Thursday, June 20, 2013
Oregon Supreme Court rejects effort by death row inmate to reject execution reprieve from GovernorAs reported in this new local article, headlined "Supreme Court upholds reprieve by Gov. Kitzhaber of death row inmate Gary Haugen," the top court in Oregon issues a lengthy opinion in a case that ought to be of interest to those who follow the death penalty and those who care about modern clemency procedure and powers. Here are the ruling's basics via the press report:
The Oregon Supreme Court announced today it has upheld Gov. John Kitzhaber’s temporary reprieve of Gary Haugen’s execution. Chief Justice Thomas Balmer, writing for the court, concluded that the reprieve was “valid and effective,” and turned aside Haugen’s argument that he had a legal right to reject the reprieve.
“I am pleased that the Oregon Supreme Court affirmed my constitutional authority to issue a reprieve,” Kitzhaber said in a statement. “I renew my call for a reevaluation of our current system that embraces capital punishment, which has devolved into an unworkable system that fails to meet the basic standards of justice. I am still convinced that we can find a better solution that holds offenders accountable and keeps society safe, supports the victims of crime and their families and reflects Oregon values.”
The reprieve will last during Kitzhaber’s current tenure as governor. That will end on Jan. 12, 2015, or if Kitzhaber seeks and wins another term in 2014, until Jan. 14, 2019.
Haugen, 51, is a twice-convicted murderer who was the first who sought to die since Kitzhaber allowed two other executions to proceed during his first term in 1996 and 1997. All three waived appeals.
The high court overturned a ruling in Marion County Circuit Court, where a visiting judge upheld Haugen’s side in the first round last summer.
The full 40-page unanimous ruling in Haugen v. Kitzhaber is available at this link.
Prior related posts:
- Oregon murderer seeks to reject and escape Governor's execution reprieve
- Might some death penalty supporters be pleased Oregon's Governor blocked Gary Haugen's execution?
- Death row prisoner in Oregon prevails (for now) in effort reject Gov's effort to preclude his execution
- Fascinating fight over death penalty realities and clemency rights gets to Oregon Supreme Court
June 20, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)
SCOTUS wraps its sentencing docket with another defense win (and Alito dissent) in Descamps
In this post exactly 10 days ago, I noted that the Supreme Court would soon hand down opinions its three long-pending sentencing cases Alleyne, Peugh and Descamps. In that post I further stated "based on my belief that the Supreme Court remains the most pro-defendant appellate court on sentencing issues in the country, I ... guess/predict that the defendant prevails in all three of these cases."
Today the Supreme Court handed down Descamps, the last pending opinion of this trio of sentencing cases, and sure enough the defendant has prevailed yet again before the Justices. Here is the early report via SCOTUSblog:
Descamps. Per Kagan. The modified categorical approach does not apply to statutes that contain a single indivisible set of elements.
This is about enhanced sentences for repeat offenders. It is 8-1. The dissenter was Justice Alito.
In Plain English, it is now harder for the government to use the facts of a prior conviction to enhance a federal criminal sentence. Here is the opinion in Descamps. The decision of the court of appeals against the defendant is reversed.
Based on a very quick review of all the opinions here, I think it is possible that Descamps will prove to be the most consequential of all the Supreme Court's criminal sentencing work this Term.
"White-Collar Sentences Get a Fresh Look"The title of this post is the headline of this notable new Wall Street Journal article, which gets started this way:
A hearing scheduled for Friday in a Houston federal court on whether to substantially reduce former Enron Corp. Chief Executive Jeffrey Skilling's 24-year prison sentence comes at a time of growing debate about the rules for punishing white-collar criminals.
Individuals convicted of federal crimes are sentenced using a set of guidelines in which "points" are added or subtracted relating to various aspects of a person's conduct and the crimes involved. Over the past several decades, the potential penalties for a range of crimes have greatly increased in severity, with particularly large increases in certain types of fraud cases, according to legal experts.
Critics of the guidelines in white-collar cases contend that they have come to rely too much on financial-loss calculations, which can quickly mushroom when the crime involves a public company whose stock price falls in connection with the misdeeds. In certain cases, a public-company executive could face life in prison, said James Felman, a Tampa, Fla., defense attorney and member of a recently formed American Bar Association task force looking at proposing revisions in the guidelines for economic crimes.
The U.S. Sentencing Commission, the guideline-writing body created by Congress in the 1980s, has identified possible revision of the economic-crime rules as a priority. The commission has scheduled a September symposium in New York to get input on possible changes.
The guidelines "should be scrapped in their entirety," said Jed Rakoff, a New York federal judge and member of the new ABA Task Force, in a speech earlier this year. For instance, putting heavy emphasis on the calculated loss in determining fraud sentences "does not fairly convey the reality of the crime or the criminal," said Judge Rakoff, a Clinton appointee and longtime critic of aspects of the guidelines. He recommended replacing the arithmetic calculation system with one where judges could use a broad set of factors, none of which would automatically carry extra weight.
More judges seem to be departing from the guidelines. A Sentencing Commission study issued last December found that the percentage of fraud cases in which federal judges gave sentences below the guideline recommendation jumped to 23% of cases for 2007 to 2011 from 9.6% for 1996 to 2003. These percentages don't include cases where the Justice Department recommended a below-guideline sentence for reasons that included cooperation by the defendant in an investigation.
The increasing gap between the guideline calculations and actual sentences was a factor in the Sentencing Commission's decision to look at revising the economic-crime rules, said one person familiar with the matter.
June 20, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (3) | TrackBack (0)
Wednesday, June 19, 2013
Guest post with more thoughtful perspectives on PeughI am very pleased to have received and to now have time to post the following "quick thoughts" of Professor Todd Haugh concerning last week's SCOTUS Puegh decision (basics here):
First, Justice Sotomayor is really establishing herself as the Court's current sentencing scholar, particularly as to Guidelines issues. By my quick tally, since taking her seat in 2009, she has drafted or significantly contributed to seven or eight important sentencing cases, while others are at two or three. I imagine her status as the Court's only member to have regularly sentenced defendants as a trial court judge has something to do with this -- she often seems to be the voice expressing the practicalities of sentencing (both from the defendants' and judges' standpoints), which has carried the day in Peugh and some of her other recent opinions (Pepper and Southern Union come to mind, as does the Alleyne concurrence). Scalia's and Breyer's overall impact may prove to be greater, but Sotomayor appears to be asserting herself in this area (and willing to spar with Alito).
Second, following that thought and in line with some of the comments [to this prior Peugh post ], the Peugh opinion is about the actual practice of federal sentencing versus how the system operates in theory. The dissent was sunk by its first argument -- that the Guidelines do not constrain district court discretion. While in theory, based on the language and structure of 3553(a) and the Court's reasonableness review jurisprudence, that may be true (and every defense attorney argues in the hopes of making it true), the realities of in-the-trenches sentencing demonstrate that increased Guideline ranges equal increased sentences (and thus risk of increased punishment under ex post facto analysis). This fact is well-documented by the Commission's recent Booker report, it's yearly data, it's survey of judges; and a host of academic articles concerning the psychological process of judges when sentencing (i.e., anchoring and adjustment, etc. -- see footnote 1 in Judge Calabresi's concurrence in Ingram [discussed here]). It's why DOJ advocates to members of Congress and the Commission for additional sentencing enhancements -- increased risk to defendants of higher punishments means more bargaining power for prosecutors. Query whether the majority's argument weakens if variance rates climb both in number and, most importantly, length.
Third, while I don't think this opinion is going to have huge practical effects on federal sentencing because the Seventh Circuit was an outlier (and there is likely harmless error in many of those cases), the opinion may have a lot of rhetorical value. Defendants basically got a win-win here -- assurance that they will be sentenced under the most favorable Guidelines per the majority and lots of juicy language to quote when they argue for a variance per the dissent. I would expect to see Peugh cited in a lot of future federal sentencing memos.
Judges, however, may have gotten the short end of the stick because they now face even more complexity when they determine sentences (a trend that has continued since Booker). Before Puegh, they had to calculate the Guidelines, then decide on departures, then consider a 3553(a) variance (seven factors; four purposes of punishment). Now, Peugh suggests courts should also consider how the evolution of the Guideline at issue (pre- and post-offense) weighs on the sentence. That could mean at least two more Guideline calculations (1987 version if Doug Berman is your defense counsel and the current, harsher version of the Guidelines if you are facing a prosecutor who reads this blog), but it could mean even more (what about Guideline ranges before and after major changes by the Commission, e.g., before and after SOX or Dodd-Frank, to demonstrate that evolution?).
Recent related posts:
- SCOTUS concludes Ex Post Facto Clause still limits application of new guidelines after Booker
- Guidelines are "the lodestone" of federal sentencing (as well as "the starting point and the initial benchmark")
- Lots of reasonable debate over the guidelines and reasonable review from Second Circuit judges
Florida Governor signs bill seeking to speed up executionsAs reported in this recent local article, headlined "Gov. Rick Scott signs bill to speed up executions in Florida," the Sunshine State has a new law seeking to improve the administration of capital punishment. Here are the basics:
Gov. Rick Scott signed a bill into law Friday aimed at accelerating the pace of the death penalty process in Florida that could make the governor the most active executioner in modern state history.
The measure, dubbed “the Timely Justice Act” by its proponents, requires governors to sign death warrants 30 days after the Florida Supreme Court certifies that an inmate has exhausted his legal appeals and his clemency review. Once a death warrant is signed, the new law requires the state to execute the defendant within six months.
In a lengthy letter accompanying his signature, Scott aggressively countered allegations by opponents that the law will “fast track” death penalty cases and emphasized that it “discourages stalling tactics” of defense attorneys and ensures that the convicted “do not languish on death row for decades.”
The bill, which passed the House 84-34 and was approved by the Senate 28-10, allows the governor to control the execution schedule slightly because it requires him to sign a death warrant after the required clemency review is completed and only the governor may order the clemency investigation. Scott’s office told lawmakers that because at least 13 of the 404 inmates on Death Row have exhausted their appeals, his office has already started the clock on the clemency review....
Supporters said 154 inmates have been on Florida’s Death Row 20 years and 10 have been there for more than 35 years. The average time for appeals runs 13 years, which is below the national average of 14.8 years.
Death penalty opponents flooded the governor’s office with letters and petitions, urging him to veto the bill and ask the Legislature to instead change what they consider a deeply flawed death penalty process in Florida....
The law imposes strict time limits for when records must be submitted from courts, prosecutors and defense attorneys in an attempt to streamline the appeals process. It also requires reports to the Legislature on how many cases have been pending, reestablishes a Death Row appeals office for North Florida and bans attorneys from handling capital appeals if they have been twice cited for constitutionally incompetent handling of cases.
The signing letter referenced in this article by Gov Rick Scott is available at this link. And, building mostly on this legal development in Florida, Stateline has this lengthy new report headlined "Some States Speed Up Death Penalty," which starts this way:
Supporters and opponents of capital punishment agree: The current death penalty is expensive, inefficient, and arbitrary. Some state legislatures have reacted to those faults by abolishing the death penalty, while others are trying to speed it up.
Since 2007, six states have abolished capital punishment — most recently Maryland, which did so this year. But other states, troubled by some of the same problems, have moved in the opposite direction.
Tuesday, June 18, 2013
"Efforts to Fix a Broken System: Brown v. Plata and the Prison Overcrowding Epidemic"The title of this post is the title of this Note available via SSRN and authored by Lauren Salins and Shepard Simpson. Here is the abstract:
Excessive incarceration is a national problem. Across the country, prisons face dangerous levels of overcrowding, which has led to unconstitutional conditions of confinement and the inability of states to effectively rehabilitate their inmates. Ardent public support of “tough on crime” policies inhibits state legislatures from enacting successful reforms. In turn, states spend large percentages of their budget to sustain failing and ineffective corrections systems. By some estimates, states could save hundreds of millions of dollars annually if they reduced prison populations through proactive reforms, such as early release programs and diversionary tactics. In light of these factors, a consideration of the U.S. Supreme Court’s decision in Brown v. Plata to uphold an unprecedented prisoner release order is both timely and necessary as the case approaches its two-year benchmark.
This Note argues that the Court’s holding in Brown did not overstep the judicial boundaries imposed by the Prisoner Litigation Reform Act (PLRA), but rather was a step in the right direction toward acknowledging and remedying constitutional violations occurring in California’s severely overcrowded prison system. Moreover, the Court’s analysis of PLRA will help courts navigate the statute’s procedural requirements.
While California has made progress toward complying with Brown’s prisoner release order, this seminal case sheds light on the need for proactive reform in prison systems nationwide to prevent unconstitutionally high levels of overcrowding in the first place. As states are confronted with this new “release or reform” reality, this Note will facilitate the much-needed discussion surrounding long-term solutions to the overcrowding epidemic in U.S. prisons.
UPDATE: This recent article from the Los Angeles Times, headlined "California's prison crowding is growing, state report says," provides a useful reminder that all discussions of prison overcrowding problems remain very timely.
Seeking comments on what to say in comments to the US Sentencing Commission about its prioritiesA wise colleague wisely suggested to me that this year might be an especially wise time to convert all my ideas and concerns about the work of the US Sentencing Commission into formal comments for formal submission to the USSC as a formal response to this formal statement of the USSC's proposed priority policy issues for the amendment cycle ending May 1, 2014.
The USSC's six-page Federal Register statement of tentative priorities lists just about every topic that has consumed the recent work of the Commission, ranging from mandatory minimums to post-Booker sentencing patterns to the child porn guidelines to the drug guidelines to economic crimes and lots of stuff in between (including even some back-end sentencing stuff like the compassionate release guidelines). Nevertheless, there are still plenty of topics not mentioned that I think should be high on the Commission's agenda, ranging from the impact of sequester on the operation of the federal criminal justice system to the enduring need for serious guideline simplification to the overwhelming problem of undue sentencing severity.
Here is the official statement of the official rules for submitting official public comments to the USSC:
The Commission hereby gives notice that it is seeking comment on [its] tentative priorities and on any other issues that interest ed persons believe the Commission should address during the amendment cycle ending May 1, 2014. To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority.
Appropriately, the final line in the USSC's notice includes this fitting kicker: "Pursuant to 28 U.S.C. § 994( g), the Commission also invites public comment that addresses the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to a proposed priority."
So, to the extent practicable, I would love to hear from readers about what they think I should make sure to put into my formal comments to the USSC. I have until July 15 to get this done, but I would very much like to have a document ready to send out not long after I enjoy the rocket's red blare this coming Independence Day.
June 18, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack (0)
With overcrowded prisons and under court order, Italy is the California of Europe when it comes to punishment practicesThis lengthy new article from the International Business Times prompts my post title because it details how Italy is struggling through prison problems that sound a lot like what California continues to deal with. The piece is headlined "Italy’s Overcrowded Prisons: A Growing Tragedy Of Epic Proportions," and here are excerpts:
Prisons across Europe are facing an overcrowding crisis -- a manifestation of at least three trends: tougher sentencing by judges (particularly for drug-related offenses), a painfully slow justice system and lack of money to build new facilities to accommodate the excess number of inmates.
This crisis is particularly acute in Italy, where correctional facilities are bursting at the seams with an avalanche of convicted men and women. According to the Prison Observatory of Antigone, a Rome-based prisoners' rights organization, almost 67,000 inmates are housed in Italian facilities that were designed to hold only 45,000 -- meaning they are at a capacity of more than 140 percent, among the highest rates in the European Union, where the average capacity is just under 100 percent.
The situation in Italian prisons has become so grave that in January of this year, the European Court of Human Rights declared that Italy had just one year to improve conditions in the country's prisons, while ordering Rome to fork over 100,000 euros ($132,000) to seven inmates who raised a test case with the court. “Their conditions of detention had subjected them to hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and violated the European Convention on Human Rights’ prohibition against torture and cruel, inhuman or degrading treatment or punishment,” the court stated.
Italy's president Giorgio Napolitano (who has no real power to influence public policy) agreed with the court's ruling, saying it amounted to "a mortifying confirmation of the persistent failure of our state to guarantee the basic rights of detainees awaiting judgment and serving sentences.” He added that "decisions can no longer be postponed to overcome a degrading reality for the inmates and for the prison guards.”...
Three years ago, having declared a state of emergency in the nation's prisons, the government unveiled a plan to spend 675 million euros ($900 million in 2013 currency) to build 11 new prisons and as well as extensions to existing jails. But the financial collapse has largely scuttled that program.
As in France, many Italians are being jailed for minor crimes -- about 60 percent of convicted prisoners are serving terms of less than three years. Moreover, about 38 percent of all inmates in Italy are drug offenders (versus figures of 14 percent in Germany and France and 15 percent in England and Wales). In addition, 42 percent of Italy’s prisoners are pre-trial detainees (versus a European average of 28.5 percent); while more than one-third of inmates are immigrants.
"There are so many people awaiting trial for six, seven, eight months," said Cesare Cececotto, an inmate at Regina Coeli, a famous prison in Rome. Another inmate named Giuseppe Rampello complained to Reuters about the large number of foreigners in prison. "We are talking about a prison where you can be in a cell with people with six different languages, six different habits, where there is one who prays as an observant Muslim five times a day and another who swears five times a minute," the 63-year-old inmate said....
In northern prisons, foreigners far outnumber Italians – Antigone said that in jails in Milan and Vicenza, more than 60 percent of inmates are foreign, while in the mountain territories of Trentino Alto Adige and Valle d’Aosta, the proportion reaches nearly 70 percent. Cececotto quipped that as the only Italian in his cell, “Thank God, I speak a bit of English and a bit of Spanish.”
In its 2012 report, Antigone declared that "the heart of the prison problem is the penal code.” Napolitano's wish to reform prison sentencing guidelines was compromised by political infighting and the change in government earlier this year. "Something must be done because the prisons are close to collapse," a senior prison official, Margherita Marras, told Reuters....
An inmate named Claudio told Inter Press Service about conditions in his Vicenza facility in March 2013 -- where he had to share a 7.6 square-meter (80 square foot) cell with two other people and stay there 21 hours per day. “Once you excluded the space taken up by beds and drawers, each inmate was left with 90 centimeters (35 inches) to himself. We had to take it in turns to stand up,” he said. “There was no possibility for (inmates) to engage in any activity.”
The crisis in Italy’s prisons is nothing new. As long ago as 1995, the New York Times published an article warning: “Bursting Population Overwhelms Italy’s Prisons.” That piece, written by Celestine Bohlen, noted for example that so many prisoners were housed in Milan’s San Vittorio facility that police were forced to relocate some 400 inmates elsewhere, some to as far away as the isle of Sardinia.
At that time, Italy had 54,000 prisoners in a system designed to hold only 29,000. After almost two decades the problem has only worsened. “The continuous increase in the jails overcrowding and the significant presence of foreign prisoners makes pursuing the rehabilitative aim of punishment extremely complex and often in vain,” Napolitano told the head of the Italian prison administration department....
Ornella Favero, director of Ristretti Orizzonti, said overcrowding could be relieved by providing a significant number of inmates, especially pre-trial detainees and non-violent drug offenders, access to noncustodial sanctions, including alternatives like fines, community service, house arrest and treatment for drug addiction. In Spain, Germany and France, more than 100,000 convicts are outside of prison walls – the corresponding figure in Italy is less than 20,000.
Monday, June 17, 2013
"Lafler and Frye: Two Small Band-Aids for a Festering Wound"The title of this post is the title this notable new paper by Albert Alschuler now available via SSRN. Here is the abstract:
This article contends that two recent Supreme Court decisions concerning the assistance of counsel in plea bargaining do not warrant the hype bestowed upon them by professors and the press. Lafler v. Cooper and Missouri v. Frye did not significantly change the law, and even if these decisions had been bolder, they could not have done much to make effective legal assistance more likely. Our plea-bargaining system both subjects defense attorneys to serious temptations to disregard their clients’ interests and makes it impossible to determine whether defendants have received effective assistance.
Much of the article focuses on a partly empirical, partly jurisprudential issue that divided the majority and dissenting justices: Does plea bargaining reward defendants who plead guilty or instead penalize those who stand trial? The author of the principal dissenting opinion, Justice Scalia, maintained that plea bargaining enables defendants “to serve less time than the law says [they] deserve.” Justice Kennedy responded for the majority that defendants “who take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.”
The article contends that the issue can be resolved and that the majority has it right. America did not achieve the world record for mass incarceration by giving 95% of all convicted offenders less punishment than they deserve. Indeed, no sane nation would be likely to sentence 95% of its convicts to less than they deserve or than effective deterrence requires. This nation would be far more likely to impose additional punishment on a small minority to save the cost of trials. It’s no coincidence that the nation most dependent on plea bargaining is also the nation that incarcerates the highest proportion of its population. By lowering the cost of imposing criminal punishment, plea bargaining has given America more of it.
The Lafler-Frye majority disregarded the implications of its position when it declared plea agreements beneficial to both parties. If post-trial sentences are imposed simply for the purpose of inducing guilty pleas (as the Supreme Court recognizes five-to-four), plea bargaining benefits both parties only in the sense that a gunman’s demand for your money or your life benefits you as well as the gunman. Proposals commonly are treated as coercive when refusing them would leave recipients worse off than they ought to be.
Along the way, the article considers what plea agreements should look like in a system that does what bargaining prosecutors and defense attorneys acknowledge (and boast) that they do, and it criticizes David Abrams’ empirical conclusion that plea bargains really aren’t bargains at all.
After an apology and less than a week in jail, ex-NFL star Chad Johnson gets outAs reported in this new local news and AP report (which includes a video), "Chad Johnson apologized Monday for disrespecting a judge when the former NFL star slapped his attorney on the backside in court last week, and his immediate release from jail was ordered." Here is more:
Broward County Circuit Judge Kathleen McHugh accepted Johnson's apology and cut his 30-day jail term for a probation violation to the seven days he had already served since the rear-swatting incident. Johnson, a flamboyant wide receiver formerly known as Chad Ochocinco, said in court that he'd had time to think about why his flippant attitude was wrong — especially in a domestic violence case.
"I just wanted to apologize for disrespecting the court last time," said Johnson, wearing a tan jail jumpsuit with his hands shackled at the waist. "I apologize. I did have time to reflect on the mistakes I made in this courtroom."
McHugh noted that in a previous hearing Johnson had put his arm around a female prosecutor's shoulders, prompting the prosecutor to tell him twice not to touch her. The judge also pointed out that when Johnson head-butted his then-wife, Evelyn Lozada of the reality TV show "Basketball Wives," she suffered a three-inch gash on her head that required eight stitches. The judge called those injuries horrific.
McHugh also said Johnson failed to appreciate "the gift of probation" after pleading no contest to battery in the altercation last August with Lozada, which prompted her to quickly file for divorce. Johnson, 35, was in court because he had failed to meet with his probation officer for three straight months. "I find that's an arrogant disregard for a court order," the judge said.
McHugh ordered Johnson to perform 25 hours of community service and attend domestic violence counseling sessions twice a week during probation, and she extended his probation an extra three months through mid-October.
The attorney who had his backside slapped, Adam Swickle, said Johnson will fully comply with all probation conditions and hopes to resurrect his NFL career.... "He understands that this is the kind of situation that can derail a person's career," Swickle said. "We're very confident he will do what he should do."
Recent related post:
"The Impact of Neuroimages in the Sentencing Phase of Capital Trials"The title of this post is the title of this notable new research paper now available on SSRN and co-authored by Michael Saks, N. J. Schweitzer, Eyal Aharoni and Kent Kiehl. Here is the abstract:
Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and non-expert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images. Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials.
Two mock jury experiments (n=825 and n=882) were conducted online using nationally representative samples of persons who were jury-eligible and death-qualified. Participants were randomly assigned to experimental conditions varying the defendant’s diagnosis (psychopathy, schizophrenia, normal), type of expert evidence supporting the diagnosis (clinical, genetic, neurological sans images, neurological with images), evidence of future dangerousness (high, low), and whether the proponent of the expert evidence was the prosecution (arguing aggravation) or the defense (arguing mitigation).
For defendants diagnosed as psychopathic, neuroimages reduced judgments of responsibility and sentences of death. For defendants diagnosed as schizophrenic, neuroimages increased judgments of responsibility; non-image neurological evidence decreased death sentences and judgments of responsibility and dangerousness. All else equal, psychopaths were more likely to be sentenced to death than schizophrenics. When experts opined that defendant was dangerous, sentences of death increased. A backfire effect was found such that the offering party produced the opposite result than that being argued for when the expert evidence was clinical, genetic, or non-image neurological. But when the expert evidence included neuroimages, jurors moved in the direction argued by counsel.
If you are wondering if marijuana is the next growth industry...
here are three notable recent articles from major news sources that should be on your initial reading list:
From the AP here, "Is legal pot ready for a “Starbucks” brand? Activists say no, but a businessman tries his luck"
From Forbes here, "No Profit In Pot Start-Ups, Says Expert"
From the New York Times here, "Trying to Sell Wall Street on the Value of Marijuana"
First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris
I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely. But I have three quick reactions about the ruling and its potential impact I wanted to share right away. I will give this trio of reactions these labels: big, not-so-big, could-be-huge.
The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system. That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris. And Harris is now a goner.
The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne. For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court. Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.
The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities. If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term. (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)
Prior related post on Alleyne ruling:
- Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums
June 17, 2013 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack (0)
Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimumsBig news from SCOTUS today for sentencing fans, with this (abridged) initial report coming from the fine folks live-blogging at SCOTUSblog:
Alleyene: Any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. 5-4 opinion per Justice Thomas.
Majority is Thomas, Ginsburg, Breyer, Sotomayor, and Kagan. Dissent by Roberts, joined by Scalia and Kennedy. Alito dissents separately.... Justice Sotomayor also filed a concurring opinion....
This is a major criminal law ruling on the right to a jury trial. The Court reverses an earlier contrary ruling....
And here is the money quote from the majority opinion: "Because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, overruled." Alleyne, slip op at 15.
Based on a much-too-quick first read, this Alleyne ruling seems to be everything (and not much more) than what should have been expected and predicted when the Court granted cert to reconsider Harris. With all new Justices filling in the roles and votes of their predecessors, Harris gets reversed now because (and only because) Justice Breyer is no longer willing to prop up the ruling. And, as he continues to play Hamlet with Sixth Amendment doctrine, Justice Breyer also continues to dump on the whole Apprendi line of case.
As I predicted in this post last November (and especially with speculations precedents inother areas perhaps being in jeopardy), the most interesting and enduring significance of Alleyne is the sparring between Justices Sotomayor and Alito over stare decisis. I suspect after the con law folks get over their disappointment that we did not get any huge SCOTUS rulings today, there will be some enduring buzz over what all the Justices had to say (and not say) about stare decisis in Alleyne.
June 17, 2013 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack (0)
Sunday, June 16, 2013
"Closing the Widening Net: The Rights of Juveniles at Intake"The title of this post is the title of this notable new piece by Tamar Birckhead now available via SSRN. Here is the abstract:
Should juveniles have more, fewer, the same or different procedural rights than are accorded to adults? This question, posed by Professor Arnold Loewy for a panel at the 2013 Texas Tech Law Review Symposium on Juveniles and Criminal Law, requires us to examine our goals for the juvenile court system. My primary goal, having practiced in both adult criminal and juvenile delinquency forums for over twenty years, is to ensure that the reach of juvenile court is no wider than necessary, as research indicates that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign. Potential negative consequences of juvenile delinquency adjudications are felt in such areas as housing, employment, immigration and education as well as enhanced penalties for future offenses. Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized by even the most minimal contact with the juvenile court system.
This Article, the second in a series on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the intake process, which operates as one of the primary gateways to juvenile court. The Introduction describes a typical case, highlighting the shortcomings of the current process and the risks — short- and long-term — that they pose to juveniles. Part II presents the nuts and bolts of the intake stage, including details regarding who conducts the screening, its purpose, and the assessment criteria applied. Part III discusses the procedural rights of juveniles at intake according to the U.S. Supreme Court, state courts and legislatures. Part IV analyzes what can — and often does — go wrong with the intake process, resulting in a wider net being cast around minorities and low-income children and families. Part V offers proposals for reform, including providing counsel to children prior to intake; mandatory advising of children and their parents by the juvenile probation officer conducting the intake interview; and introducing an objective rubric for the evaluation of delinquency complaints by juvenile probation officers.
Notable comments and recommendations emerging from Ohio Death Penalty Task Force
As I have mentioned before, I have generally been disinclined to blog about my on-going work as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (background here). But there was some notable developments at this past week's public meeting of the Task Force which I thought would be of broad interest to readers of this blog. This report from the Cleveland Plain Dealer, headlined "Task force urges state panel be created to evaluate death penalty prosecutions," provides the highlights:
A state task force is recommending that Ohio create a panel under the state attorney general that would review potential death penalty cases before prosecutors could take them to trial.
Under current Ohio law, the power to decide when to pursue the death penalty rests in the hands of individual county prosecutors. But the recommendation by the Joint Task Force to Review the Administration of Ohio's Death Penalty would give the new panel authority to disapprove death penalty charges.
The recommendation is an attempt to address disparities in death penalty prosecutions in Ohio, said Ohio Public Defender Timothy Young, who chaired a subcommittee that drafted the recommendation. “The two biggest disparities my group has dealt with are race issues and geographic issues,” Young said. In the case of race issues, they revolve around the race of the victim. “I think it’s vitally important that we do something about disparity and the death penalty,” Young said. “The numbers are overwhelming.”
Once a prosecutor made a decision, the panel -- made up of staff from the attorney general’s office and former county prosecutors appointed by the governor -- would review that decision. It would look at the circumstances of the case, giving particular consideration to the races of those charged and the victims, said Jo Ellen Cline, government relations counsel to the Ohio Supreme Court and the court’s liaison to the joint task force. “It would be a significant change in how things operate now,” Cline said.
The task force’s recommendation has a long way to go before it could become reality. It likely will be late in the year before the task force finishes its work, and some recommendations, including this one, would require legislative action to change state law. Given that, not all of the details on how the panel would work, or if a prosecutor would have some recourse if opposed to the panel’s decision, are not nailed down. That specificity would likely come from the General Assembly, Cline said.
Chief Justice Maureen O’Connor, with the Ohio State Bar Association, established the joint task force in 2011. It is charged with determining if capital punishment in Ohio is administered fairly and judiciously and to examine if adjustments are needed....
Far and away the majority of Ohio’s capital cases come from urban areas, Young said. And while they should naturally see more, simply because of population, their numbers are also greater per capita. “We have more than 40 counties that have never brought a death penalty case,” Young said.
There are a myriad of possibilities for why that is the case. The goal of the recommendation is to find more of a common standard, Young said. “Right now you have 88 prosecutors, all well intentioned,” Young said. “Our thought process was that if it went through a central committee that would even out those 88 applications.” Young said there was was significant debate on the recommendation, which was approved by a vote of 8 to 6.
Much of the debate dealt with the impact it would have on what now is a matter of prosecutorial discretion. And Young said he would not be surprised if those opposed to the recommendation write a dissenting opinion for the final report. Cline agreed. “They’re concerned that the prosecutors were elected by the folks in their jurisdictions to make these decisions,” she said.
Other developments in this week's meeting also made news as revealed by this Columbus Dispatch article headlined "Former Justice Stratton says she’s now opposed to death penalty." It starts this way:
In nearly three terms on the Ohio Supreme Court, former Justice Evelyn Lundberg Stratton sided with the majority most of the time when convicted murderers were put to death. From 1996 through the end of last year, spanning the time Stratton was a justice on the court, Ohio executed 49 men by lethal injection.
But nearly six months after leaving the court, the Republican, now an attorney in private practice in Columbus, has changed her views. Stratton yesterday told members of an Ohio Supreme Court task force reviewing administration of the death penalty that she didn’t have a strong feeling about capital punishment while serving on the court.
“I have evolved to where I don’t think the death penalty is effective,” she said in an interview. “I don’t have a moral inhibition ... Overall, it’s just not the best way to deal with it on a number of different levels.”
Stratton said she has long opposed executions involving mentally ill defendants, but she now opposes capital punishment in general because she doesn’t see it as a deterrent and victims’ families don’t gain the finality they seek when the murderer is put to death.
Friday, June 14, 2013
Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case
In this post a month ago, I first reported that a majorty of a Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect. In that post, I noted that was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA." In turn, I was not at all surprised when the government, as reported here, assailed the majority opinion in Blewett when seeking en banc review with the full Sixth Circuit a couple of weeks ago.
I am not quite pleased and excited to learn that the Sixth Circuit now seems interested in the Eighth Amendment as I am in Blewett, as evidenced by the text of a letter sent yesterday to counsel in Blewett:
RE: Case Nos. 12-5226/5582
USA v. Cornelius D. Blewett and Jarreous J. Blewitt
In connection with the prosecution’s Petition for Rehearing En Banc, the United States should submit a brief of not more than fifteen (15) pages by June 28, 2013, addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. See Solem v. Helm, 463 U.S. 277, 290 (1983) (striking down imposition of sentence of life without parole for passing a worthless check because “a criminal sentence must be proportionate to the crime for which the defendant has been convicted”). The Blewetts should also submit a brief of not more than thirty (30) pages in response to the Petition for Rehearing En Banc filed by the United States by June 28, 2013, that includes both their response to the Petition for Rehearing and their argument concerning the Eighth Amendment issue stated above.
I had been assuming the Sixth Circuit was going to grant en banc review in Blewett, and I had been gearing up to author an amicus brief on Eighth Amendment issues once that proceeding was set up and a briefing schedule set. And while I am now so very pleased to discover that the Sixth Circuit has ordered the parties to brief Eighth Amendment issues as it considers the government's en banc petition, I am now uncertain as to whether I can and should try to file my friendly thoughts on this topic with the Sixth Circuit later this month. Thoughts, dear readers?
Related posts on Blewett:
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
- "Crackheaded Ruling by Sixth Circuit"
- How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
- Two weeks later, has there been any significant and noteworthy Blewett blowback?
- As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling
June 14, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack (0)
"Records Show Nearly 500 Years In Prison Time For Medical Marijuana Offenses"The title of this post is the heading of this notable new entry on The Weed Blog, which gets started this way:
In spite of growing public support for medical marijuana, concern about overreach by the U.S. Department of Justice and other federal agencies, and cutbacks in federal spending, the U.S. government’s war on medical marijuana is raging unabated according to a survey of court records by Cal NORML.
On Tuesday, Michigan medical marijuana grower Jerry Duval, a kidney and pancreas transplant patient with severe medical problems, began serving a ten-year sentence in the same prison as the Boston bomber. Duval joins a growing list of defendants in states that allow medical marijuana who have been charged by the Department of Justice for violating federal laws prohibiting medical marijuana.
According to a survey of US court records, news stories, and case reports compiled by Cal NORML (with help from Americans for Safe Access):
• Over 335 defendants have been charged with federal crimes related to medical marijuana in states with medical marijuana laws.
• 158 defendants have received prison sentences totaling over 480 years for medical marijuana offenses. Some 50 are currently in federal prison, while more are waiting to be sentenced or surrender.
• Over 90% of the criminal cases settled to date have resulted in convictions. 10% have been dismissed. A single defendant has been acquitted. Federal law typically prohibits defendants from invoking medical marijuana in their defense.
• 153 medical marijuana cases have been brought in the 4 ¼ years of the Obama administration, nearly as many as under the 8 years of the Bush administration (163).
• Not a single pardon or clemency petition has been granted to a medical marijuana defendant by President Obama or his predecessors.
• One seriously ill defendant, Richard Flor, has died while in federal prison, and two others, Peter McWilliams and Steve McWilliams (no relation) died while being denied access to medical marijuana on bail. Other seriously ill patients who have who have been sentenced to lengthy terms include Dale Schafer, a hemophiliac currently serving 5 years along with his wife Mollie Fry, a cancer patient (pictured above); Vernon Rylee, who served nearly 5 years in a wheelchair (pictured right), and Jerry Duval.
• At least 259 defendants have been charged in California; over 31 in Montana; 6 in Oregon; 15 in Nevada; 12 in Michigan; 2 in Colorado; and 10 in Washington.
A few other recent notable posts on the same blog include the following:
- Obama Has Already Outspent Bush By $100 Million On Medical Marijuana Enforcement
- Prohibition Hurts Science According To Researchers
- Does Marijuana Make You Stupid?
Lots of reasonable debate over the guidelines and reasonable review from Second Circuit judges
With thanks to the readers who alerted me, I wanted to alert everyone else to todays Second Circuit opinion in US v. Ingram, No. 12-1058 (2d Cir. June 14, 2013) (available here). The per curiam opinion, which affirms a below guideline drug sentence, is not at all notable (and runs only 3 pages).
But the concurring opinions are both must reads: the first is by Judge Calabresi and runs 14 pages, the second is by Judge Raggi and runs 17 pages to explain why she thinks the prior 14 pages are all washed up. As a reader put it, the two Second Circuit jurists here "have at it on various psychological, philosophical, and practical matters concerning sentencing under the Guidelines."
"Woman arrested 396 times sentenced to mental health and substance abuse program"The title of this post is the headline of this notable little local story out of Chicago which provides some more proof concerning the inefficiencies and inefficacies of modern criminal justice systems. Here are the basics:
An Uptown woman who has been arrested 396 times meekly offered her gratitude and apologies to a Cook County judge Monday as she took a plea deal that will send her to a mental health and substance abuse treatment program.
“All of us are reaching out to you and offering you, maybe for the first time in your life, a hand, OK?” Judge Peggy Chiampas told Shermain Miles. “But you’ve got to reach out and grab all of our hands as well.”
Miles, who was dressed in a bright yellow prison jumpsuit, kept her hands behind her back and politely answered Chiampas’ questions. She told the judge, “I just want to thank you.”
“I’m not that person,” said Miles, 51, who has previously been known to shriek in courthouse lockups.
Miles has been at Logan Correctional Center in Lincoln since December. She’d been released in April 2011 after serving thee years for an armed robbery conviction but was arrested several more times while on parole, triggering her return to prison.
Among the reasons for her later arrests was an alleged attack on Ald. James Cappleman (46th) last summer. Miles pleaded guilty in that case Monday and in two separate cases of trespassing and drinking alcohol on a public way.
Chiampas sentenced Miles to time served for all three, but she said she only did so because Miles said she’d submit to a mental health evaluation and follow-up treatment, as well as treatment for alcohol abuse, at the Lincoln prison.
A representative from Cappleman’s office attended the hearing, and a prosecutor said the alderman is satisfied with the deal. Adam Monreal, chairman of the Illinois Prisoner Review Board, also attended the morning hearing but couldn’t immediately say how the deal will affect Miles’ release from prison.
Annoyingly, this story does not explain why or how this woman has managed to get arrested 396 times (and I am actually a little suspect concerning this accounting because it would mean she was getting arrested, on average, at least once a month, every month, of her entire adult life without having faced any serious criminal justice consequences).
Nevertheless, anyone who gets arrested even dozens of times obviously has major difficulty living as a law-abiding person and likely has mental health and substance abuse problems. It should not take decades and hundreds of arrests for the criminal justice system to develop some programming that would effectively rehabilitate or more effectively incapacitate a person who is obviously a menace to local law enforcement and perhaps many others.
June 14, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (4) | TrackBack (0)