hammond's broader philosophy shows an incomplete picture. "Political change can be disruptive and destructive," Kunstler says. "That those words exclude political action is inaccurate."

Many supporters see Hammond's case as part of a broader trend of the government seeking what they say are disproportionately long sentences for acts that are better understood as civil disobedience than rampant criminality.

November 17, 2013 in Celebrity sentencings, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (4) | TrackBack (0)

"Sentenced to a Slow Death"

The title of this post is the headline of this new New York Times editorial discussing this week's noteworthy new ACLU report on the thousands of persons serving LWOP sentences for non-violent offenses in the United States (first discussed here).  Here are excerpts:

If this were happening in any other country, Americans would be aghast. A sentence of life in prison, without the possibility of parole, for trying to sell $10 of marijuana to an undercover officer?  For sharing LSD at a Grateful Dead concert?  For siphoning gas from a truck?  The punishment is so extreme, so irrational, so wildly disproportionate to the crime that it defies explanation.

And yet this is happening every day in federal and state courts across the United States. Judges, bound by mandatory sentencing laws that they openly denounce, are sending people away for the rest of their lives for committing nonviolent drug and property crimes. In nearly 20 percent of cases, it was the person’s first offense.

As of 2012, there were 3,278 prisoners serving sentences of life without parole for such crimes, according to an extensive and astonishing report issued Wednesday by the American Civil Liberties Union. And that number is conservative.  It doesn’t include inmates serving sentences of, say, 350 years for a series of nonviolent drug sales.  Nor does it include those in prison for crimes legally classified as “violent” even though they did not involve actual violence, like failing to report to a halfway house or trying to steal an unoccupied car....

As in the rest of the penal system, the racial disparity is vast: in the federal courts, blacks are 20 times more likely than whites to be sentenced to life without parole for nonviolent crimes.  The report estimates that the cost of imprisoning just these 3,278 people for life instead of a more proportionate length of time is $1.78 billion....

Several states are reforming sentencing laws to curb the mass incarceration binge.  And Congress is considering at least two bipartisan bills that would partly restore to judges the power to issue appropriate sentences, unbound by mandatory minimums.  These are positive steps, but they do not go far enough.  As the report recommends, federal and state legislators should ban sentences of life without parole for nonviolent crimes, both for those already serving these sentences and in future cases.  President Obama and state governors should also use executive clemency to commute existing sentences.  Just one-fifth of all countries allow a sentence of life without parole, and most of those reserve it for murder or repeated violent crimes.  If the United States is to call itself a civilized nation, it must end this cruel and ineffective practice.

Recent related posts:

November 17, 2013 in Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5) | TrackBack (0)

"Correcting a Fatal Lottery: a Proposal to Apply the Civil Discrimination Standards to the Death Penalty"

The title of this post is the title of this notable student note by Joseph Thomas now available for download via SSRN.  Here is the abstract:

Claims of discrimination in death penalty proceeding receive disparate treatment compared to virtually every other type of discrimination: employment, housing, jury venire, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, qualified immunity by a state prison guard, qualified immunity by city officials and police, felon disenfranchisement laws.  They each use the same process when there is no direct evidence of discrimination -- a burden shifting framework to help present the evidence in an organized manner with a standard of the preponderance of the evidence that must be demonstrated to prove discrimination took place.  Dissimilarly, death penalty proceedings are the exception to the rule -- all of the evidence is presented in one stage, without any organization, and the heightened standard of exceptionally clear proof must be demonstrated to prove discrimination took place.

With the use of disparate standards to adjudicate the exact same thing -- claims of discrimination without direct evidence -- makes the process used in the death penalty unconstitutional because with life and liberty at stake, defendants in the death penalty should be afforded more protections, not less.  Alternatively, I propose my own standard for handling discrimination cases in the death penalty, based off of the civil standards.

November 17, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack (0)

Saturday, November 16, 2013

Is pot already really legal for middle-aged white folks?

The question in the title of this post is prompted by this recent New York Times commentary by Jim Dwyer headlined "A Marijuana Stash That Carried Little Risk."  The piece is, I think, designed to complain about the impact and import of NYC stop-and-frisk policies, but my take-away is a bit distinct.  Here are excerpts from the piece:

Walking down Eighth Avenue a few weeks ago, I made sure my backpack was fully zipped shut.  Inside was a modest stash of pot, bought just an hour or so earlier.  A friend knew someone in that world, and after an introduction, then a quiet, discreet meeting, I was on my way to the subway.  Never before had I walked through Midtown Manhattan with it on my person.  There were four cookies in vacuum-sealed pouches — “edibles” is the technical term — and then a few pinches of what was described as “herb.”

The innovations of Michael R. Bloomberg as mayor are legion, but his enforcement of marijuana laws has broken all records.  More people have been arrested for marijuana possession than any other crime on the books.  From 2002 through 2012, 442,000 people were charged with misdemeanors for openly displaying or burning 25 grams or less of pot.

I wasn’t sure about the weight of my stash — although a digital scale was used in the transaction, I didn’t see the display — but it didn’t feel too heavy.  Still, I wasn’t about to openly display or burn it.

It turns out that there was little to fret over.  While scores of people are arrested on these charges every day in New York, the laws apparently don’t apply to middle-aged white guys. Or at least they aren’t enforced against us.

“It is your age that would make you most unusual for an arrest,” said Professor Harry Levine, a Queens College sociologist who has documented marijuana arrests in New York and across the country.  “If you were a 56-year-old white woman, you might get to be the first such weed bust ever in New York City — except, possibly, for a mentally ill person.”

About 87 percent of the marijuana arrests in the Bloomberg era have been of blacks and Latinos, most of them men, and generally under the age of 25 — although surveys consistently show that whites are more likely to use it.

These drug busts were the No. 1 harvest of the city’s stop, question and frisk policing from 2009 through 2012, according to a report released Thursday by the New York State attorney general, Eric T. Schneiderman.  Marijuana possession was the most common charge of those arrested during those stops.  The few whites and Asians arrested on these charges were 50 percent more likely than blacks to have the case “adjourned in contemplation of dismissal,” the report showed.

Now, having a little bit of pot, like a joint, is not a crime as long as you don’t burn or openly display it.  Having it in my backpack was a violation of law, meaning that it is an offense that is lower than a misdemeanor.  Pot in the backpack is approximately the same as making an illegal turn in a car.  Taking it out and waving it in the face of a police officer or lighting up a joint on the street would drive it up to the lowest-level misdemeanor.

How was it that all the black and Latino males were displaying or burning pot where it could be seen by the police?  The answer is that many of them were asked during the stops to empty their pockets.  What had been a concealed joint and the merest violation of the law was transformed into a misdemeanor by being “openly displayed.” If these were illegal searches — and they very well could have been — good luck trying to prove it....

Michael A. Cardozo, the chief lawyer for the city, is eager to get an appeals court to throw out the findings of fact by a judge who ruled against the city in a lawsuit over the stop-and-frisk tactics. Mr. Cardozo appears to believe, mistakenly, that losing a lawsuit is going to damage the legacy of his patron, Mayor Bloomberg.  Undoing a lawsuit will not unstain this history.

As for me, the pot got to a couple of people who might need it to get through some medical storms.  It’s too risky for me to use: I already have a hard enough time keeping my backpack zipped.

Cross-posted at Marijuana Law, Policy and Reform

November 16, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Offender Characteristics, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (3) | TrackBack (0)

Friday, November 15, 2013

If concerned principally about saving lives and public safety, can one reasonably oppose mass use of safer-driving technologies?

Traffic-fatalities-art-gnkpkaoq-11115gfx-fatalities-chart-epsThe question in title of this post is prompted by this local news item from my own local paper headlined "More Ohioans die on road in 2012." Here are excerpts:

Traffic fatalities rose last year across the United States for the first time since 2005, and Ohio was a big reason why, according to federal data.  More people died in car crashes in 37 states in 2012 than in 2011, and only Texas experienced a bigger jump than Ohio did, according to data released yesterday by the National Highway Traffic Safety Administration....

In all, 1,123 people died in Ohio wrecks last year — an increase of 106 from 2011.  More than 70 percent of the increase was attributed to alcohol and impaired driving. Nationwide, 33,561 people were killed in car crashes in 2012, an increase of 1,082.  Ohio’s crashes accounted for about 10 percent of the nationwide increase....

Ohio’s trend mirrors what much of the country experienced in 2012: a big jump in traffic fatalities early in the year.  About 72 percent of the increase nationwide occurred during the first quarter of the year, and Ralston said Ohio actually experienced a drop in traffic deaths during the second half of 2012.  Motorcycle deaths increased in the United States for the third consecutive year.

“I think too many times when we don’t hear about things or think things are going well, we get complacent about that,” MADD Ohio Executive Director Doug Scoles said. “The thing that’s frustrating with this is, impaired driving is completely preventable.”

The National Highway Traffic Safety Administration also announced yesterday that it would develop plans before the end of the year to encourage automakers to incorporate safety features in more vehicles.  Those features include seatbelt interlocks that prevent vehicles from being driven before a seat belt is fastened, alcohol-detection systems and collision avoidance.

MADD Ohio wants the state legislature to require ignition interlocks for all people convicted of drunken driving, and it’s hopeful that the auto industry will take a role in adding the safety technology, Scoles said.  “I think crackdown campaigns are effective, (but) they’re short-lived,” he said.

As regular readers know well (even if just from this post yesterday), I like to focus on traffic laws as a means to test whether and when citizens are really prepared to live up to oft-heard claims about the importance of public safety and saving innocent lives. And this local article (just like the one I noted yesterday) further reinforces my sense that significant investments in safer-driving technologies may be the most ready and cost-effective way to save innocent lives and improve public safety.

Recent related post:

November 15, 2013 in Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (3) | TrackBack (0)

"One death row inmate supporting another in organ-donation fight"

The title of this post is the headline of this notable NBC News report in the wake of Ohio Gov. John Kasich's surprising decision to postpone the execution of child-killer Ronald Phillips to explore if he can donate his organs prior to (or during?) his execution (as first reported here).  Here are the details:

An Ohio convict's quest to donate his organs when he's executed is getting support from an Oregon death row prisoner who made a similar bid two years ago. Christian Longo, who was sentenced to die for murdering his wife and three small kids in 2001, told NBC News in an email that he reached out to Ronald Phillips, whose execution was just postponed so his organ-donation offer can be studied.

The "contact was rejected," Longo said. But he's still lobbying for Phillips to be given the chance to give away his organs at death — a proposal that experts say is an ethical and logistical minefield. “With a little bit of careful planning and coordination, lives can be saved from someone who has to die – up to eight lives with organs, and the enhancement of dozens more lives with tissues and tendons,” Longo wrote.

“There is no need to be in a rush to execute Mr. Phillips, who will die regardless. Not when there are so many innocently waiting on transplant lists for healthy donors who may die otherwise. To deny this is a perpetuated tragedy,” Longo said.

Longo's donation offer has been repeatedly turned down by Oregon authorities, and all executions are on hold anyway after Gov. John Kitzhaber declared a moratorium last year....

Medical ethicists say allowing such donations could give juries and judges an incentive to impose the death penalty and that prisoners could be coerced into giving away their organs. Organs are usually removed from people who are brain dead but whose bodies are otherwise functioning, and some experts say it would be impossible to replicate that scenario during an execution.

"The only options for executing someone to obtain vital organs is to either shoot them in the head or chop their head off and have a team of doctors ready to step in immediately," said Arthur Caplan, a professor of medical ethics at NYU Langone Medical Center. Theoretically, he said, the method of execution could be the removal of the organs under anesthesia. "The problem is no doctor is going to do it," he said. "It violates all medical ethics and now you're making the doctor the executioner."

Longo — who has a website and a Facebook page for his campaign, Gifts of Anatomical Value from Everyone — is also pushing states to allow prisoners who are not condemned to donate non-vital organs, like a single kidney. He helped Utah inmates push for a new Utah law, passed in April, that allows them to register as organ donors.

Recent related posts:

November 15, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack (0)

Is AG Eric Holder going to stay on the job until he truly reforms American criminal justice?

The question in the title of this post is inspired by this new Washington Post article headlined "Reforming justice system is personal goal for Eric Holder Jr."  Here are excerpts from the piece:

As the Justice Department seeks new ways to reduce the burgeoning U.S. prison population, its success is likely to depend on community programs such as the one in this small city in America’s heartland.

In the past 11 years, federal prosecutors here have authorized substance abuse treatment and other assistance for more than 100 low-level offenders as an alternative to prison sentences.  Eighty-seven have successfully completed the program and, in the process, saved the federal government more than $6 million by sparing it the cost of incarceration....

Justice officials see the program in Peoria as a model for other communities — and central to the criminal justice reforms that Attorney General Eric H. Holder Jr. is moving to implement.  In August, at an American Bar Association conference in San Francisco, Holder announced that low-level nonviolent drug offenders with no ties to gangs or large-scale drug organizations would no longer be charged with offenses that impose severe mandatory sentences.  He has also introduced policies to reduce sentences for elderly, nonviolent inmates, to find alternatives to prison for nonviolent criminals, and to improve reentry programs to curb repeat offenses.

The announcements have heralded some of the most significant criminal justice policy shifts from the department in years.  For Holder — who has said that as a U.S. attorney and judge he saw neighborhoods destroyed by both illegal drugs and the tough-on-crime legislation that has disproportionately affected black men — the issue has been personal.

“Day after day, I watched lines of young people, most often young men of color, stream through my courtroom,” Holder told ex-offenders Thursday during a visit to a St. Louis courthouse, one of a string of stops he is making to promote his reform agenda.  “I learned how drug abuse, crime and incarceration can trap people in a destructive cycle.  A cycle that weakens communities, tears families apart and destroys individual lives.”...

Many of the department’s criminal justice reforms have bipartisan support, and Republican governors in some of the most conservative states have led the way on prison reform.  Congress also has shown a renewed interest in reducing the nation’s prison population, including the introduction of a bill this week that would reauthorize the Second Chance Act, which funds grants for programs that support probation, parole and reentry programs across the country.

“Rather than incarcerating repeat offenders in the same families generation after generation, we can put our taxpayer dollars to better use to break this vicious cycle and turn lives around,” Sen. Rob Portman (R-Ohio), a former prosecutor and one of the bills sponsors, said in a statement.

Efforts to reduce the prison population have drawn criticism from some lawmakers, who are skeptical that new policies will reduce crime.  “I am skeptical,” Sen. Charles E. Grassley (Iowa), the ranking Republican on the chamber’s Judiciary Committee, said at a a hearing last week.  “Reducing prison sentences will bring prisoners out on the street sooner.  The deterrent effect of imprisonment would be reduced.  Many so-called nonviolent drug offenders have violent records.  Some of these released offenders will commit additional crimes.”...

In a Philadelphia courtroom earlier this month, the attorney general watched more than a dozen drug offenders in a “reentry” program report to a judge to discuss their personal and work situations.  Officials there said the program, which provides parenting classes, vocational training and job opportunities, has saved $1.5 million in annual incarceration costs because fewer ex-offenders are being sent back to prison.  The national revocation rate for ex-offenders who are not in such programs is 47 percent; the rate among participants in the seven-year-old Philadelphia program is about 20 percent.

During his stops Thursday, Holder met with judges and pretrial service officers and watched as a district court judge encouraged ex-offenders to overcome their drug addictions and stay out of prison.  He spoke emotionally to a group about how his nephew struggled to overcome drug addiction.

Inside a federal courthouse in St. Louis, he watched a ceremony in which ex-offenders graduated from an intensive recovery program called EARN (Expanding Addicts’ Recovery Network). “I look at you all and I see myself,” he said. “I grew up in a neighborhood in New York City where people like you would have been my friends. We would have gone to school together. We would have tried to learn about girls together. We would have played basketball together. So I can’t help but feel mindful of the fact that, although I’m here in my capacity as attorney general of the United States, a few of the people I grew up with, good people like you, ended up taking different paths.”

“Some of them didn’t catch the same breaks,” the nation’s top law enforcement official said. “Some had to deal with drug issues. . . . I know that everyone makes mistakes — everyone. Including me. And that’s why I wanted to be here today to tell you in person how proud I am that each of you has decided not to let your mistakes define you and not to make excuses, but to make the most of the opportunities that you’ve been given.”

Right after President Obama's re-election, as noted in this post from last November, AG Holder was talking about staying on as AG for only "about a year" into this second Presidential term. But that year has now passed, and I have heard very little new buzz about AG Holder moving on. And, if he is truly committed to engineering significant and lasting criminal justice reform, I think he may need (at least) the next three years to really have a chance to get this done.

November 15, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

"Reducing crime by reducing incarceration"

The title of this post is the headline of this new Washington Times op-ed authored by David Cole and Marc Mauer.  Here are excerpts:

The United States remains the world leader in imprisonment, with an incarceration rate five times higher than that of many of our European allies. It wasn’t always this way. From 1925 through 1975, our incarceration rate was about 160 per 100,000 persons. Today it is nearly 700 per 100,000. It rose consistently for more than three decades, largely as a result of changes in policy, not crime rates. These policy changes, under the rubric of the “get tough” movement, were designed to send more people to prison and to keep them there longer. As the prison population has expanded, however, whatever impact incarceration may have had on crime has confronted the law of diminishing returns. Meanwhile, the corrections system costs us $80 billion a year.

In response to these concerns, recent years have seen significant reforms across the country. States from Texas to California to New York have reduced mandatory minimum sentences, softened “three-strikes” laws, or established drug-offender diversion programs. The number of people incarcerated in state prisons nationwide has dropped for three years in a row. California, New York and New Jersey have each reduced their prison populations by about 20 percent in the past decade — with no increases in crime.

In an era of heightened partisan politics, reform is a rare bipartisan issue. Attorney General Eric H. Holder Jr. and Republican Sens. Rand Paul and Mike Lee don’t often see eye to eye, but they have all advocated measures to reduce mandatory minimums. The American Legislative Exchange Council, which promotes free-market law reforms in the states, has identified reducing prison overcrowding as one of its priorities. Regardless of one’s politics, no one can be proud of the fact that the world’s wealthiest society locks up more of its citizens per capita than any other nation.

Most of the reforms thus far have focused on nonviolent offenders, especially drug-law violators — and for good reason. The large-scale incarceration of low-level drug offenders has had little impact on the drug trade; street-corner sellers and couriers are easily replaced. Incarceration imposes substantial costs on society at large, though, and on the life chances and families of those locked up.

If we are to tackle the incarceration rate effectively, we need to focus not only on those who receive the shortest sentences, but also on those who receive the longest sentences — lifers. Even as incarceration rates have begun to fall, life sentences have increased. One in nine prisoners in the United States is now serving a life sentence, including 10,000 serving life for a nonviolent offense (often the “third strike” under a three-strikes law). Nearly a third of the life sentences are imposed with no possibility of parole.

While most of these individuals have committed serious offenses, the increased reliance on life sentences is counterproductive. Criminal offenses tend to drop with age. As offenders grow older, their incarceration is increasingly less likely to have any incapacitative value. Nor is there any evidence that life sentences have greater deterrent effect. Studies find that it is the certainty of punishment, not its severity, that is most correlated with deterrence. Yet many states have adopted a “life means life” policy with no consideration of parole. Such sentences effectively write off the offender, rejecting the possibility of redemption altogether....

A key factor in the prison expansion of recent decades has been that offenders sentenced to prison are serving much longer sentences. American sentences today are frequently two to three times the length for similar offenses in the United Kingdom, the Netherlands, France and other industrialized nations. Sentencing reform has begun with the low-hanging fruit of mandatory minimums for nonviolent offenses, but if it is to succeed, we must reduce the length of criminal sentences generally.

Recent related post:

November 15, 2013 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack (0)

Thursday, November 14, 2013

Some early reactions to Gov. Kasich's surprise decision delay execution to explore organ donation

Ohio Gov. John Kasich's decision to postponed today's scheduled execution of child-killer Ronald Phillips in order to determine if he can donate his organs prior to (or during?) his execution (reported here), has already, not surprisingly, generated considerable attention and has prompted a number of follow-up questions.  Here is some of the early buzzing and queries drawn from today's media headlines:

  • From the AP here, "Ohio Child Killer's Organ Donation Wish Perplexes"

  • From NBC News here, "Death-row organ donations pose practical, ethical hurdles"

  • From Medical Daily here, "Ohio Execution Stayed Over Organ Donation: Is Ronald Philips Dodging Execution Or Seeking A Last Good Deed?"

  • From the Columbus Dispatch here, "Who'd pay to transplant organs from condemned killer?"

My own questions include whether (or really when) all the other condemned persons on on Ohio's death row will also offer to donate their organs if (and perhaps only when) their other legal appeal fail and they are only days from a scheduled execution.

Recent related post:

November 14, 2013 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack (0)

"Misconstruing Graham & Miller"

The title of this post is the title of this notable new piece by Cara Drinan now up at SSRN. Here is the abstract:

In the last three years the Supreme Court has decreed a sea change in its juvenile Eighth Amendment jurisprudence. In particular, in its Graham v. Florida and Miller v. Alabama rulings, the Court struck down a majority of the states’ juvenile sentencing laws, outlawing life without parole for juveniles who commit non-homicide offenses and mandating individualized sentencing for those children who commit even the most serious crimes.  An examination of state laws and sentencing practices, however, suggests that the Graham and Miller rulings have fallen on deaf ears.  After briefly describing what these two decisions required of the states, in this Essay, I outline the many ways in which state actors have failed to comply with the Court’s mandate. Finally, I map out a path for future compliance that relies heavily upon the strength and agility of the executive branch.

November 14, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

If concerned principally about saving lives and public safety, can one reasonably oppose mass use red-light cameras?

The question in title of this post is prompted by this local news item from my own local paper headlined "Coalition says red-light cameras reducing accidents, saving lives." Here are excerpts:

The battle over whether red-light cameras are primarily lifesavers or money-makers is being re-fought in the General Assembly seven years after it began. Cameras placed at critical intersections, including 38 in Columbus, help dramatically reduce accidents and save lives, a statewide coalition said yesterday, pushing back against a legislative proposal that would all but eliminate the devices in Ohio.

House Bill 69, passed by the House this year, “is bad public policy that puts people at risk on Ohio roads,” Sgt. Brett Bauer of the Springfield Police Department said at a Statehouse news conference. Red-light cameras “are making roads safer in Springfield and across the state,” he said. The bill would limit cameras to school zones — and then only when an officer was present.

A coalition of police officials from Columbus and other cities, plus municipal officials, bicycle enthusiasts and safety advocates, appeared at the news conference alongside Sen. Kevin Bacon, R-Minerva Park, who is planning legislation to reform how the cameras may be used rather than repeal the use of cameras, as the House bill would do.

The most emotional advocate in favor of continuing using the cameras was Paul Oberhauser of Somerset, whose 31-year-old daughter, Sarah, was killed in 2002 when a motorist ran a red light and hit her car in an intersection at 55 mph. “The year Sarah died, about 1,000 people nationally were killed in red-light accidents,” Oberhauser said. “I know you understand this carnage has got to stop.”...

Right-angle crashes are down 74 percent in Columbus, while rear-end crashes have dropped 25 percent at intersections with cameras, said Lt. Brenton Mull of the Columbus Division of Police. The city has 38 cameras at intersections scattered across the city. “It is a model program that should be emulated, not thrown out because someone doesn’t like getting a ticket from a red-light camera,” he said.

As regular readers (and my students) know well, I like to focus on traffic laws as a means to test whether and when citizens are really prepared to live up to oft-heard claims about the importance of public safety and saving innocent lives. In the context of debates over gun control, the death penalty, mass incarceration and other high-profile public policy criminal justice debates, there is often considerable competing claims and evidence concerning whether and when certain government policies actually do or do not save innocent lives and improve public safety. But this local article confirms my understanding that red-light cameras do tend to improve public safety at least somewhat (and does so in a way that actually raises revenue for localities rather than require significant expenditures).

I fully understand why persons principally concerned about privacy rights or due process or government graft might have real problems with widespread use and potential abuse of red-light cameras. But I really want to hear from readers if they think that those persons who say their principally criminal justice concerns relate to saving lives and public safety (as I do) have any sound basis for opposing mass use of these cameras.

November 14, 2013 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack (0)

New York Times op-ed asks "Serving Life for This?"

I am pleased to see that columnist Nicholas Kristoff used his op-ed space today in the New York Times to promote the ACLU's new report on the thousands of persons serving LWOP sentences for non-violent offenses in the United States (discussed here).  This piece is headlined "Serving Life For This?," and here are excerpts:

At a time when America has been slashing preschool programs, we have also been spending vast sums to incarcerate thousands of nonviolent offenders in life sentences without any possibility of parole. These cases underscore that our mass incarceration experiment has resulted in monstrous injustice and waste — a waste of tax dollars and of human lives.

Judges and prison officials are rebelling at the injustice of our justice system. Here’s what Judge James R. Spencer, a federal district judge, said when sentencing a former F.B.I. informant to life without parole for selling crack cocaine to support his own addiction: “A life sentence for what you have done in this case is ridiculous; it is a travesty.” But federal law on mandatory minimums left Judge Spencer no leeway. He added: “I don’t agree with it, either. And I want the world and the record to be clear on that. This is just silly.”

Here are some other nonviolent offenders serving life sentences without the possibility of parole:

• Ricky Minor, a meth addict and father of three, was found with 1.2 grams of meth in his home, along with over-the-counter decongestants that can be used to manufacture meth. He was initially charged under Florida law and says he faced a two-and-a-half-year sentence. Later indicted under federal law, he pleaded guilty because his public defender said that otherwise the prosecutors would also pursue his wife, leaving no one to raise their children. Minor had several prior nonviolent offenses, for which he had never served time, and these required Judge Clyde Roger Vinson to sentence him to life without parole. Judge Vinson said that the sentence “far exceeds whatever punishment would be appropriate.”

• Dicky Joe Jackson was a trucker whose 2-year-old son, Cole, needed a bone-marrow transplant to save his life. The family raised $50,000 through community fund-raisers, not nearly enough for the transplant, and Jackson tried to earn the difference by carrying meth in his truck. He has now been in prison for the last 17 years; when he lost his last appeal, he divorced his wife of 19 years so that she could start over in her life. The federal prosecutor in the case acknowledged: “I saw no indication that Mr. Jackson was violent, that he was any sort of large-scale narcotics trafficker, or that he committed his crimes for any reason other than to get money to care for his gravely ill child.”

• Danielle Metz became pregnant at 17 and later married an abusive man who was also a drug dealer. To placate him, she says, she sometimes helped him by fetching cocaine or collecting money from Western Union. After one clash in which he punched her in the face, she took the kids and left him. Two months later, she was indicted. She says that she was prosecuted primarily to induce her to testify against her husband, but that she wasn’t knowledgeable enough to have useful information to trade for a reduced sentence. She has now spent more than 20 years in prison.

Those examples come from a devastating new report, “A Living Death,” by the American Civil Liberties Union. It identified more than 3,200 such nonviolent offenders sentenced to die behind bars. Four out of five are black or Hispanic. Virtually all are poor. Many had dismal legal counsel. Some were convicted of crimes committed when they were juveniles or very young adults....

I write often about human rights abuses abroad. But when we take young, nonviolent offenders — some of them never arrested before — and sentence them to die in prison, it’s time for Americans who care about injustice to gaze in the mirror.

Recent related post:

November 14, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (9) | TrackBack (0)

Wednesday, November 13, 2013

"Kasich postpones execution of inmate who wants to donate organs"

The title of this post is the headline of this breaking news story reporting some surprising news coming from Ohio this afternoon.  Here are details:

In an unprecedented move, Gov. John Kasich has postponed the execution of Akron child-killer Ronald Phillips scheduled for Thursday to determine if his organs can be harvested. It has been rescheduled for July 2, 2014.

In a statement released this afternoon, Kasich halted Phillips’ execution “so that medical experts can assess whether or not Phillips’ non-vital organs or tissues can be donated to his mother or possibly others.”

“Ronald Phillips committed a heinous crime for which he will face the death penalty. I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen,” Kasich said.

Phillips, 40, was sentenced to die for the 1993 beating, rape and murder of three-year-old Sheila Marie Evans, the daughter of his girlfriend at the time. The governor said if Phillips “is found to be a viable donor to his mother or possibly others awaiting transplants of non-vital organs, such as kidneys, the procedures would be performed and then he would be returned to Death Row to await his new execution date.”

Phillips asked earlier this week if he could donate his organs to his mother or others, but the Ohio Department of Rehabilitation and Correction rejected his request.

Wowsa. I have to catch my breath and think about this a lot before I am sure how to react. While I do so, I look forward to hearing reactions from both the pro and anti death penalty crowd in the comments.

November 13, 2013 in Clemency and Pardons, Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack (0)

Fourth Circuit rejects effort to use Miller to assail ACCA enhancements based on juve priors

In a not surprising but still noteworthy panel opinion, the Fourth Circuit today in US v. Hunter, No. 12-5035 (4th Cir. Nov. 13, 2013) (available here), rejected a federal defendant's effort to use the Supreme Court's Miller ruling to contest a lengthy mandatory minimum sentence for an adult crime based on prior offenses committed when the defendant was a juvenile.  Here is how Hunter begins:

In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the Supreme Court announced that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Relying on Miller, Defendant Jimmy Eliab Hunter appeals from his sentence for being a felon in possession of a firearm, asserting that the district court erred in sentencing him as an armed career criminal based on violent felonies he committed as a juvenile.  But unlike the juveniles in Miller, Defendant’s sentence here punishes him for an offense he committed at the age of thirty-three, well past an age when “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences.” Id. at 2465. Thus, proportionality concerns expressed in Miller regarding youthful offenders are not implicated here.  Finding Miller, Defendant’s sole basis for his Eighth Amendment challenge, inapplicable, we affirm.

November 13, 2013 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack (0)

Is sentence disparity reduced if mass murderer Whitey Bulger and drug dealer Sam Hurd get the same LWOP sentence?

The question in the title of this post is prompted by the news of two seemingly very distinct federal sentencings taking place today in which it seems the federal sentencing guidelines are calling for the exact same LWOP sentence. 

Regular readers are already familiar with the case involving Whitey Bulger, whose sentencing is taking place today in federal Court in Boston.  This new USA Today article, headlined "Victim's son: Mobster Whitey Bulger is 'Satan'," highlights just the latest developments in a case in which I sincerely wonder why there is not more of an effort by pro-death-penalty advocates to have an even tougher punishment than LWOP in the mix.

Somewhat less high profile, except perhaps for hard-core football fans, is the sentencing of former NFL receiver Sam Hurd.  This SI.com article, headlined "Former NFL player Sam Hurd hopes to avoid life sentence at hearing," provides some background starting this way:

This afternoon at the Federal courthouse in Dallas, U.S. District court judge Jorge Solis is scheduled to begin the sentencing hearing for former Cowboys and Bears receiver Sam Hurd, who pleaded guilty to a single drug trafficking charge in April. Hurd's attorneys will be allowed to present witnesses and evidence to contest the individual allegations against him. At the end of the hearing Solis will decide whether to take the recommendation of the U.S. Probation and Pretrial Services Department of life in prison without parole or give Hurd a lighter sentence. The only certainty is that Hurd will be going to prison.

Hurd was arrested on Dec. 14, 2011 and indicted on Jan. 4, 2012. For the first 19 months, life in prison was not even in the discussion. Five to 20 years was the sentencing range, with precedent and the informed opinions of more objective onlookers and academics backing up that estimate. Since the life sentence recommendation was made in late July, one comment repeated by sources across the spectrum of partiality has been some version of this reminder: You realize life in prison in the federal system means the next time he comes out of prison it'll be in a coffin.

Hurd, who has been housed in the federal detention center in Seagoville, about a 30-minute drive from the Dallas court building, did not respond to an email from SI Wednesday morning. He may have already been relocated to downtown Dallas and unable to access his prison-controlled email account. He called last Friday night and repeated again that he is "ready to be sentenced for what I did, not this other mess. Our system should not work like this.

I have to assume that Hurd is facing a recommended LWOP sentence because of the quantity of drugs being ascribed to him and a guideline sentencing structure that provides that drugs dealers will often be facing the same guideline sentence as mass murderers.

Hurd is, of course, very fortunate that the federal sentencing guidelines are no longer mandatory, and I think it is unlikely he will get an LWOP term today. But this coincidence of these two very different criminals facing the exact same federal guideline sentence provides a high-profile example of how the guidelines can themselves create disparity and especially revelas how misguided it can often be to assume imposition of within-guideline sentences reduce disparity.

UPDATE On Wednesday afternoon, as reported here, Sam Hurd received a 15-year federal prison sentence; on Thursday morning, as reported here, Whitey Bulger received two life terms plus 5 years in the federal pen.

November 13, 2013 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack (0)

New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms

Lwop-marquee-230x230-v01The ACLU has released a huge new report giving focused attention to the thousands of prisoners serving life without parole sentences in the United States for nonviolent drug and property crimes. This massive new report, which can be accessed at this link, is titled "A Living Death: Life without Parole for Nonviolent Offenses." This related webpage highlights some specific defendants and cases with this introduction:

For 3,278 people, it was nonviolent offenses like stealing a $159 jacket or serving as a middleman in the sale of $10 of marijuana. An estimated 65% of them are Black. Many of them were struggling with mental illness, drug dependency or financial desperation when they committed their crimes. None of them will ever come home to their parents and children. And taxpayers are spending billions to keep them behind bars.

Here is an excerpt from the 200+ page report's executive summary:

Using data obtained from the Bureau of Prisons and state Departments of Corrections, the ACLU calculates that as of 2012, there were 3,278 prisoners serving LWOP for nonviolent drug and property crimes in the federal system and in nine states that provided such statistics (there may well be more such prisoners in other states).  About 79 percent of these 3,278 prisoners are serving LWOP for nonviolent drug crimes.  Nearly two-thirds of prisoners serving LWOP for nonviolent offenses nationwide are in the federal system; of these, 96 percent are serving LWOP for drug crimes.  More than 18 percent of federal prisoners surveyed by the ACLU are serving LWOP for their first offenses.  Of the states that sentence nonviolent offenders to LWOP, Louisiana, Florida, Alabama, Mississippi, South Carolina, and Oklahoma have the highest numbers of prisoners serving LWOP for nonviolent crimes, largely due to three-strikes and other kinds of habitual offender laws that mandate an LWOP sentence for the commission of a nonviolent crime. The overwhelming majority (83.4 percent) of the LWOP sentences for nonviolent crimes surveyed by the ACLU were mandatory.  In these cases, the sentencing judges had no choice in sentencing due to laws requiring mandatory minimum periods of imprisonment, habitual offender laws, statutory penalty enhancements, or other sentencing rules that mandated LWOP.  Prosecutors, on the other hand, have immense power over defendants’ fates: whether or not to charge a defendant with a sentencing enhancement triggering an LWOP sentence is within their discretion.  In case after case reviewed by the ACLU, the sentencing judge said on the record that he or she opposed the mandatory LWOP sentence as too severe but had no discretion to take individual circumstances into account or override the prosecutor’s charging decision.

As striking as they are, the numbers documented in this report underrepresent the true number of people who will die in prison after being convicted of a nonviolent crime in this country.  The thousands of people noted above do not include the substantial number of prisoners who will die behind bars after being convicted of a crime classified as “violent” (such as a conviction for assault after a bar fight), nor do the numbers include “de facto” LWOP sentences that exceed the convicted person’s natural lifespan, such as a sentence of 350 years for a series of nonviolent drug sales.  Although less-violent and de facto LWOP cases fall outside of the scope of this report, they remain a troubling manifestation of extreme sentencing policies in this country.

November 13, 2013 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (16) | TrackBack (0)

Tuesday, November 12, 2013

"The Eighth Amendment as a Warrant Against Undeserved Punishment"

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

Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishments that they receive.  A deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium.

Yet, this view of the Eighth Amendment challenges many current criminal-law doctrines and sentencing practices that favor crime prevention over retributive limits. Mistake-of-law doctrine, felony-murder rules and mandatory-minimum sentencing laws are only a few examples. Why have these laws and practices survived? One answer is that the Supreme Court has largely limited proportionality relief to a few narrow problems involving the death penalty or life imprisonment without parole, and it has avoided openly endorsing the deserts limitation even in cases in which defendants have prevailed. Yet, this Article presents a deeper explanation. I point to four reasons why the doctrine must remain severely stunted in relation to its animating principle. I am to clarify both what the Eighth Amendment reveals about the kind of people we want to be and why the Supreme Court is not able to force us to live up to the aspiration.

November 12, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack (0)